PLJ 2016 Judgments

PLJ 2016 Karachi 1 (DB)

Present: Muhammad AliMazhar & Muhammad Karim Khan Agha, JJ.

NADEEM SHAIKH--Petitioner

versus

CHIEF SECRETARY, GOVERNMENT OF SINDH, KARACHI and another--Respondents

C.P. No. D-4929 of 2013, heard 12.11.2015.

Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974--

----Ss. 9-A--Court of special judge--Repatriate to his parent department--Transferred--Joining was declined by parent department--No vacant post available to accommodate--Validity--A person who had been rendered surplus on account of abolition of post may be appointed to any post in any department or office of Government provided that such person possess qualification for appointment to such post and such person shall be appointed to a post of equivalent or comparable basic scale and if such post is not available then to a post of lower basic pay scale--Seniority of such person in new cadre shall be reckoned from date of appointment and previous service if not pensionable shall not count for pension and gratuity unless Government directs otherwise. [P. 5] A

Sindh Service Tribunal Act, 1973 (LXX of 1973)--

----S. 2(bb)--Employee of anti-corruption department cannot be regarded as civil servant--Member of subordinate judiciary--Validity-- Anti-corruption Court being attached department of Government of Sindh its employees are civil servant and matter is to be decided by Sindh Service Tribunal--Definition of member of subordinate judiciary provided under Sindh Service Tribunal Act also includes an officer and servant of High Court or any employee working under administrative control of District and Sessions Judge wherever he may be. [P. 6] B & C

Sindh Subordinate Judiciary Tribunal (Procedure) Rules, 1993--

----R. 2(g)--Sindh Service Tribunal Act, 1973, S. 4--Scope of appeal--Definition of appeal under Sindh Subordinate Judiciary Tribunal (Procedure) Rules, 1993 means an appeal preferred under Section 4 of Sindh Service Tribunal Act, 1973 which provides that any civil servant aggrieved by any final order whether original or appellate made by departmental authority in respect of any of terms and condition of service may within thirty days of communication of such order to him prefer an appeal to Tribunal having jurisdiction in matter. [P. 7] D

Sindh Service Tribunal Act, 1973 (LXX of 1973)--

----S. 3-B--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Members of subordinate judiciary--Repatriated to parent department--Joining was declined--No vacant post available--not member of subordinate judiciary--Employees of anti-corruption department--No appeal lies to tribunal--Challenge to--If Services Tribunal was of view that they had no jurisdiction to hear appeal for any reason, they could have simply remitted matter back Court to place matter before Chief Justice to pass order as his lordship may deem fit but on contrary, S.S.T. called upon of High Court directly to fix appeal before tribunal constituted for members of subordinate judiciary--Such direction and or a request in semblance of direction are not only unwarranted and incongruous but also highly undesirable and High Court had no other alternative but to discard same. [P. 7] E

Mr.Mukhtar Ahmed, Advocate for Petitioner.

Mr.Sibtain Mehmood, Assistant Advocate General Sindh for Respondents.

Date of hearing: 12.11.2015.

Order

Muhammad Ali Mazhar, J.--This petition has been brought for the directions against the respondents to immediately repatriate the petitioner to his parent department i.e. Court of Special Judge, Anti-Corruption (Provincial), Karachi.

1. The brief facts of the case are that in the year 1986, the petitioner applied to the post of Junior Clerk in the Court of Special Judge, Anti-Corruption (Provincial), Karachi and vide office order dated 17.02.1986, he was appointed Junior Clerk on purely temporary basis after some passage of time, he was confirmed. Vide office order dated 16.10.1997, he was promoted to the post of Senior Clerk in B.P.S-07 with immediate effect, subject to the approval of D.P.C. However,vide order dated 18.12.2010 issued by Secretary, Services General Administration & Coordination Department, Government of Sindh, the petitioner was transferred with immediate effect till further orders and posted in the Office of the Chairman, Enquiries & Anti-Corruption Establishment, Sindh, Karachi. Then again by virtue of an another order dated 21.12.2011, the petitioner was posted in Planning and Development Department, Government of Sindh, with immediate effect till further orders. Finally, vide order dated 05.12.2013, the petitioner was relieved/repatriated to his parent department i.e. Court of Special Judge, Anti-Corruption (Provincial), Karachi with immediate effect. The petitioner submitted joining report but he was not allowed to join his parent department. On 06.12.2013, the Special Judge, Anti-Corruption (Provincial), Karachi wrote a letter to the Secretary (Services), SGA&CD, Government of Sindh that there is no vacant post available to accommodate the petitioner.

2. In response to the notice issued by this Court, the comments were filed in which the Respondent No. 2 alleged that the petitioner was transferred on the ground of misconduct and corrupt practices. The Director Anit-Corruption Establishment had also taken serious notice regarding the attitude and improper behavior. It is further stated that surety documents were retained by the petitioner in his custody without any inventory, therefore directions were given to the Secretary (Services) to take disciplinary action against the petitioner. It is further contended that sufficient material available against the petitioner regarding corrupt and illegal activities, therefore, his joining was declined by his parent department. The comments were also submitted by the Reader of the Respondent No. 2 in which more or less identical standpoint was predicated with the addition that the petitioner may be allowed to join another Court/Department as his services is no more required by the Respondent No. 2.

3. A number of orders were passed in this petition one after another but still the petition is pending without any ultimate outcome. During pendency, the learned division bench of this Court on 7.4.2015, remitted this matter to the Sindh Services Tribunal taking into account rather in the light of principle enunciated by the hon’ble Supreme Court in Civil Review Petition No. 193/2013 (Ali Azhar Khan Baloch versus Province of Sindh & others) but vide order dated 05.06.2015, the Sindh Services Tribunal reached to the conclusion that they have no jurisdiction to hear the appeal and made a request in the genus of directions that the matter be transmitted to the Registrar of this Court to place this appeal before the Tribunal constituted for the members of Subordinate Judiciary.

4. The learned counsel for the petitioner argued that the petitioner is civil servant and he is not member of subordinate judiciary so the findings of the services tribunal are perverse and irrational. The case of the petitioner cannot be tried by the Tribunal meant for Subordinate Judiciary. He further argued that if the Services Tribunal was of the view that they had no jurisdiction in the matter then the Record and proceedings could have been returned to this Court simply and it was the prerogative and dispensation of the honorable Chief Justice of this Court to pass the appropriate orders as his lordship may deem fit but on the contrary, the matter was remitted with the directions to the parties to appear before the Registrar of this Court who was called upon to fix the case before the Tribunal constituted to deal the cases of the members of subordinate judiciary.

5. The learned A.A.G argued that the petitioner was repatriated to his parent department in view of the directions of the Hon’ble Supreme Court contained in the Judgment reported in 2013 SCMR 1752 and the parent department is bound to bring back the petitioner but for one or other unconvincing excuses, the petitioner is being denied the right of joining and the matter is being delayed unnecessarily. He further argued that in view of the directions of the apex Court, various civil servants were repatriated to their parent departments and the case of petitioner is not novel or unique therefore he is equally entitled to the right of repatriation in his parent department and any other view in the matter would amount the defiance of apex Court order.

6. The raison d’être lead to the refutation are the alleged charges of misconduct which barricaded and impeded the petitioner’s joining in his parent department but at the same time, nothing is brought on record to demonstrate that any inquiry was conducted against him or any disciplinary proceedings were initiated. The learned A.A.G robustly argued that repatriation was ordered to implement the Judgment of the Apex Court and various other repatriation orders were also passed in the cases of number of employees of different departments. The Respondent No. 1 is Chief Secretary, Government of Sindh, he submitted the comments on objection filed by the petitioner in which it is clearly mentioned that the Government in pursuance of judgment passed by the hon’ble Supreme Court in criminal Original Petition No. 89 of 2011 repatriated the petitioner to his parent department but the Respondent No. 2 declined to allow the petitioner joining for the reason that no vacancy exists. The department responded to the Respondent No. 2 to adjust the petitioner thereafter disciplinary action may be taken if he is found involved in any illegal activity.

7. We are sanguine that once the repatriation order was passed and conveyed, this should have been acted upon immediately. In the case in hand, the repatriation order was passed to implement the judgment of the apex Court across the board and the judgment of hon’ble Supreme Court is binding on each and every organ of the State by virtue of Articles 189 and 190 of the Constitution. If the judgment of the hon’ble Supreme Court is not implemented or put into effect, an answer to this question has been given under Article 204 of the Constitution. This is not the case here that after transfer of the petitioner to some other department, his parent department was wound up or bring to an end therefore the venue of repatriation was not accessible or reachable and for this reason the petitioner ought to step in surplus pool and wait for posting commensurate to his job and or matching position. Under Section 9-A of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, it is lucidly provided that a person who has been rendered surplus on account of abolition of post may be appointed to any post in any department or office of the Government provided that such person possess qualification as laid down for appointment to such post and such person shall be appointed to a post of equivalent or comparable basic scale and if such post is not available then to a post of lower basic pay scale. Seniority of such person in new cadre shall be reckoned from the date of appointment and previous service if not pensionable shall not count for pension and gratuity unless Government directs otherwise. As a whole, it is not the case of the petitioner that his post was abolished in the parent department so he should move on to surplus pool. Even in the judgment of hon’ble Supreme Court reported in 2015 SCMR 456 = SBLR 2015 SC 15 (Ali Azhar Khan Baloch vs. Province of Sindh & others), the Chief Secretary Sindh was directed to create surplus pool of the officers/officials who have been de-notified and create vacancies to accommodate them within a period of two months. It was further held that officers/officials who have repatriated to their parent departments shall be entitled to salaries and other benefits from the date they were relieved to join their parent department. It was further held that their seniority shall be maintained in their parent department with their batch-mate as if they were never relieved from their parent department.

8. So far as the allegation of misconduct is concerned, this can be taken into consideration obviously, once the petitioner is allowed joining thereafter if the competent authority is of the view that the petitioner has committed any act of misconduct, they may initiate appropriate proceedings beyond doubt but in accordance with law, but in the anticipation of future misconduct proceedings if any, the petitioner cannot be shorn of joining his parent department.

9. Now let us take up the order dated 5.6.2015 in which the Sindh Services Tribunal held that the they have no jurisdiction and directions were issued to send the R&P of the case to the Registrar of this Court to place the matter before the Tribunal constituted for members of subordinate judiciary and the petitioner was directed to appear before the Registrar of this Court. In fact by means of a common order, the Sindh Service Tribunal decided two appeals which were basically constitution petitions filed in this Court but subsequently remitted by the learned division bench to the Sindh Services Tribunal in view of directions embodied in the judgment of apex Court in the case Ali Azhar Khan Baloch (supra). It is quite significant to note that one of the appeals disposed of through the aforesaid common order is the case of Masood Hassan (C.P.No. D-6738/2014) which was remitted by the scrutiny bench headed by the hon’ble Chief Justice of this Court vide order dated 10.2.2015 when the counsel for the petitioner took the plea that the petitioner is employee of Anti-Corruption Department, therefore he cannot be regarded as civil servant and since he is working in Anti-Corruption Court therefore, he is a member of subordinate judiciary. After examining the definition of subordinate judiciary and before remitting the case to the Sindh Service Tribunal, the learned scrutiny bench clearly held that Anti-Corruption Court being attached department of Government of Sindh its employees are civil servant and the matter is to be decided by the Sindh Service Tribunal.

10. The Sindh Subordinate Judiciary Service Tribunal was constituted under the powers conferred by Section 8 of the Sindh Service Tribunal Act, 1973. Under clause (g) of Rule 2, member of the subordinate judiciary means “District & Sessions Judge, Additional District and Sessions Judge, Assistant Sessions Judge, Senior Civil Judge, Civil Judge or Judicial Magistrate wherever he may be or any other officer declared by Government to be a member of subordinate judiciary”. However, under definition clause (bb) of Section 2 of the Sindh Service Tribunal Act, definition of member of subordinate judiciary means “a District and Sessions Judge, Additional District and Sessions Judge, Senior Civil Judge and Assistant Sessions Judge, Civil Judge and Judicial Magistrate and includes an officer and servant of the High Court or any employee working under the administrative control of the District and Sessions Judge wherever he may be”. If we analyze both definitions in juxtaposition, the definition of member of subordinate judiciary provided under the Sindh Service Tribunal Act also includes an officer and servant of the High Court or any employee working under the administrative control of the District and Sessions Judge wherever he may be. The definition of appeal under the Sindh Subordinate Judiciary Tribunal (Procedure) Rules, 1993 means an appeal preferred under Section 4 of the Sindh Service Tribunal Act, 1973 which provides that any civil servant aggrieved by any final order whether original or appellate made by departmental authority in respect of any of the terms and condition of the service may within thirty days of the communication of such order to him prefer an appeal to the Tribunal having jurisdiction in the matter. It is further provided in the same section that where an appeal, review or representation to a departmental authority is provided under the Sindh Civil Servants Act, 1973 or any Rules against any such order, no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or representation to such departmental authority and a period of ninety days has elapsed from the date on which such appeal, application or representation was so preferred. Section 3-B of the Sindh Service Tribunal Act germane to the Tribunals for members of the subordinate judiciary which provides that “Notwithstanding anything contained in Section 3, the Chief Justice of the High Court may establish a Tribunal consisting of three Judges of the High Court, the most senior of whom shall be the Chairman and the other two Judges shall act as members of the Tribunal and the Tribunal so established shall have exclusive jurisdiction in respect of matters relating to the terms and conditions of service of members of the subordinate judiciary, including the disciplinary matters”.

11. We have no confusion or perplexity in our mind that the petitioner is not member of subordinate judiciary therefore no appeals lies to the Tribunal meant for the members of subordinate judiciary. His administrative control vest in Government of Sindh. Secondly, it is a simple matter of repatriation of the petitioner in his parent department under the directions of the Supreme Court which has nothing to do with the terms and conditions of service nor any final order is available to assail. The petitioner is not claiming any particular posting except that he may be repatriated to his parent department. The direction of the Sindh Services Tribunal to the learned Registrar of this Court to fix the matter in the Tribunal constituted for members of Sub-ordinate Judiciary is misconceived and coram non-judice. If the Services Tribunal was of the view that they had no jurisdiction to hear the appeal for any reason, they could have simply remitted the matter back to the Registrar of this Court to place the matter before the honourable Chief Justice of this Court to pass the order as his lordship may deem fit but on the contrary, the Sindh Services Tribunal called upon the learned Registrar of this Court directly to fix the appeal before the Tribunal constituted for the members of subordinate judiciary as if the Sindh Services Tribunal is an appellate Court of this Court. Such direction and or a request in the

semblance of direction are not only unwarranted and incongruous but also highly undesirable and we have no other alternative but to discard the same.

1. As the result of above discussion, the petition is disposed of with the directions to Respondent No. 2 to allow the petitioner’s joining in his parent department; however, the competent authority is at liberty to initiate disciplinary proceedings against the petitioner on the charges of misconduct, if any. The learned counsel for the petitioner also complained that since 05.12.2013 when the repatriation order was issued, the petitioner has not been paid his salary. In this regard we direct the respondents to immediately release/pay the salary of the petitioner. The compliance report should be submitted through MIT-II of this Court within 10 days.

(R.A.) Petition disposed of

PLJ 2016 Karachi 8

Present: Muhammad Ali Mazhar, J.

SHAHZAD TRADE LINKS through Sole Proprietor,Karachi and another--Plaintiffs

versus

MTW PAK ASSEMBLING INDUSTRIES (PRIVATE) LIMITED through Representative, Karachi and others--Defendants

Suit No. 975 of 2015, decided on 18.9.2015.

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

----S. 21--Civil Procedure Code, (V of 1908), S. 151 & O. XXXIX, Rr. 1 & 2--Joint venture company--Draft of unsigned agreement--Plea of irreparable or irretrievable loss--Failed to place any conveyance deed--Basic ingredient of contract of agency--Contractual obligation--Contract was not specifically enforceable--Validity--Contract which is in its nature revocable cannot be specifically enforced--Specific performance is an equitable relief which is not granted as a matter of course or as a matter of right but it is in discretion of Court to be exercised on basis of established sound and judicial principles and or consideration of circumstances of each particular case--In order to invoke specific performance it is necessary that there should be a contract, enforcement of which is not barred in Act; act to be done is in respect of trust and there is no standard for ascertaining actual damage caused; pecuniary compensation is not adequate relief and Court deems it fit to exercise its discretion in favour of plaintiffs. [P. 19] A

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

----O. XXXIX, Rr. 1 & 2--Rule of granting injunction--Joint venure partner--Inconvenience--Irreparable loss--Prima facie--Relief of injunction is discretionary and is to be granted by Court according to sound legal principles and ex-debito justice--Existence of prima facie case is to be judged or made out on basis of material/evidence on record at time of hearing of injunction application and such evidence of material should be of nature that by considering same, Court should or ought to be of view that plaintiff applying for injunction was in all probability likely to succeed in suit by having a decision in his favour. [Pp. 19 & 20] B & C

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

----O. XXXIX, Rr. 1 & 2--Rule of granting of injunction--Pleading--Balance of convenience--Existence of right--If an injunction is not granted and suit is ultimately decided in favour of plaintiff, inconvenience caused to plaintiff would be greater than that would be caused to defendant, if injunction is granted. [P. 20] D

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

----O. XXIX, Rr. 1 & 2--Rule of granting injunction--Inconvenience--Irreparable loss--Validity--Inconvenience caused to him would be greater than that which may be caused to defendant--Irreparable loss would mean and simply such loss, which is incapable of being calculated on yardstick of money”. [P. 20] E & F

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

----O. XXXIX, Rr. 1 & 2--Rule of granting injunction--Essential to justice or restraining as act--Validity--An injunction as is well known is an equitable remedy and accordingly is to conform to well-known maxim of Law of Equity that “he who seeks equity must do equity”--A plaintiff who ask for an injunction must be able to satisfy Court that his own acts and dealings in matter have been fair, honest and free from any taint or illegality and that if in dealing with person against whom he seeks relief, he has acted in an unfair or un-equitable manner, he cannot have that relief”.

[P. 20] G & H

Memorandum of Association--

----Clause-III (24)--Joint venture--Restriction on any shareholder or member--Article of association--Violation of--Neither articles of association are attached with plaint nor any restrictive covenant was referred to from articles of association even during course of arguments--Matter is already pending with SECP which is a regulatory authority and in case any illegal or fraudulent activity is found in incorporation of defendant or any violation of articles of association, law will take its own course which may include penal action and cancellation of registration. [P. 21] I

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

----S. 19--Contract Act, (IX of 1872), S. 73--Injunctive relief--Specific performance--Company to run--Entitlement of--Joint venure--Compensation--Validity--If in any suit Court decides that specific performance ought not to be granted, but that there is a contract between parties which has been broken by defendant, plaintiff is entitled to compensation--If breach of any contract is proved obviously through evidence, plaintiffs may claim compensation for losses or damages if any sustained by them--Contracts involving collection of monetary benefits having been obtained on specific monetary consideration, could not involve irreparable loss--No injunction can be issued unless all required ingredients namely prima facie case, balance of convenience and irreparable loss to aggrieved party”. [Pp. 21 & 22] J & K

Mr. Yousuf Moulvi, Advocate for Plaintiffs.

Mr. Behzad Haider, Advocate for Defendants Nos.1 to 4 and 6.

Date of hearing: 15.9.2015

Order

This order will dispose of CMA No. 9104/2015 filed by the plaintiffs under Order XXXIX Rules 1 and 2, CPC read with Section 151, CPC. The brief facts of this suit for declaration and permanent injunction are that the Plaintiff No. 1 is a proprietorship concern and its proprietor is Shahzad Riaz who is also co-founder of Plaintiff No. 2 with the Defendant No. 2. The Defendant No. 6 is manufacturer of Belarus Tractors in the Republic of Belarus and Plaintiff No. 1 used to import tractors in Pakistan. On 12.1.2015 the Plaintiff No. 1 through its proprietor and Defendant No. 4 entered into a memorandum of understanding (MOU) and Joint venture agreement in Karachi through which they agreed to form a company. Consequently a joint venture company i.e the Plaintiff No. 2 was formed and the Defendant No. 5 was authorized by the Plaintiff No. 2 to sign all documents and transaction etc. with the Defendant No. 6. In the month of May, 2015, the plaintiffs came to know that the Defendant No. 2 who is also a shareholder of the Plaintiff No. 2 in connivance with Defendant No. 3 fraudulently incorporated a company i.e. Defendant No. 1 for the same object and purposes without informing the plaintiffs and without taking their consent.

1. In the injunction application, the plaintiffs prayed for the following relief:--

“For the facts and reason disclosed in the accompanying affidavit, it is most respectfully prayed on behalf of the plaintiff above named that this Hon’ble Court may be pleased to restrain the Defendants No. 2 and 3, its agent, servant and all persons claiming through or under him from entering into any agreement/license with the Defendant No. 6 for import of Belarus Tractor and establishing of assembly Plant for assembling of Belarus Tractors and further restrain the Defendant No. 6, its agent servant and all person claiming through or under them from executing any contract and or license agreement with the Defendant No. 2 its company and or agent servant and all person claiming through or under for exporting Belarus tractor in Pakistan and granting license for establishment of Assembly Plant for assembling of Belarus Tractors of the Defendant No. 6, in Pakistan except through plaintiffs.

And also further restrain the Defendants No. 1 and 2 from committing breach of terms of MOU dated 12.01.2015, Joint Venture Agreement.

Furthermore, restrain the Defendant No. 1, its Directors i.e., Defendants No. 2 and 3 and 4 and or any other person acting on their behalf including the Defendant No. 6 from carrying on any trade and business relating to Belarus Tractors-510 or taking any steps and or entering into any agreements in relation to sale, and or towards establishment of Assembly Line for manufacture of Belarus Tractors-510 in Pakistan, till the final disposal of the suit.

Ad-interim order is solicited.

The above prayers are made in the interest of justice”.

1. The matter was fixed for orders on injunction application on 9.6.2015, when the learned Single Judge was pleased to issue notice to the defendants through all modes except publication, however till the next date of hearing, ad-interim order was granted as prayed. Against the interim order dated 9.6.2015, the Defendant No. 1 filed HCA No. 195/2015 which was disposed by the learned division bench in presence of counsel for the appellants and Respondents No. 1 and 2 in the following terms:--

“This appeal arises from the order passed by the learned Single Judge on application under order XXXIX Rule 1 & 2 CPC, filed by the plaintiffs (respondent herein) and on the very first day when the same was fixed for orders all the prayers made therein were granted. There is no discussion on the factual aspect while granting such ad-interim order. In any case as the order was ad-interim, the opportunity to seek its recall is still available with the appellants. It is pointed out that the impugned restraint order is adversely affecting the day to day business affairs of the appellants as 300 Tractors, which were imported are stuck up at the Port. In case the respondents/plaintiffs succeeded in the suit, the monetary compensation can be claimed with regard to any benefit derived on these 300 Tractors that have already been imported. We, therefore, while disposing of this High Court Appeal hold that the appellant shall be free to seek release of 300 Tractors so that their commercial interest is not jeopardized. With these directions this appeal stands disposed of.”

1. Though in the HCA order, the learned division bench while disposing of appeal allowed the appellants to seek release of 300 tractors so their commercial interest may not be jeopardized but Defendant No. 1 also filed Civil Petition No. 2286/2015 in the Supreme Court and vide order dated 7.9.2015, this civil petition was disposed of by the Hon’ble Supreme Court in the following terms:

“2. In view of the above, this petition is disposed of with the observation that in pending Suit No. 975/2015, the learned Judge seized of the matter in the High Court of Sindh shall hear and decide C.M.A. No. 9104/2015 finally within two weeks from today. In case of failure, the ad-interim order passed on the said application on 09.06.2015 shall stand vacated. A copy of this order be sent to the Registrar, High Court of Sindh for information and record.”

1. Since the learned judge seized of the matter, vide order dated 18.6.2015, directed the office not to fix this matter before him in future with connected suit, therefore, the office had fixed the matter before me. The Learned counsel for the plaintiffs referred to page 51 of the Court file which is a MOU singed on 12.1.2015 between the Plaintiff No. 1 and Defendant No. 4 through which an understanding was developed for the improvement of procedure for the organization of sales of tractors manufactured by Defendant No. 6 and parties agreed to establish a company “Pak Belarus Industries Inc.” in Pakistan, thereafter, learned counsel also referred to page 61 which is an agreement of joint venture between the Plaintiff No. 1 and Defendant No. 4. This joint venture agreement was made for creation of assembly line for tractors, establishment of a service centre for the provision of warranty, post-warranty services for tractors produced by JSC “MTW”. They further agreed that Private Limited Company will be incorporated in Pakistan under the name and style of “MTW Pak Industries (Private) Limited.” (i.e. Plaintiff No. 2). In Clause 10 it was agreed that the first party Plaintiff No. 1 shall advance and finance for the delivery of 732 units of MTW tractors, which will entitle the proposed company to get right of sole and exclusive agency for Pakistan. Learned counsel also pointed out Clause 15, in which it was agreed that agreement shall continue with full force and effect until commencement of the winding up proceedings, the parties unanimously agreed in writing to replace this agreement or winding up, receivership, insolvency or administration of any of the parties. This agreement was executed between the Plaintiff No. 1 and Defendant No. 4. Thereafter, the learned counsel referred to page 85, which is memorandum and articles of association of MTW Pak Industries (Pvt.) Limited, in which the proprietor of Plaintiffs No. 1 Shahzad Riaz and Defendant No. 2 are the shareholders. In order to show the nexus of Defendant No. 6 with the joint venture agreement of the company incorporated in Pakistan, the learned counsel further referred to Page 57 which is a letter dated 10.2.2015, sent to the Council of Ministers, Republic of Belarus in which it was communicated that the registration of “MTZ Pak Industries Ltd.” company founded by Belarussian Investors and “Shahzad Trade Link” company has been finalized. Shahzad Trade Link Company has been chosen as a co-founder of the newly established Company on the ground of its actual financial potential and cooperation experience with MTW over 2007 to 2014 period 26493 tractors were delivered to this partner. It is further stated in the same letter that Shahzad Trade Link has established letter of credit for supply of 732 tractors. It was further contended by the learned counsel that the Defendant No. 4 bypassed MoU and joint venture agreement and created Defendant No. 1 through Defendants No. 2 and 3 while Defendant No. 2 is also Director of the Plaintiff No. 2 but they have fraudulently and due to some misrepresentation and concealment formed Defendant No. 1 with slight change of name. The Defendant No. 2 and Defendant No. 4.1 are the same person who has 42% shareholding in the Plaintiff No. 2 but he possesses 99% shareholding in the Defendant No. 1 while the Defendant No. 3 has only 1% share in Defendant No. 1. Learned counsel also shown the grievance that the Defendant No. 2 did not invest any amount in Plaintiff No. 2 despite having 42% share but all the formalities required for incorporation were completed by the Plaintiff No. 1. Learned counsel for the plaintiff has also attached draft of unsigned agreement exchanged between the Defendant No. 6 and Plaintiff No. 2 for the SKD Belarus tractors in which it was stated that the delivery and assembling of goods would be effected on the basis of license agreement dated 31.3.2015. He then drawn my attention to license agreement for trademark dated 31.3.2015 which is also unsigned. These documents are available in Court file from Page 201 to 237. Learned counsel further referred to a sale agreement dated 30.4.2015 which was signed between Adam Motors Company Ltd. and the proprietor of Plaintiff No. 1 and argued that in order to assemble the tractors in Pakistan the proprietor of the Plaintiff No. 1 purchased Adam Motors Company equipped with plant and machinery and other assets. The Court asked a question how the plaintiff can rely upon an unsigned agreement to show the relationship of an agent. The learned counsel then referred to Pages-293 to 339 and argued that earlier he referred to the unsigned copies, but subsequent agreements were signed by the Director of the Plaintiff No. 2 on 30.4.2015 and forwarded the same to Defendant No. 6 for their signatures but he admitted that the Defendant No. 6 never signed any such agreement.

2. It was further averred that the plaintiffs came to know in the month of May, 2015 that the Defendant No. 2 in collusion with the Defendant No. 3 and Defendant No. 4.2 incorporated the Defendant No. 1 for the same object and purpose without informing the plaintiff and without taking his consent, but on the basis of forged and fabricated documents they applied for incorporation. A news was published on 5.6.2015 that the first Deputy Director Minsk Tractor (MTW) and Defendant No. 2 have created a new assembly plant in Hub under the joint venture of Defendant No. 1 and Omni Group. He further argued that proprietor of Plaintiff No. 1 has also filed a Constitution Petition No. D-2898/2015 which is pending in this Court. He further argued that though the Defendant No. 2 is shareholder of Plaintiff No. 2 but he failed to contribute a single rupee in equity of the company despite making request by the Plaintiff No. 1 on several occasions. He further argued that the plaintiffs incurred heavy amount for establishing assembly plant at Karachi, therefore, the Defendant No. 6 cannot enter into any agreement with Defendant No.

3. The plaintiffs have a prima facie case, balance of convenience lies in their favour and in case the injunction application is dismissed they will suffer irreparable loss. However, he admitted that there is no concluded contract with the Defendant No. 6 but some draft of agreements were exchanged between the plaintiffs and the Defendant No. 6. He claims that in view of the oral agreements the plaintiffs are entitled for injunctive relief. The Learned counsel for the plaintiffs relied on 1999 CLC 1989 (Nizam Hashwani v. Hashwani Hotels Limited & others.), in which it was held that “prima facie, function of Court was to ensure smooth and effective running of a company and at the same time not to permit any member, Director or even a shareholder to violate any provisions of Memorandum and Articles of Association or provisions of Companies Ordinance, 1984. Plaintiff/petition had successfully established a good prima facie case for grant of interim injunction. Other two ingredients namely suffering of irreparable loss and injury and balance of convenience were also present in plaintiff/petitioner’s favour. Interim injunction was granted to plaintiff/petitioner, in circumstances, till final decision of the case”.

4. Mr.Behzad Haider, Advocate for the Defendants Nos.1 to 4 and 6 argued that the contract dated 9.12.2014 is between the Plaintiff No. 1 and the Defendant No. 6 but it has nothing to do with joint venture agreement or the incorporation of Plaintiff No.

5. So far as the license agreement dated 31.3.2015 is concerned it was merely a draft, but it was never signed by the Defendant No. 6, so this cannot be considered a contract. He also referred to Clause 14.1 of the same agreement, in which it is clearly mentioned that the agreement is valid for a period till 31.12.2016 and will become effective from the date of signing by both the parties. Learned counsel argued that the said license agreement never acquired a status of concluded contract simply for the reasons that it was not signed by the Defendant No. 6. Learned counsel also referred to an email dated 8.5.2015 (page 357 of the Court file) communicated by the Defendant No. 6 to the proprietor of Plaintiff No. 1. Through this email various concerns had been shown by the Defendant No. 6 including that the draft of commercial contract and license agreement signed by the plaintiff will not be taken into consideration for the reasons that the draft of contract was provided for consideration and comments as a draft only, but not a final document to be signed. Besides, other reasons which are self-explanatory it was further stated in the email that it is not acceptable to have contracts be signed by the person other than indicated in preamble of the document and finally it was stated that MTW has no legal basis to consider L.C. draft as they do not have any official ground in favour of valid contract signed by both the parties. He also referred to Page-775 of the Court file, which is a license agreement executed between the Defendant No. 1 and Defendant No. 6 through which exclusive rights for Belarus trademark were conferred to Defendant No. 1. Learned counsel also invited my attention to page-661 which is a termination letter dated 17.6.2015 and argued that through this termination letter even the agreement dated 9.12.2014 entered into between the Defendant No. 6 and the Plaintiff No. 1 was also terminated, which is available at Page-849. He further argued that there is some typing error in the termination letter and instead of 9.12.2014 the date 9.12.2015 is typed which is merely a typing error but the contract number mentioned in the termination letter and the agreement dated 9.12.2014 is one and the same. He further referred to L.C. documents available Page-373 to onwards to show that the tractors were imported by the Plaintiff No. 1 on the strength of agreement dated 9.12.2015 which were being imported in the individual capacity of Plaintiff No. 1 and not by the Plaintiff No. 2. So far as the relationship of the Defendant No. 1 with Omni Group is concerned, the learned counsel argued that the Omni Group have been given 50% share in the Defendant No. 1 for using and allowing their plant and machinery for assembling purposes. He further argued the proprietor of Plaintiff No. 1 has already filed a constitution petition in this Court which is pending and similar relief has been sought in the petition but since no interim orders were granted therefore, the plaintiffs have filed the suit. He further argued that the plaintiffs have failed to make out any prima facie case and there is also no question of balance of convenience or irreparable injury rather on account of ad-interim order granted by this Court as prayed which in fact amounts to grant of final relief in shape of interim relief, the defendants are suffering from problems and monetary losses. In support of his arguments he relied upon 2007 MLD 2019 (M/s.Maxim Advertising Company (Pvt.) Ltd. v. Province of Sindh & others) in which the learned division bench of this Court held that irreparable losses would mean and imply such loss which is incapable of being calculated on yardstick of money. Contracts involving collection of monetary benefits having been obtained on specific monetary consideration, could not involve irreparable loss. No injunction can be issued unless all required ingredients namely prima facie case, balance of convenience and irreparable loss to aggrieved party, were found to subsist.

6. Heard the arguments. It is an admitted fact that before filing the suit the proprietor of the Plaintiff No. 1 who is also shareholder/director of the Plaintiff No. 2 filed a Constitution Petition No. 2898/2015. (Copy of memo. of petition is available at page-953) and the Respondent Nos.3, 4 and 5 in the petition are the same as Defendants No. 2, 3 and 4.2 of this suit. In the petition the plaintiffs have sought the direction against the official respondents including SECP to take action against the Respondents Nos.3 to 5 and restraining order was also sought against the Respondent Nos.3 and 4 from operating the company which is Defendant No. 1 in the suit. In the injunction application filed in the constitution petition prayer has been made to stay all business doing by the Defendant Nos.3 and 4 under the name and style of (MTW Pak Assembling Industries (Pvt.) Ltd). However, learned counsel for the plaintiffs admitted that no restraining orders were passed in the constitutional jurisdiction but during pendency of the petition he has filed the suit on 9.6.2015. No doubt by dint of joint venture the Plaintiff No. 2 came into existence and the Defendant No. 2 is also shareholder but the fact remains that this company was never conferred any agency or franchise by the Defendant No. 6 to claim any exclusive right or agency in Pakistan. In the JV Agreement, it was the responsibility of Plaintiff No. 1 to run assembly plant and service centre of necessary attributes such as allocation of land, buildings and structures, technological equipment’s, human resources and obtaining necessary licenses and permits from Government of Pakistan. In order to show the fulfillment and conformity of its role, only a copy of sale agreement dated 30.4.2015 with Adam Motor Company limited has been bring forth which shows advance payment of 29,00,000/- with balance payment of Rs. 261,000,000/- and completion date of transaction was not later than 19th may 2015. Though a plea of irreparable or irretrievable loss was taken but the plaintiffs failed to place on record any conveyance deed if registered before the concerned registrar for materializing and finalizing the deal with Adam Motors and without having required infrastructure or assembling plant or transfer of technology, they are claiming exclusive rights and wish for restraining order against the defendants particularly the Defendant No. 6 not to engage in any business activity with Defendant No. 1 which has already activated its assembling plant before filing of this suit with the collaboration of another group under a valid license of Defendant No. 6. Nothing in support of interim relief argued that the plaintiffs have done substantial acts or suffered losses in consequence of contract capable of specific performance as provided under Section 22 of Specific Relief Act.

7. The exclusive right is conditional to the accomplishment of agency contract or license. According to Section 182 of the Contract Act an agent is a person employed to do any act for another or to represent another in dealings with third person. The person for whom such act is done or who is so represented is called the principal. The basic ingredient of contract of agency includes that the agent has a power on behalf of principal to deal with third person as to bind the principal the subject matter of the agency has to be dealt with as proprietor of principal and not of the agent. The agent acts as intermediary for consideration. In ordinary legal parlance and phraseology the agency is a relation between two parties created by agreement express or implied by which one of the parties confides to the other management of same business to be transact in his name or his account and by which the other assume to do the business and for render an account of it.

8. I have mentioned the various documents in the chronological order referred to by the learned counsel appearing for the parties. In order to reach just and apt conclusion, it is imperative to first look into whether there is or there was any concluded contract between the plaintiffs and the Defendant No. 6 or not? Though the learned counsel for the plaintiffs pointed out correspondence anterior to exchange of draft of license agreement for negotiation purpose but when the draft of license agreement by which rights were to be given to the plaintiffs for assembling the tractors reached to the plaintiffs, the agreements were signed and forwarded to the Defendant No. 6 for their signature but the Defendant No. 6 never signed any such agreement rather they communicated their disagreement for various reasons through their email that the draft of contract was provided for consideration and comments as a draft only but not a final document to be signed. So far as the import of tractors directly by the Plaintiff No. 1 is concerned, the L.C(s) were openedvide contract No. 112/00236091/140135-1 dated 9.2.2014 which is not the subject matter of the suit. It is an admitted fact that even no relief has been claimed by the plaintiffs in the suit in relation to aforesaid contract which is an independent entity with Plaintiff No. 1. So far as the Plaintiff No. 2 is concerned, no L.C. was opened by this joint venture company for the import of tractors from Defendant No. 6 rather the Plaintiff No. 1 shown the grievance that the Defendant No. 2 failed to invest any amount in the joint venture company despite having 42% shares.

9. Though this is a suit for declaration and permanent injunction but in the prayer clause (a) the plaintiffs have also sought direction against the Defendants No. 2 to 5 to specifically perform their contractual obligations under the MOU, joint venture agreement and license agreement, which was signed by the plaintiff on 30.4.2015 and transmitted to the Defendant No. 6 for their signature but it was refused for the reasons mentioned in the email of Defendant No. 6. Even in the case of authentically and validly executed contract between the parties, the Court has to visit Section 21 of the Specific Relief Act germane to the contract not specifically enforceable. The learned counsel adopted a line of argument that though the contract was not finally executed with the Defendant No. 6 but surrounding circumstances profusely demonstrate that the plaintiffs and the Defendant No. 6 were engaged in the correspondence, so the plaintiffs are entitled for the specific performance. Section 21 of the Specific Relief Act pertains to the contract not specifically enforceable which includes a contract for the non-performance of which compensation in money is an adequate relief. A contract which is in its nature revocable cannot be specifically enforced. The specific performance is an equitable relief which is not granted as a matter of course or as a matter of right but it is in the discretion of the Court to be exercised on the basis of established sound and judicial principles and or consideration of circumstances of each particular case. In order to invoke the specific performance it is necessary that there should be a contract, enforcement of which is not barred in the Act; the act to be done is in respect of trust and there is no standard for ascertaining the actual damage caused; pecuniary compensation is not adequate relief and the Court deems it fit to exercise its discretion in favour of the plaintiffs.

10. The Defendant No. 6 has executed the agreement with the Defendant No. 1 on 27.4.2015 and the plaintiffs have themselves mentioned in paragraph 31 of the plaint that a news item was published in the daily Jang on 5.6.2015 relating to inauguration of assembly plant in Hub by the Defendant No. 1 and it is joint venture partner Omni group while the suit was filed on 9.6.2015. So in my view, if at this stage, the interim orders are continued further it will cause irreparable loss and injury to the defendants rather than the plaintiffs and balance of inconvenience lies in their favour.

In the case of Sayyid Yousaf Husain Shirazi v. Pakistan Defence Officers’ Housing Authority & others reported in 2010 MLD 1267, I have discussed in detail the rule of granting injunction and held that “relief of injunction is discretionary and is to be granted by Court according to sound legal principles and ex-debito justice. Existence of prima facie case is to be judged or made out on the basis of material/evidence on record at the time of hearing of injunction application and such evidence of material should be of the nature that by considering the same, Court should or ought to be of the view that plaintiff applying for injunction was in all probability likely to succeed in the suit by having a decision in his favour. The term “prima facie case” is not specifically defined in the Code of Civil Procedure. The judge-made-law or the consensus is that in order to satisfy about the existence of prima facie case, the pleadings must contain facts constituting the existence of right of the plaintiff and its infringement at the hands of the opposite party. Balance of convenience means that if an injunction is not granted and the suit is ultimately decided in favour of the plaintiff, the inconvenience caused to the plaintiff would be greater than that would be caused to the defendant, if the injunction is granted. It is for the plaintiff to show that the inconvenience caused to him would be greater than that which may be caused to the defendant. Irreparable loss would mean and simply such loss, which is incapable of being calculated on the yardstick of money”. In the same case it was further held that “An injunction is a writ framed according to the circumstances of the case commanding an act which the Court regards as essential to justice or restraining as act, which it esteems contrary to equity and good conscience. An injunction as is well known is an equitable remedy and accordingly is to conform to the well-known maxim of the Law of Equity that “he who seeks equity must do equity.” The law as contained in the Specific Relief Act is governed by the aforesaid principle, therefore, a plaintiff who ask for an injunction must be able to satisfy the Court that his own acts and dealings in the matter have been fair, honest and free from any taint or illegality and that if in dealing with the person against whom he seeks the relief, he has acted in an unfair or un-equitable manner, he cannot have this relief”.

1. So far as the allegation against the Defendant No. 2 is concerned, matter is not only pending before the SECP but the constitution petition is also pending and plaintiffs are religiously pursuing both the remedies but simultaneously as a third resort or remedy, this suit has been filed. Learned counsel for the plaintiffs pointed out a document attached with CMA No. 13186/2015 and argued that the CEO of Plaintiff No. 2 has lodged complaint to SECP that NOC provided by Defendant No. 1 for its incorporation was forged. He further argued that the article of association of Plaintiff No. 2 do not permit any director to incorporate new company with similar object/name. The SECP has already called upon the chief executive of Defendant No. 1 to submit the reply and the matter is pending. The learned counsel for the plaintiffs also referred to sub-clause 24 of Clause III of Memorandum of Association relating to the objects for which the company is established, which is as under:

“To establish, promote or assist in establishing or promoting and subscribe to or become a member of any other company, association or club whose objects are similar or in part similar to the object of this company or the establishment or promotion of which may be beneficial to the company as permissible under the law”.

1. The reading of above clause does not show any partial or impartial restriction on any shareholder or member/director of the company but it was over all one of the objects for which the company was established which cannot be considered a restrictive clause or covenant against the shareholders/directors of the company not to become a part of any other company or undertaking. The plaintiffs have attached only Memorandum of Association with the plaint (page No. 87-91) but neither articles of association are attached with the plaint except one page at page 93 nor any restrictive covenant was referred to from the articles of association even during course of arguments. Even otherwise, the matter is already pending with SECP which is a regulatory authority and in case any illegal or fraudulent activity is found in the incorporation of the Defendant No. 1 or any violation of articles of association, the law will take its own course which may include penal action and cancellation of registration. In the petition also, various similar relief(s) including the directions against the FI.A and SECP to take action against the incorporation of M/s. MTW Pak Assembling Industries (Pvt) Ltd. have been claimed with an injunctive relief not to allow the company to run.

2. Under Section 19 of the Specific Relief Act, it is unambiguously allude to that if in any suit the Court decides that specific performance ought not to be granted, but that there is a contract between the parties which has been broken by the defendant, the plaintiff is entitled to compensation. If breach of any contract is proved obviously through evidence, the plaintiffs may claim compensation for the losses or damages if any sustained by them. The word compensation used under Section 19 is understood in the sense of damages contemplated in Section 73 of the Contract Act. In fact the learned division bench also held the same in the order dated 12.8.2015 while disposing of HCA No. 195/2015 that in case the plaintiffs succeeded in the suit, monetary compensation can be claimed with regard to any benefit derived on Tractors. In the case of “Maxim Advertising” supra cited by the counsel for the defendants also, the Court held that “irreparable losses would mean and imply such loss

which is incapable of being calculated on yardstick of money. Contracts involving collection of monetary benefits having been obtained on specific monetary consideration, could not involve irreparable loss. No injunction can be issued unless all required ingredients namely prima facie case, balance of convenience and irreparable loss to aggrieved party”, while the case of “Nizam Hashwani” cited by the learned counsel for the plaintiffs is distinguishable to the facts and circumstances of this case.

1. The pros and cons lead me to finale that the plaintiffs have failed to make out any case to keep on the injunctive relief. The injunction application was dismissed by me vide short order dated 15.9.2015 and these are the reasons.

(R.A.)

PLJ 2016 Karachi 22 (DB)

Present: Salahuddin Panhwar and Syed Saeed-ud-Din Nasir, JJ.

KH. MUHAMMAD SALMAN YOUNIS--Petitioner

versus

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

C.P. No. D-916 of 2015, decided on 4.9.2015.

Constitution ofPakistan, 1973--

----Art. 199--Constitutional jurisdiction--Protective bail--Suspension of red warrants during stipulated period of protective bail--Validity--An order of protective bail does not require a formal order of termination to follow but comes to an end on moment accused succeeds in approaching; proper Court or period, specified in order, comes to an end--Law Enforcing Agency does have power, jurisdiction and authority to inquire, investigate an allegation/charge of cognizable offence which course does include authority to arrest accused or even a suspect of committing cognizable offence--Thus, if an accused of cognizable offence shows his intention to face his trial and resorts to constitutional jurisdiction for purpose of enabling him to land at Pakistan to approach proper Courts then he may resort for such purpose because purpose of ‘red notice’ is to seek location of a wanted person and his/her detention, arrest or restriction of movement for purpose of extradition, surrender, or similar lawful action.

[Pp. 27, 29, 30 & 32] A, I, O & Q

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

----Ss. 205, 497 & 498-A--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Protective bail--Suspension of red warrants during stipulated period of protective bail--Arrest, detention, appearance or bringing before a Court--Validity--Attendance of accused cannot be substituted through attorney though Section 205, Cr.P.C provides mechanism whereby a magistrate may dispense with personal attendance of accused but cannot be taken to expand jurisdiction of Court to grant bail--Since, there can be no denial to well established principle of ‘interpretation’ that subsequent provisions are always explanatory--However, in matter of pre-arrest bail condition might be relaxed only for certain period or to enable accused to approach proper Court of law but condition cannot be relaxed even in pre-arrest bail because provision of Section 498-A of Code has limited ‘effectiveness’ of an order, passed under Section 497 or 498, Cr.P.C.--Constitutional jurisdiction is available to all citizens in matters of infringement of fundamental rights as it is duty of Court to protect Fundamental Rights, guaranteed in Constitution and Art. 199 of Constitution empowers High Court to issue any appropriate directions for enforcement of Fundamental Rights--Relief of ‘bail’ be not granted normally in constitutional jurisdiction as it would amount to stepping over jurisdiction, created by provisions of Section 497 to 498-A of Cr.P.C. [Pp. 27 & 28] B, C, D, E, F & G

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

----S. 498-A--Protective bail--Specific period--Law enforcing agencies--Investigation and arrest on accused--It was an application for bail not ‘constitution petition and accused in that matter had sought bail in a specific crime, in no way, helps petitioners to insist for a license against all ‘Law Enforcing Agencies’ depriving them all from a lawful jurisdiction/authority i.e ‘to inquire, investigate and arrest an accused’ which order otherwise shall have no validity per restriction of Section 498-A of Code, as it does not specify case wherein bail is being ordered/granted. [P. 28] H

Words & Phrases--

----Coercive Action--Term ‘Coerce’, per Black’s Law Dictionary Ninth Edition, defined as ‘To compel by force or threat’ while term ‘COERCION’ is defined as: ‘Compulsion by physical force or threat of physical force’--One can competently use physical force to save a person attempting to commit suicide, if circumstances/situations so demand--Authorities/enforcement agencies are legally permitted and authorized to take coercive action even against delinquent persons but within four corners of law and law alone.

[Pp. 29 & 30] J, K, L & M

Constitution ofPakistan, 1973--

----Art. 9--Security of person--Death penalty--Though life and liberty of a person is undeniably to be protected but when law demands same then that would be no help for a convict to avoid ‘death penalty’ or for an accused of cognizable offence to avoid ‘arrest’. [P. 30] N

Constitution ofPakistan, 1973--

----Art. 199--Writ of mandamus--Legal act--A writ of mandamus even cannot be issued for a relief which could otherwise amounts to ‘restrain a person from doing a lawful and permitted legal act’ as such relief does not fall. [P. 31] P

Constitution ofPakistan, 1973--

----Art. 10-A--Fair trial--Red notice--Said criteria would prima facie establish intention or such a person to face charges and in other words may serve very purpose of red notice touching object of ‘fair trial’ , as enshrined in Constitution through induction of Art. 10-A--However shall not term as ‘bail’ but purpose thereof shall remain confined to enable person to land at lands of Pakistan and to immediate approach to proper Court(s) for bail. [P. 32] R

Petitioner No. 1 is Present in person.

Mr.Rizwan Dodani, advocate files Vakalatnama on behalf of Petitioner No. 1

Date of hearing: 4.9.2015.

Order

Through instant petition by invoking jurisdiction of this Court, the petitioners pray as under:

(a) To grant pre-arrest/protective/anticipatory bail to the Petitioners No. 1 and 2.

(b) To direct the respondents to place on the record of this Hon’ble Court the complete information regarding all pending cases, inquiries and investigations against the petitioners and their present status, if any, and to quash all pending enquiries and proceedings.

(c) To declare that the failure of respondents to communicate factum of allegations to the petitioners is illegal, unlawful, unconstitutional and discriminatory and is in violation of principles of natural justice, equity and fir play, (d) To restrain the respondents, their agents, officers, representatives or anybody acting on their behalf from causing harassment to the petitioners and from implicating them in any false cases/enquires without permission of this Hon’ble Court.

(e) To direct Respondents No. 6, 7, 8 & 11 for providing security and protection to the Petitioner No. 1 and to the Petitioner No. 2 on his arrival in Pakistan from airport to his destination and further direct Respondents No. 7 and 11 to continuously provide protection to the lives and properties of petitioners and their family members at their cost.

1. Precisely, relevant facts as setout in this petition are that the Petitioner No. 2 is a prominent businessman of Pakistan and was previously a professional banker who worked at several local and international banks in Pakistan and overseas at various senior positions. He was led a distinguished career of over 30 years in the field of banking and after seeking an early voluntary retirement he established businesses that include, inter alia. Sugar and Cement manufacturing, power generation, corporate farming and distillery (hereinafter collectively referred to as the “Omni Group”. The Petitioner No. 1 is his cousin and also an employee working in the “Omni Group” in the capacity of Director and Group Chief Operating Officer; that on 27th May 2015 the Petitioner No. 2 a senior citizen aged about 73 years left Pakistan for England in connection with Medical Treatment of Serious Arthritis and in his absence some News channels flashed breaking News regarding issuance of Red Warrants against Petitioner No. 2 by FIA working under Respondents No. 2, 5 & 6 and such News was also published in various newspapers; that the Petitioner No. 1 is being harassed and humiliated by the respondents by making him phone calls from unknown numbers, thus he is being continuously threatened and there is every likelihood of his arrest at the hands of respondents in the false and fabricated cases; that since couple of days the respondents have been raiding the houses of Petitioners No. 1 & 2 for their arrest but due to non-availability of petitioners, their families and staff have been directed to convey the petitioners that they are required in some criminal cases and they must surrender themselves before the Law Enforcement Agencies. On the request of family members and staff of petitioners the respondents failed to provide details of cases registered against the petitioners; that the petitioners fear that they might be involved in false and frivolous cases and they might be arrested, humiliated and disgraced at the hands of respondents which certainly is infringement of their fundamental right as guaranteed under the Constitution that the Petitioner No. 2 has also instructed the undersigned over phone from his Mobile No. 00 44 740041 to move the bail application/constitution petition on his behalf as he apprehends that the moment he will land at Karachi he will be arrested and as such precedent is also in existence where petitioner Hassan Suhail was admitted on protective bail by this Court in his absence on the application filed by his advocate reported in 2006 YLR 3116 Karachi.

2. It is further revealed that by order dated 21.8.2015 instant petition to the extent of Petitioner No. 2 converted into protective bail and he was granted protective bail for a period of fifteen days. Thereafter on 27.8.2015 a fresh application was moved for suspension of red warrants during stipulated period of protective bail, on that day this Court while deciding such application observed as under:

“In view of the above submissions made by learned Counsel for the petitioners and grounds mentioned in the application under Section 151, C.P.C, it is ordered that the order dated 21.8.2015 passed in favour of Petitioner No. 2 shall remain in the field upto 05.9.2015 with addition that the operation of the red warrants, if any, issued against the Petitioner No. 2 shall also remain suspended upto 05.9.2015.”

1. Learned counsel for the petitioners inter alia contends that there is apprehension that Petitioner No. 1 would be implicated in false cases due to his association with Petitioner No. 2, albeit he is business partner in “Omni Group” but he has not committed any crime, hence respondents may be restrained from any coercive action. On query, learned counsel for the petitioners failed to place any record showing any action taken by respondents against the Petitioners No. 1 & 2.

2. Perusal of record reflects that Petitioner No. 2 was granted protective bail, candidly such protective bail was not granted in any crime as at no times the petitioners had placed any FIR, wherein the bail was being sought. It was general order whereby the petitioner was allowed fifteen days protective bail thereby red warrants were suspended. It is worth to mention here that the Petitioner No. 1 failed to place air ticket of Petitioner No. 2 about his arrival from England to Pakistan, even he failed to place any FIR, Call up notice which could have shown that Petitioner No. 1 or 2 are required by respondents. Besides, it is pleaded that Petitioner No. 2 authorized Petitioner No. 1 for moving protective bail. Still the Petitioner No. 2 is seeking extension of protective bail which was granted in general terms (extended upto 05.9.2015).

3. The plea of grant of bail or protective bail in constitutional jurisdiction, requires to be attended carefully within parameters of the Article-199 of the Constitution. In that regard, it is pertinent to mention that in criminal administration of justice the attendance of the accused cannot be substituted through attorney though Section 205, Cr.P.C provides mechanism whereby a Magistrate may dispense with personal attendance of the accused but this in our view cannot be taken to expand the jurisdiction of the Court to grant bail which, per Section 497 of the Code is subject to arrest, detention, appearance, or his bringing before a Court, as is evident from language wherein the Section 497 of the Code has been couched:

‘When any person accused of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought-before a Court’

Thus, before seeking a bail, there must have been arrest, detention, appearance (for pre-arrest) or his bringing before a Court. Since, there can be no denial to the well established principle of ‘interpretation’ that subsequent provisions are always explanatory to former one(s), thus, to make above legal position a referral to Section 498-A of the Code, being relevant, is made hereunder:--

498-A. No bail to be granted to a person not in custody, in Court or against whom no case is registered, etc.: Nothing in Section 497, or Section 498 shall be deemed to require or authorise a Court to release on bail, or to direct to be admitted to bail, any person who is not in custody or is not present in Court or against whom no case stands registered for the time being and an order for the release of a person on bail, or a direction that a person be admitted to bail, shall be effective only in respect of the case that so stands registered against him and is specified in the order or direction.

1. The above provision restricts the authority of the Court that provision of Sections 497 and 498 of the Code would not require or authorize a Court to release or direct to be admitted to bail if:

(i) person, seeking bail, is not in custody or is not present in Court;

OR

(ii) against whom no case stands registered;

Thus, for purpose of pre-arrest or post arrest bail the above two conditions must co-exists. However, in extra-ordinary situation, in matter of pre-arrest bail the condition-I (as referred above) might be relaxed only for certain period or to enable the accused to approach proper Court of law but the condition-II (as referred above) cannot be relaxed even in pre-arrest bail because the provision of Section 498-A of the Code has limited ‘effectiveness’ of an order, passed under Section 497 or 498 Cr.PC to:

‘shall be effective only in respect of the case that so stands registered against him and is specified in the order or direction.’

The constitutional jurisdiction is available to all citizens in the matters of infringement of fundamental rights as it is the duty of the Court to protect Fundamental Rights, guaranteed in the Constitution and Article 199 of the Constitution empowers this Court to issue any appropriate directions for the enforcement of Fundamental Rights, conferred by the Constitution in its Chapter-I of Part-II but to invoke the ‘constitutional jurisdiction’ of this Court one is required to first qualify the test of being ‘aggrieved person’ (if matter is not one of public interest litigation) and then to show that his/her case falls in any of the categories, so defined by the Article 199 and that there is no other alternate legal remedy else the petition shall not be competent.

1. In view of above legal position couple with reference to provisions of Sections 497 to 498-A of the Code we feel ourselves quite safe to hold bail be not granted in matter where condition-i and ii (name of accused in a case and his appearance) are not co-existing, or in matter of ‘protective bail’ the relaxation of condition (appearance) may be relaxed but it shall require the applicant to establish extra-ordinary circumstances, justifying non-appearance despite firm intention of applicant to surrender. The above discussion allows us further to say that relief of ‘bail’ be not granted normally in constitutional jurisdiction as it would amount to stepping over the jurisdiction, created by provisions of Sections 497 to 498-A of the Code. We are also strengthened in our such view with the case law, relied upon by the learned counsel for the petitioners, as it also shows that it was an application for bail not ‘constitution petition’ and accused in that matter had sought bail in a specific crime (FIR), hence the reference of said case law, in no way, helps the petitioners to insist for a license against all ‘Law Enforcing Agencies’ depriving them all from a lawful jurisdiction/authority i.e ‘to inquire, investigate and arrest an accused’ which order otherwise shall have no validity per restriction of Section 498-A of the Code, as it does not specify the case wherein bail is being ordered/granted. Here, it is worth to add that an order for grant of ‘protective bail’ can , in no way, equate the term ‘release’ or ‘direct to be admitted to pre-arrest bail’ because the object of ‘protective bail’ is nothing more than that an order enabling the accused to approach the proper Court within a ‘specific period’. An order of protective bail does not require a formal order of termination to follow but comes to an end on moment the accused succeeds in approaching proper Court or the period, specified in order, comes to an end.

2. The record shows that petitioners had worded their grievance in the petition while insisting ‘coercive action’ on part of the respondents (Law Enforcing Agencies) hence, at this juncture, it is necessary to make it clear that though the term ‘coercive’ appears to be having negative impression yet it is not always so because a lawful action/order for its enforcement may require coercive measures. The term ‘Coerce’, per Black’s Law Dictionary Ninth Edition, defined as ‘To compel by force or threat’ while the term ‘COERCION’ is defined as: ‘Compulsion by physical force or threat of physical force’. Following the plain meaning, we can safely say that an act even got done by physical force or threat of physical force cannot, at all times, be declared ‘illegal’ because under certain circumstances and situations the law itself permits use of physical force or threat thereof. One can competently use physical force to save a person attempting to commit suicide, if circumstances/situations so demand. A reference co Chapter IV of the Pakistan Penal Code, 1860, titled as ‘General Exceptions’ would be sufficient to make view clear. Further, a reference to Chapter V of the Criminal Procedure Code, which, even authorizes breaking open any outer or inner door or window of any house or place and that of Chapter-VI of the Criminal Procedure Code, permitting compulsion for appearance of witnesses even through course of arrest and detention, would also help in stamping said view. These actions though prima facie appear to be coercive but cannot be said to be illegal because the definition of ‘legal act’, per Black’s Law Dictionary Ninth Edition is:

‘Any act not condemned as illegal. 2. An action or undertaking that creates a legally recognized obligation; an act that binds a person in some way.’

We can safely conclude that to avoid a legal action, the plea of coercive action shall not be available. A reference to the case of ‘Ghulam Farid v. State’ (2009 SCMR 929) shall make the point further clear that wherein honourable Supreme Court of Pakistan held as under:--

“19. When an accused....Anyone who either sees the person committing such an offence or finds him running away immediately thereafter would be entitled to arrest the said person under the mandate of Section 59 of the Cr.P.C. If such a person causes hurt or death with a view to resist such apprehension, he cannot plead to have acted in self defence. To lay down otherwise would not only give license to criminals but would also discourage public spirit to act in aid of law in apprehending the accused which spirit even otherwise, we may add with regret is on decline. The right of self defence cannot justifiably be claimed by such an offender.”

1. If plea of ‘coercive action’ is considered in above discussion, we find ourselves unable to incline the relief of issuing a license to the petitioners whereby restraining all Law Enforcing Agencies from a legal and authorized act i.e to arrest an ‘accused of cognizable offence’. It is pertinent to mention that Authorities/Enforcement Agencies are legally permitted and authorized to take coercive action even against the delinquent persons but within four corners of law and law alone. The position, being so, gives rise to a proposition that:

‘whether such a constitutional petition can sustain?

To properly respond the above proposition, it would be material to refer the Article 9 of the Constitution which reads as:

‘Arlicle-9. Security of Person.--No person shall be deprived of life, or liberty, save in accordance with law.’

The deliberate use of the phrase ‘save in accordance with law’ is sufficient to indicate that though the life and liberty of a person is undeniably to be protected but when the law demands the same then this would be no help for a convict to avoid ‘death penalty’ or for an accused of cognizable offence to avoid ‘arrest’.

1. We have sailed through the Article 199 of the Constitution and the instant petition appears to have filed as a ‘writ of mandamus’. This writ is issued for Government official where officials are not following the laws. Simply it means an order ‘to do an act which a person is bound by law to do’ Since, as already discussed above, the Law Enforcing Agencies are legally authorized and permitted to cause the arrest of a person, accused of cognizable offence, hence a person legally cannot seek an exception to the application of the law even by resorting to Article 199 of the Constitution. One should always keep in mind that every single individual is equal in the eye of law and guarantee to fundamental rights is available to all persons hence mere status of an individual alone shall not earn him an exception unless the law itself does so. A Law Enforcing Agency does have power, jurisdiction and authority to inquire, investigate an allegation/charge of cognizable offence which course does include the authority to arrest the accused or even a suspect of committing cognizable offence (Section 54 of the Code). These all actions are permissible. Thus, we without any hesitation say that a writ of mandamus even cannot be issued for a relief which could otherwise amounts to ‘restrain a person from doing a lawful and permitted legal act’ as such relief does not fall.

2. It is also worth to add here that the protective bail order was extended with:

‘……..with addition that the operation of the red warrants, if any, issued against the Petitioner No. 2 shall also remain suspended upto 05.9.2015.’

Thus, it appears from the record that not only the Petitioner No. 2 enjoyed protection of protective bail but also enjoyed suspension of the red warrants but at the same time it is also a matter of record that petitioner though obtained such order, having furnished requisite surety bonds, but neither traveled to Pakistan nor placed any proof for such traveling to Pakistan. Here, it is material to mention that it is not ‘red warrant’ but it is ‘red notice’. INTERPOL Notices are International requests for cooperation or alerts allowing Police in member countries to share critical crime-related information. Notices are published by INTERPOL’s General Secretariat (IPSG) at the request of National Central Bureaus (NCBs) and authorized entities. In the case of Red Notices, the persons concerned are wanted by national jurisdictions for prosecution or to serve a sentence based on an arrest warrant or Court decision. INTERPOL’s role is to assist the national police forces in identifying and locating these persons with a view to their arrest and extradition or similar lawful action. Since it is a matter of record that the Petitioner No. 2, got the operation of ‘red notice’ suspended yet did not land at the lands of Pakistan for what purpose it was so insisted. Not only this, but till date he (Petitioner No. 2) did not place on record any material which could justify that there were compelling circumstances which prevented him to land despite suspension of red notice and an order, shielding him from being arrested. Thus, it appears that the Petitioner No. 2 did enjoy freedom of movement and traveling without letting his location known to respondents (requesting country for issuance of red notice) and even not landed at the lands of Pakistan to face the charges on which ground the protection was provided to him. This seems that the Petitioner No. 2 enjoyed such exceptions by making the Court a ‘tool’ which attitude cannot be achieved. This results in making us of the view that he breached the bail bonds, for which purpose it was executed hence the same is forfeited with a direction to recover the same.

1. However, while parting, it is worth to add here that since the Article 10-A of the Constitution does insist for ‘fair trial’ which object cannot be achieved without providing the accused an opportunity to face the charge, particularly where the accused himself volunteers to do so. Thus, if an accused of cognizable offence shows his intention to face his trial and resorts to constitutional jurisdiction for purpose of enabling him to land at Pakistan to approach proper Courts then he may resort for such purpose because the purpose of ‘red notice’ is to seek the location of a wanted person and his/her detention, arrest or restriction of movement for the purpose of extradition, surrender, or similar lawful action. This by itself is not meant to declare the ‘innocence or guilt’ of the person against whom a ‘red notice’ is issued nor it shall in any way ‘prejudice’ the rights of ‘fair trial’ of such a persons but only if:

(i) he submits tickets, showing exact date of his traveling to a particular Airport of Pakistan to prove his intention to face the charge (s);

(ii) discloses his location at time of moving of such petition with undertaking to prior information about his movement to INTERPOLE, if his such request is allowed;

(iii) undertakes to land directly to lands of Pakistan;

(iv) undertakes to make immediate approach to proper Courts for bail e.t.c; with an undertaking that he/she shall not leave the local territorial limit without intimating the LEAs (Law Enforcing Agencies);

(v) shall mention the Crime Number and of offence or the name of Court where case is pending, if he/she knows;

(vi) unconditional forfeiture and payment of amount of bond for such relief in case of failure to land on land of Pakistan or to change his location without prior information to quarter concern;

The said criteria would prima facie establish the intention or such a person to face the charges and in other words may serve the very purpose of red notice touching the object of ‘fair trial’ , as enshrined in the Constitution through induction of Article 10-A. Let us make it clear again that this however shall not term as ‘bail’ but purpose thereof shall remain confined to enable the person to land at lands of Pakistan and to immediate approach to proper Court(s) for bail.

(R.A.) Order accordingly

PLJ 2016 Karachi 33

Present: Salahuddin Panhwar, J.

Mst. YASMEEN SHEIKH--Petitioner

versus

AYAZ PATHAN and others--Respondents

C.P. No. S-608 of 2015, decided on 8.10.2015.

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

----Ss. 154, 174 & 176--Injuries were received in custody of police--Proceedings were not initiated--It is settled every informant and once information, narrated or received by him spells commission of a cognizable offence, he is left with no discretion but to incorporate same into 154, Cr.P.C.--Deceased died in hospital and medical report also shows injuries but opinion as regard to status of death of be natural or un-natural was withheld which prima facie was not requiring expert opinion--Magistrate was not approached who otherwise is legally empowered to inquire into in such matters as is provided by Section 176 of Cr.P.C. [P. 36] A & B

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

----S. 176--Inquiry into cause of death--Prima facie--It was obligatory duty of and even medical officer to have informed to magistrate for necessary-inquiry but that obligation was not done--Medical officer on appearance or production of an injured should not delay treatment in name of any formality like police letter but at very first opportunity should report matter to police or to magistrate, as case may be. [Pp. 36 & 37] C

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

----Ss. 174(1)(a)(b) & (c) & 176--Cause of death in custody of police--Inquiry--Scope of--Provision of Section 176, Cr.P.C. from its plain reading does not restrict to initiate such inquiry even if police, medical officer or any other person does not make such request--In case of death in custody inquiry to know cause of death is mandatory because it is with word shall while in cases, word may has been used which even is permissive in nature--Magistrate shall proceed to conduct an inquiry within scope of provision of Section 176 of Code which however shall be in addition to investigation into FIR, ordered to be lodged. [P. 37] D & E

Mr.Mazhar Ali Bhutto, Advocate for Petitioner.

Mr.Ghulam Dastagir A. Shahani, Advocate for Respondent No. 5.

MessrsAsif Ali Abdul Razzak Soomro and Faiz Muhammad Larik, Advocates for Respondents Nos. 6 to 8.

Mst. Shahzado Saleem, A.P.G.

Date of hearing: 8.10.2015.

Order

Through instant petition, petitioner Mst. Yasmeen Shaikh has prayed as under:--

a. That, this Honourable Court may kindly be pleased to call and direct the official Respondents No. 1 to 4, above not to violate fundamental rights and legal privileges of petitioner and his family and to avoid from arresting, harassing, pressurizing or confining him except due course of law at the instance of private respondents.

b. That this Honourable Court may be pleased to direct the Respondent No. 2 to register F.I.R of the murder of one younger boy Mushtaque Ahmed Shaikh aged about 15/16 years in police custody against the Respondents No. 1 to 8 under Section 154, Cr.P.C.

c. That this Honourable Court may also be kindly pleased to direct Respondents No. 9 and 10 to ensure legal protection to petitioner and her family against apprehended life and property loss at the hands of Respondents No. 1 to 8.

1. Precisely, the relevant facts are that about one and half month back an F.I.R in respect of murder of one Imran Brohi bearing Crime No. 31/2015 was registered at P.S Civil Line, Jacobabad, wherein petitioner’s son, namely, Mushtaque Ahmed Shaikh, aged about 15/16 years, was nominated, who was arrested by the police; was detained at Police Station Jacobabad, where he was being tortured physically. It is further case of petitioner that on 30.4.2015, at about 3.30 p.m. when she was present in her house alongwith relatives, namely, Paras and Mst. Altaf Khatoon, at that time accused persons, namely, 1. Ghulam Abbas Jakhrani, 2. Jameel Ahmed Mangi, 3. Saeed Ahmed Brohi, 4. Ahmed Khan alias Waseem Ahmed, all armed with Kalashnikovs, intruded into the house, on gunpoint they took petitioner and her above-named relatives and brought at P.S City, Jacobabad in a white colour land cruiser vehicle, where petitioner’s son Mushtaque Ahmed was lying in serious condition in the lockup duly handcuffed and the petitioner was threatened to disclose the whereabouts of her husband Muhammad Haneef Shaikh, else her son will be murdered. On cries of petitioner, she was slapped by SHO Anwar Brohi and her son was denuded and whipped and mixture of water and “Choona” was forcibly put in the mouth of petitioner’s son, as a result of which he became unconscious and subsequently on 04.5.2015, at about 10.00 a.m. he expired at CMC Hospital, Larkana.

2. It is further pleaded that postmortem reveals that deceased received injuries, but such postmortem was withheld till report of viscera. Following surface wounds and injuries were noted down by the doctor, who conducted postmortem of deceased Mushtaque Ahmed, with his remarks as under:--

3. Skin laceration semi healed at scab formation 06 cm x 03 cm on right lip joint laterally.

4. Skin laceration (semi healed) 08 cm x 06 cm on the right side of buttock.

5. Skin laceration (semi healed) 06 cm x 04 cm on the left side of buttock.

Ward Expiry Note. (Death Summary) by consultant of Medical Unit 1 CMC Hospital Larkana. Mr. Mushtaque was referred from Jacobabad Hospital in unconscious on 03.5.2015. He was admitted in Medical Unit 1 CMC Hospital Larkana in High dependency on Bed No. 1 O/E: Pulse 90/min, PB = 100/70, Neck, Rigidity positive, liver, spleen was also palpable. There was suspicions of CLD at Meningitis and Septicemia HBS Ag +ve, Blood urea and creatinine deranged. All measures management for serious were taken but patient expired on 4.5.2015 at 10.10 p.m. in Medical Unit 1 CMC Teachings Hospital Larkana.

Remarks

From external as well as internal examination of deceased Mushtaque Ahmed s/o Mohammad Hanif Shaikh opinion reserved for want of Histo Pathological and, Chemical analysis Examination reports of visceras which are taken during the postmortem examination opinion will be given after receipt of such reports.”

1. It is matter of record that deceased was arrested and such mashirnama was prepared, at that time he was not injured. Subsequently he received injuries in custody of police and was referred to CMC Hospital, Larkana, where he died and such postmortem was conducted. Proceedings under Section 174, Cr.P.C. were not initiated, when it is matter of record that deceased was in custody. It is settled principle of law that every SHO is bound to record the statements of every informant and once information, narrated or received by him spells commission of a cognizable offence, he is left with no discretion but to incorporate the same into 154, Cr.P.C. because the provision is mandatory in nature. Worth to take note of that the mandatory obligation of the officer in-charge of a police station also brings him under an obligation that he does not have to stop the pen while recording report in 154, Cr.P.C. even if the informant names the man with pen himself. It is not the caste, colour, creed or position of the accused but the investigation/trial alone which would dress an accused with clothe of innocence, but in this case that was not done. Also record reflects that within short period of time deceased died in hospital and medical report also shows injuries but opinion as regard to status of death of be natural or un-natural was withheld which prima facie was not requiring expert opinion. The conduct of the doctor and police is not up to the mark. Let me add here that even concerned Magistrate was not approached who otherwise is legally empowered to inquire into in such matters as is provided by Section 176 of the Code, which for sake of clarity is referred hereunder:--

2. Inquiry by Magistrate into cause of death.--(1) When any person dies while in the custody of the police, the nearest Magistrate empowered to hold inquests shall, and in any other case mentioned in Section 174, clauses (a), (b) and (c) of sub-section (1), any Magistrate so empowered may hold an inquiry into the cause of death either instead of, or in addition to, the investigation held by the police-officer, and if he does so, he shall have all the powers in conducting it which he would have in holding, an inquiry into an offence. The Magistrate holding such an inquiry shall record the evidence taken by him in connection therewith in any of the manners hereinafter prescribed according to the circumstances of the case.

3. This also prima facie goes to suggest that such legal inquiry was deliberately avoided. Under peculiar circumstances of the instant case it was obligatory duty of the Officer in-charge of police station and even the medical officer to have informed to the concerned Magistrate for necessary-inquiry but this obligation was not done. The medical officer on appearance or production of an injured should not delay the treatment in name of any formality like police letter etc but at very first opportunity should report the matter to police or to Magistrate concerned, as the case may be. Accordingly, they are required to be prosecuted on their negligence.

4. While parting, it is material to mention here that provision of the Section 176 of the Code from its plain reading does not restrict the Magistrate concerned to initiate such inquiry even if the police, medical officer or any other person does not make such request. In case of death in custody inquiry to know cause of death is mandatory because it is with word shall while in cases, mentioned in Section 174, clauses (a), (b) and (c) of sub-section (1) the word may has been used which even is permissive in nature. Therefore, let this order be circulated to all Magistrates for guidance so that a soul cannot be made to rest in peace least cause of death is brought into light which is aimed for no other purpose but to bring a full stop against all maneuvers on part of police (death in custody) or against a killing coloured as suicide.

5. On receipt of the copy of this order, the Magistrate shall proceed to conduct an inquiry within scope of the provision of Section 176 of the Code which however shall be in addition to the investigation into FIR, ordered to be lodged.

6. These are the detailed reasons of short order whereby instant petition was disposed of, for the sake of brevity same is reproduced as under:

“Heard learned counsel for the parties and perused the record. For reasons to be recorded later on, instant petition is allowed.

(i) The SHO, P.S City Jacobabad shall record statement of petitioner; if same narrates ingredients of a cognizable offence he shall incorporate the same in book provided under Section 154, Cr.P.C.

(ii) With regard to postmortem it appears that there is negligence on the part of Medical Officer, thus Director General, Health Services Sindh, Hyderabad, is hereby directed to constitute a team for probe with regard to postmortem report, whether such careless conduct is on the part of medical officer or otherwise. This exercise shall be completed within fifteen days with compliance to this Court through Additional Registrar.”

(R.A.) Petition allowed

PLJ 2016 Karachi 38 (DB)

Present: Salahuddin Panhwar and Syed Saeed-ud-Din Nasir, JJ.

Ms. KALPNA DEVI, ADVOCATE--Petitioner

versus

NATIONAL HIGH WAY AUTHORITY through Chairman,Islamabad and 4 others--Respondents

C.P. No. D-122 of 2011, decided on 17.9.2015.

National Highway Authority Act, 1991--

----S. 2(g)--Scope of--Road accident--Responsibility of NHA--Flow of traffic--Traveling--Such object can never be achieved without compelling vehicles owners to follow relevant rules of traffic, which are neither meant to curtail freedom of an individual to ply vehicle nor at his whims and wishes but strictly as per applicable rules and law for his/her own safety and that of others. [P. 42] A

National Highways Safety Ordinance, 2000--

----S. 17(1)--Scope of--Object of carrying into effect provisions of ‘Ordinance’ shall not serve its purpose unless rules are made in consultation with NHA and that of authority, so defined in ‘Ordinance’--NHA is bound to place road signs of regulation or direction concerning traffic on road; traffic signs which includes all signals, signs, post or other devices for information, guidance or directions of road vehicles so also to check license as well as maintain speed--Precautions are not meant to remain on papers alone but object ‘safety’ cannot be achieved unless writing on papers (rules) are physically clothed. [P. 43] B & C

National Highways Safety Ordinance, 2000--

----S. 92--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--Road accident due to crash stones in small size were lying scattered--Sustained serious injuries--Car damages badly--Caused severe human and monetary loss to affectees--Validity--An accident or unfortunate incident, if is complained to be a result of failure of non-observance of requirement of rules, shall not only make purpose and object thereof a ‘nullity’ but shall also put a big question mark on due diligent exercise of authority with responsibility for enforcement of rules--Ordinance also provides for Motorway Police, whose prime duty is to implement traffic rules, regulations and restrictions and to give facilities provided under Safety Ordinance. [P. 43] D & E

National Highways Safety Ordinance, 2000--

----S. 17(1)--Controlling and managing authority of road accident--If NHA is controlling and managing authority of road then authority should not remain mum inclusion of road as ‘national highway’ but must show its existence by making efforts in achieving ultimate object of ‘Ordinance’ which cannot be achieved unless all three quarters, come forward with a policy or rules, not only showing paper work but enforcement thereof visible to a naked eye. [P. 44] F

Toll Tax--

----Scope--NHA cannot avoid its obligations and mandatory duty which is ‘safety’ , as Ordinance insisted therefore, Court found it in all fairness to direct NHA to provide all required facilities, which it (NHA) has to provide against ‘toll’ or to meet with object of Ordinance--NHA shall constitute a committee and shall draw criterion within three months and ensure that toll tax is received by NHA on subject matter at par with other roads maintained by NHA. [Pp. 45 & 46] G & L

Accident--

----Negligence of driver--Negligence of a ‘driver’ does put lives of others into danger which can well be brought to justice by bringing his such act before Courts but loss/damage in shape of injuries or costing lives even cannot be compensated. [P. 45] H

National Highways Safety Ordinance, 1991--

----Scope of--NHA shall provide all facilities including patrolling of motor way police round clock, and establish emergency aid clinic ambulance service (duly equipped with basic equipments to treat injured persons of accidents) at toll collecting point which shall be available on one call notice--NHA shall also ensure patrolling of motor police, linking road up-to main highway as undisputedly, this road also falls within command and control of NHA; further, it is a matter of record that NHA, authority has established toll tax, on that road--Such measures shall be taken positively being matter of public importance and report in that regard be submitted within one month, which shall be placed for an order of satisfaction of order or further direction towards such satisfaction. [P. 45] I & J

Accident--

----Compensation or damages--Jurisdiction--Quantum of compensation or damages is required to be determined as to what losses petitioner and her family members received and that can only be appreciated through evidence which is not permissible in writ jurisdiction, hence petitioner is at liberty to approach Civil Court having jurisdiction and may sue NHA. [P. 46] K

Mr. AliNawaz Ghanghro, Advocate for petitioner along with Petitioner.

Mr.Athar Abbas Solangi, Advocate for Respondent No. 5.

Mr.Mushtaque Ahmed Korejo, Standing Counsel for D.A.G.

Mr. Safdar Ali Ghouri, Advocate, for Respondent No. 1.

Date of hearing: 10.9.2015

Order

Salahuddin Panhwar, J.--Through instant Constitutional Petition, the petitioner prays as under:

(a) That this Honourable Court may kindly be pleased to direct the Respondents No. 01 to 05 to take all necessary precautions on the road as required under the Act, for safe travel of the common people.

(b) That this Honourable Court be further pleased to direct the Respondents No. 01 to 04 to pay compensation to the petitioner and losses caused to her vehicle.

1. Succinctly, the facts as setout in the petition are that on 13.12.2010, the petitioner along with her husband, driver and friend of her husband Dr. Safdar Shaikh, were on the way from Karachi to Larkana via Khairpur-Larkana road National Highway Road. At Tando Masti, turn, towards Larkana, crash stones in small size were lying scattered on the road, hence, Car of the petitioner slipped upon and went out of control of the driver, as result thereof, petitioner, her husband, driver and above-named friend of husband sustained serious injuries and Toyota Corolla Car also damaged badly. It is worth to mention here that where crash was scattered on the road, work was not in progress and even cautionary boards were not placed for the facility and care of common travel safely, but no such measures were taken by the respondents. Prior to the accident of the petitioner, 4/5 accidents had already occurred at the same place and in the same way, which has caused severe human and monetary loss to the affectees. The above carelessness and irresponsibility by the Respondents No. 1 to 4 who have allowed their contractors to play havoc and to put lives and vehicles at serious peril. It is sorry state of affairs that in spite of drawing smart salary packages and enjoying other conveyance facilities, the Government officials viz. respondents particularly and other officials commonly are not performing their duties and are playing with the lives of the people by closing their eyes on irregularities by the contractors with the blessings of Government functionaries/official Respondents No. 1 to 4, hence they are liable to be directed to take all the pre-cautionary measures on the road, as per NHA Act and are also liable to compensate the petitioner for the losses caused to her and her vehicle.

2. In contra, the Respondent No. 5 has filed his comments contending therein that crash stones were not lying on the road, hence car of the petitioner allegedly slipped upon; neither the name of the driver is mentioned nor any incident is reported any where. Respondent No. 5 has contended that alternative and efficacious remedy is available to the petitioner by invoking Civil Court.

3. Whereas, Respondents No. 1 to 4 in their joint comments have stated that the contents of Paras No. 7, 8 & 9 are vehemently denied to be false. Answering respondents have not failed in their duties. It is also denied that N.H.A is liable to compensate the petitioner; that for rash and negligent driving the driver is himself responsible; even otherwise, controversy involved in this petition is between the petitioner and the contractor, who was constructing the road as per contract.

4. Learned counsel for the petitioner, inter-alia, contended that National Highway Authority (NHA) has constructed the road connecting Larkana to the main Highway at Tando Masti; they have established a Toll Plaza; they are receiving Rs. 30/- per vehicle; distance of such road is about fifty kilometers; no facilities are provided on this road, therefore, Toll Tax is illegal; National Highway Authority is not providing basic facilities including the patrolling of motorway police, therefore, citizens of Larkana and adjoining areas are unsafe while driving on this road; no visible signs are available on the road, hence accidents are routine affair.

5. In contra, counsel for NHA contents that respondents are liable to provide the basic facilities and they are providing the same; claim of the petitioner for awarding damages cannot be enforced in writ jurisdiction as the petitioner can approach to competent Civil Court for redressal of her grievance.

6. Before dilating upon the merits of the case, it would be conducive to have a glance over the relevant laws of National Highway Authority (NHA), accordingly we examined National Highway Authority Act, 1991, Motor Vehicle Ordinance, 1965 and National Highways Safety Ordinance, 2000. Section 2(g) “National Highways” provides definition of National Highways:

Section 2(g) “National Highways” means a road specified in part-I of the schedule and includes a road declared by the Federal Government, by notification in the official gazette, to be a national highway.

Section 2(k) provides definition of “Road” which is as under:

Section 2(k) “Road” means a road including land within the right of way and all words, such as carriage ways, cart ways, foot paths, berms, sight drains, culverts, bridges, tunnels, fences, posts, sign boards, plantation and lighting arrangements, interSections and medians assigned to the authority, 8. Perusal of definition of relevant laws of National Highway Authority (NHA) show that road from Larkana to Tando Masti linking to main National Highway comes within the ambit of road as defined by National Highway Authority Act and undisputedly the same is controlled by the NHA. Let us add here that responsibility of the authority (NHA) does not come to an end only by mentioning a particular road into its relevant part-I of the schedule or declaration thereof to be a ‘national highway’ but the responsibility continues till the Authority ensures flow of traffic thereon with ‘safety’ of vehicles or those traveling therein. Such object can never be achieved without compelling the vehicles owners to follow the relevant rules of the Traffic, which are neither meant to curtail the freedom of an individual to ply vehicle nor at his whims and wishes but strictly as per applicable rules and law for his/her own safety and that of others. Let it be made clear that the Motor Vehicle Ordinance pertains to year 1965 and need to bring the road(s) under Federation arose in the year 1978, when the Government of Pakistan (GoP) decided to federalize roads while naming the same as ‘National, Highways’ and created National Highways Board for monitoring the development and maintenance of these federalized roads by Provincial Highway Department. Later the time gave cause for establishment of the ‘National Highways Authority’: followed by National Highways Authority Act, 1991’. However, since the issue of ‘safety’ was/is always the prime responsibility of the State, therefore, National Highways Safety Ordinance, 2000 was enacted, that from its very title appears to be nothing but meant for ‘National Highways’ which undisputedly are to be controlled, managed and maintained by the National Highways Authority. The National Highways Safety Ordinance, 2000 (hereinafter be referred as ‘the Ordinance’) has got its own provisions, meant to regulate the flow of traffic on ‘national highways’ which follows with penal clauses in case of breach thereof, therefore, it can safely be said that the rules, provided therein, are to be followed whenever a ‘national highways’ is under discussion.

1. Thus, it is pertinent to mention that the object of carrying into effect the provisions of the ‘the Ordinance’ shall not serve its purpose unless the rules are made in consultation with National Highways authority and that of authority, so defined in ‘the Ordinance’, as was insisted in Section 17(1) of ‘the Ordinance’:

(1) The Government may, in consultation with National Highways and Pakistan Motorway Police, by notification in the official Gazette, make rules for the purpose of carrying into effect the provisions of this Chapter.

Bare perusal of National Highway Safety Ordinance, 2000, shows that NHA is bound to place road signs of regulation or direction concerning the traffic on road; traffic signs which includes all signals, signs, post or other devices for the information, guidance or directions of the road vehicles so also to check license as well as maintain speed. Worth to say that these precautions are not meant to remain on papers alone but the object ‘safety’ cannot be achieved unless the writing on papers (rules) are physically clothed. However, the perusal of the available record prima facie shows that rules and requirement of ‘the Ordinance’ have still not achieved its purpose and object. An accident or unfortunate incident, if is complained to be a result of failure of non-observance of requirement of the rules, shall not only make the purpose and object thereof a ‘nullity’ but shall also put a big question mark on the due diligent exercise of the Authority with responsibility for enforcement of rules. This Ordinance also provides for Motorway Police, whose prime duty is to implement the traffic rules, regulations and restrictions and to give facilities provided under Safety Ordinance. It is pertinent to mention that Section 92 of Safety Ordinance provides that:

1. Superintendence and administration of National Highway and Pakistan Motorway Police.--The head of National Highways and Pakistan Motorway Police shall be an Inspector General, who shall exercise all powers of an Inspector General of Police under Police Act, 1861 (V of 1861), and Administer the force in accordance with the provisions of this ordinance and rules made there-under.

2. Accordingly, it would be safe to say that if the National Highways Authority is the controlling and managing authority of the road in question (a national highway) then the authority should not remain mum only with an addition in Part-I of its Schedule i.e inclusion of road as ‘national highway’ but must show its existence by making efforts in achieving the ultimate object of ‘the Ordinance’ which in my opinion cannot be achieved unless all three quarters concerned, as mentioned in Section 17(1) of the Ordinance, come forward with a policy or rules, not only showing paper work but enforcement thereof visible to a naked eye. The NHA is also receiving ‘Toll tax’ which is always subject to providing some service/facility because under the law Government prima facie has the authority to levy the Toll or Fee but such tax or levy is always subject to rendering some service, else it would amount to taxing the citizens which the law does not authorize. We are fortified in our view with the case of The Burmah Oil Company Limited v. The Trustees for the Port of Chittagong reported in PLD 1961 Supreme Court 452 their lordships of Honourable Supreme Court has interpreted the ‘Toll Tax’ as under:

“There may be tolls of many kinds, such as harbour tolls, anchorage tolls, or even a toll for the use of a Railway system itself. In its generic sense a ‘toll’ may be described as a payment of a sum of money in respect of some benefit derived by the payer from the use of some property, service or facility provided by another. ‘Toll’ is not, synonymous with ‘hire’. It may well be distinct from, and in addition to, a charge leviable for the use of that property, service of facility. Thus a ‘toll’ realizable by a railway, may be a payment in respect of the use of the railway system itself as distinct from a charge for carriage, haulage or collection.”

followed by a Division Bench of this Court in the case of Mian Ejaz Shafi and others v. Federation of Pakistan reported in PLD 1997 Karachi 604.

1. Since the issue of ‘toll’ is not before us therefore, needs no further discussion. The record, however, shows that the National High Ways Authority is collecting the ‘toll’ without providing the services and even appears to have not fulfilled the object of ‘the Ordinance’. The NHA cannot avoid its obligations and mandatory duty which is the ‘safety’, as the Ordinance insisted therefore, we find it in all fairness to direct the National Highway Authorities to provide all the required facilities, which it (NHA) has to provide against ‘toll’ or to meet with object of the Ordinance. Since, we are equally conscious that the rules and enforcement thereof shall no doubt help in making the flow of traffic smooth and safe but chances of ‘road accidents’ yet shall continue. A national highway brings a concept of ‘good and properly maintained road’ with a permitted high speeding and in absence of strict watch and control resulting into increase of ratio of road accidents which though is unfortunate and regrettable yet a fact. The negligence of a ‘driver’ does put the lives of others into danger which can well be brought to justice by bringing his such act before Courts but the loss/damage in shape of injuries or costing lives even cannot be compensated. A fate cannot be denied but at the same time things cannot be left unattended on this reason alone, therefore, time has also come when the quarter concerned NHA e.t.c or Government even shall ensure provision of ambulance clinical service while maintaining the Highways including National Highways at their own cost or while giving the contract of such road(s) to a company under Public Private Partnership. This may not only save the lives of all injured of road accidents but even help in saving the life of single individual with timely medication and treatment succeeds in avoiding permanent amputation of an organ, shall not only serve the purpose but will also complete the term ‘safety’. The National highway Authority shall provide all facilities including the patrolling of motor way police round the clock, and establish emergency aid clinic ambulance service (duly equipped with basic equipments to treat injured persons of accidents) at the toll collecting point which shall be available on one call notice. Accordingly, NHA, authority shall also ensure the patrolling of motor police, on Larkana to Tando Masti, linking road up-to main highway as undisputedly, this road also falls within command and control of NHA; further, it is a matter of record that NHA, authority has established

Toll Tax, on this road. Such measures shall be taken positively being matter of public importance and report in this regard be submitted within one month, which shall be placed for an order of satisfaction of order or further direction towards such satisfaction.

1. With regard to civil injury caused to the petitioner, it is relevant to mention that quantum of compensation or damages is required to be determined as to what losses the petitioner and her family members received and that can only be appreciated through evidence which is not permissible in writ jurisdiction, hence the petitioner is at liberty to approach concerned Civil Court having jurisdiction and may sue the National Highway Authority (NHA).

2. Regarding Toll Tax, learned counsel for the petitioner has pointed out that such amount is exorbitant and is not justified. On this count, National Highway Authority shall constitute a committee and shall draw the criterion within three months and ensure that Toll Tax is received by the National Highway Authority (NHA) on the subject matter at par with the other roads maintained by the National Highway Authority.

3. Accordingly, instant petition stands disposed of in above terms.

(R.A.) Petition disposed of

PLJ 2016 Karachi 46

Present: MuhammadShafi Siddiqui, J.

KHADIM HUSSAIN--Plaintiff

versus

SINDH BANK LTD. through President and another--Defendants

Suit No. 1748 and C.M.A. No. 12138 of 2014, decided on 13.5.2015.

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

----O. XXXIX, Rr. 1 & 2--Dismissal from service--Interim relief--Suspension of termination, dismissal order--Such interim measures cannot be taken into consideration since it amounts to relief claimed in suit--Validity--In case such interim measures are taken he would be reinstated to continue to serve defendant as if no orders of termination passed and in fact it amounts passing of decree in suit--Interim relief of such nature despite fact that there were no such circumstances which warrants considering such application was not permissible. [P. 48] A & B

1989 SCMR 1855, 1995 SCMR 453, 1997 SCMR 1508, 1998 SCMR 60, 68 & PLD 1984 SC 194, rel.

Mr. Abdul SalamMemon, Advocate for Plaintiff.

Mr. FaisalMehmood Ghani, Advocate for Defendants.

Date of hearing: 13.5.2015.

Order

This is an application under Order XXXIX Rules 1 & 2, CPC. Brief facts of the case are that the plaintiff was dismissed from service in terms of dismissal order available at page 117. Previously plaintiff has filed a suit Bearing No. 1495/13 wherein plaintiff was directed to participate in the enquiry and the defendant was under obligation to conduct enquiry in accordance with law after giving opportunity of hearing to the plaintiff and then a speaking order is to be passed. Plaintiff was further directed to appear before the enquiry officer on 08.9.2014 at 11:00 a.m.

Learned Counsel for the plaintiff submits that the impugned dismissal order is in violation and spirit of the order referred above, as no reasons are assigned for his dismissal. Learned Counsel has further submitted that the enquiry was completed in one day and on 09.9.2014 the enquiry officer submitted its report to the competent authority who issued the impugned dismissal order dated 10.9.2014 hence the principle of justice has not been fulfilled. Learned Counsel submits that this is a case where interim relief in the shape of final decree can be passed as the principle of natural justice has been violated.

On the other hand learned Counsel for the defendant has relied upon the enquiry report available on record. Learned Counsel submits that the plaintiff in pursuance of a letter issued to him directed to bring all his witnesses which is available at page 99. Learned Counsel submits that he appeared before the enquiry officer and he showed his satisfaction as he signed enquiry report which is available as annexure-R. Learned Counsel submits that he was asked by the enquiry officer as to whether he is willing to cross-examine the management’s witnesses to which he has replied “No”. Learned Counsel has taken me to the relevant part of the enquiry report and in particular last para where the accused was asked whether he wants to produce any witness to which he replied “No”. Learned Counsel submits that the dismissal order is not to be read in isolation but with enquiry report which the plaintiff has concealed from this Court. Learned Counsel submits that since he has been dismissed from service therefore, such interim measures cannot be taken into consideration since it amounts to a relief claimed in the suit. Learned Counsel has relied upon the cases of Qazi Inamul Haq vs. Heavy Foundry and Forge Engineering (Pvt.) Ltd. (1989 SCMR 1855), Muhammad Umar Malik vs. The Muslim Commercial Bank Ltd. (1995 SCMR 453), Islamic Republic of Pakistan vs. Muhammad Zaman Khan & others (1997 SCMR 1508), Habib Bank Ltd. & others vs. Syed Ziaul Hassan Kazmi (1998 SCMR 60), United Bank Limited & others vs. Ahsan Akhtar & others (1998 SCMR 68), Anwar Hussain vs. Agricultural Development Bank of Pakistan & others (PLD 1984 SC 194).

Heard the learned. Counsels and perused the material available on record.

The first point that requires consideration while deciding the injunction application is that the plaintiff has sought suspension of a termination/dismissal order dated 10.9.2014 meaning thereby that in case such interim measures are taken, he would be reinstated to continue to serve the defendant as if no orders of termination are passed and in fact it amounts passing of a decree in the suit. I am of the view that interim relief of such nature despite the fact that there are no such circumstances which warrants considering such application is not permissible. In addition to this it is significant to show that enquiry report which is available on record is self explanatory although the detail reasoning has not been assigned in the impugned dismissal order yet under the present circumstances and the nature of relief the plaintiff seeking through this interlocutory application, I am of the view that at this stage this enquiry report is to be read along with dismissal order wherein the plaintiff has not examined his witness and refused to cross-examine the witnesses of the management hence in view of the above the application merits dismissal.

(R.A.) Application dismissed

PLJ 2016 Karachi 109

Present: Muhammad Ali Mazhar, J.

M/s. POPULAR INTERNATIONAL (PVT.) LIMITED, KARACHI through Authorized Officer and another--Plaintiffs

versus

PROVINCE OF SINDH through Secretary Ministry of Health and 4 others--Defendants

Suits No. 2605, 2283, 2346, 2587, 2617, 2249 of 2014 and 14 of 2015, decided on 4.9.2015.

Sindh Public Procurement Rules, 2010--

----Scope of--Award cannot be reopened--Issue of past tenders--Validity of decision of complaint redressal committee--Award of tender and work order for supply of pharmaceutical products/medicines--After lapse of financial year, issue of past tenders and its award cannot be reopened or considered--Public importance--Process of judicial inclusion or exclusion--Validity--Owing to discord and wrangle involved in tender proceedings, previous tender to a limited extent was shelved and discarded on close of financial year--Budget is lapsed so government cannot revert back to previous tenders invited for a particular year and now again for next tenders of pharmaceutical supplies, plaintiffs had entered into arena and submitted their bids document but finalization of tender was stayed so that tender proceedings including award of contract and work order of some of medicines could not be finalized--If that time again budget was lapsed nothing will be achieved by plaintiffs even they will get away from chance of declaring successful bidder on merits and tender will be ‘shelved again like previous year but due to that tug of war, ultimate sufferer and victim would be public at large who will be deprived--Interest of public at large is involved which needs urgent resolution--It is well settled that public interest has been considered as core of democratic theories of government and often paired with two other concepts, convenience and necessity--It is settled that public importance must include a purpose or aim in which general interest of community as opposed to particular interest of individual directly or widely--Public interest is very wide expression & embraces public security, public order & public morality. [Pp. 113 & 114] A, B & C

Sindh Public Procurement Rules, 2010--

----Scope of--Procurement laws are meant to uphold and preserve transparency so it is incumbent upon government and its attached departments/procuring agency to implement and follow dictates of law fair and square which is an essential component and acid test of good governance. [P. 114] E

Public Interest--

----Scope of--Expression public interest in common parlance means an act beneficial to general public & action taken in public interest necessarily means an action taken for public purpose--It further leads general social welfare or regard for social good & predicating interest of general public in matters where regard was social good is of first moment. [P. 114] D

Mr. Ravi R. Pinjani, Advocate for Plaintiffs (in Suit Nos. 2605, 2617, 2587 of 2014 and 14 of 2015) and for Defendant No. 4 (in Suit No. 2346 of 2014) and for Intervener (in Suit Nos. 2249 and 2283 of 2014).

M/s. Yawar Farooqi and Irfan Ahmed Memon, Advocates for Plaintiffs (in Suit Nos. 2346, 2249 and 2283 of 2014) and for Defendant No. 5 (in Suit No. 2605, 2587 of 2014, 14 of 2015) and Defendant No. 4 (in Suit No. 2617 of 2014).

Mr. Muhammad Akhtar, Advocate holding brief for Mr. Malik Khushhal, Advocate for Defendant No. 4 (in Suit No. 2587 of 2014).

Mr. Qazi Majid Ali, Additional A.G.

Dr. Abdul Razzak, O.S.D., Health Department, Government of Sindh, Karachi.

Mr. Muhammad Omer, Attorney of Shah Dev (Plaintiff in Suit Nos. 2249 of 2014, 2283 of 2014 and Defendant (in Suit Nos. 2617, 2587, 2605 of 2014 and 14 of 2015) is also present.

Date of hearing: 4.9.2015.

Order

In the aforementioned suits, the bone of contention between the parties relates to the award of tender and work orders for the supply of different pharmaceutical products/medicines and some of them have also questioned the validity of the decision of “Complaint Redressal Committee” constituted under the Sindh Public Procurement Rules, 2010.

1. The brief facts of the each suit are highlighted separately as under:-

Brief Facts

1. In Suit No. 2605 of 2014, M/s. Popular International (Pvt) Ltd. have challenged the decision of Complaint Redressal Committee dated 02.12.2014 and also prayed for the permanent injunction against the defendants from acting upon any such minutes of meeting or the decision.

2. In Suit No. 14 of 2015, M/s. B. Braun Pakistan (Pvt) Ltd. have also challenged the decision of the Complaint Redressal Committee dated 02.12.2014.

3. In Suit No. 2587 of 2014, M/s. Saad Sales Services have impugned the same decision of the Complaint Redressal Committee and claimed that the plaintiff be declared successful bidder in respect of the item listed in Para-3 of the plaint and also prayed for permanent injunction against the official defendants not to act on the minutes of meeting or the decision of the Complaint Redressal Committee.

4. In Suit No. 2617 of 2014, M/s. Hospital Services & Sales and M/s. Pakistan Chemists & Druggists Association have also challenged the decision of Complaint Redressal Committee with further prayer of permanent injunction against the official defendants and they have also sought directions that Defendants No. 1 to 3 should proceed in accordance with the result of Evaluation Committee and opening of the financial bids.

5. The plaintiff Shah Dev in Suit No. 2249 of 2014 has challenged the rejection of his bid by the defendant without assigning any reason which is unjust and unlawful and violation of SPPRA Rules. He further prayed that the plaintiff may be allowed to participate in the tender proceedings and also sought restraining orders against the defendants not to issue work order.

6. In Suit No. 2283/2014, the same plaintiff Shah Dev prayed that rejection of his technical bid was unlawful and he may be allowed to participate in the tender proceedings for the items mentioned in Para-7 of the plaint and he has also sought the restraining order against the defendants not to issue work order to any other person.

7. In Suit No. 2346 of 2014, the plaintiff Mohammad Arshad Awan has prayed that he is entitled for the award of contract in respect of items mentioned in Para-9 of the plaint. He further prayed that the defendants should consider the rates quoted by the plaintiff for award of contract and he has also sought restraining order not to award contract to any other person.

8. At the very outset, the learned Additional A.G pointed out that the dispute in the aforesaid Suits germane to the tenders for the supply of some pharmaceutical products and medicines invited by the Health Department, Government of Sindh for the financial year 2014-15 and since the controversy was raised between the bidders and the department therefore no tender/work order was issued for the Pharmaceutical items for the which the present plaintiffs filled their tenders and raised a dispute.

9. The learned counsel for the plaintiffs argued that some of the plaintiffs were declared successful but work orders were not issued which assertion was denied by the learned A.A.G. However, the learned counsel for the plaintiffs fairly conceded to that the controversy/dispute pending through above suits germane to the financial year 2014-15 and during pendency, the Complaint Redressal Committee constituted under the Sindh Public Procurement Rules, 2010 announced their decisions on the complaint which have also been challenged through Misc. Applications in some suits and interim orders are operating against finalization of tenders.

10. It is an uncontroverted fact that during pendency of the above Suits, the Government of Sindh again invited fresh tenders for different Pharmaceutical items /medicines for the financial year 2015-16 in which also the aforesaid plaintiffs have again participated despite pendency of their Suits in this Court. The plaintiffs have submitted their bids for different items but on 16.06.2015, the learned Single Judge of this Court passed an injunctive order that till next date of hearing, the process of impugned tender shall not be finalized in respect of the item described in the application CMA No. 9323 of 2015, filed in Suit No. 14 of 2015.

11. The representative of Health Department as well as learned Additional A.G submit that due to interim orders except the items mentioned in the injunction application filed by the plaintiffs in their Suits, the tenders have been awarded to successful bidders and the work orders have been issued. Now the department is waiting for the decision of the above Suits so that the tender proceedings of the remaining Pharmaceutical items/medicines may be finalized and the processed in accordance with law for the financial year 2015-2016.

12. The learned Additional A.G submits that since the plaintiffs have participated in the fresh tender process and due to interim orders, the public at large is suffering, therefore, he proposed the disposal of the suits with the assurance that the bids submitted by all the plaintiffs will be considered by the Technical Committee in a transparent manner and finalized the same in accordance with the law.

13. Mr. Ravi R. Pinjani advocate on instructions agrees to the proposal and he has no objection if his suits are disposed of along with pending applications without prejudice to the rights of his clients to sue for damages as despite acceptance of the bids of his clients for previous financial year, tenders were not awarded though this claim was seriously controverted by the learned A.A.G. Mr. Yawar Farooqi advocate also conceded to that his clients have also participated in the fresh tender floated for the year 2015-2016 and he has no objection if his suits are also disposed of but without prejudice to the rights of his plaintiffs to approach this Court in case of any fresh cause of action accrued due to any irregularity or violation of law committed by the defendants in relation to the tender proceedings and its finalization.

14. It an admitted fact that earlier tenders were invited for the financial year 2014-15 and it is categorically stated by the learned AAG and representative of health department that after lapse of financial year, the issue of past tenders and its award cannot be reopened or considered. So far as the previous tender is concerned the issue is over and suits have virtually become infructuous and so far as bids for the financial year 2015-2016 is concerned, this matter is still alive in which all the plaintiffs may participate. Both the learned A.A.G and Dr. Abdul Razzak O.S.D Health Department, Government of Sindh have assured that the bids submitted by the plaintiffs will be considered by Evaluation/Technical Committee in a transparent manner and after scrutiny, the matter will be referred to for financial opening in accordance with Sindh Public Procurement Rules.

15. It is an admitted fact that owing to discord and wrangle involved in the tender proceedings, previous tender to a limited extent was shelved and discarded on the close of financial year and learned A.A.G argued that budget is lapsed so the government cannot revert back to previous tenders invited for a particular year and now again for the next tenders of pharmaceutical supplies, the plaintiffs have entered into arena and submitted their bids document but finalization of tender is stayed so that the tender proceedings including award of contract and work order of some of the medicines could not be finalized. If this time again the budget is lapsed nothing will be achieved by the plaintiffs even they will get away from the chance of declaring successful bidder on merits and the tender will be shelved again like previous year but due to this tug of war, the ultimate sufferer and victim would be public at large who will be deprived. I am fully in agreement with the line of argument build up by the learned A.A.G that the interest of public at large is involved in this case which needs urgent resolution.

16. It is well settled that public interest has been considered as the core of democratic theories of government and often paired with two other concepts, convenience and necessity. It also means welfare or well-being of the general public. In the case of Abu Dhabi Medical Devices Co. LLC. vs. Federation of Pakistan & another reported in 2010 CLC 1253 = SBLR 2010 Sindh 1313, I have discussed the phrase “public importance” and “public interest”. The expression “public importance” is not capable of any precised definition. It can only be defined by process of judicial inclusion or exclusion. Each case has to be judged in the circumstances of case as to whether the question of public importance is involved but it is settled that public importance must include a purpose or aim in which the general interest of the community as opposed to the particular interest of the individual directly or widely concern. Public Interest is very wide expression & embraces public security, public order & public morality. Expression Public Interest in common parlance means an act beneficial to general public & action taken in public interest necessarily means an action taken for public purpose. It further leads general social welfare or regard for social good & predicating interest of general public in matters where regard was social good is of the first moment.

17. The dispute involved in the instant case has discernible nexus with public interest which merits an expeditious disposal to safeguard and vouch for the rights of general public but at the same time, I am also fully cognizant that procurement laws are meant to uphold and preserve the transparency so it is incumbent upon the government and its attached departments/procuring agency to implement and follow the dictates of law fair and square which is an essential component and acid test of good governance.

18. By consent, the above suits are treated to be short cause and disposed of in the following terms:--

19. The bids submitted by the plaintiffs for the financial year 2015-2016 will be considered by the Evaluation/ Technical Committee in a transparent manner.

20. The plaintiffs will be informed in writing so that they may ensure their representation at the time of opening of their bids before the concerned committee/ committees.

21. The tender proceedings shall be conducted by the defendants and the concerned department strictly in accordance with law without any further delay and they shall complete the process quickly.

22. If the plaintiffs are declared qualified by the Technical Committee to participate in further proceedings, their bids/tender documents will be placed for financial opening and if plaintiff are declared successful they will be issued work orders in accordance with the Sindh Public Procurement Act, 2009 and Sindh Public Procurement Rules 2010.

23. In the event of any future cause of action, the plaintiffs may seek appropriate remedy in accordance with law. It is further clarified that if any plaintiff has grievance or in a frame of mind that despite declaring him as successful bidder in the previous tender proceedings, the work order was not issued due to which he has suffered or sustained any special or general damages, he may also move to avail appropriate remedy in accordance with law.

24. All pending applications are disposed of in the aforesaid suits and the interim orders are also vacated.

(R.A.) Applications disposed of

PLJ 2016 Karachi 115 (DB)

Present:Muhammad Ali Mazhar and Mrs. Ashraf Jahan, JJ.

ABDUL HADI--Petitioner

versus

NATIONAL ACCOUNTABILITY BUREAU through Chairman and 2 others--Respondents

C.P. No. D-4507 of 2013, decided on 28.8.2015.

Constitution of Pakistan, 1973--

----Art. 199--National Accountability Ordinance, 1999, S. 28(7)--Charitable Endowment Act, 1890, S. 5--Constitutional petition--Regularization of contractual service into permanency--Employees of international gateway exchange and not telecom foundation--Charitable institution--Wrongly treated employees of foundation in order to deprive from legal rights--Validity--Regularization in service cannot be claimed as vested right in instant case, petitioner had not only accepted terms and conditions of his engagement initially but also accepted extension of his contract on same terms however, at verge of its expiry approached High Court--So far as discriminatory treatment is nothing has placed on record to show any discriminatory treatment except two orders of High Courts in which facts of case are found distinguishable. [Pp. 123 & 124] A & B

Malik Naeem Iqbal, Advocate for Petitioner.

Syed Amjad Ali Shah, D.P.G. NAB.

Mr. Arif Karim, Senior Prosecutor NAB.

Mr. Akram Javed, Senior Prosecutor NAB.

Mr. Asim Mansoor,D.A.G.

Date of hearing: 13.5.2015.

Order

Muhammad Ali Mazhar J.--This petition is brought to seek out regularization of contractual services into permanency.

1. The short-lived facts are that in the year 2007, eleven posts of Investigation Officer (I.O.) were advertised by the NAB in the newspapers for the appointment on two years contract. The petitioner was appointed vide appointment letter dated 7.9.2007 on two years contract. Subsequently, his contract was extended vide Office Order dated 26.11.2012 for one year on existing terms and conditions. Since the petitioner was never conferred the status of the permanent employee, therefore, he has approached this Court for regularization of his services in NAB.

2. The learned counsel argued that the functions of Investigation Officer in the NAB department are in fact a permanent feature. The petitioner was selected through rigorous process and was appointed in the year 2007 on contract basis but his contractual employment was continued and his last extension was made up to 12.12.2013. He further argued that the post of Investigation Officer BPS-18 was re-designated as Junior Expert-2 (BS-18). During the course of employment the petitioner was subjected to training and despite his contractual employment, the petitioner was treated at par with the regular employees. It was further contended that though the petitioner was appointed on contractual arrangement under Section 28 (f) of National Accountability Ordinance, 1999 but this section does not apply which only germane to the appointment of Advisors, Consultants and Experts. He also referred to National Accountability Bureau (NAB) Employees Terms and Conditions of Services (TCS), 2002 and argued that under Condition No. 2.02, it is provided that the appointment made in the prescribed manner by initial appointment or promotion or transfer in accordance with these terms and conditions of services shall be deemed to have made on regular basis while Condition No. 3.33 pertains to the appointment on contract basis which may be made when it is not possible to fill a post in a prescribed manner and it is necessary to do so in the interest of the NAB. The sub-condition (2) further provides that the appointment shall be made on specific terms and conditions which are acceptable by the person who is being appointed. The learned counsel argued that distinction in two genres of appointments makes it obvious that the petitioner was appointed on regular basis irrespective of his letter of appointment showing the engagement as contractual employee. Learned counsel further argued that various policies have been introduced by the Government to regularize the services of employees working on contract basis or on daily wages in the different ministries, divisions, attached departments and other organizations and in this regard on 12.3.2013, the Principal Secretary to the Chairman, NAB also forwarded names of various officers of the NAB to the Principal Secretary of Prime Minister for tabling the same before the Cabinet Sub-committee constituted for regularization of the services of contract and daily wages employees. He referred to the name of the petitioner appearing at Sr.No. 22 in the said list and further referred to the office memorandum/minutes of meeting of the cabinet sub-committee dated 21.1.2013 deliberating the regularization of contract/daily wages employees in the ministries, divisions, attached, department, autonomous bodies/organizations etc. and argued that the services of various employees of the different Government Departments were regularized and the names of their department are also mentioned in the decision of sub-committee. In support of his contention the learned counsel referred to the following case law:-

(1) 2010 SCMR 253 (Pakistan Telecommunication Company Ltd. & another v. Muhammad Zahid others). Undisputedly, the crux of the case of the private respondents has been that they are being discriminated as against the other Operators performing service permanently with the PTCL or having been regularized in due course as Operators in the International Gateway Exchange performing similar functions in the Exchange apparently amounts to have been grossly violated as against the guaranteed rights under Articles 2-A, 4, and 25 of the Constitution by depriving them of their emoluments besides all other services benefits etc., described in Paragraph No. 2 of the writ petition being paid to other Operators performing service in the said Exchange and similarly placed and, therefore, discriminatory treatment has been meted out to the writ petitioners employed on daily wages and not regularized despite having rendered service for a period of more than 2 years as contract employees renewed from time to time mentioned in Para No. 16 (supra), therefore, the impugned judgment is unexceptionable irrespective of the status of the private respondents be that of a 'worker' or a 'civil servant' or the 'contact' employees' having no nexus to the maintainability of the writ petition on the ground of discrimination meted out to them.

(2) 2011 PLC (C.S) 367 (Ejaz Akbar Kasi and others v. Ministry of Information and Broadcasting & others). Petitioners, in the present case, had qualified the test and their performance as well was up to the mark which was evident that for the last more than 10 years they had been allowed to continue work against the vacancies which they were holding without any interference and there was, now, no question of performance at all as they had already shown their performance. Petitioners, in circumstances, could not be discriminated without any cogent reason by violating the provision of Article 25 of the Constitution and it was the duty of the organization to protect their fundamental rights enshrined in Art. 9 of the Constitution. Petitions of the petitioners were accepted by the Supreme Court and their cases were sent to the organization for considering their cases for the purpose of regularization or otherwise in view of the observations made in the present judgment.

1. The learned counsel for NAB argued that the Chairman, NAB may appoint Advisors, Consultants and Experts under Section 28 (f) of NAO, 1999 for the assistance of the NAB. It is an admitted fact that the petitioner was performing his duties as Junior Expert. He further argued that the hiring of experts by the Chairman NAB is on case to case basis and it is not subject to provincial or regional quota but they are hired on lump sum remuneration and not on the basis of official basic pay scales. The contractual arrangement is made only against the vacant posts in any department in NAB. Experts were never appointed against the sanctioned posts. Learned counsel referred to the paragraph 9 of the memo. of petition in which the petitioner has alleged that the services of Ms. Madiha Irum and Ch. Zaheer Shakeel were regularized but he robustly denied and argued that these two persons are performing the duties as Experts and their services were never regularized and the offer letter issued to Zaheer Shakeel was withdrawn. It was further contended that during the contractual engagement of the petitioner, the NAB advertised the posts for recruitment Deputy Directors (BS-18) in November, 2011. The petitioner applied and appeared for written test conducted through NTS but he could obtain only 37 marks out of 100. He also referred to the case of one Abdul Rehman employed on contract basis in NAB (KPK), Peshawar, who had applied for regularization of his contract but his petition was dismissed by the Peshawar High Court and he moved to the Hon’ble Supreme Court but leave was refused. The terms and conditions of the petitioner’s employment are laid down in his initial appointment letter and his status was never changed Learned counsel argued that if one expert is regularized in the employment then more than 66 other Experts will also come forward with the same request and for the same treatment which will create a chaos in the administration. The petitioner opted contract with his freewill and consent and not entitled to any relief.

2. Heard the arguments. It is an admitted fact that when this petition was filed on 31.10.2013, the petitioner was performing his duties as Junior Expert-2 on contractual engagement. NAB in its comments disclosed that the posts of Deputy Director BS-18 were advertised in November, 2011. The petitioner had applied for that post and appeared for written test conducted through National Testing Service (NTS) but he secured only 37 marks out of 100, so he was not called for an interview. It is weird that this fact has been concealed by the petitioner in the petition. It is a matter of record that-first time the petitioner disclosed factum of his appearance in the test through his affidavit in rejoinder with the stand that the present case of the petitioner has no link with his success or failure in the NTS examination rather he has approached this Court for the equal treatment of his right on the basis of earlier precedent in which the contractual employees of NAB have been regularized and he quoted cases of Alliya Rasheed and Ziaullah Khan. No plausible or conceivable justification was shown to us to rationalize the suppression and concealment of petitioner’s failure in the test which may non-suit the petitioner but to advance the cause of justice we would like to decide this petition on merits.

3. The learned counsel for the petitioner took the plea that though the petitioner was appointed on contract basis but Section 28 (f) of National Accountability Ordinance, 1999 does not apply as it only relates to appointment of Advisors, Consultants or Experts. No doubt under clause (f) of Section 28 it is the prerogative of Chairman NAB to appoint Advisor, Consultant and Expert on payment of such fee or remuneration as he may determine but the plea of the petitioner that it does not apply on the petitioner’s case is devoid of any force as the petitioner himself admitted in paragraph (1) of the petition that he was rendering services as Junior Expert-2 and after his initial appointment the post of Investigation Officer was re-designated as Junior Expert-2 and for the same post he was granted extension. According to paragraph (5) of the petition, the petitioner has double master degree in English and Criminology. It is further stated that eleven posts of Junior Expert-2 were advertised in the newspaper on 8th July, 2007 and after rigorous process of selection he was appointed as Junior Expert-2 on 7.9.2007. This clear admission of the petitioner also belies the contention of his learned counsel. Nevertheless, we are of the firm view that the Chairman NAB may appoint Advisors, Consultants and Experts under clause (f) of Section 28. Learned counsel also invited our attention to Condition Nos. 2.02 and 3.33 of National Accountability Bureau (NAB) Employees Terms and Conditions of Services (TCS), 2002. A simple visit to these “Conditions” adequately demonstrate that former relates to an appointment made in the prescribed manner by initial appointment in accordance with these conditions shall be deemed to have been made on regular basis which is not otherwise the case of the petitioner as he was never employed on regular basis. One more facet cannot be ignored that this “Condition” speaks of an initial appointment and the definition of “initial appointment” provided under clause (xix) of definition (Condition No. 2.01), means an appointment made on recommendation of the Departmental Selection Committee otherwise than by promotion or transfer. It is quite obvious and discernible that for making any regular appointment under TCS 2002, the recommendation of Departmental Selection Committee is required at the stage of initial appointment. While the mode and manner of appointment on contract is provided under Condition No. 3.33 which may be made when it is not possible to fill a post in the prescribed manner, so the appointment may be made on specific terms and conditions which are acceptable by a person who is being appointed. It is unequivocally spelt out under Section 28 (f) of NAO 1999 as well as in the National Accountability Bureau (NAB) Employees Terms and Conditions of Services (TCS), 2002 that employees may be engaged on contract and a clear distinction has been laid down not only for the appointment on regular basis and or contract basis but the ways and means are also provided separately in TCS, 2002 for tackling both genus of employment.

4. Learned counsel referred to the case of Ziaullah Khan, Writ Petition No. 2509/2009 decided by the Peshawar High Court. In this case the petitioner had claimed that being qualified, skilled and experienced person, he deserved alike treatment as was meted out to one Miss Aaliya Rasheed, who was appointed on contract basis but later on inducted into regular service in BS-19. In this case further plea was taken that during the attachment of the petitioner with NAB certain regular posts of BS-18 were advertised. Despite recommendation for the appointment of petitioner by one of the respondents he was refused regular induction. On his application the Prime Minister of Pakistan also recommended his case for consideration as per rule/policy. After hearing the arguments the learned Peshawar High Court issued directions to the NAB to consider the name of the petitioner for regularization of his service. Learned counsel also referred to an order passed in the case of Mohammad Mahmood Alam in Intra Court Appeal No. 03/2011. Writ petition filed by this man was dismissed by learned Single Judge of Islamabad High Court thereafter, he filed Intra Court Appeal. The learned Islamabad High Court predominantly hinge on the judgment passed by learned Peshawar High Court and directions were given to the NAB for the regularization of the service. When we looked into the brief facts it transpired that the appellant Mahmood Alam was appointed on contract basis in the year 2001 and on 4.10.2004, letter was issued regarding his regular appointment as Deputy Director which was withdrawn for unknown reasons in an unprecedented manner, so he pleaded discriminatory treatment. In another case of NAB, one Abdul Rehman filed Writ Petition No. 2638/2011 in the Peshawar High Court on a similar ground that he was employed on contract basis and after expiry of his contract his services were dispensed with, so he approached the Court for his regularization. In the judgment, the case of the earlier employee Ziaullah Khan was also referred to, nevertheless, the learned Peshawar High Court held that the contractual services would not clothe the employee with any fundamental right which can be enforced through writ jurisdiction of the High Court. The Peshawar, High Court dismissed the petition and did not go along with the view taken by the bench in the case of Ziaullah Khan. The petitioner challenged the order of the Peshawar High Court in the apex Court in Civil Petition No. 145-P of 2012 but vide order dated 22.5.2013, his civil petition was dismissed with the following observation:

“The terms and conditions of the petitioner’s employment were laid down in his initial letter of appointment and subsequent orders of extension. His status as 'contractual employee' never changed. We would refrain from making any direct observation regarding the legality or otherwise of the regularization of the services of the other contractual employee of the Organization, as that is not in issue before us. However, if that was done for some extraneous reasons, it cannot be cited as precedent by the petitioner. No case of discrimination is made out. The petition therefore dismissed and leave declined.”

1. The orders referred to by the learned counsel for the petitioner have been examined by us but we have found it distinguishable to the facts and circumstances of the case in hand. While the observations of apex Court, refusing the leave to Abdul Rehman are quite relevant to the present case that the terms and conditions of the contractual engagement were laid down in the appointment letter and subsequent order of extension, therefore, status of the petitioner as contractual employee was never changed. In the case in hand also it is an admitted fact that the petitioner was employed on contract basis in the month of July, 2007 as Junior Ecpert-2 and he continued his contractual services without any reservation and also accepted the terms and condition of his contractual engagement with the NAB. His last contract was to be expired on 12.12.2013 and just before two months of its expiry he approached this Court for regularization. Though he concealed and suppressed, but the facts remain that during his contractual engagement with the NAB he had voluntarily appeared in test but could not qualify. Learned counsel argued that the Principal Secretary of Chairman NAB forwarded 34 names of contractual employees to the Principal Secretary of the Prime Minister for placing their names before the cabinet sub-committee constituted for regularization of the contract employees. No doubt the name of the present petitioner is mentioned in the list and minutes of the meeting of sub-committee are also attached but the said minutes have nothing to do with the regularization of the contractual employees of NAB but relating to other departments. Nothing has been placed on record to show whether the case of contractual employees of NAB was ever considered by the sub-committee. It is also noteworthy to mention that there is no federal special legislation to confer any right of regularization to daily wages workers or contract employees like the Province of Sindh where by virtue of special law i.e. Sindh (Regularization of Adhoc and Contract Employees) Act, 2013 different parameters and modalities have been settled for regularization of service of the employees working on adhoc and contract basis excluding the employees appointed on daily wages and work charge basis. There is no special federal piece of legislation analogues or parallel to Sindh (Regularization of Adhoc and Contract Employees) Act, 2013 in which the employees of Federal Government can also claim their contractual employment into regular service as vested right on the contrary each case has to be seen and decided on its own peculiar facts.

2. Learned counsel also referred to the case of PTCL (supra). The issue before the apex Court was relating to the Telephone Operators working in the international gateway exchange with their claim that they are the employees of the International Gateway Exchange and not to the Telecom Foundation, a charitable institution constituted under Section 5 of the Charitable Endowment Act, 1890 and they are wrongly treated employees of the foundation in order to deprive them from their legal rights. He also referred the case of Ejaz Akbar Kasi (supra), in which the employees were performing their duties for last more than 10 years in PTV. The management principally agreed to regularize the petitioners as well as the employees of some other group and the admission made before the apex Court was recorded in the order. The employees also pleaded before the apex Court that employees of Group 1 to 3 and 7 to 9 have been regularized leaving the employees of Group 4, 5 and 6 and this fact was also admitted by the counsel for the PTV. Thus, the Supreme Court reached to the conclusion that the Board of Directors may have not declined the petitioner’s regularization. The Hon’ble Supreme Court for few petitioners sent the matter to the PTV management for consideration of their cases for the purposes of regularization. The facts and circumstances of both the aforesaid cases are distinguishable and not attracting to the facts of the case in hand. Merely relying the cases of Ziaullah Khan and or Mohammad Mahmood Alam do not provide any help or support to the case of the petitioner to contend or condemned any discriminatory treatment. The petitioner pointed out two employees Madhia Irum and Zaheer Shakeel with the allegations that their services have been regularized. Quite the opposite, the NAB counsel robustly controverted with clear statement that the services of these two persons have not been regularized and letter issued to Zaheer Shakeel was withdrawn as void ab initio. Copy of letter dated 18.6.2013 was also produced with the comments. Counsel for the NAB further argued that there are many contractual employees working in the department and the petitioner was not subject to any discriminatory or inequitable treatment. The pros and cons lead us to a well-founded conclusion that the regularization in service cannot be claimed as vested right in this case, the petitioner had not only accepted the terms and conditions of his engagement initially but also accepted the extension of his contract on the same terms however, at the verge of its expiry approached this Court. So far as the discriminatory treatment is concerned nothing has placed on record to show any discriminatory treatment except two orders of Peshawar and Islamabad High Courts in which the facts of the case are found distinguishable and we have already discussed both the orders in the preceding paragraphs. Likewise nothing has been placed on record to

demonstrate that the contractual services of Madhia Irum and Zaheer Shakeel have been regularized. The petitioner had voluntarily appeared in test for the post of Deputy Director BS-18 and obtained only 37 out of 100 marks but still he demands that he should be regularized in service on the strength of his contractual engagement regardless of his failure in the test for regular employment in NAB which is a mistaken perception.

1. As a result of above discussion this petition is dismissed.

(R.A.) Petition dismissed

PLJ 2016 Karachi 124 (DB)

Present:Muhammad Ali Mazhar and Muhammad Iqbal Kalhoro, JJ.

ZUBAIR--Petitioner

versus

FEDERATION OF PAKISTAN and others--Respondents

C.P. No. D-3913 of 2015, decided on 2.11.2015.

Civil Servant (Appointment, Promotion and Transfer) Rules, 1973--

----R. 3--Constitution of Pakistan, 1973, Art. 199--Quo warranto petition--Additional charge was challenged--Notification--Retrospective effect--Charge on deputation--Method of appointment--Acting charge--Validity--Appointment on acting charge basis shall be made on recommendations of DPC or CSB--Acting charge shall not amount to appointment by promotion on regular basis for any purpose including seniority and this shall also not confer any vested right or regular promotion to post holding on acting charge basis--It is well settled proposition of law that Court may take judicial notice of changed situations and mold relief accordingly in order to do substantial justice between parties--Petition is for quo warranto, therefore petitioner cannot be non-suited on ground that he had challenged additional charge only which is over so he should file fresh petition that would be nothing other than a mere technicality under which unjustified term of office cannot be continued or shielded--Deputation necessitates only if no suitable person is available to a particular post and in public interest temporary transfer/posting of a civil servant or by deputation of an employee of a public sector corporation is permissible in consultation with his appointing authority.

[Pp. 129, 131 & 132] A, E & F

Pakistan Agriculture Research Council Ordinance, 1981--

----S. 16--Constitution of Pakistan, 1973, Art. 199--Charge on deputation--Notification--Writ of quo warranto--Civil servant--Pension and gratuity--Employment in council--Employee of council ceased to be a civil servant and stand transferred and become employee of council on same terms and conditions including remuneration, tenure of service rights and privileges as to pension and gratuity and other matters as were applicable to him immediately before commencement of PARC Ordinance, 1981 until his employment in council is terminated in accordance with his condition of service or his terms and condition are altered by regulation which shall not be less favourable than those by which he was governed immediately before his transfer to council-- Respondent being an employee of Council lost status of civil servant even though he was given additional charge on plea that except him nobody was competent to hold post of D.G., which does not seem logical--Unlimited period of acting charge and or additional charge has been deprecated by superior Courts. [Pp. 129 & 130] B & C

Constitution of Pakistan, 1973--

----Art. 199--Scope of--Quo warranto--Legality of holder of statutory or constitutional office--Question of--Whether holding office in accordance with law or was unauthorizedly occupying public office--Validity--It is also well settled principle that for issuance of writ of quo warranto, person invoking jurisdiction under Art. 199 of Constitution is not required to fulfill stringent conditions required for bringing himself within meaning of an aggrieved person--Any person can move High Court to challenge usurpation or unauthorized occupation of a public office by incumbent of that office and he is not required to establish his locus standi--So appointment of a person on OPS, current charge or acting charge or additional charge--Petition was admitted to regular hearing and disposed of. [Pp. 130, 133 & 134] D & G

M/s. Kafeel Ahmed Abbasi and Malik Naeem Iqbal, Advocates for Petitioner.

Mr. Salman Talibuddin, Additional Attorney General for Pakistan.

Mr. Munir Anwer Baig, Assistant Director, Department of Plant Protection.

Dates of hearing: 10.8.2015 and 5.10.2015.

Order

Muhammad Ali Mazhar J. This petition for quo warranto has been brought to challenge the assignment of additional charge to the Respondent No. 3 as Director General, Department of Plant Protection, Ministry of National Food Security and Research, Government of Pakistan, Islamabad initially for a period of three months vide office order dated 14.2.2014, which was further extended vide notifications dated 15.10.2014 and 17.3.2015 with retrospective effect. The learned counsel for the parties agreed that this petition may be heard and decided at Katcha Peshi stage and they extensively argued the matter.

1. The learned counsel for the petitioner argued that the Department of Plant Protection is an attached Department of Ministry of National Food Security and Research which is destined to help and increase per hector yield by protecting crops from damage of insects, disease and weeds. The Adviser and Director General (BS-20) is responsible to run the affairs of Department of Plant Protection assisted by a range of Deputy Directors in technical and non-technical cadre. The post of Director General BS-20 is required to be filled by promotion or by direct appointment of a person having master degree in agriculture science. The Adviser and Director General is organizational head and all officers report to him in discharge of their duties. More than a decade the Respondents No. 1 and 2 have failed to fulfill their obligations to appoint a regular Director General, Department of Plant Protection. The incumbent is an officer of Pakistan Agriculture Research Council, which is an autonomous organization altogether separate and distinct from the Department of Plant Protection. On account of political interference and nepotism, the post of Director General, Department of Plant Protection remained occupied by the outsiders by way of deputation and or additional/ acting charge in violation of law and relevant Rules. Since September, 2013 the Respondent No. 3 is holding additional charge continuously on the basis of extensions from time to time without any lawful justification and authority. It was further contended that the Respondent No. 3 is non-cadre officer of an autonomous body who is holding the post of regular cadre in sheer defiance of the order of Hon’ble Supreme Court. The Respondent Nos. 1 and 2 are bound to make appointment in accordance with the relevant rules but they are giving extensions to benefit and favour the Respondent No. 3. In support of his contention, the learned counsel for the petitioner referred to the case of Safdar Ali Sehito vs. province of Sindh & others reported in 2011 PLC (C.S) 956 and 2013 SCMR 1752 (Contempt proceedings against the Chief Secretary, Government of Sindh & others).

2. The learned Additional Attorney General argued that on repatriation of predecessor of Respondent No. 3, none of the officers of Department of Plant Protection had the required experience and qualification, therefore, the Respondent No. 3 who was performing his duties in Pakistan Agriculture Research Council, which is under the administrative control of the Respondent No. 2 has been entrusted an additional charge by the competent authority, who has meritorious record and as a research scientist, he played vital role in development of accredited laboratories, formulation of food safety guidelines, regulation of import and exports and development of policies and for grain protection etc. During his tenure the exports of fruits and vegetables has been increased manifold. The responsibility of the Department of Plant Protection is to ensure that country’s exports to international market are promoted. The average Pakistan’s export rejections in the previous years were more than 250, therefore, it was imperative to overhaul the machinery of Department of Plant Protection and since no suitable person was available in the department to supervise the work, the charge of the department has been entrusted to the Respondent No. 3 but due to non-availability of a suitable replacement, the charge continued in the public interest. He argued that the petition is motivated by malice and instituted under the influence of group of persons who are annoyed due to honesty of incumbent. The petitioner has no locus standi to file this petition. The Ministry was competent to assign the additional charge due to non-availability of a suitable person and this transitional arrangement would come to an end with the appointment of full time Director General. The post was advertised but the Federal Public Service Commission did not make any recommendation for appointment as not a single person was found eligible for this post, therefore, the process of direct recruitment is again underway.

3. This matter was heard and reserved for judgment on 10.8.2015, but learned Additional Attorney General for Pakistan moved an urgent application (CMA No. 22744/2015) and intimated a new development that now the Respondent No. 3 has been assigned the charge on deputationvide notification dated 18.8.2015 till attaining the age of superannuation i.e. 22.11.2015. On this disclosure the matter was fixed in Court in order to provide fair opportunity to both the learned counsel to address the Court in the changed circumstances.

4. To this latest development, the learned counsel for the petitioner argued it is evident that the additional charge was illegal therefore during the pendency of this petition the Respondent Nos. 1 and 2 themselves have withdrawn the additional charge and to favor the Respondent No. 3 they have devised a methodology to continue the Respondent No. 3 on deputation till the verge of his retirement which is also illegal and in violation of the judgment of Hon’ble Supreme Court reported in 2013 SCMR 1752. He further argued that the Respondent No. 3 is not a civil servant and it is an admitted fact that he is an employee of Pakistan Agriculture Research Council which has been constituted under the Pakistan Research Council Ordinance, 1981. Learned counsel referred to Section 16 of the Ordinance, which provides in clear terms that every civil servant employed in the attached department and serving in or under this council immediately before the commencement of this ordinance including persons on deputation to other organization or abroad shall cease to be a civil servant and become employee of the council on the same terms and condition including remuneration, tenure of service, rights and privileges as to pension and gratuity and other matters as were applicable to him before the commencement of this Ordinance. Learned counsel also quoted Paragraph 129 of the Hon’ble Supreme Court Judgment reported in 2013 SCMR 1752 and argued that the apex Court has already held that “no non-civil servant can be transferred and appointed by way of deputation to any cadre”.

5. The learned Additional Attorney General could not dispute the veracity and without beating around the bush he admitted that the Respondent No. 3 is not a civil servant, nevertheless, he referred to SL.21-A of the Estacode and argued that the Respondent Nos. 1 and 2 in the public interest can fill the promotion post through temporary transfer/posting of highly qualified civil servant or by deputation of highly qualified employee of public sector corporation. He further argued that the Respondent No. 3 is no more on additional charge, but he is holding the post of Director General, Department of Plant Protection on deputation which is under the permissible limits and the petitioner has no lawful right and authority to demur this arrangement.

6. Heard the arguments. To start with let us accentuate SRO 19(I)/86 issued by Ministry of Food, Agriculture and Cooperation (Food and Agriculture Division) on 16.1.1986 by means of which method of appointment of Plant Protection Adviser, Director, Joint Director is provided. It is clearly alluded to that the post of Plant Protection Adviser, Director and Joint Director can be filled in by promotion and failing that by initial appointment. At this juncture let us also clarify that vide SRO 286(I)/2000 dated 23.5.2000, the post of DPP Adviser and Director BS-20, and Joint Director (Technical) BS-19 and Joint Director (Admin) BS-19 were re-designated as DPP Adviser and Director General BS-20, Director (Technical) BS-19 and Director (Admin) BS-19 respectively. Instead of making appointment either by promotion or initial appointment, the Respondent No. 3 was entrusted additional charge vide office order dated 14.2.2014 for a period of three months or till availability of regular incumbent of the post whichever is earlier. Though the additional charge was initially allowed for three months but after lapse of considerable period another notification was issued on 15.10.2014 and the period of additional charge was extended for further period of three months from 17.5.2014 to 16.08.2014 with retrospective effect and again on 17.9.2015 another notification was issued for the same additional charge and this time again the period of additional charge was protected from 24.2.2015 for a period of three months. No palpable or discernible rationalization was shown except an imitation cause that the additional charge will continue to be enjoyed by the Respondent No. 3 till the availability of regular incumbent of the post. A letter dated 6.9.2013 is also available on record communicated by the Assistant Director (Admin) of DPP Ministry of National Food Security & Research, Department of Plant Protection to Section Officer (Admn-I), Ministry of National Food Security & Research that lastly the post was advertised on 10.8.2003 through FPSC for initial appointment but without any nomination so he made a request that the post may be advertised for initial appointment through FPSC and requisition Form of FPSC was also attached with the letter.

7. Under the Civil Servant (Appointment, Promotion and Transfer) Rules, 1973, no expression i.e. additional charge is postulated however, under Rule 3, methods of appointment are provided viz. by promotion in accordance with the part I, by transfer in accordance with part II and by initial appointment in accordance with part III of the aforementioned rules. So far as acting charge is concerned, it is provided in Rule 8-B with the condition that the appointment on acting charge basis shall be made on the recommendations of the DPO or the Central Selection Board as the case may be. It is further provided that the acting charge shall not amount to appointment by promotion on regular basis for any purpose including seniority and this shall also not confer any vested right or regular promotion to the post holding on acting charge basis.

8. One more important facet cannot be disregarded that the Respondent No. 3 is an employee of PARC constituted under the PARC Ordinance, 1981. Section 16 of the Ordinance avows vividly that the employee of the council ceased to be a civil servant and stand transferred and become employee of the council on the same terms and conditions including remuneration, tenure of service rights and privileges as to pension and gratuity and other matters as were applicable to him immediately before the commencement of this Ordinance until his employment in the council is terminated in accordance with his condition of service or his terms and condition are altered by regulation which shall not be less favourable than those by which he was governed immediately before his transfer to the council. It is obvious that the Respondent No. 3 being an employee of the Council lost the status of civil servant even though he was given additional charge on the plea that except him nobody was competent to hold the post of Director General DPP, which does not seem logical. Unlimited period of acting charge and or additional charge has been deprecated by the superior Courts. It is inexplicable that in the whole hierarchy and or chain of command of the civil servants not a single person is competent to be appointed or promoted on regular basis as Director General DPP.

9. In the case of Safdar Ali Sahito vs. Province of Sindh and others authored by one of us (Muhammad Ali Mazhar-J), it was held that writ of 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. Object of writ of quo warranto is to determine legality of holder of statutory or constitutional office and decide whether he was holding such office in accordance with law or was unauthorizedly occupying a public office. It is also well settled principle that for issuance of writ of quo warranto, the person invoking the jurisdiction 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 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. So far as the appointment of a person on OPS, current charge or acting charge or additional charge is concerned, it was held in the same judgment as follows:-

“23. The procedure for appointment, promotion and transfer is already provided under the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 read with Sindh Civil Servants Act, 1973. The Government in case of exigency may appoint the person on OPS basis on stopgap arrangement or current charge or acting charge of additional charge basis but it does not give any discretionary right or authority to violate the express provisions of law and relevant rules and continue the OPS or additional charge arrangement for unlimited period of time. If this tendency is encouraged, it will create much frustration in the other employees of same grade and cadres and will also obstruct and hinder the right of promotion of the deserving employees. The good governance demands that efforts should be made to fill up the permanent vacant posts and vacancies within a reasonable period of time. Our constitutional and legal system attaches foremost importance to transparency and fairness in the administration of matters relating to appointment and career building of civil servants who are required to perform sensitive public duties strictly in accordance with law. There is no room for spoils system in our jurisprudence.”

1. Another significant attribute is the development that acting or additional charge has been withdrawn and now vide notification dated 18.8.2015, the Respondent No. 3 has been assigned the charge on deputation till attaining the age of his superannuation i.e. 22.11.2015. This unequivocally demonstrates rather substantiates that the respondents were conscious and sentient that unlimited extensions in the acting or additional charge is in violation of Civil Servants Act as well as Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, therefore, a new strategy was contrived to protect the length of additional charge through deputation. It is well settled proposition of law that the Court may take the judicial notice of the changed situations and mold the relief accordingly in order to do the substantial justice between the parties. This petition is for quo warranto, therefore the petitioner cannot be non-suited on the ground that he had challenged the additional charge only which is over so he should file fresh petition that would be nothing other than a mere technicality under which unjustified term of office cannot be continued or shielded. The Hon’ble Supreme Court in the contempt proceedings against the Chief Secretary Sindh and others reported in 2013 SCMR 1752 considered the minutiae and niceties of appointment or transfer on deputation. In paragraph 127 of the judgment, it is held that issue of deputation has created lot of unrest amongst the civil servants. The term “deputation” has not been provided under any civil service law and this term has been borrowed from Estacode, 2009 Edition, Chapter-III at page 385. Part II at page 426 of the Estacode which deals with the issue of deputation and at Serial No. 29 the issue of deputation has been defined. In paragraph 129 also the apex Court held that no non civil servant can be transferred by way of deputation to any cadre. Copy of this judgment was sent by the apex Court to all Chief Secretaries of the Provinces as well as the Secretary, Establishment Division, Government of Pakistan, Islamabad with the directions to streamline the service structure of civil servants in line with the principles laid down in the above judgment.

2. The learned Additional Attorney General for Pakistan relied upon S.L. 21-A of Estacode (Edition 2007) Volume-I which germane to the amendment in the recruitment rules of civil posts. In order to shield and protect the posting of Respondent No. 3 on deputation, the learned Additional Attorney General robustly relied on clause 2 of the aforesaid S.L. therefore, it would be convenient to reproduce it as under:

“2. Sometimes it may be necessary, in the public interest, to fill promotion posts through temporary transfer/posting of a highly qualified civil servant or by deputation of a highly qualified employee of a public sector corporation. In order to make an enabling provision for this purpose in the recruitment rules, the Chief Executive has been pleased to approve that the following proviso shall be added below the above cited proviso in the recruitment rules of all civil posts:

Provided further that if no suitable person is available for promotion to a post, it may be filled, in the public interest, by temporary transfer/posting of a civil servant, or by deputation of an employee of a public sector corporation, in consultation with his appointing authority.”

1. Even if we look into the language couched and embedded in the proviso of aforesaid S.L. it is clear that deputation necessitates only if no suitable person is available to a particular post and in the public interest temporary transfer/posting of a civil servant or by deputation of an employee of a public sector corporation is permissible in consultation with his appointing authority. Let us first explicate that the apex Court in the judgment reported in 2013 SCMR 1752 has already provided enlightened guidelines with directions to deal the issue of deputation. So any such amendments made and introduced at an earlier time or prior to the judgment of apex Court cannot be considered binding. Admittedly the Respondent No. 3 is not a civil servant and according to the aforesaid dicta laid down by the Hon’ble Supreme Court, no non-civil servant can be transferred and appointed by way of deputation to any cadre. One may question that the judgment expounded mostly in relation to the challenge to the vires of legislation made by the Province of Sindh but in all conscience, a domineering characteristic cannot be ignored that by means of this judgment the directions were issued to all provinces and the Federation to streamline the service structure of civil servants in line with the principles laid down in this very judgment and this was not confined to any particular province but the apex Court enunciated and expounded the principle of law across the board. The judgment of Hon’ble Supreme Court is binding on each and every organ of the State by virtue of Articles 189 and 190 of the Constitution. If the judgment of the Hon’ble Supreme Court is not implemented or put into effect, an answer to this question has been given under Article 204 of the Constitution. In the case in hand the question of mala fide and bona fide also need to be examined to some extent. After hold on the Respondent No. 3 to an additional charge for a long time without making any sincere effort to fill the post by regular appointment, a new stratagem has been evolved to retain him now on deputation for further period after withdrawing the additional/acting charge and this happened only because of this petition so in our view, the element of bona fide is missing. Nothing demonstrated before us to show that during the entire tenure of Respondent No. 3 while holding additional/acting charge, whether any effort was made to fill the post on permanent basis which amounts to the negation of the dictum laid down by Hon’ble Supreme Court and we can safely hold that the deputation order has been issued to circumvent the directions which amounts to contempt.

2. As a result of above discussion, this petition is admitted to regular hearing and disposed of in the following terms:-

(a) The entrustment of additional/acting charge to the Respondent No. 3 as Director General, Department of Plant Protection for an unlimited period was unlawful which has been otherwise withdrawn by the Respondent Nos. 1 and 2, therefore no futther order is required to be passed by us in relation to holding of additional/acting charge.

(b) Nevertheless the Notification F.No. 8-1/2012-DPP-NFS&R, dated 18.8.2015, issued by Section Officer, Ministry of National Food Security and Research, Government of Pakistan, Islamabad is declared to have been issued without lawful authority and of no legal effect. Consequently, the Respondent No. 3 is restrained from holding the post of Director General (BS-20) Department of Plant Protection on deputation with immediate effect.

(c) The Respondent Nos.1 and 2 are directed to make regular appointment to the post of Director General (BS-20) Department of Plant Protection immediately in accordance with the law.

(d) The injunction application is also disposed of in the above terms.

(R.A.) Petition disposed of

PLJ 2016 Karachi 134 (DB)

Present:Muhammad Ali Mazhar and Muhammad Iqbal Kalhoro, JJ.

ZAEEM AZIZ QURESHI--Petitioner

versus

PAKISTAN INTERNATIONAL AIRLINES, CORPORATION through Chairman and another--Respondents

C.P. No. D-1595 of 2006, decided on 2.11.2015.

Removal from Service (Special Powers) Ordinance, 2000--

----S. 3(1)(b)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Compulsory retirement--Challenge to--Notice of inquiry--Allegations of financial irregularities--Recommendation--Demotion--Charges were proved and petitioner was found guilty, however inquiry officer recommended punishment for demotion to a lower pay group and recovery of amount--It is also an admitted fact that petitioner attained age of superannuation, therefore, petitioner stepped down prayer for reinstatement in service--Compulsory retirement order may be set-aside and petitioner may be allowed all retiring benefits till his age of superannuation--Since charges proved are of serious nature, therefore, major penalty is warranted against accused officer besides recovery of financial loss caused by him--It is well settled that management is not bound to impose penalty as recommended by inquiry officer but any deviation or decision to impose any penalty other than recommendation, management is bound to inform employee in show cause with reason of such deviation--Competent authority is not bound to follow report of inquiry officer. [Pp. 138, 140 & 141] A, B, C, D & E

Removal from Service (Special Powers) Ordinance, 2000--

----S. 8--Compulsory retirement--Challenge to--Question of--Whether compulsory retirement order could be passed--Compulsory retirement order was not issued by competent authority but an incompetent person in contravention of Section 8 of RSO, 2000--Serious allegations were leveled and proved in inquiry and exact figure of loss was also mentioned in show cause notice, therefore, inquiry report cannot be wiped out or wrecked due to reason alone that retirement order was not signed by competent authority but circumstances demand that management may be afforded an opportunity to make another study of case and pass appropriate order. [P. 142] F & G

Mr. Salahuddin Ahmed, Advocate for Petitioner.

Mr. Jawed Asghar Awan, Advocate for Respondent No. 1.

Date of hearing: 21.9.2015.

Judgment

Muhammad Ali Mazhar J.--Through this constitution petition the petitioner has challenged the compulsory retirement order dated 24.05.2006 issued under the provisions of Removal from Service (Special Powers) Ordinance, 2000.

1. The brief facts of the case are that the petitioner was lastly posted as Manager (Marketing) in pay group 8. On 3.8.2004, he was served with a notice of inquiry under Section 3 (1) (b) of the Removal From Service (Special Powers) Ordinance, 2000 and one Moin Rauf was appointed to conduct inquiry into the allegations of financial irregularities during the period in which the petitioner was posted as Manager-Norway and Manager-France. The petitioner submitted reply and denied all the allegations. The inquiry was conducted and thereafter, on 29.7.2005 the petitioner was served with a show-cause notice along with copy of inquiry report and on 5th August 2005, the petitioner submitted his reply, however on 24.5.2006 the petitioner was compulsorily retired. The petitioner submitted the representation on 2.6.2006 under Section 9 of the RSO, 2000 against the impugned order of compulsory retirement but within the stipulated period of time no decision was communicated to the petitioner, so he preferred an appeal to the Federal Service Tribunal, but the Assistant Registrar, Federal Service Tribunal declined to entertain the appeal for want of jurisdiction vide its endorsement dated 29.8.2006.

2. The learned counsel for the petitioner argued that the petitioner was appointed as Sales Promotion Officer in 1976 and lastly he was holding the post of Manager (Marketing) in pay group 8. The inquiry officer conducted inquiry and recommended the demotion of the petitioner. The reply of show cause notice was properly submitted by the petitioner which was not considered by the management. The petitioner was afforded the opportunity of personal hearing before Chairman PIA on 26.8.2005 but he was compulsorily retired vide order dated 24.5.2006 under the provisions of RSO, 2000. Against the order, the petitioner approached to the FST but his appeal was returned mainly for the reasons that PIA did not have any statutory rules. The learned counsel argued that impugned order is unlawful and has been passed with mala fide intention. To meet the question of maintainability, he referred to the dictum laid down by the Hon’ble Supreme Court in the case of Pakistan Defence Officers Housing Authority v. Lt.Col. Syed Jawaid Ahmed reported in 2013 SCMR 1707 in which it was held that the order passed by corporation even those lacking statutory rules under RSO, 2000 may be examined by the High Court in their writ jurisdiction. It was further contended that the compulsory retirement order was not passed by the competent authority which is a mandatory requirement under Section 3 of the RSO, 2000. Vide SRO 281(I)/2000, dated 27.5.2000 the Managing Director/Chief Executive Officer of the corporation has been authorized to exercise powers under Section 3 of the RSO, 2000 in relation to person holding the post including BS-16 to BS-19 and the petitioner was holding the post of Manager (Marketing), Pay Group 8, which was equivalent to BS-19. Since the competent authority in this case was the Chairman PIA, therefore, except him, no other person could pass the order under Section 3 of the RSO, 2000, and even in the show cause notice dated 29.7.2005 it is clearly mentioned that competent authority is chairman PIA and the hearing shall be conducted before him, despite that the compulsory retirement order was signed by the H.R. Manager (Marketing). He further pointed out that on one hand, in paragraph 3 of the impugned order it is mentioned that personal hearing shall be conducted by the Chairman and CEO but on the contrary in paragraph 5 it is stated that the Management has decided to compulsorily retire the petitioner. The record further reflects that the decision to remove the petitioner was made by Employee Leadership Team (ELT), which is a committee comprising senior PIA Officers and not by the competent authority. Learned counsel also referred to the minute No. 7 attached with the PIA’s reply and argued that on the second page of this minute it was written that “case was discussed in ELT and the decision of compulsory retirement from PIA was taken”. Even this noting was not signed by the Chairman PIA, but Senior Vice President (H.R) and Administration. PIA’s own record reveals that the decision of compulsory retirement was not taken by the competent authority, but the lower management. Learned counsel then referred to the minutes of 28th ELT meeting convened on 24.5.2006 and argued that though the presence of Chairman is shown in the minutes of meeting where decision of compulsory retirement was taken but he argued that this minutes are merely a draft of minutes of meeting. It was further contended that the delegated statutory powers cannot be sub-delegated. The powers to compulsory retire the petitioner vested exclusively in the competent authority i.e. Chairman PIA and not in any other management committee or team. It was the responsibility of competent authority to decide the fate of the petitioner with independent application of mind. He further argued that the removal of petitioner from PIA was predetermined and this decision was taken prior to the show cause notice, inquiry proceedings and personal hearing. In this regard he referred to the paragraph 5 of the minutes of meeting available at page 741 of the Court file and argued that the decision to terminate the petitioner was taken in the third meeting of ELT, while show cause notice was issued on 29.7.2005. It was further averred that inquiry officer recommended the penalty of demotion, while pursuant to the show cause notice dated 29.7.2005, the petitioner was called upon to show as to why he should not be dismissed. Though the opportunity of personal hearing was afforded to the petitioner by the Chairman PIA but this was merely a formality as the decision to remove the petitioner was already taken much earlier. Nothing was mentioned in the impugned order as to why penalty recommended by inquiry officer was not inflicted and what were the reasons for the enhancement of punishment which led to a compulsory retirement. Learned counsel further argued that during the pendency of this petition the petitioner reached to his superannuation on 19.2.2013, therefore, the question of reinstatement does not arise, however, direction may be issued to PIA to pay all the emoluments and benefits to the petitioner till the age of superannuation i.e. 19.2.2013 with all post-retirement benefits.

3. The learned counsel for the PIA submitted his synopsis. He argued that the petitioner was found guilty in the inquiry thereafter he was compulsory retired from the service. The letter was issued under the signature of HR Manager (Marketing). In Para 4 of the letter it had been clearly stated that it is the management who decided to compulsory retire him. The point in issue is whether decision of compulsory retirement was made by the competent authority under the scheme/provision of the Removal From Service (Special Powers) Ordinance, 2002. The learned counsel for the petitioner contended that the letter of compulsory retirement was not issued by the competent authority and there was no decision at all made by the Chairman regarding punishment imposed upon the petitioner. The Minute No. 2 dated 8.5.2006, carries a hand written note that the case was considered in the Employees Leadership Team (ELT) meeting and decision of compulsory retirement of the petitioner was taken. The endorsement was made by one Mr. Waseem Bari the then SVP, HR and Admin. Due to omission the exact office note of employees leadership team (ELT) committee’s meeting could not be produced. The minutes of the meeting of Employees Leadership Team (ELT) dated 24.5.2006 were produced during arguments which shows that the Employees Leadership Team committee was comprising eleven members including Chairman of the Corporation. The minutes of the meeting reveals that Mr.Tariq Kirmani, Chairman and CEO was very much present in the 28th Employees Leadership Team meeting held on 24.5.2006. The Agenda regarding the decision of compulsory retirement of petitioner is mentioned in paragraph 2.5. He further argued that when it is established that approval/decision was made by the competent authority then it becomes immaterial under whose signature the decision was conveyed. The HR Manager (Marketing) had just conveyed a decision already made in the ELT meeting. In support of his contention, the learned counsel referred to the case of “Lal Khan vs. Punjab Labour Appellate Tribunal”, reported in 1995 SCMR 1758 in which the apex Court held that “Order of dismissal of a workman was not required to be passed by the employer himself. All that was required by law is approval of employer. Where the workman failed to establish that such approval was not granted by the employer, dismissal of employee was not interfered with by the supreme Court”.

4. Heard the arguments. The inquiry against the petitioner was conducted on the charges of financial irregularities which he allegedly committed during his posting in Paris and Oslo and the niceties of wrongdoings are mentioned in the statement of allegations. The inquiry was conducted under the provisions of RSO, 2000. Five witnesses appeared in inquiry proceedings and fair opportunity was also given to the petitioner to cross-examine them. We have also examined the inquiry report dated 7.10.2004 and found out that ample opportunity was provided to the petitioner to defend the charges of misconduct. The charges were proved and the petitioner was found guilty, however the inquiry officer recommended the punishment for demotion to a lower pay group and recovery of amount. It is also an admitted fact that during pendency of this petition, the petitioner attained the age of superannuation, therefore, learned counsel for the petitioner stepped down the prayer for reinstatement in service however, he argued that the compulsory retirement order may be set-aside and the petitioner may be allowed all retiring benefits till his age of superannuation.

5. The bone of contention in this lawsuit is whether the management could take different view than the recommendations made by the inquiry officer and whether the H.R. Manager (Marketing) (PIA) can be considered competent authority and consequently the compulsory retirement order signed by him is valid and lawful under the provisions of RSO, 2000. If we delve into the definition of “Competent Authority” provided under Clause (aa), Section 2 of the Removal from Service (Special Powers) Ordinance 2000, it means the “Prime Minister” and or any officer authorized by prime minister not being inferior in rank to the appointing authority prescribed for the post held by the person against whom action is proposed to be taken. However, vide Act II of 2003, Gazette of Pakistan, Extraordinary dated 16.7.2003 the word “prime minister” was substituted for chief executive and through the same amendment, clause (a) inserted by Ordinance No. V of 2001 dated 3.2.2001 was omitted. Under SRO 281(I)/2000 dated 27.5.2000, the Chief Executive authorized the officer shown in column No. 3 of the Table I, II, III to exercise the powers of competent authority under Section 3 of the RSO in respect of the class of persons shown in Column No. 2. Table I refers to the persons employed in the Federal Secretariat or serving in post or belonging to a service group or cadre administratively controlled by ministry or division. Table II is relevant for the persons employed in an attached department or a subordinate office of the Federal Government. While the Table III is meant for the persons employed in the corporations. The competent authority for the holders of posts in BS-16 to BS-19 and equivalent is the Managing Director/Chief Executive Officer of the Organization by whatever name may be called. The petitioner’s counsel argued that the petitioner was employed in pay group 8 which was equivalent to BS-19 and this assertion was never objected or controverted by the Respondent No. 1, therefore, for all intent and purposes, the competent authority in the case of the petitioner was Managing Director/Chief Executive Officer. Even in the compulsory retirement order the word competent authority is used who ordered departmental inquiry against the petitioner and it is further mentioned that the petitioner was provided an opportunity of personal hearing before the Chairman and CEO but in paragraph 4, the H.R. Manager Marketing stated that the management has decided to compulsorily retire the petitioner from PIA service. Since inquiry was conducted against the petitioner under the provisions of RSO, 2000 and the action was also taken under the provisions of RSO, therefore we have to revisit the provisions of RSO, 2000 though it was repealed on 1.2.2010 by virtue of Removal from Service (Special Powers) (Repeal) Act, 2010. Under Section 5 of the RSO, the powers were vested in the competent authority to appoint an inquiry officer or inquiry committee before passing an order under Section 3 to scrutinize the conduct of a person in Government service or a person in corporation service who committed any of the acts or omissions specified in Section 3. The detailed mechanism and procedure for the inquiry is provided under Section 5 and the inquiry officer as the case may be inquiry committee was bound to submit findings and recommendations to the competent authority within 25 days of initiation of inquiry. Under Section 8, it was provided that every finding recorded by the inquiry officer or as the case may be the inquiry committee under Section 5 shall with the recommendations provided for in that section be submitted to the competent authority who may pass such orders thereon as it may deem proper in accordance with the provisions of the Ordinance. This Ordinance had overriding effect on Civil Servants Act and the Rules made therein and any other law which was being in forced.

6. Paragraph 8 of the inquiry report pertains to the recommendations. The inquiry officer clearly stated that since the charges proved are of serious nature therefore, major penalty is warranted against the accused officer besides recovery of financial loss caused by him to PIA. Consequently, he recommended punishment for demotion to lower pay group and in sub-para (b) he also made recommendations separately for recovery of amount from the petitioner. What transpires from the report that the inquiry officer himself observed that major penalty be imposed but recommended for demotion to lower pay group. The question whether the management was bound to accept the recommendations of the inquiry officer? The answer is in negative. It is well settled that the management is not bound to impose the penalty as recommended by the inquiry officer but in case of any deviation or decision to impose any penalty other than recommendation, the management is bound to inform the employee in the show cause with the reason of such deviation. The show cause notice dated 19th July, 2005 distinctly mentions in paragraph 4 that the inquiry officer has recommended to impose penalty of demotion along with recovery of financial losses, however the gravity of the allegation proved against the petitioner warrants dismissal from service along with recovery of Rs.48,69,158/- and the petitioner was called upon under sub-section (2) of the Section 3 of RSO, 2000 to show cause as to why the proposed punishment of dismissal from service along with recovery of above amount should not be imposed upon him. In the case of Mehboob Ahmed Soomro v. Federation of Pakistan & others reported in 2010 PLC (C.S) 911, while dilating and expatiating the provisions of RSO, 2000, the learned division bench of this Court held that the conduct of inquiry and report of inquiry officer is purely a question of fact which could not be entertained and decided in constitutional jurisdiction of this Court. The respondents are not under obligation to follow the recommendation of inquiry officer and maximum punishment provided under the law could be inflicted by the authority which could not be said to be illegal. In the case of Ghulam Qasim Khan v. Federation of Pakistan & another reported in 2005 PLC (C.S) 1475, the apex Court reckoned that “Section 3 of Ordinance, 2000 in general and 3(i)(e) in particular authorizes the competent authority to impose any of the punishment given in sub-clause (e) as well as in Government Servants (Efficiency & Discipline) Rules, 1973. Section 3 read with Section 8 authorizes the competent authority to pass such order on the report and recommendation of the inquiry committee or inquiry officer, as it may deem proper in accordance with the provisions of Ordinance. How such punishments are to be in accord with the provisions of the Ordinance, is fully described in Section 3 thereof. It is therefore, held that the competent authority is not bound to follow the report of the inquiry officer which in the very term of the section is of recommendatory statute. Recommendations, in view of Sections 3, 5 and 8 of the Ordinance, cannot be construed to be binding upon the competent authority”.

7. The next question be in need of our consideration is whether the compulsory retirement order of the petitioner could be passed by the H.R. Manager (Marketing) and whether he may be considered competent authority under the provisions of RSO, 2000? It is an admitted fact that the competent authority in this case is Chairman/CEO. Under Section 8 of the RSO, 2000, every finding recorded by the inquiry officer with the recommendation was to be submitted to the competent authority for passing orders as it may deem proper in accordance with the provisions of this Ordinance. Though the learned counsel for the Respondent No. 1 argued that in the 28th ELT Meeting dated 24.5.2006 whilst the decision of compulsory retirement was taken, the Chairman and CEO of PIA was also present therefore, it was not essential to sign compulsory retirement order personally by him and after compulsory retirement, the personal hearing was also afforded by the competent authority. In our considerate view, the provisions of RSO, 2000 were meant to provide measures inter alia dismissal, removal etc. of certain persons from government service and corporation service with the intention to provide speedy disposal of some cases and the matters connected therewith or ancillary thereto. This special law was crafted for special purposes in which an internally constituted “Employee Leadership Team” (ELT) was foreign and unfamiliar. While exercising the powers under RSO, 2000, the authority was obligated to follow the letters of law in its true fundamental nature and perspective. The compulsory retirement order cannot be defended on the premise that since the Chairman/CEO of PIA was present in the ELT meeting therefore, there was no need to sign the compulsory retirement order by him. The RSO, 2000 itself provided complete procedure and mechanism since the inception of inquiry till dismissal or removal from service, therefore, we are of the firm standpoint that the compulsory retirement order was not issued by the competent authority but an incompetent person in contravention of Section 8 of the RSO, 2000. The case of Lal Khan (supra) cited by the learned counsel for the PIA is found distinguishable. The apex Court expounded the law with regard to relationship of employer and employee under the provisions of West Pakistan Industrial & Commercial Employment (Standing Orders) Ordinance, 1968.

8. Concomitantly, another important fact cannot be ignored in tandem that under the constitutional jurisdiction we cannot sit over the inquiry report, which was the dominion of the competent authority. Serious allegations were leveled and proved in the inquiry and exact figure of loss was also mentioned in the show cause notice therefore the inquiry report cannot be wiped out or wrecked due to reason alone that retirement order was not signed by the competent authority but the circumstances demand that the management may be afforded an opportunity to make another study of the case and pass appropriate order.

9. In the wake of above discussion, the compulsory retirement order dated 24th May, 2006 is set-aside which was issued by an incompetent person in violation of Section 8 of RSO, 2000. However, the setting aside of aforesaid compulsory retirement order shall not preclude and impede the competent authority from passing an appropriate order afresh after right and proper consideration of inquiry report in accordance with law. Petition is disposed of in the above terms.

(R.A.) Petition disposed of

PLJ 2016 Karachi 143 (DB)

Present:Muhammad Ali Mazhar and Muhammad Iqbal Kalhoro, JJ.

SARFRAZ AHMED and another--Petitioners

versus

CHAIRMAN NATIONAL ACCOUNTABILITY BUREAU through Chairman and others--Respondents

C.P. Nos. D-3141 and D-3659 of 2015, decided on 4.8.2015.

National Accountability Ordinance, 1999--

----Ss. 9 & 10--Sales Tax Refund Rules, 2002, R. 6--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Corruption and corrupt practice--NAB reference--Bail after arrest--Deeper appreciation of evidence--Huge amount on account of sales tax refund was sanctioned--No specific role was mentioned--No allegation for misusing his authority with regard to clearance and sanction of bogus and fake refund claims of sales tax--Misusing of authority by holder of public office--Filing of refund claims--Validity--On receipt of a refund claims processing officer shall assign claim number and carry out necessary examination and scrutiny in order to ascertain bona fide of refund claim--It is duty of officer-in-charge to satisfy himself about genuineness and admissibility of claims on basis of report, recommendations and supportive documents--Under procedure where officer-in-charge is of opinion that any further inquiry or audit is required to establish genuineness or admissibility of claim he may make or cause to be made such inquiry or audit after approval from Addl. Collector under intimation to refund claimant--No doubt it is well settled proposition of law that deeper appreciation of evidence is not permissible at bail stage but keeping in view role assigned to petitioners it is essential to see whether they were sole authority or at helm of affairs to pass refund claims by their own or for dealing matter of refund of claims, a chain of command/hierarchy is entrenched and couched in Rules itself making obvious role and responsibility of different officers/officials starting from stage of submission of refund claims till issuance of refund claims cheques--Whether petitioners were responsible for processing of refund claims illegally or unlawfully or they were sole and absolute authority to sanction claims, such requires further inquiry--Guilt of petitioners cannot be decided whether they were involved in offence of corruption or corrupt practices--To a specific question asked to ADPG, NAB and I.O. whether any incriminating material has been collected that petitioners obtained any unlawful gain or gratification or any abnormal bank transaction or activity was noted in their bank accounts or any asset was acquired by petitioners in their own name or ostensibly--No such incriminating material was collected or found available--It is well settled that deeper appreciation of evidence is no; permissible at bail stage simultaneously it is also well settled that object of trial is to make an accused to face trial and not to punish an under trial prisoner--Such object did not appear likely to be achieved anywhere in near future and would not constitute a bar for grant of bail to accused--No one can be allowed to remain in custody for an indefinite period without trial as it is fundamental right of an accused that his case should be concluded as early as could be possible particularly in those cases where law has prescribed a period for completion of trial. [Pp. 148, 149 & 150] A, B, C, D, E, F & G

PLJ 2014 Kar. 251; 2014 Cr.LJ 777; PLJ 2014 Kar. 254 & PLJ 2014 Kar. 268.

Mr. Shoukat Hayat, Advocate for Petitioner (in C.P. No. D-3141 of 2015).

M/s. Syed Mehmood Alam Rizvi and Zakir Leghari, Advocates for Petitioner (in C.P. No. D-3659 of 2015).

Mr. Noor Muhammad Dayo, A.D.P.G. NAB.

Mr. Sabih Rafay, I.O. of Case.

Date of hearing: 15.7.2015.

Order

Muhammad Ali Mazhar, J.--The petitioners have brought these petitions for their post arrest bail in NAB Reference No. 18 of 2015. According to prosecution case it revealed during inquiry against Gulraiz Ahmed Raza, Auditor Sales, Karachi, that M/s. H.Y. Enterprises and some other companies fraudulently obtained Sales Tax Refunds by using false invoices of fake companies. The inquiry was converted into an investigation by the Director General, NAB. The investigation report further revealed that huge amount on account of Sales Tax Refund was sanctioned to M/s. H.Y. Enterprises owned by Mohammad Yasin Pollani (Accused No. 1) in the year 2004-2005 which was credited in its bank account.

1. The roles of both the petitioners have been depicted separately in the reference as under:

Role of Petitioner/Accused Sarfraz Ahmed.

“8. That the investigation report also reveals that Sarfraz Ahmed (accused No. 2), the then Deputy Superintendent (FBR) processed 4X Refund Claims without verifying the genuineness of the documents (cheques, invoices and existence of suppliers). Whereas, according to the Rule No. 6 of Sales Tax Refund Rules, 2002 issuedvide S.R.O. 575(I)/2002, dated 31st August, 2002, it was his duty to process the Claims only after he is fully satisfied about the genuineness and admissibility of the claims. Moreover, he also did not verify proof of payment made u/s 73 of Sales Tax Act, 1990. On 20.3.2006 he also processed Refund Claim (Claim No. T110305100531) of Rs. 92,42,149/- for the tax period of March, 2005, without verifying the genuineness of the documents (cheques, invoices and existence of suppliers). The details are as under:

| | | | | | | --- | --- | --- | --- | --- | | Claim No. | Claim period | Sanctioning Date | RPO date | Refund Claim (Rs.) | | T110905100100 | Sept. 2005 | 13.02.2006 | 13.02.2006 | 1,24,46,060/- | | T000605100023 | June 2005 | 24.12.2005 | 26.12.2005 | 1,456,514/-8,021,250/- | | 25.02.2006 | 28.02.2006 | | Tl10405100352 | April 2005 | 25.02.2006 | 28.02.2006 | 20,88,963/- | | T110805100315 | August 2005 | 02.02.2006 | 01.02.2008 | 48,09,182/- | | TOTAL | | | | 28.82 M |

Role of Petitioner/Accused Arif Raza

“9. That the investigation report further reveals that Arif Raza (accused No. 3) the then Superintendent (FBR), on 31st May, 2005, recommended Refund Claim of Rs.64,66,432/-(Claim No. T111104100361) for the tax period of November, 2004 without verifying the genuineness of the documents (cheques, invoices and existence of suppliers). Whereas, according to the Rule No. 6 of Sales Tax Refund Rules, 2002 issued vide S.R.O. 575(I)/2002, dated 31st August, 2002. It was his duty to recommend the claim only after he is fully satisfied about the genuineness and admissibility of the claim. Besides, he also did not verify proof of payment made u/s 73 of Sales Tax Act, 1990”.

1. Mr. Shoukat Hayat, learned counsel for the petitioner (Sarfraz Ahmed) argued that the petitioner was discharging his duties for last more than 30 years with honesty. Initially the Deputy Director NAB initiated an inquiry on the basis of complaint dated 2.9.2006 and the said inquiry was closed in the year 2012, therefore, a fresh inquiry on the closed chapter is without jurisdiction. The petitioner on call up notices repeatedly appeared and explained the procedure for the refund of sales tax claims under the relevant rules. The petitioner was not the authority to sanction the refund claims but under the Sales Tax Refund Rules, 2002, the sanctioning authority is the Officer-in-charge.

2. Syed Mehmood Alam Rizvi, learned counsel for the petitioner (Syed Arif Raza) argued that the petitioner is holding a public office for last more than 34 years and he never circumvent any relevant rules or regulations relating to his normal duties or relating to the refund of sales tax claims. He further argued that after a long period of 09 years of pending inquiry, Reference has been filed in the year 2015. He also argued that the inquiry was closed in the year 2012, therefore, the repeated inquiries on the same issue are without lawful authority and jurisdiction. No specific role of the petitioner was mentioned in the complaint dated 2.9.2006. When the petitioner appeared in response to the call up notice even then no allegation was leveled by the inquiry officer against him for misusing his authority with regard to the clearance and sanction of the bogus and or fake refund claims of sales tax.

3. Mr. Noor Muhammad Dayo, learned A.D.P.G NAB argued that these petitions were filed before filing the reference in the Accountability Court and now the reference has been filed in which the role of both the petitioners have been shown separately. He further argued that both the petitioners have played their active roles in the commission of offence and there are reasonable grounds to believe that they are involved in the corruption and corrupt practices. He further contended that the accused No. 2 was the then Deputy Superintendent (FBR), who processed 04 refund claims without verifying the genuineness of documents, while it was his duty to process the claims only after due satisfaction. So far as the accused Arif Raza is concerned, he was Deputy Director, Directorate of Inspection and Internal Audit (Customs, Federal Excise and Sales Tax), Custom House, Karachi who recommended 01 refund claim for the tax period of November, 2004 without verifying the genuineness of the documents. He further argued that all the refund claims processed by both the petitioners are pertaining to the year 2004-2005. The petitioners with the connivance and collusion of co-accused persons committed the offence of corruption hence they are not entitled to be enlarged on bail.

4. Heard the arguments. In paragraph 12 of the reference it is alleged that all the accused persons have committed offence of corruption and corrupt practices as defined under Section 9 (a) of NAO, 1999 punishable under Section 10 of the said Ordinance. A glimpse to Section 9 of the NAO, 1999 allude to gist of acts of corruption and corrupt practices which makes a holder of a public office or any other person liable to be punished. The acts include acceptance of any gratification directly or indirectly as the motive or reward as specified under Section 161, PPC for doing or forbearing to do any official act in exercise of its official function favour or dis-favour to any person or rendering any service or disservice to any person or if he accepts or obtains or offers any valuable thing without consideration from any person or if dishonestly or fraudulently misappropriate or otherwise converts of his own use or if he by corrupt, dishonest or illegal means obtains for himself or for his spouse or dependents or property or pecuniary advantage or if he or any of his dependents or benamidars owns and possesses right or title in any asset. Whereas the Sub-clause (iv) of clause (a) of Section 9 pertains to misusing of authority by a holder of a public office or any other person so as to gain any benefit or favour for himself or any other person etc. This Section is very exhaustive by itself but we have austerely quoted the nucleus of the acts which may be considered involvement of holder of a public office or any other person in corruption and corrupt practices. The purpose of highlighting the salient features is to accentuate that during course of inquiry and investigation, it is incumbent upon the prosecution to collect ample incriminating material for exposing the involvement of accused in corruption and corrupt practices which is inescapable and unpreventable. It is often seen that in NAB reference, the role of each accused is separately delineated and call out to show his involvement bearing in mind the incriminating material collected during investigation.

5. It is clear from the allegation made in the reference that the alleged act of corruption or corrupt practices pertaining to the year 2004-2005. It further reveals that though the inquiry was underway but it was converted into investigation after considerable period by the Director General, NAB vide letter dated 5.1.2012 and after three years of investigation, the reference has been filed in the month of June, 2015. The allegation against Sarfraz Ahmed, (Accused No. 2) the then Deputy Superintendent, FBR that he processed 04 refund claims without verifying the genuineness of the documents, whereas the allegation against Arif Raza (Accused No. 3) the then Superintendent FBR that he recommended 01 refund claim on 31.5.2005 for the tax period of November, 2004 without verifying the genuineness of the documents. In nutshell, both the petitioners/accused failed to follow Rule 6 of the Sales Tax Refund Rules. Since the prosecution has repeatedly referred to Rule 6 of Sales Tax Refund Rules, 2002 and its violation, therefore, it would be advantageous and expedient for us to visit not only Rule 6 but other relevant rules of Sales Tax Refund Rules, 2002 also. Rule 4 of the Sales Tax Refund Rules, 2002 pertains to the filing of refund claims which provides that monthly sales tax return filed by a claimant would be treated as refund claim once all the supportive documents in the manner specified in these rules or otherwise prescribed by the Board have been received. It is further provided in sub-rule (2) that the claimant shall forward to the officer-in-charge a legible photocopy of the bank-receipted return referred to in sub-rule (1) duly accompanied by the requisite supportive documents in the manner prescribed by the Board for processing and setting the refund claim. In clause (d) of sub-rule (1) of rule (2) (definition clause), officer-in-charge means Deputy Collector of sales tax or any other officer of sales tax who holds full or partial charge of the Refund Division. Rule 3 has also much significance which indeed makes it obvious that there shall be established a Refund Division in each Collectorate of Sales Tax to receive, process and settle the refund claims filed under the Act while sub-rule (2) clarified that the Deputy Collector or any other officer as may be nominated by the Collector of Sales Tax shall be the head of refund division provided that Collector of Sales Tax may distribute work of the refund division among more than one Deputy Collectors or senior Assistant Collector in such manner as may deem fit.

6. In order to make the refund process or its mechanism foolproof, a detailed procedure for the scrutiny of refund claims is provided under Rule 5 that on receipt of a refund claims the processing officer shall assign claim number and carry out necessary examination and scrutiny in order to ascertain bona fide of the refund claim. He shall check the accuracy of declaration and calculation on the sales tax return involving the amount of refund. After having satisfied about the genuineness and admissibility of the refund claim being a processing officer he is required to submit a written comprehensive refund examination report within seven days of receipt of supportive documents to the concerned senior auditor or superintendent who shall give his conclusive recommendation and pass it on to the officer-in-charge within three days of receipt of the case from the processing officer. It is the duty of Officer-in-charge to satisfy himself about the genuineness and admissibility of the claims on the basis of report, recommendations and supportive documents. Under the procedure where the officer-in-charge is of opinion that any further inquiry or audit is required to establish the genuineness or admissibility of the claim he may make or cause to be made such inquiry or audit after approval from the Additional Collector under intimation to the refund claimant. Now we would like to embark upon Rule 6 which is relevant to the sanction and payment of refund claims. This Rule elucidates and expounds unequivocally that if on the basis of supportive documents, refund examination report, recommendations, inquiry or audit report as the case may be, the officer-in-charge is fully satisfied about the genuineness and admissibility of the claims, he shall subject to the provisions of sub-clause (3) of Section 10 of the Act, sanction the claim and send the original copy of the sanction order to the Treasury Officer for issuance of cheque to the claimant. In the same rule it is also the responsibility of the Treasury Officer that before issuing cross cheque to the claimant he shall personally ensure that the cheque of only such amount is issued to the claimant as is specified and sanctioned in the sanction order.

7. The purpose of exploring and examining the aforesaid rules is to form a tentative view regarding the culpability and accountability of the petitioners. No doubt it is well settled proposition of law that deeper appreciation of evidence is not permissible at bail stage but keeping in view the role assigned to the present petitioners it is essential to see whether they were the sole authority or at the helm of affairs to pass the refund claims by their own or for dealing the matter of refund of claims, a chain of command/hierarchy is entrenched and couched in the Rules itself making obvious the role and responsibility of different officers/officials starting from the stage of submission of refund claims till issuance of refund claims cheques. Whether the petitioners are responsible for the processing of refund claims illegally or unlawfully or they were the sole and absolute authority to sanction the claims, this requires further inquiry. We have also seen the final investigation report but why we are referring to the investigation report is again for the reason that under the rules a chain of command to deal the claims is mentioned but in Paragraph 30 of final investigation report at least names of three Additional Collectors and two Deputy Collectors are mentioned with the compliment that case is not established against them and reference has been filed against the owner of H.Y Enterprises and two Superintendent (FBR) and one Deputy Superintendent (FBR) only so for this reason also, the case against the present petitioner needs further inquiry keeping in mind the chain of command and their responsibilities required to be performed under the rules. However at this stage we are sanguine that guilt of the petitioners cannot be decided whether they are involved in the offence of corruption or corrupt practices. To a specific question asked by us to the ADPG, NAB and the I.O. whether any incriminating material has been collected that the petitioners obtained any unlawful gain or gratification or any abnormal bank transaction or activity was noted in their bank accounts or any asset was acquired by the petitioners in their own name or ostensibly, the answer of the I.O. was in negative that no such incriminating material was collected or found available.

8. In the case of Ali Anwar Ruk, Abdul Jabbar, Syed Mansoor Ali and Sardar Amin Farooqui reported in 2014 SBLR 766, PLJ 2014 Karachi 251=2014 CrLJ 777, PLJ 2014 Karachi 254=2014 UC 784 and PLJ 2014 Karachi 268, authored by one of us (Muhammad Ali Mazhar-J), it was expounded and explicated that further inquiry is a question which must have some nexus with the result of the case for which a tentative assessment of the material on record is to be considered for reaching just conclusion. The case of further inquiry pre-supposes the tentative assessment which may create doubt with respect to the involvement of accused in the crime. It is well settled that deeper appreciation of evidence is not permissible at bail stage simultaneously it is also well settled that object of trial is to make an accused to face the trial and not to punish an under trial prisoner. The basic idea is to enable the accused to answer criminal prosecution against him rather than to rot him behind the bar. Accused is entitled to expeditious access to justice, which includes a right to fair an expeditious trial without any unreasonable and inordinate delay. The intention of law is that the criminal case must be disposed of without unnecessary delay. The Supreme Court in the case of Muhammad Nadeern Anwar v. NAB reported in PLD 2008 SC 645 held that accused is entitled to expeditious and inexpensive access to justice, which included a right to fair and speedy trial in transparent manner without any unreasonable delay. Such intention had been re-assured in Section 16 of National Accountability Ordinance, 1999, laying down criteria for day to day trial and its conclusion within thirty days. Such object did not appear likely to be achieved anywhere in the near future and would not constitute a bar for grant of bail to accused. Truth or otherwise of charges leveled against accused could only be determined at the conclusion of trial after taking into consideration the evidence adduced by both the parties. The apex Court in the case of Muhammad Jahangir Badar vs. NAB, reported in PLD 2003 SC 525, held that the State machinery has a right to arrest the culprits and put them to trial for the purpose of establishing guilt against them but it has not been bestowed with an authority to play with the liberty and life of an accused under detention because no one can be allowed to remain in custody for an indefinite period without trial as it is fundamental right of an accused that his case should be concluded as early as could be possible particularly in those cases where law has prescribed a period for the completion of the trial.

9. The petitioners were granted bail in NAB Reference No. 18/2015vide our short order dated 15.7.2015 and the petitions were disposed of. The above are the reasons of our short order. Our findings are tentative in nature and shall not prejudice the case of either party in the trial Court.

(R.A.) Bail granted

PLJ 2016 Karachi 151 (DB)

Present:Irfan Saadat Khan and Zafar Ahmed Rajput, JJ.

METROPOLITAN STEEL CORPORATION LIMITED through its Director L.I.T.E., Landhi, Karachi and another--Petitioners

versus

EMPLOYEES OLD-AGE BENEFITS INSTITUTION & THE BOARD through its Chairman, EOBI House, Karachi and 2 others--Respondents

C.P. Nos. D-64 & D-79 of 1998, decided on 25.3.2016.

Employees’ Old Age Benefits Act, 1976 (XIV of 1976)--

----Ss. 33 & 35--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Employees of O.A.B.I.--Procedure for disposal of appeals--Show-cause notice--Question of--Whether board comprising of one or two members was authorized to hear appeals--Determination--Quorum of hearing of appeal--Validity--Board has authority that instead of hearing appeal itself appoint a Committee of Board to hear and decide appeals on its behalf and decision of committee has to be considered that of Board itself--Appeals involving a dispute of more than Rs. 20 lac is quorum would be that of two members and for less than amount of Rs. 20 lac appellate board would comprise of one member only i.e. chairman to decide appeals--For deciding appeals in respect of disputes of more than Rs. 20 lac quorum would be that of two members comprising of chairman and any other member, who are: competent to decide disputes--Under Section 2(bb) of EOB Act and petitioners are liable to pay contribution of those persons to EOABI as it is their liability to make payment of contributions in respect of persons, employed directly or through any independent persons i.e. contractors.

[Pp. 164 & 169] A, B & C

Mr. S. M. Iqbal, Advocate for Petitioners.

Ms. Masooda Siraj,Advocate for Respondents.

M/s. Asim Mansoor Khan, Deputy Attorney General for Pakistan and Dilawar Hussain, Standing Counsel on Court Notice.

Dates of hearing: 18.2.2016, 25.2.2016, 3.3.2016 & 10.3.2016.

Judgment

Irfan Saadat Khan, J.--The facts and law points that arise for consideration in both the petitions are common; hence, the same have been heard and decided by this common judgment.

1. C.P. No. D-64 of 1998 was admitted for regular hearing on 18.9.1998 for considering the following questions of law:--

“1) That when the Act, namely Employees Old-Age Benefit (EOB) in Section 35 provides for appeal to be heard by the Board, had the Board authority to make provision of such appeal being heard by a Committee of one or two members?

2) That whether contribution is payable by the employer in respect of employees employed by an independent contractor?”

1. Briefly stated the facts of C.P. No. D-64 of 1998 are that the petitioner-company is a nationalized unit being controlled and managed by the Ministry of Production, Government of Pakistan. It is the claim of the petitioner that they were promptly and regularly paying to the Employees’ Old-Age Benefits Institution (EOBI) to their satisfaction due contributions and had never defaulted in the payment. Apart from having employees of their own, who used to carry out certain jobs in the organization of the petitioner, the petitioner used to enter into agreement with the contractors for providing staff to carry out certain jobs in the establishment. The respondents were of the view that since the contractual labourers appointed through contractors fall under the definition of “employee”, the petitioners were liable to make contributions in respect of those employees also. Several correspondence took place between the petitioner and the respondents in this regard, however, the respondents vide demand notice dated 16th May 1991 raised a demand of Rs. 64,80,000/- against the petitioner for short contribution of EOB during the period July 1986 to December 1990. Being aggrieved with the said show-cause notice an appeal was filed by the petitioner under Section 33 of the Employees’ Old-Age Benefits Act, 1976 (EOB Act) bearing Petition No. 53-SZ/91-92 and the Adjudication Authority of the EOBI, vide order dated 27.4.1992 dismissed the said petition. Being aggrieved with the said decision an appeal under Section 35 of the EOB Act was preferred before the Board of Trustees of EOB, Karachi, and this appeal too was dismissed by the said Board, vide order dated 22.11.1997. It is against this decision that the present petition has been filed which was admitted for regular hearing to consider the questions as enumerated above.

2. The facts relating to C.P. No. D-79 of 1998 are that the petitioner i.e. Sindh Abadgar’s Sugar Mill, situated in Deenpur, Taluka and District Tando Muhammad Khan, after receipt of notice of determination of dues dated 17.01.1993, demand and show-cause notice dated 19.05.1993 for Rs. 2,28,819/-, including statutory increase, for the period from January, 1991 to December, 1992 and notice of demand under Section 81 of Land Revenue Act, 1967, dated 06.06.1993 preferred petition Bearing No. 72 of 1993 before the Adjudicating Authority of the EOBI under Section 33 of the EOB Act, which was dismissedvide decision dated 08.08.1994. Being aggrieved, the petitioner preferred an appeal under Section 35 of EOB Act before the Board of Trustees EOB, Karachi, which was also dismissed, vide decision dated 03.01.1998. It is against this decision that the said petition has been filed, which was admitted for regular hearing on 18.01.2000 as C.P. No. D-64 of 1998 involving the same question had already been admitted for regular hearing.

3. Mr. S.M. Iqbal Advocate has appeared on behalf of the petitioners and submitted that the action of the respondents is without lawful authority. The learned counsel firstly submitted that perusal of the EOB Act indicates that the persons hired on contract basis, through a contractor, for performing certain jobs do not fall under the definition “employee” of the said Act as at no point of time such persons were the employees of the petitioners as they were the employees of the contractors with whom the petitioners had entered into an agreement and the payment in this behalf has been made directly to the contractors and not to those persons. Hence, at the very outset the learned counsel submitted that those persons, in fact, were the employees of those contractors and not that of the petitioners, therefore, contributions, if any, should, have been demanded by the respondents from the contractors, rather than claiming the same from the petitioners. The learned counsel submitted that neither appointment orders/letters have been issued by the petitioners to those persons nor those persons were on the pay-roll of the petitioners, hence the demand of the contribution was uncalled for.

4. The learned counsel further submitted that at no point of time the contractors were required by the respondents to pay the contribution as the persons who had worked at the site of the petitioners were, in fact, the employees of the contractors, which also prove mala fide on the part of respondents. The learned counsel also submitted that as per Section 35 of the EOB Act an appeal is to be preferred before the Board of Trustees and that appeal is to be heard by the Board itself having minimum quorum of eight trustees whereas a perusal of the order passed by the Board dated 22.11.1997, would reveal that the appeal was heard by two members only hence the impugned order was coram-non-judice and is liable to be whittle down. The learned counsel in this regard read out the provisions of Sections 18 and 35 of the EOB Act and Rule 11 of EOB (Board of Trustees) Rules 1977. The learned counsel submitted that since the respondents had firstly not adjudicated upon the matter in accordance with law and secondly failed to justify their claim of contribution of EOB from the petitioners, these petitions may be allowed and the demand raised by the respondents may be vacated. In support of his above contention, the learned counsel has placed, reliance on the following decisions:--

1) Pakistan Burma Shell Limited vs. Employees’ Old-Age Benefits Institution and others (2004 PLC 63)

2) Bank Al-Falah Limited and others vs. Federation of Pakistan (2014 PLC 40)

3) Pakistan Aluminium and Industrial Works (Pvt.) Ltd. vs. The Excise And Taxation Officer and another (1991 PLC 926)

4) Mumtaz Ahmed Silk Mills Ltd. vs. Sindh Employees Social Security Institution and another (NLR 1988 Labour 10).

1. Ms. Masooda Siraj Advocate appeared on behalf of the respondents and vehemently refuted the arguments of learned counsel for the petitioners. She submitted that so far the issue of quorum of the Board is concerned under Section 44 of the EOB Act the Federal Government is empowered to make rules to carry out the purposes of the EOB Act, which may also provide power and functions of the Board of Trustees and manner and procedure for disposal of appeals. She then invited our attention to Section 18(v) of the EOB Rules, 1977 and submitted that for the purpose of deciding the appeals of more, than Rs. 20,00,000/- quorum, would be that of two members whereas in the cases where the dispute is that of less than Rs. 20,00,000/- one members, i.e. Chairman is empowered to decide the appeals. She submitted that perusal of the order passed by the Board would reveal that the same was passed by two members hence no illegality was committed by the Board in deciding the appeal filed by the petitioners. She, therefore, submitted that the answer to Question No. 1 may be given against the petitioners and in favour of the respondents.

2. The learned counsel for the respondent then read out the definition of the term “employee” as used in the EOB Act and invited our attention to Sections 8, 11, 12, 33, 35, 43, 44 and 45 of the said Act. She stated that as per the definition of “employee” even if a person is appointed through any other person or through a contractor, as the case may be, the said person would fall under the definition of “employee” and hence the establishment was under legal obligation to make contribution on behalf of those persons also. She further stated that even if for arguments sake it is assumed that the persons working in the establishment of the petitioners were not having appointment letters but were admittedly appointed through other person i.e. contractors, they would fall under the definition of the term “employee” and thus it was incumbent upon the petitioners to have made the contributions on their behalf, which they had miserably failed to do on the pretext that those persons were not their employees and hence they were not liable for making any contribution in respect of those persons. She stated that full details in this regard were obtained from the petitioners and thereafter assessment of the amount payable by them was worked out by the department. She further stated that the term “through any other person” has already been dilated upon in a number of judgments given either by this Court or the Hon’ble Supreme Court of Pakistan and hence the stance now taken by the petitioners is no more available to them and the answer to the Question No. 2 may also be given in favour of the respondents and against the petitioners. In support of her above contentions the learned counsel has placed reliance on the following decisions:--

1) SESSI vs. Consolidated Sugar Mills Limited (1989 SCMR 888).

2) SESSI vs. Employees, Premier Tobacco Industries Limited (1990 PLC 06).

3) SESSI vs. Modern Textile Mills Limited (1999 PLC 210).

4) Okara Flour & General Mills vs. PESSI (1993 PLC 984).

5) MCB vs. Muhammad Nasim (2001 SCMR 1191).

6) M.A. Baqi Khan vs. NIRC (1993 NLR 146).

1. M/s. Asim Mansoor Khan, DAG, and Dilawar Hussain, Standing Counsel, have appeared on behalf of the Federation of Pakistan on Court Notice. They have supported the arguments of Ms. Masooda Siraj and have relied upon the following decisions:--

1) Taj Din vs. Punjab Labour Court (PLD 1976 Lahore 1169)

2) Quadari Brothers Foundry & Workshop vs. Sindh Employees Social Security Institution (PLD 1977 Karachi 112)

3) Sindh Employees Social Security Institution vs. Philips Electrical Industry of Pakistan (PLD 1977 Karachi 451)

4) Pakistan Tobacco Company Limited vs. Punjab Employees Social Security, Institution (PLD 1978 Lahore 704)

5) Sindh Employees Social Security Institution vs. Pakistan National Produce Company Limited (1989 PLC 81)

6) Sindh Employees Social Security Institution vs. Consolidated Sugar Mills Limited (1989 SCMR 888)

7) Sindh Employees Social Security Institution vs. Premier Tobacco Ind. Limited (1990 PLC 6)

8) Okara Flour & General Mills vs. Punjab Employees Social Security Institution (1993 PLC 984)

9) Sindh Employees Social Security Institution vs. Modern Textile Mills Limited (1999 PLC 210)

10) Cowesjee & Sons vs. Employees Old-Age Benefits Institution [2001 PLC 485 (Supreme Court)].

1. We have heard all the learned counsel at considerable length and have also perused the record and the decisions relied upon by them.

2. Before proceeding any further we deem it appropriate to reproduce herein below the relevant provisions of the law, as relied upon by the learned counsel:

The Employees’ Old-Age Benefits Act, 1976.

1. Short title, extent, commencement and application.--(1) This Act may be called the Employees’ Old-Age Benefits Act, 1976.

(2) It extends to the whole of Pakistan.

(3) It shall come into force at once.

1[(4) It applies to every industry or establishment-

(i) Wherein 2[five] or more persons are employed by the employer directly or through any other person, whether on behalf of himself or any other person, or were so employed on any day, during the preceding twelve months, and shall continue to apply to every such industry or establishment even if the number of persons employed therein is, at any time after this Act becomes applicable to it, reduced to less than 1[five] 2[.]

1. Definitions.--In this Act, unless the context otherwise: requires,--

1[(a)

1[(aa)] “board” means the Board of Trustees constituted under Section 7;

(b) “contribution” means the sum, of money payable- to the Institution by the employer 3[or by the Federal Government}4 in respect of an insured person under the provisions of the Act;

4[(bb) “employee” means any person employed, whether directly or through any other person, for wages or otherwise, to do any skilled or unskilled, supervisory, clerical, manual or other work in, or in connection with the affairs of, an industry or establishment under a contract of service or apprenticeship, whether written or oral express or implied, and includes such person when laid off 5[:]]

1[2[\\\\\\\\]

Provided5 3[\] that a director of a limited company or of a corporation set up under any law shall not be treated as an employee under this Act, irrespective of his wages or emoluments;]

4[(c) “employer”, in relation to an industry or establishment, means any person who employs, either directly or through any other person, any employee, and includes--

(i) in the case of an individual, an heir, successor, administrator or assign;

(ii) a person who has ultimate control over the affairs of an industry or establishment, or where the affairs of an industry or establishment are entrusted to any other person (whether called a managing agent, managing director, manager, superintendent, secretary or by any other name), such other person ;and]

1. Board of Trustees.--(1) The Board of Trustees shall consist of the following members to be appointed2 by the Federal Government, by notification, namely:-

(a) the Secretary or Additional Secretary in the Labour Division, who shall also be the 3[President] of the Board of Trustees;

(b) 4[two] persons to represent the Federal Government, one each from, the Ministries of Finance, 5[\] and Labour;

(c) four persons to represent the Provincial Governments, one to be nominated by each of the Provincial Governments;

(d) four persons to represent employers;

(e) four persons to represent insured persons; and

(f) 1[one] persons to represent the Institution.

(2) Members to be appointed under clauses (d) and (e) of sub-section (1) shall respectively be chosen from a list of names submitted in the prescribed, manner by the organisations of employers and employees recognized by the Federal Government for that purpose:

Provided that, pending the making of rules in this behalf, the first members to be so appointed shall be chosen from such persons as the Federal Government may deem fit.

1. Powers and Functions of the Board of Trustees.--In addition to the powers conferred on, and the functions entrusted to it, by the other provision of this Act or by the rules, the Board shall have powers--

(a) to approve the budget estimates, the audited accounts and the annual report of the Institution for submission to the Federal Government in accordance with the provisions of this Act; 2[\]

(b) to call for any information or direct any research to be made for the furtherance of the objects of the Act 3[; and]

1[(c) to co-opt any other technical person by name as member on the Board for a specific purpose and for such limited period’ as decided by the Board.]

1. Decisions on complaints questions and disputes.--If any complaint is received or any question or dispute arises as to--

(a) whether a person is an insured person within the meaning of this Act;

(b) the amount of wages of an insured person for the purposes of this Act;

(c) the amount of contribution payable by an employer in respect of an insured person;

(d) the person who is the employer in respect of an insured person;

2[(e) entitlement to any benefit under this Act or as to the amount and duration thereof;]

2[(ee) registration of industry or establishment; or]

(f) any other matter in respect of any contribution or any 1[benefit] referred to in clause (e), or dues payable or recoverable, under this Act relating to contributions or the aforesaid 2[benefits];

the matter shall be decided by the Institution, in such manner, and within such time, as the regulations may provide and the Institution shall notify its decision to the person concerned in writing, stating therein the reason for its decision.

1. Appeal to Board.--Subject to rules, a person aggrieved by a decision of the Institution under Section 33 or on a review under Section 34, may appeal to the Board.

2. Delegation of Powers.--The Board may direct that all or any of its powers and functions may, in relation to such matters and subject to such conditions, if any, as may be specified, be also exercisable by any officer or authority subordinate to the Institution.

3. Power to make rules.--(1) The Federal Government may, subject to the condition of previous publication, by notification in the official Gazette, make rules to carry out the purposes of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules, may provide for all or any of the following matters, namely:--

(i) the tenure of office of members of the Board, other than the 1[President], and other terms and conditions of appointment of the members of the Board and the manner in which the Board shall conduct its business, including the number of members required to form a quorum at the meetings thereof;

(ii) the manner in which names of persons from whom member of the Board may be appointed shall be submitted by organizations of employers and employees recognized by the Federal Government for that purpose;

(iii) powers and functions of the Board;

(iv) fees and 2[benefits] of the members of the Board;

(v) times and rates at which, and conditions subject to which, contributions shall be payable;

(vi) percentage or amount by which contributions in arrears may be increased under Section 13;

(vii) investment of surplus moneys, realisation of investments and reinvestment of proceeds;.

(viii) terms at which and the manner in which the budget of the Institution shall be prepared and submitted to the Federal Government;

(ix) the forms and manner in which the Institution shall keep accounts of its income and expenditure and of is assets and liabilities:

(x) the times at which, and the manner in which, the accounts of the Institution shall be audited;

(xi) the matters which the annual report of Institution shall cover;

(xii) the times in which claims for [a benefit] shall be made;

(xiii) the manner and procedure for disposal of appeals by the Board; and

(xiv) any other matter which is required to be or may be prescribed.

1. Power to make regulations.--The Board may subject to condition of previous publication, by notification in the official Gazette, make regulations not inconsistent with the provisions of this Act or the rules.

(2) In particular, and without prejudice, to the generality of the foregoing power, such regulations may provide for all or any of the following matters, namely:--

(i) the time and places at which meetings of the Board shall held;

(ii) the manner in which daily wages shall be calculated for the purpose of determining the contribution payable;

(iii) determination of wages for computation of contributions where the mode of payment of remuneration, in cash or kind, makes such computation difficult.

(iv) records to be kept and returns to be submitted by employers, time at which and the form in which such returns are to be submitted, and particulars relating to the insured persons to be stated in such returns and the manner and from for registration of employers and insured persons;

(v) the manner in which any claim of the Institution for unpaid contributions may be extinguished;

(vi) powers and duties of internal auditors;

1(vii) \\\\]

(viii) the term and manner in which claims for 2[a benefit] shall be preferred, and the documents, information and evidence which, shall accompany such claims;

(ix) the manner in which and the time and places at which payment in respect of 2[a benefit] shall be made;

(x) the manner in which and the time within which complaints, questions and disputes shall be decided;

(xi) the circumstances and the manner in which, on new facts coming to light, the Institution may review decisions;

(xii) the method of payment of contributions and liability thereof;

(xiii) the manner in which invalidity shall be assessed and the procedure thereof;

(xiv) the manner in which proof of age shall be furnished for the purposes of this Act;

(xv) the manner in which the services of the Institution shall, be organised; and

(xvi) any other matter not provided for in this Act or rules and necessary to give effect to the provisions of this Act.

The Employees’ Old-Age Benefits (Board of Trustees) Rules, 1977:

1. Quorum.--No business shall be transacted at a meeting, whether ordinary or emergent, unless at least 2[seven] shall be official members:

Provided that if at any meeting a quorum is not present, the 1[President] may adjourn the meeting to a later date informing the members present and notifying other members that the business of the adjourned meeting will be disposed of, even irrespective of there being a quorum, and it shall thereupon be lawful to dispose of the business at such adjourned meeting irrespective, of the number of members attending.

1. Appeals to Board.--the Board may entertain appeals from aggrieved persons under Section 35 subject to the following requirements, namely:-

(i) .. .. .. .. .. .. ..

(ii) .. .. .. .. ..

(iii) .. .. .. ... .. .. ..

(iv) .. .. .. ... .. .. ..

(v) The Board may, instead of hearing 2[appeals] itself, appoint a committee of the Board to hear and decide 2[appeals] on its behalf, and any decision of the Committee so given and communicated to the aggrieved person shall be as fully effective and binding as if given by the Board itself.

1. We will first take up the issue with regard to whether the Board comprising of one or two members was authorized to hear the appeals. Perusal of Section 35 of the EOB Act clearly reveals that a person aggrieved by a decision of the Institution may appeal to the Board under this provision of the law. The term “Board” has been defined under Section 2(aa), supra, according to which Board means “the Board of Trustees as constituted under Section 7 of the said Act. “As per Section 7, quoted supra, at the time the petition was filed Board of Trustees consisted of nineteen members, however, in 2005 the number of persons in, clause (b) and (f) of the said section were reduced from four to two and from two to one, respectively, meaning thereby that at present the Board consists of sixteen members only. Now the question is whether the Board has the authority under the law to hear the appeals comprising of two members only. The provisions of Section 8, supra, clearly enunciates the powers and functions of the Board of Trustees, according to which, apart from the powers conferred on the Board and the functions entrusted to it through the other provisions of the Act, the Board also have the powers, as specifically mentioned in the said section.

2. Perusal of Section 44 of the EOB Act reveals that the Federal Government has the powers to make rules to carry out the purposes of this Act and as per the said section the Federal Government has the authority to make rules so far as the powers and functions of the. Board is concerned. In the said Section it has also been provided, as per clause (xiii) of its sub-section (2), to regulate the manner and procedure for disposal of appeals by the Board and as per Section 18(v) of the EOB (Board of Trustees) Rules, 1977, it has categorically been mentioned that so far as the hearing of the appeals is concerned, the Board has the authority that instead of hearing the appeal itself appoint a Committee of the Board to hear and decide the appeals on its behalf and the said decision of the Committee has to be considered that of Board itself. It is seen from the record that the Board for the purposes of deciding the appeals has categorically mentioned that so far as the appeals involving a dispute of more than Rs. 20 lac is concerned the quorum would be that of two members and for less than the amount of Rs. 20 lac the Appellate Board would comprise of one member only i.e. Chairman to decide the appeals.

3. From the above discussion it is clear that for deciding the appeals in respect of disputes of more than Rs. 20 lac the quorum would be that of two members comprising of Chairman and any other member, who are competent to decide the disputes. In the present case it is evident from the order dated 22.11.1997 that the same has been passed by a Board comprising of Chairman and a member, hence, in our view, the quorum, so far as the hearing of the appeal is concerned, appears to be in order and no illegality in this behalf has been found. We, therefore, reply the answer of Question No. 1 in favour of the respondents and against the petitioners.

4. So far as the second question is concerned, we would like to reproduce herein below the relevant portions of some of the decisions cited before us:

NESTLE MILK PAK LIMITED vs. BOARD OF TRUSTEES, EOBI KARACHI and 2 other (2005 PLC 19)

Learned counsel, however, has been fair to point out that this Court has already held that “employees even on contract are employees under Section 2(bb) of the Employees Old Age Benefits Act, 1976 in a judgment reported in Crescent Textile Mills Limited through Manager Accounts, Sadiq Saleem v. Board of Trustees, Employees Old Age Benefits Institution and 2 others (2003 PLC 41) wherein, relying on the judgment of the august Supreme Court of Pakistan, at page 46, it has been held as under:

“..... It has already been settled that the employees on the contract are employed in the definition of Section 2(bb) of the Act, hence the petitioners were bound to deposit the amount before the Respondent No. 3 and even otherwise petitioner has filed the evasive reply of the show-cause notice for the payment of the dues issued by the Respondent No. 3 and no specific stand has been taken throughout the proceedings before filing a petition under Section 33 of the Employees Old Age Benefits Act, 1976 challenging dues, directed to be paid about the employees on contract and first time this, question had been raised before the Respondent No. 2 and there has not been mentioned a detail of the employees who are employees of the contractor and the distinction as drawn in 1989 PLC 434 has also not been mentioned that these workers do not fall within the definition of workers for the deposit of the dues by the petitioner …..”

1. For what has been discussed above, I do not find any merit in this petition, which is hereby dismissed with no orders as to costs.

ATTOCK CEMENT PAKISTAN COMPANY vs. THE BOARD OF TRUSTEES, EMPLOYEES’ OLD-AGE BENEFITS INSTITUTION and others (2004 PLC106)

In the case of Messrs Sindh Employees Social Security Institution v. Consolidated Sugar Mills Limited (supra) the Supreme Court, while examining the question as to whether the employees/labourers employed by a Contractor for purposes of executing the work on behalf of the owners/establishment/industry, on the premises of the industry/ establishment would be covered by the definition of term ‘‘employee” as defined in the West Pakistan Employees Social Security Ordinance, 1965 (hereinafter referred to as the Ordinance of 1965) observed that:

“The definition of the “employee” as appearing it Section 2 (viii) of the Ordinance of 1965 was very wide and would encompass within its workers/labourers employed of engaged ‘through’ a Contractor.”

It was further held that:--

“The owner of the industry/establishment would be under an obligation to contribute to the Social Security Funds for such employees.”

In the case of Messrs Crescent Textile Mills Limited v. Board of Trustees, Employees’ Old-Age Benefits Institution (supra) the High Court, of Lahore while examining this issue by placing reliance on the case of Messrs Sindh Employees Social Security Institution v. Consolidated Sugar Mills Limited, (supra) held the workers/employees/ employed/engaged by Contractors as worker in the industry in connection with the affairs of the industry/establishment to be the employees as defined in Section 2(bb) of the EOB Act further holding the industry/ establishment to be responsible/liable for making payment of the contribution on their behalf in the Old-Age Employees Benefit Fund.

Upon the above discussion, this petition was found to be without any substance. By a short order dated 27-11-2002 it was dismissed in limine alongwith the miscellaneous application pending therein for reasons to be recorded later on. These are the reasons for the said dismissal.

HASHOO STEEL INDUSTRIES LIMITED vs. BOARD OF TRUSTEES, EOBI and others (2004 PLC 121).

6. ............ On the other hand a person employed through a contractor is covered by the defining provisions of the expressions “employee” and “employer” under Sections 2(bb) and 2(c) of the E.O.B. Act and obviously the charging Section 9 would apply to such persons.

SINDH EMPLOYEES SOCIAL SECURITY INSTITUTION vs. CONSOLIDATED SUGAR MILLS LIMITED (1989 SCMR 888)

Reading these provisions together the conclusion is inescapable that the owner of the industry is liable for employees engaged for his industry even through the contractor. The contention that the Contractor should be taken to be employer and not the owner, as expressed in the agreements with the contractors and made liable for the contribution, cuts, across the scheme of the statute, where it was intended, by law to make the Contractor, the employer, the statute, made provision for it directly [State undertakings-Section 2(9)] or indirectly (Section 20(8) and Section 20(9)]. By construction or interpretation if the Courts were to introduce such contractors, also as employers on the basis of contracts or otherwise, then the Court would be rewriting the law itself. Such an interpretation being in derogation of the express provision that “in every other case” it is the owner who is to be the employer.

In the circumstances, the owner respondent is obliged to contribute to the Social Security Fund for employees engaged through the contractor.

SINDH EMPLOYEES’ SOCIAL SECURITY INSTITUTE vs. PAKISTAN NATIONAL PRODUCE CO. LTD. (1989 PLC 81)

1. In view of the aforesaid discussion, I am of the opinion that the respondent is liable to pay the contribution etc. under the Ordinance for the workers employed by its contractor to work in or in connection with the establishment/industry of Respondent No. 2 .....

SINDH EMPLOYEES’ SOCIAL SECURITY INSTITUTION vs. EMPLOYER, PREMIER TOBACCO INDUSTRIES LTD. (1990 PLC 6)

Reverting to the contention of Mr. Sarwana that the employer of the respondent is liable to pay contribution for employees engaged through contractor. This question was considered by me in the un-reported judgment dated 26-4-1989 (MA. 50 of 1986 Sindh Employees’ Social Security Institution v. Burshane Pakistan Limited and M.A. 19 of 1988, Sindh Employees’ Social Security Institution v. M/s. Central Cotton Mills Ltd.) in which I have come to the conclusion after giving cogent reasons which are fully supported by the decision of Supreme Court in Civil Appeal No. 49 of 1988 of Social Security Institution v. Consolidated Sugar Mills, discussed by me in the said judgment that the employer of the respondent is liable to pay contribution for employees engaged for establishment through the contractors. I hold that the employer of the respondent establishment is liable to pay contribution on the wages of persons engaged by him directly or through contractors at such rate and subject to such contributions as may be prescribed.

I would accept this appeal and set aside the decision dated 5.10.1987 of the Social Security Court and restore the order of the Commissioner. In the circumstances of the case, the parties shall bear their own costs.

SINDH EMPLOYEES SOCIAL SECURITY, KARACHI vs. MODERN TEXTILE MILLS LTD, KARACHI (1999 PLC 210).

In view of aforesaid reasonings and circumstances the appellants are liable under the law to make contribution to the institution/respondents for the employees engaged through the contractors and thereby find no force in the contention of learned counsel for the appellants.

Messrs CAWASJEE AND SONS vs. BOARD OF TRUSTEES, E.O.B.I. and another (2001 PLC 485)

“Having heard learned counsel at quite some, length and analysed the impugned judgment we are of the considered view that by dismissing the instant petition learned High Court neither acted arbitrary nor in violation of the settled principles of law. In fact the question of law has been set at rest by this Court in Lahore Race Club’s case (supra) and furnishes a complete answer to the points raised on behalf of the petitioners Para 17 of the judgment being relevant and attracted in the circumstances of the case may be reproduced for the sake of advantage as under:

“17. In discovering whether any amount payable as wages is liable to contribution first is to be seen whether the employee falls within the definition of Section 2-bb and thereafter liability of contribution should be determined in accordance with Section 9 read with other provisions of the Act. Here, the persons in respect of whom contribution is demanded, have been rightly found to be employees in terms of Section 2-bb of the Act by the Court below. The mere fact that the disputed employees were working on part-time basis could not be a valid reason for excluding them from the, category of employees as envisaged by Section 2-bb of the Act. The appellant is, therefore, not absolved from the liability, to pay contribution under the Act, as demanded by the Institution.

1. Resultantly, petitions are devoid of any merit and hereby dismissed.

OKARA FLOUR AND GENERAL MILLS, OKARA vs. THE PUNJAB EMPLOYEES’ SOCIAL SECURITY INSTITUTION, LAHORE and another (1993 PLC 984)

1. The Pallaydars employed through the contractor whether for stitching the bags or for loading and unloading the filled bags certainly performed duties in connection with the business of the appellant-Mills. Their welfare and security is the concern of appellant and he is liable under the law to pay Social Security contribution for the workers/Pallaydars employed through the private contractor”.

From the decision quoted supra, it is evident that, the persons hired by the petitioners, though through a contractor, falls squarely under the definition of term “employee” as provided under Section 2(bb) of the EOB Act and the petitioners are liable to pay the contribution of those persons to EOBI as it is their liability to make payment of the contributions in respect of the persons employed directly or through any independent persons i.e. contractors.

1. The decisions relied upon by the learned counsel for the parties reported as 2001 SCMR 1191, PLD 1977 Kar. 451, PLD 1978 Lah. 704, PLD 1977 Kar. 112, PLD 1977 Kar. 1449, PLD 1976 Lah. 1169, NLR 1988 Labour 10, NLR 1993 Labour 146, NLR 1988 TD 21, 2014 PLC 40, 1991 PLC 926, 2004 PLC 63 are found to be either distinguishable or not relevant with the issue involved in the instant petition.

2. We, therefore, so far as the second question is concerned, hold that the petitioners being employers are liable to make the contributions to the EOBI in respect of the persons employed either directly or through an independent contractor and answer this question also in favour of the respondents and against the petitioners.

3. In view of what has been discussed above, both the petitions are dismissed with no order as to cost.

(R.A.) Petitions dismissed

PLJ 2016 Karachi 170

Present: Muhammad Shafi Siddiqui, J.

MUHAMMAD HUSSAIN and others--Plaintiffs

versus

FEDERATION OF PAKISTAN and others--Defendants

Suits No. 1764, 2214, 2299, 2300, 2339, 2439, 2357 and 2515 of 2014 and 142, 794, 937, 1034 and 1035 of 2015, decided on 8.9.2015.

Constitution ofPakistan, 1973--

----Art. 175(2)--No Court shall have any jurisdiction save as is or may be conferred by it on the Constitution or under any law--Art. 175(2) does not bar any Civil Court from entertaining a challenge to validity of law on the touchstone of the provisions of the Constitution itself. [P. 181] A

Civil Procedure Code, 1908 (X of 1908)--

----S. 9--Civil Courts are Courts of ultimate jurisdiction and therefore, such jurisdiction that is being enjoyed by Courts is sufficient to dispel any challenge of defendants with regard to maintainability of suits. [P. 192] B

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

----S. 56(d)--Section 56(d) of Specific Relief Act, 1877 is not applicable where the impugned action done is claimed to be unlawful.

[P. 192] C

Companies Ordinance, 1984 (XLVII of 1984)--

----S. 2(9)--Bonus shares--Characteristic of--Word bonus share has not been defined in Companies Ordinance, 1984, but it is used in Section 2(9) of Ordinance, 2001--Bonus share and share at occasions and at certain events are distinguishable--Bonus shares are to be treated at par with the original shares, in these peculiar facts and circumstances are not acceptable--A share which is capital of a company may be considered as a moveable asset but while interpreting bonus share, in consideration of the amendment under challenge and the background is different characteristic altogether--Interpretation of the word income is required while considering the “deeming or treated” clause of the statute to be alive--Court would be misguided if a normal definition through any decision involving a share or a capital issue, is applied--This is not simple dispute of share or bonus share rather dispute involving income under deeming o treated clause. [P. 188] D

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

----S. 2(19)(a)--Section 2(19)(a) of Ordinance, 2001 which is wide enough to include any distribution of accumulated profit whether capitalized or not, if such distribution entails the release by the company to its share holder of all or any of its asset. [P. 190] E

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

----Scope--Generally the effect of a deeming provision in a taxing statute is that it brings within the tax net a gain or benefit which ordinarily would not have been treated as cash income--It brings within the chargeability income not actually accrued but which supposedly to have accrued notionally. [P. 191] F

Constitution ofPakistan, 1973--

----Art. 52--Entry 47, 4th Schedule--Entry 47 is not something which in rational sense cannot be regarded as income or could not be interpreted within the four corners of the word income as required tin pursuance of Entry No. 47 of Constitution--In the rational sense it is valuable and gain and hence considered within the frame of income--Even the general meaning of income is not limited to money. [Pp. 191 & 192] G

Constitution ofPakistan, 1973--

----Art. 52 & 4th Schedule--Subject available in the list of 4th Schedule Part-I may be limited to certain numbers but spectrum of those subjects themselves are not limited as long as it does not break the circumference of income as defined and boundary provides protection to consider it in regarding subject as citizen’s income.

[P. 192] H

Constitution ofPakistan, 1973--

----Arts. 52 & 4th Schedule--List only provides the areas and fields covered by entries but those entries themselves have a circumference to cover all or ancillary or subsidiary matters so long it does not violate the touchstone of rational sense. [P. 192] I

M/s. Dr. Muhammad Farogh Naseem, Pooja Kalpna, Nasir LatifKhan &Aamir Raza, Advocates for Plaintiffs (in Suits No. 1764 & 2214 of 2014).

Mr. S. Owais Ali Shah, Advocate for Plaintiffs (in Suits No. 2299 & 2300 of 2014).

Mr. Behzad Haider, Advocate for Plaintiffs (in Suits No. 2339, 2391, 2515, 2439 of 2014 & 828, 1034 & 1035 of 2015).

Mr. Aminuddin Ansarialong with Mr. Khaliq Tanvari, Advocates for Plaintiff (in Suit No. 794/2014).

Mr. Salman Talibuddin, Addl. Attorney General for Defendant/Federation of Pakistan.

Mr. Amjad Javed Hashmi, Advocate for Defendant No. 2(a)/Commissioner Inland Rev. RTO-I (in Suits No. 1764, 2214, 2299, 2339, 2515 of 2014, 142, 794, 937 of 2015).

Mr. Irshad-ur-Rehman, Advocate for Defendant No. 2(b)/ Commissioner Inland RTO-III (in Suits No. 2214 of 2014, 794 and 1035 of 2015).

Mr. Khaleeque Ahmed, Advocate for Defendant No. 4 (in Suits No. 2439 and 2515 of 2014).

Mr. Zeeshan Abdullah, Advocate for Defendant No. 7 (in Suit No. 794 of 2015).

Dates of hearing: 22.5.2015, 25.5.2015, 28.5.2015, 2.7.2015, 6.7.2015, 7.7.2015, 10.7.2015, 13.7.2015 and 15.7.2015.

Judgment

These are connected suits involving common question of law as to whether Sections 2(29), 39(1), 236(M) and 236(N) of Income Tax Ordinance, 2001 (hereinafter referred as Ordinance, 2001) as inserted through Finance Act, 2014 are ultra vires the law and the Constitution. All the learned counsel agreed for disposal of all the connected suits being a short cause matter as they agreed that no evidence is required to be led by any of the parties.

1. Brief facts as contended by the learned counsel for the plaintiffs are that through Finance Act, 2014 Federal Legislature has made amendment in Ordinance, 2001 in order to levy income tax on bonus shares. Such amendment has in fact affected Sections 2(29), 39(1), 236-M and 236-N etc. of Ordinance, 2001. Through the instant suits plaintiffs have called in question above amendments inserted through Finance Act, 2014

2. The notices were also issued to Attorney General for Pakistan under Section 27-A, CPC as well who has responded and assistance provided through Addl. Attorney General.

3. By consent the issues were framed as being short cause matter on 25.05.2015.

4. Since the question in relation to the maintainability of the suit was also framed, counsel for the defendants has argued on this, point and in that regard relied upon Section 227 of Ordinance, 2001 and the judgment in the case of (i) Batala Engineering v. ITO (29 Taxation 190 (Supreme Court) (ii), ITRO and 2 others v. CBR (2003 PTD 1155), (iii) Abbas S. Shroff v. ITO (78 Taxation 119).

5. The counsel has also relied upon Section 113, CPC and in support thereof relied upon AIR 1971 Calcutta 368 and AIR 1971 AP 339 and argued that Article 175(2) of the Constitution provides that no Court shall have any jurisdiction save as is or may be conferred by it on the Constitution or under any law. He further with reference to Article 212 of the Constitution submitted that suits are not maintainable. He added that Section 9, CPC barred the proceedings and relied upon PTD 2167 (HC, Karachi). He also laid emphasis on Section 56-D of Specific Relief Act.

6. In reply to these objections touching maintainability, Mr. Farogh Naseem, submitted that insofar as Section 227 of Ordinance, 2001 is concerned, bar is only with reference to the proceedings where orders made under the said Ordinance, 2001 and hence the available section does not preclude a challenge to the vires of law or Statute framed by the parliament. He submitted that it is now well settled principle of law that where the action by any statutory functionary is illegal or extraneous the same cannot be reckoned to be an action under the said provision of law. Learned counsel in this regard relied upon the case of Abdul Rauf v. Abdul Hamid Khan (PLD 1965 SC 671) and Hashmatullah v. KMC (PLD 1971 Karachi 514).

7. Insofar as Section 9, CPC is concerned, learned counsel submitted that the ultimate jurisdiction is of Civil Court as held by Hon’ble Supreme Court in the case of Hamid Hussain v. GOWP (1974 SC 356) and HMC v. Fateh Jeans (1991 MLD 284). In relation to Section 56(d) of Specific Relief Act it is contended that the law is completely misplaced as it only relates to a lawful action and relied upon the case of Shujabad v. Collector (2014 PTD 1963). Hence, learned counsel pleads that the suit is maintainable.

8. With regard to merits of the case learned counsel for plaintiffs commenced his arguments by relying upon Articles 141 to 144 of the Constitution. He submitted that the above articles show the functioning of Majlas-e-Shoora to make laws. He submitted that in essence Majlas-e-Shoora/Federal Parliament have power to make laws in relation to the subject matters enumerated in various entries detailed in Federal Legislative List contained in fourth schedule of the Constitution. He submitted that the relevant entry of the Constitution for the present matter is Entry No. 47 of Part-I which relates to taxes on income other than agriculture income.

9. Learned counsel submitted that Entry 47 is in fact a constitutional mandate available to the Federal Legislature to impose tax on income. He submitted that word “income” is of wide significance since entire controversy revolves around the scope and meaning of the word “income”. Insofar as interpretation of the constitutional entries are concerned, the counsel relied upon following cases:--

i) PIDC v. Pakistan (1992 SCMR 891).

ii) Nishat Tak v FOP (PLD 1994 Lahore 347).

iii) Mandviwalla Muaser v. FOP (1996 CLC 1042).

iv) Ellahi Cotton Mills v. FOP (PLD 1997 SC 582).

v) H.A. Rahim v. Province of Sindh (2003 CLC 649).

vi) Sanofi Aventis v. Province of Sindh (PLD 2009 Karachi 69).

1. Learned counsel submitted that in all the above referred cases the broadest interpretation was offered to the entries. He submitted that it has been held in the most celebrated judgment of Ellahi Cotton Mills that the rule of interpretation while interpreting any entry in the legislative list is that it should be given widest possible meaning but does not mean that the parliament can choose to tax as income any item which in no rational sense can be regarded as a citizens’ income. He contended that item taxed should rationally be capable of being considered as income of a citizen.

2. He submitted that the crucial question that is to be resolved is as to whether the bonus shares in the hands of the shareholder in pith and substance or in a rational sense can be considered to be income of the said shareholder within the meaning of Entry 47 of the Federal Legislative List of the Constitution.

3. As regards Section 2(29) of Ordinance, 2001 which include “any amount treated as income under any provisions of this Ordinance”, learned counsel submitted that such issues have already been addressed in the case of Elahi Cotton Mills referred above. He submitted that the stance taken by the defendants that the Federal Legislature is permitted to treat or deem something to be income which does not otherwise so, is bad in law and under the Constitution.

4. He submitted that in order to ascertain the real controversy one needs to understand, whether in rational sense such bonus shares could be construed as income. He submitted that the bonus shares have not been defined in the Companies Ordinance, 1984 but it is defined in Section 2(9) of the Ordinance, 2001 which includes the bonus-unit in a unit-trust and hence it does not provide any assistance insofar as the question involved in these suits is concerned. He submitted that the bonus shares are nothing but shares of a company. The word ‘share’ has been defined in Ordinance, 1984 as a share which in fact is a share in the capital of the company, which is a moveable property, transferable in the manner provided by the Articles of the Company. He thus concludes that the bonus share is nothing but a share of company and therefore it falls within the ambit of Section 89(1) of Ordinance, 1984. He also relied upon Sales of Goods Act in terms of Section 2(7) whereof goods include shares and therefore considered as a moveable property or an asset. He questioned that such definitions can hardly forward a case of anybody that such asset or property could be equated with income and that in rational sense bonus share could be construed as income.

5. Learned counsel further argued that the company upon making profits pays income tax thereon and there is no dispute in this regard. At this stage the amount is either distributed to the shareholders as dividend or instead the same is taken by the company to its capital reserves from where the company issues bonus shares to its existed shareholders in the proportion of their shareholding as existed in the company register. In case the shareholders are paid dividends they are liable to pay income tax but does not liable to pay such taxes on receipt of bonus shares since same is not income in any rational sense but construed as an asset and moveable property in the hands of the shareholders.

6. He argued that tax payer under the law is permitted to arrange the tax affairs in the best tax efficient manner which may be called as tax avoidance but permissible under the law. He argued that it is only tax evasion, which entails consequence of concealment and suppression of income and transaction, which is not permissible and is prohibited under the law. Hence if the tax payer has taken any action to avoid payment of taxes he has committed no crime. In this regard learned counsel relied upon:--

i) Jiyajeerao Cotton Mills Ltd. v. CIT reported as (1958) 34 ITR 888 (Supreme Court).

ii) CIT v. Calcutta Discount Co. Ltd reported as (1973) 91 ITR 8 (Supreme Court).

iii) Aruna Group of Estates v. State of Madras reported as (1965) 55 ITR 642 (Madras).

iv) CIT v. Jai Narain Ram Chander reported as (1981)128 ITR 179 (Calcutta), and.

v) CIT v. Fisher’s Executor reported as (1926) AC 395.

1. He thus submitted that any interpretation where the dividends are equated with bonus shares would be deemed to be a complete and stark violation to corporate and fiscal jurisprudence wherein the nature and character of the dividend and their tax treatment are completely divorce to bonus shares. He submitted that a decision by company to issue bonus shares instead of dividend is essentially made when company intends to utilize undistributed profits for its use. He further submitted that the recommendation to issue dividend is made by the Board of Directors while such recommendation subsequently is ratified by the General Meeting of the company.

2. Learned counsel contended that once there was a dispute with regard to the evaluation of bonus shares in the case of CIT v. Umer Saigal (1973 PTD 450) and the learned Division Bench of Lahore High Court was pleased to held that the cost of bonus shares was its face value, which view was subsequently followed in the case of Shirin Ayub Khan v. CIT (PLD 1976 Lahore 1028) and held that the bonus shares were not received by the shareholders free of cost but on payment. These two judgments somehow vary with the view taken by this Court which controversy was ultimately resolved in the case of Ebrahim Brothers Ltd. v. CIT (1992 SCMR 1935) wherein it was held that bonus shares at the time of allotment cost nothing to the shareholders. He argued that it may have a market value but in order to calculate such value neither it could be termed as NIL nor as having a market value. It was further observed by the Hon’ble Supreme Court that the only reasonable method to calculate cost of the bonus share was that the cost of the share held by the shareholder on the basis of which bonus shares have been allotted be spread over on all shares taken together and then the average price they have, be considered as average price. Thus, issuance of bonus shares is adding of a number to the existing number of shares while total cost of the shares are to be spread over total number of shares to get the average value. It is just held to be an accounting entry.

3. He submitted that the idea behind issuance of bonus shares is that company utilizes it after tax on profit for the purposes of its business which may inter alia include acquisition of plant, machinery, land, adjustment of debts or even expanding of its business. He argued that subsequent sale of bonus shares may entail gains but it is at that stage that at the time of subsequent sale of bonus share that it will have relevance for the tax authorities to impose tax on capital gains under Section 37 of the Ordinance, 2001 or under Section 18 thereof, as the case may be.

4. It is further contended that in case of Ebrahim Brothers (Supra) the subject bonus shares issued and received were held as corpus i.e. the property and not as income which judgment is binding on all Courts below.

5. Counsel lastly and mainly relied upon the case of Eisner v. Macomber (252 US 189 (1920) and submitted that in fact it is the precise question involved and settled by US Supreme Court. The aforesaid judgment of Eisner has also been cited with the approval by the Hon’ble Supreme Court of Pakistan in the case of Ebrahim Brothers (1992 SCMR 1935). Counsel submitted that the House of Lords also in consonance with the reasoning of the case of Eisner (Supra) and also the case of John Blott. It is thus the consistent approach of Courts such as Pakistani, British, American, Indian and Sri Lankan Courts which have consistently held that the bonus shares do not constitute income.

6. Thus in the light of the above counsel concludes that the bonus shares are neither income nor same can be deemed to be income. The bonus shares in no rational sense or in pith and substance can constitute income and it is submitted that the impugned legislative amendment may be declared as ultra vires the Constitution, in particular to Entry 47 to Part I, 4th Schedule to the Constitution read with Article 52 of the Constitution and thus may be annulled.

7. On the other hand both M/s. Amjad Jawed Hashmi and Irshad-ur-Rehman appearing for the departments in different suits, jointly argued as under:-

8. That income has been defined in Section 2(29) of Ordinance, 2001 which is inclusive of definitions as under:-

(i) Any amount chargeable to tax under this Ordinance

(ii) Any amount subject to collection or deduction of tax under various provisions of Ordinance including 236-M

(iii) Any amount treated as income under any provision of Ordinance

(iv) Any loss of income (negative income)

1. It is contended that Section 69 of Ordinance, 2001 is in fact outcome of powers available to the legislature by virtue of Entry 52 read with Entry 47 of the 4th Schedule of the Constitution and hence they enjoy widest powers to levy tax on any amount or value susceptible to income and which for any reasonable understanding can fairly be regarded as income though no amount has been received.

2. It is argued that in terms of Section 69 of Ordinance, 2001 a person shall be treated as having received the amount, benefit or prerequisite, if it is, (a) actually received by the person (b) applied on behalf of person, at the instructions of the person or under any law. They further argued that under company law the value of the bonus share is implied/transferred from surplus account to the capital assets of the company in the name shareholders. Thus both conditions simultaneously are fulfilled, the taxation of issuance of bonus shares by virtue of Section 236-M and 236-N read with Section 39 of Ordinance, 2001 is within the competence of legislature.

3. They argued that Section 236-M begins with non-obstante clause and provides (i) for rate of deduction/correction; (ii) for determination of valuation of bonus shares on the basis of day-end price on the first day of closure of books.

4. The learned counsel defined income as increase or accretion of one’s powers to satisfy his wants in a given period insofar as that power consists of (a) money itself or (b) anything susceptible of valuation in terms of money. They argued that it cannot under any stretch of imagination be considered that the “issuance of bonus shares” has been treated by the legislature against limit prescribed in the principle of “pith and substance” which means that the words in constitutional entries are to be given most liberal construction but at the same time cannot be stretched to such limit so as to occasion unfair, unreasonable or absurd construction when Entry Nos. 47 and 52 of the 4th Schedule of the Constitution are read. They argued that the bonus share rationally is capable of being treated as deemed income. They argued that it is not denying fact that by issuing bonus shares nothing in terms of money is received by the shareholders. It increases ownership of shareholder in the company and that the bonus shares is susceptible of valuation in terms of money and thus the value of one’s wealth increases by that income/accretion which increase could not have been considered without such act of issuance of bonus share.

5. Thus, they argued that the income as arisen out of the act of issuance of bonus shares to the shareholder is a presumptive income and tax levied thereon in presumptive tax. They submitted that since the capacity to earn increases capacity to tax increases. The presumptive tax is income akin to capacity tax i.e. capacity to earn under Entry No. 57 and hence tax on capacity in lieu of tax in Entry 47 can be imposed.

6. While applying the deeming provision generally its effect in a taxing statute is that it brings within the tax net an amount or gain or benefit which “ordinarily” would not have been treated as an income. They argued that since power of taxation is contained in the Constitution, one’s approach while interpreting the same must be dynamic, progressive and oriented with the desire to meet the situation which is arising effectively. They argued that the entries contained in the legislative list indicate the subject at which particular legislation is competent but they do not provide any restriction as to the power for the legislation concern. The list providing subject may be restricted/limited but the subject itself is not limited.

7. By taxing on “issuance of bonus shares” under Section 236-M and 236-N at 5% the legislature has not eroded any fundamental right of the subject. It is argued that, insofar as the Eisner’s case is concerned that is not applicable as it is not existed and does not define the word “income” in all capable definitions.

8. Mr. Salman Talibuddin, learned Addl. Attorney General, appearing on behalf of Federation of Pakistan has submitted that the bonus shares declared and resolved to be issued by a company in a shareholders meeting are dividend within the meaning of term in Section 2(19) (a) of the Ordinance, 2001 and constitute distribution of profit of a company as they can only be issued out of free reserves pursuant to the Companies Ordinance, 1984 and fee reserve comprises of profit of the company. He further argued that the bonus shares have a value on the day when they were issued to the shareholders, the tax payer or shareholders receive a fully paid up shares the consideration of which is paid by the company of its free reserves i.e. the only pool of fund from which dividends can be paid pursuant to Companies (Issue of Capital) Rules, 1996. He concluded that on this score alone the bonus shares are termed as dividend issued out of the profit of the company in a form other than cash and hence in essence the income of the shareholder is reinvested into the stock of the company instead of being consumed for personal benefit.

9. The above background as applied to all the amendments as incorporated and inserted and challenged, it is the case of Federation as presented that the reasoning provided in support of the case of the plaintiffs through Eisner’s case is not applicable as the Courts in Pakistan derive their jurisdiction under the Constitution and statutes and the principle of English common law or equity or good conscience cannot be pressed into service as having statutory force and hence the decision in Eisner, Blott and Hunser Plywood are in no way binding on this Court and cannot be relied upon to create exceptions within the statutory law.

10. The other distinguishable feature as argued by the learned Addl. Attorney General was that surplus and undivided profits of the company in Eisner’s case had already been invested in plant, property and business required for the corporation, a stock dividend had been issued only in order to readjust such capitalization and therefore there was no profit that was capable of distribution whereas in the instant case the profit of the company are available.

11. He further argued that Eisner case cannot define the definition of the term “dividend” contained in Section 2(19)(a) of the Ordinance, 2001 which include the distribution of accumulated profit whether capitalized or not. In support of his arguments learned counsel relied upon the cases reported in PLD 1976 Lahore 1028, AIR 1961 Supreme Court 1038, PLD 1997 SC 582 and 2010 PTD 1924 and submitted that with the foregoing reasons the suits are liable to be dismissed.

12. I have heard the learned counsel for the parties and perused the material available on record. Since the parties have not opted to lead the evidence, the issues, which are reproduced as under, are being discussed and answered on the basis of above arguments. Since plaintiff’s counsel has requested and prayed for reframing of Issue No. 2, I on the basis of pleading reframed them as under since there appears to be a typing error:--

13. Whether the suit is not maintainable being barred by law?

14. Whether Sections 2(29), 39(1)(M), 236-M and 236-N of the Income Tax Ordinance, 2001 as inserted through the Finance Act, 2014 are ultra vires of the law and the Constitution?

15. What should the decree be?

16. I first begin with the issue of maintainability of the suits since it has been argued that those suits are not maintainable.

17. The primary objection with regard to maintainability of the suit is initially with reference to Article 175(2) of the Constitution. Article 175 simply provides that no Court shall have any jurisdiction save as is or may be conferred by it on the Constitution or under any law. This Article does not bar any Civil Court from entertaining a challenge to the validity of law on the touchstone of the provisions of the Constitution itself. Since the instant suits involve the vires of law therefore in consideration of Article 175(2) this Court is competent to consider the challenge that has been thrown by the plaintiffs insofar as Finance Act, 2014 is concerned.

18. Article 212 of the Constitution deals with creation of administrative Courts and tribunals. This provision of the Constitution to me is not applicable at all as it pertains to creation of tribunals and administrative Courts. The amendments which are impugned passed by the Parliament levying tax and hence any challenge by taxpayer to the said law/amendment could only be availed through Civil Court.

19. Section 113, CPC is regulated by Order 46, CPC which empowers a Court to answer a question of law through a Reference which could only be made where the Court hearing such issues where an appeal is not permitted and where for execution of such decree, questions of law or usage is in question and there are certain reasonable doubt on a point which needs to be thrashed out and for resolution of such issues it could be referred to High Court for its opinion, which is not the subject here.

20. With reference to Section 9, CPC read with Section 227 of Ordinance, 2001, it is now a settled law that such bar is only inter alia with regard to the proceedings or orders made under Ordinance, 2001. Thus, ex facie it does not preclude a challenge to the vires of law or statute framed or the amendment inserted therein by the parliament. If any reference is required the case of Abbasia Cooperative Bank v. Hakeem Hafiz Muhammad Ghaus (PLD 1997 SC 03) is the most appropriate decision to resolve the controversy. The Civil Courts are the Courts of ultimate jurisdiction and therefore this jurisdiction that is being enjoyed by the Court is sufficient to dispel any challenge of the defendants with regard to the maintainability of the present suits. If any reference is required the case of Hamid Hussain v. GOWP (1974 SC 356) and the case of HMC v. Fateh Jeans (1991 MLD 284) could be seen. Similarly the case of Sanofi Aventis v. Province of Sindh (PLD 2009 Karachi 69) decides the aforesaid question by observing that the superior Courts are not ousted in respect of executive or legislative actions which are claimed to be completely Illegal under Constitution and without jurisdiction.

21. Similarly Section 56(d) of Specific Relief Act, 1877 is not applicable where the impugned action done is claimed to be unlawful. Insofar as the judgments cited by defendants’ counsel regarding maintainability of the suit is concerned, none of the issues as highlighted by the plaintiffs were discussed in these judgments. The rational and the reasoning behind the judgments referred were that the orders were passed under the law which could only be remedied under the hierarchy whereas in the instant case no such situation is involved. The vires of law could be challenged by the persons, aggrieved as has been done in the instant ease. Hence, the judgments relied upon by learned counsel for defendants are not applicable to the facts and circumstances of the instant case.

22. Insofar as the judgment reported in 2006 PTD 2167 in relation to Section 9, CPC is concerned, the same is self-explanatory as it is observed by the learned Single Judge that such provisions would be attracted to impugned action/order if the same was neither mala fide nor without jurisdiction but found to be within the four corners of the statute where under the same was taken.

23. Similarly the case reported in PLD 1992 Peshawar 76 in terms of Section 56(d) of the Specific Relief Act provides for the prohibition for grant of injunction so as to interference with the public duty of any department of central and Provincial Governments, which is not the case here.

24. On this issue case of Abbasia Cooperative Bank v. Hakeem Hafiz Muhammad Ghaus (PLD 1997 SC 03) is the most authoritative judgment in which it has been held as under:

“5. The next question which arises for consideration in the cases is, whether the Civil Court was competent to examine the validity of the auction conducted by the authorities. The Civil Court under Section 9 of the Code of Civil Procedure are competent to try all suits of civil nature except those or which their jurisdiction is barred either expressly or by necessary implication. It is a well-settled principle of interpretation that the provision contained in a statute ousting the jurisdiction of Courts of general jurisdiction is to be construed very strictly and unless the case falls within the letter and spirit of the barring provision, it should not be given effect to. It is also well-settled low that where the jurisdiction of the Civil Court to examine the validity of an action or an order of executive authority or a special tribunal is challenged on the ground of ouster of jurisdiction of the Civil Court, it must be shown (a) that the authority or the tribunal was validly constituted under the Act; (b) that the order passed or the action taken by the authority or tribunal was not mala fide; (c) that the order passed or action taken was such which could be passed or taken under the law which conferred exclusive jurisdiction on the authority or tribunal; and (d) that in passing the order or taking the action, the principles of natural justice were not violated. Unless all the conditions mentioned above are satisfied, the order or action of the authority or the tribunal would not be immune from being challenged before a Civil Court. As a necessary corollary, it follows that where the authority or the tribunal acts in violation of the provisions of the statutes which conferred jurisdiction on it or the action or order is in excess or lack of jurisdiction or mala fide or passed in violation of the principles of Natural justice, such on order could be challenged before the Civil Court in spite of a provision in the statute barring the jurisdiction of Civil Court. In the case before us, the action of the Cooperative Authorities in auctioning the suit property for recovery of the loan against Respondent No. 1 was challenged in the suit as contrary to the provisions of the Ordinance and M.L.O. 241.”

1. Same principle was highlighted in the cases reported in 2001 YLR 2542, PLD 1997 Karachi 541 and PLD 1965 SC 671 and PLD 2009 Karachi 69.

2. Hence in view of above facts and circumstances I am of the view that the suits as framed and filed by the plaintiffs are maintainable. The Issue No. 1 is answered accordingly.

Merits of Case

1. It is essential to first understand the powers available in terms of Articles 141 to 144 of the Constitution which for convenience are reproduced hereunder:

2. Extent of Federal and Provincial laws.--Subject to the Constitution, Majlis-e-Shoora (Parliament) may make laws (including laws having extra-territorial operation) for the whole or any port of Pakistan, and a Provincial Assembly may make laws for the Province or any part thereof.

3. Subject-matter of Federal and Provincial laws.--Subject to the Constitution--

(a) Majlis-e-Shoora (Parliament) shall have exclusive power to make laws with respect to any matter in the Federal Legislative List;

(b) Majlis-e-Shoora (Parliament) and a Provincial Assembly shall have power to make laws with respect to criminal law, criminal procedure and evidence.

(c) Subject to Paragraph (b), a Provincial Assembly shall, and Majlis-e-Shoora (Parliament) shall not, have power to make laws with respect to any matter not enumerated in the Federal Legislative List.

(d) Majlis-e-Shoora (Parliament) shall have exclusive power to make laws with respect to all matters pertaining to such areas in the Federation as are, not included in any Province.]

1. Inconsistency between Federal and Provincial law.--If any provision of an Act of a Provincial Assembly is repugnant to any provision of an Act of Majlis-e-Shoora (Parliament) which Majlis-e-Shoora (Parliament) is competent to enact, then the Act of Majlis-e-Shoora (Parliament), whether passed before or after the Act of the Provincial Assembly, shall prevail and the Act of the Provincial Assembly shall, to the extent of the repugnancy, be void].

2. Power of Mojlis-e-Shoora (Parliament) to legislate for 84[one] or more Provinces by consent.--(1) If 85[one] or more Provincial Assemblies pass resolutions to the effect that Majlis-e-Shoora (Parliament) may by law regulate any matter not enumerated in 86[the Federal Legislative List] in the Fourth Schedule, it shall be lawful, for Majlis-e-Shoora (Parliament) to pass an Act for regulating that matter accordingly, but any act so passed may, as respects any Province to which it applies, be amended or repealed by Act of the Assembly of that Province

3. The above articles of the Constitution provides power to Majlas-e-Shoora/Federal Parliament to legislate and make laws for whole or any part of Pakistan whereas provincial assemblies are permitted for their respective provinces. Article 142 distribute such powers to the federation and provinces vide (a) and (b) for federation and provinces Article 142(c) in addition provides powers to the provincial assemblies to make laws with respect to any matter which is not enumerated in federal legislative list whereas 142(d) provides power to the federal parliament to make laws with respect to all matters pertaining to such areas in federation as are not included in any province. Article 143 confers the precedent on federal parliament over provincial assemblies in case of inconsistency. Lastly, Article 144 permits the Majlis-e-Shoora/federal parliament to make law in respect of subject not mentioned in the federal legislative list provided that the provincial assemblies through resolution grant such permission to Majlis-e-Shoora/federal parliament.

4. Insofar as subject matter of this suit is concerned the relevant entry in the federal legislative list contained in 4th Schedule of the Constitution i.e. Entry No. 47 of Part-1 which deals with taxes on income other than agricultural income. Thus, Entry No. 47 provides a constitutional sanction to the federal legislature to impose any tax on income. As argued by all the learned counsel that word “income” is a vital and decisive tool and its interpretation could set the controversy at rest. In order to interpret it, the provisions of law including other constitutional entries, numerous guidelines which were provided by our superior Courts while deciding the cases, are essential.

5. One of the most celebrated judgment in this regard is the case of Ellahi Cotton Mills (Supra) where after discussing plethora of judgment (including foreign judgment), some basic principles and guidelines were deduced. In view of wide variety of diverse economic criteria which are to be considered by the formulation of fiscal policy, legislature enjoys a wide latitude in the matter of selection of persons, subject matter, events etc. for taxation. But with all this latitude certain irreducible desiderata of equality shall govern classification for differential treatment in tax laws. Hon’ble Supreme Court deduced that Court while interpreting laws relating to economic activities, view the same with greater latitude than laws relating to civil rights such as freedom of speech, religions etc. It has been observed in clause 10 of Paragraph 31 of the cited case that word “income” means a thing that “comes in” which in normal understanding means any profit or gain which is actually received. However, while construing the above word used in an entry in a legislative list the above restricted meaning cannot be applied keeping in view that the allocation of the subject to the list is not by way of scientific or logical definition but by way of mere simplex enumeration of broad categories. It was further canvased that which is not “income” under the Income Tax Act (as it then was) can be made “income” by a Finance Act and any exemption granted by the tax laws can be withdrawn by Finance Act or the efficacy of that exemption may be reduced by imposition of new charge, of course, subject to constitutional limitation.

6. The principle as laid down is, of course qualified as such interpretation should be such that if stretched to its maximum elasticity it should not cross the limits of rationality. Thus, in essence the Hon’ble Supreme Court while interpreting the constitutional entries has broadly emphasized that very wide, elaborate and broad interpretation be provided and no narrow or pedantic approach be followed. The rationale sense and the pith and substance of the word be seen and considered. Thus, it trickles down to a point where interpretation of bonus share on the touchstone of “income” is required either, to consider it as an income or otherwise within the meaning of Entry 47 of the Federal Legislative List of the Constitution.

7. The case of Ellahi Cotton Mills further provides the principles of interpreting constitutional entries vis-a-vis pertaining to the interpretation of taxing statute as deemed income to be within the four corners of principles as highlighted in the Ellahi Cotton Mills, it may be a legal fiction but within the deemed income. The word deemed income, as highlighted and discussed by Hon’ble Supreme Court, to me is the most striking factor in this determination involving determination of bonus shares. The use of this word “deemed” thus encompass all possible things that could have been received but not received by a person. I do not agree with the contention of learned counsel for plaintiffs that the case of Ellahi Cotton Mills provides the principles of interpretation of taxation statute and not as to the principles of interpretation of constitutional entries. The broadest and the widest meaning that could be attributed to any word in the list of such entries could be given only in Constitution and not in any other statute. Hence, the horizon and spectrum of such interpretation and its elasticity increases while interpreting the constitutional entries and hence the arguments of learned counsel for the plaintiffs are not convincing that the case of Ellahi Cotton Mills is only in relation to interpretation of taxing statute.

8. The Hob’ble Supreme Court of Pakistan while concluding the judgment in the Ellahi Cotton Mills case observed that the combined effect of the aforesaid provision was that three kinds of payments made to the shareholders of a company to which the said provisions applied were treated as taxable dividend to the extent of the accumulated profit held by the company which three kinds of payments are as under:--

i) Payment made to the shareholders by way of advance or loan;

ii) payment made on his behalf;

iii) payment made for his individual benefit.

1. The second and third category would cover the word bonus share in comprehending it within the definition of income. It has been now universally recognized principle that the law should be saved rather than be destroyed and the Court must lean in favour of upholding the constitutionality of the legislation keeping in view that the rule of constitutional interpretation is that there is a presumption in favour of constitutionality of the legislative enactments unless ex-facie it is violative of Constitution.

2. Let us now consider another characteristic of bonus shares. The word bonus share has not been defined in Companies Ordinance, 1984 but it is used in Section 2(9) of Ordinance, 2001. The bonus share and share at occasions and at certain events are distinguishable. A simple meaning of share is defined in Section 2(35) of the Ordinance, 1984 which is a share capital of company. The arguments that the bonus shares are to be treated at par with the original shares, in these peculiar facts and circumstances are not acceptable. It may not be a dispute under Companies Ordinance but is under Ordinance, 2001. A share which is capital of a company may be considered as a moveable asset but while interpreting bonus share, in consideration of the amendment under challenge and the background is different characteristic altogether. It is always beneficial to keep in mind that the interpretation of the word income is required while considering the “deeming or treated” clause of the statute to be alive. We would be misguided if a normal definition through any decision involving a share or a capital issue, is applied. This is not simple dispute of share or bonus share rather dispute involving income under deeming or treated clause.

3. The judgments referred by learned counsel for plaintiffs in (sic) of the word bonus share that it could only be treated as a movable property or asset would be an irrelevant factor as j the judgments cited by plaintiffs have, not considered the said word “income” under any deeming provision. The case of Standard Charted Bank v. Custodian an another reported in AIR 2000 SC 1488 cited by plaintiffs’ counsel provides that a bonus share is an accretion while it is issued when the company capitalize its profit by transferring an amount equivalent to the face value of the shares from its reserves to the normal capital. Thus what plaintiffs’ counsel emphasized was that an undistributed profit of the company is given to the company by the shareholders or retained by company under head of capital against issue of further shares to themselves. This is to be seen in conjunction with Section 69 of Ordinance, 2001 which provides that a person shall be treated as having received an amount, benefit or prerequisite of its:--

a) Actually received by the person;

b) Applied on behalf of the” person, at the instruction of the person or under any law; or

c) Made available to the person.

1. Insofar as the calculation formula provided by the plaintiffs’ counsel is concerned no doubt the formula so applied is exclusive of the amount of bonus share but that could hardly be attracted to the definition of bonus shares under the umbrella of deeming clause.

2. A company after making profit pays income tax thereon. It then either distributes profit as dividend or if required the company consumes the profit as capital reserves by issuing bonus shares to its existing shareholders in proportionate of their respective shareholding. Such decision taken by Board of Directors of the company is an implied authority of shareholders. The decision of Board of Directors in utilizing profit as company capital could hardly need any explanation that the amount of profit from the pool wherefrom dividend is to be given was bartered with the bonus shares under implied authority of shareholders, as these decision could always be overturned by majority in General Body Meeting. This can hardly be termed as tax avoidance. It is only tax evasion whereby income was suppressed and disguised in the transaction of bonus shares which may not be prohibited but taxable in terms of the impugned amendment.

3. An argument was raised that a decision by a company to issue bonus shares and not dividend is essentially made when company intends to utilize undistributed profit for its use. Although a simple answer is provided in above para however this is neither established through a document that the company intends to utilize entire profit for its use nor it is the case of the plaintiffs. On the contrary there are documents available on record whereby the prerogative was given to the shareholders either to receive dividend or the bonus shares and they opted for bonus shares. This is only fictional argument as it is only after decision of Board of Directors that profit was utilized as its capital which decision is an implied authority on behalf of shareholders, which often read as a money received, it is in fact a gain, benefit received by the shareholder.

4. Plaintiffs have heavily relied upon Eisner’s case. It is well established principle that our Courts derive jurisdiction under Constitution and the statutes. The Eisner’s case may have been considered as a path breaking but distinguishable from facts and circumstances of the instant case as the undivided profit of the company in Eisner’s case had already been invested in and stock dividend/share had been issued only in order to readjust such capitalization and hence there was no profit that was capable of distribution and on this reasoning it was ruled out that it was nothing but a share/capital asset. In the instant case the profits of the company stand to the credit of free reserves account and hence are capable of distribution.

5. The Eisner’s case does not have the benefit and privilege of Section 2(19)(a) of Ordinance, 2001 which is wide enough to include any distribution of accumulated profit whether capitalized or not, if such distribution entails the release by the company to its shareholder of all or any of its asset.

6. Furthermore in the Eisner’s case and another case that of Blott’s the word “income” is interpreted on the basis of commonly understood meaning of the word and not under deeming or treated provision and/or in the context of its definition and usage in income tax legislation. In Eisner’s case the decision was heavily based on the taxability based on bona fide stock dividend and it was acknowledged in the judgment that there may be instances or circumstances in which the Eisner’s decision would not apply. The horizon and scope available while the judgment was written in Eisner’s case was limited or was not as broad as it is in the instant case.

7. Another significant judgment cited by learned Addl. Attorney General against Eisner’s case is the case of Swan Brewery Co. v. The King (1914) AC 231 which is decision of Privy Council that has been distinguished by the Court in Blott case on the ground that the taxing statute in that case was couched in different language i.e. the Dividend Duties Act, 1902 of Western Australia which imposed a duty on the amount or value of every dividend declared by the company and bonus shares were held to be included therein. This case is perhaps closest to the facts and circumstances of the instant case.

8. In the case of Shirin Ayub Khan v. CIT (PLD 1976 Lahore 1028) learned Division Bench of Lahore High Court held that issuance of bonus shares is result of distribution of profit of that year or the accumulated profit of the company. The face value thereof would be a dividend out of the definition of term in Section 2(6-A) of Income Tax Act, 1922 as an income of the shareholder. Section 2(6-A) of the Income Tax Act, 1922 is identical to Section 2(19)(a) of Ordinance, 2001.

9. Similarly in the case of Kantilal Manilal v. The Commissioner of Income Tax (AIR 1961 Supreme Court. 1038) it was observed as under:

“This is an appeal from a decision of the Bombay High Court (reported as AIR 1956 Bom.391) which held that the ordinary meaning of dividend is the receipt by the shareholder of part of the profits of the company of which he is a shareholder, and the distribution of a right to acquire shares is dividend within such ordinary meaning. The Supreme Court of India upheld the High Court’s view and held that dividend need not be distributed in money; it may be distributed by delivery of property or right having a monetary value.”

1. Generally the effect of a deeming provision in a taxing statute is that it brings within the tax net a gain or benefit which ordinarily would not have been treated as cash income. In other words, it brings within the chargeability income not actually accrued but which supposedly to have accrued notionally.

2. Faced with the presumptive taxation of imports, supplies, contract, exports etc. under Sections 80-C and 80-CC of the Income Tax Ordinance, 1979, where tax payers challenged the constitutionality of presumptive taxation, the Supreme Court of Pakistan in its landmark judgment of Ellahi Cotton Mills (Supra) held that Section 80-C and 80-CC (Sections 148 and 153 and 154 in Ordinance, 2001 provides for presumptive taxation of income within the category of presumptive tax as under the same the persons covered by them pay a pre-determined amount of presumptive tax in full and final discharge of their tax liability in respect of the transactions on which above tax is levied. If Entry 47 is read in isolation without reference to Entry No. 52 one can urge thru Entry 47 does not admit the imposition of presumptive tax as the expression “tax on income” employed therein should be understood as to the working out of the same on the basis of computation as provided in the various provisions of Ordinance. Thus, it can be held that presumptive tax is in fact akin to capacity tax i.e. capacity to earn.

3. Hence, the subject item i.e. Entry 47 is not something which in rational sense cannot be regarded as income or could not be interpreted within the four corners of the word income as required in pursuance of Entry No. 47 of Constitution of Islamic Republic of Pakistan. In the rational sense it is valuable and gain and hence considered within the frame of income. Even the general meaning of income is not limited to money. It is in fact valuables that comes in.

4. The subjects available in the list of 4th Schedule Part I may be limited to certain numbers but spectrum of those subjects themselves are not limited as long as it does not break the circumference of income as defined above and the boundary provides protection to consider it in regarding the subject as citizen’s income.

5. In the case of Navnit Lal C. Javeri v. K.K. Sen reported in AIR 1965 Supreme Court 1375 the Indian Supreme Court while facing challenge vires of Sections 2(6-A)(e) and 12(1-B), which was introduced by Finance Act, 15 of 1995 held that the aforementioned provision did not contravene Article 19(1)(f) & (g) of the Indian Constitution as they were (sic) by clauses (5) and (6) thereof. Each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to be comprehend in it.

6. Thus, list only provides the areas and fields covered by the said entries but those entries themselves have a circumference to cover all or ancillary or subsidiary matters so long it does not violate the touchstone of rationale sense.

7. In view of the above reasoning and findings, the bonus shares, under the impugned amendment, are lawfully considered as taxable. Hence, after the insertion of 236(M) and 236(N) of Ordinance, 2001 the Modaraba, pension funds etc. which are the subject matter/claim in some of the suits, are now not exempted but taxable. The exemption, as provided by virtue of Clause 99/100 Part-I Second Schedule and Clause 57(1)(viii), Part-I Second Schedule to the Ordinance, 2001, is not available to the entities as the provisions taxing issuance of bonus shares are to be prevailed over the exemption. Exemption is not a right to concession and can be lifted/withdrawn by the legislature at any time expressly or impliedly. Consequently, Issue No. 2 is answered in negative.

8. In view of the above reasoning and findings I do not see any merit in the subject suits which are accordingly dismissed along with pending applications however with no orders as to costs.

(R.A.) Suits dismissed

PLJ 2016 Karachi 193[Circuit Court Hyderabad]

Present: AnwarHussain, J.

Mst. SAEEDA BEGUM--Petitioner

versus

AZEEMUDDIN and others--Respondents

C.P. No. S-404 of 2014, decided on 30.11.2015.

Dower--

----Dower amount--Nikahnama--Payable on demand--Dower amount was debt and husband was under obligation to pay on demand--Validity--It is admitted position that payment of dower amount would arise subsequently when marriage stand dissolved between parties, as there is no such admission in evidence on record--Dower amount, being not proper and legal was set-aside and findings of Court, as to dower amount, is hereby restored. [P. 196] A

2003 CLC 702, ref.

Maintenance--

----Staying away from husband--Not performing her part of marital obligation without any legal justification--Failed to prove maltreatment--Validity--Petitioner was not legally entitled for maintenance. [P. 196] B

NLR 2003 S.D. 350, PLD 1967 AJK 32 & PLD 1961 Pesh. 66, ref.

Dowry Articles--

----Suit in respect of dowry article, decreed except gold ornaments--Challenge to--Receipt of dowry articles--Burden of taking away some of dowry articles including gold ornament--Validity--Courts had failed to appreciate that all dowry articles, including gold ornaments, were admittedly lying with husband, and bride in her examination-in-chief had deposed that petitioner’s dowry articles, including gold ornaments, were lying in house of bridegroom, and produced oral and documentary evidence in support thereof--Petitioner had discharged/shifted her burden over bridegroom, who in cross to bride had put a question that petitioner had taken away entire gold ornaments with her and bridegroom, in his examination-in-chief had admitted that petitioner had given dowry articles, which were lying in his house and Petitioner taken away some of dowry articles and further deposed that bridegroom can return dowry articles--So exclusion of gold ornaments from dowry articles of petitioner, in judgments and decrees by two Courts below, are based on mis-reading & non-reading of evidence as such same being not legal and proper are liable to interference for justice by High Court--Petitioner was entitled for recovery of entire dowry articles, including gold ornaments, and petitioner’s suit to extent of entire dowry articles alongwith gold ornaments stand also decreed.

[Pp. 196 & 197] C, D & E

Mr.Aghis-us-Salam Tahirzada, Advocate for Petitioner.

M/s. M.Imran Rajput & S.M. Nasir Ali Shah, Advocates for Respondents.

Date of hearing: 6.11.2015.

Order

The Petitioner filed Family Suit for Recovery of Dower, Maintenance and Dowry Articles, against Respondent No. 1, before the Family Court, Hyderabad, and contended that she was married on 28.12.2008 to Respondent No. 1, against Deferred Dower, payable on demand, of Rs. 25,000/-and she was maltreated and ultimately on 9.3.2011, ousted by the Respondent No. 1, from his house in wearing clothes and since then Petitioner is living with her parents without any maintenance from the Respondent No. 1. The Respondent No. 1, is a Tailor Master having income of Rs. 50,000/- to Rs. 70.000/- per month, as such Petitioner prayed for Dower, Maintenance and recovery of Dowry Articles including Gold.

The Respondent No. 1, filed written statement denying the payment of Dower and stated that the Dower was paid by way of Gold Ornaments, to the petitioner, on the next day of marriage and as to the Dowry Articles the Respondent No. 1, contended that the house hold articles were used and due to wear and tear there is no existence of the same except Almirah and Bed. It is further pointed out that the petitioner herself left the house of Respondent No. 1, and while leaving petitioner she took away the Gold Ornaments, different gift items and previous clothes with her. The earning of the Respondent No. 1, is about 10,000/- per month and the petitioner is a disobedient wife and not performing marital obligations and as such is not entitled for maintenance and prayed for dismissal of the Suit.

The pre-trial proceedings failed; Issues framed in the matter and petitioner examined herself, who produced Nikah nama, Dowry Articles List & Receipt of Gold and examined her brother Noshad Ali and one Muhammad Arif as her witnesses, who were cross-examined by the Counsel for Respondent No. 1.

The Respondent No. 1, examined himself and produced his brother and sister as his witnesses, who were cross-examined by the petitioner’s counsel. Post-trial Proceedings also failed. The learned Family Judge/Respondent No. 3, vide Judgment dated 7.11.2013 partly decreed the Suit by allowing the Dower amount and Dowry Articles, except Gold Ornaments, to the petitioner and did not allow the Maintenance to the petitioner vide Decree dated 13.11.2013, wherein Dower Amount has not been incorporated.

Against the same, the petitioner preferred Family Appeal No. 70 of 2013, before the learned District Judge, Hyderabad, and after hearing the parties through their learned Counsels, the learned 1st Additional District Judge, Hyderabad/Respondent No. 2, vide Judgment dated 19.4.2014, dismissed the said Appeal, but as to the findings for Dower the learned Appellate Judge observed that since admittedly the marriage has not been dissolved the payment of Dower Amount would arise subsequently at the time of dissolution of marriage and as such held the Decree of Family Judge should not contain Dower Amount.

Heard the arguments of the learned Counsels for the parties and gone through the evidence from the R & Ps of the Trial Court, as the copies of Depositions filed with this petition, are not accurately copied from the original.

The petitioner’s Counsel submits that the impugned judgment is not legal and proper and the learned Appellate Court has wrongly dis-allowed the Dower inspite of the findings of the learned Family Judge. Learned Counsel further submits that the findings of Maintenance are not proper and legal and similarly the passing of Dowry Articles, except Gold, is also not legal and proper and the same are based on misreading and non-reading of evidence and as such requires interference by this Court.

Learned Counsel for the Respondent No. 1, contended that the impugned judgment and decree are legal and proper and there is no misreading and non-reading of the evidence and prayed for dismissal of this petition.

The Issues involved in this matter are as to Dower, Maintenance and recovery of Dowry Articles, which are now being discussed and adjudicated upon herein-below.

As to the Issue of Dower the learned Family Judge, has allowed the Dower on the basis of admission of Respondent No. 1, but the same was not incorporated in the Impugned Decree. The learned Appellate Judge, while answering the same in the impugned judgment has held that it is admitted fact that the marriage has not been dissolved and payment of dower amount will raise subsequently when the marriage stand dissolved between the parties. Therefore, the Appellate Judge has not agreed with the arguments of petitioner that Decree should contain the said dower amount in view of admission of Respondent No. 1, that necessity of the same would arise when the marriage would dissolve.

Since in view of the same, this Court has noticed that the Dower Amount of Rs. 25,000/- as per Nikahnama, is deferred one/payable on demand. The petitioner has deposed that the same has not been paid and the Respondent No. 1 in his deposition has admitted the same and shown willingness to pay, and the learned Civil Judge has observed that as per law Dower Amount is a debt and husband is under obligation to pay on demand. Reliance is placed on 2003 CLC 702(DB). As such the learned Family Judge has rightly answered the Issue of Dower Amount in favour of petitioner and the learned Appellate Judge is wrong in observing that it is admitted position that the payment of Dower Amount would arise subsequently when marriage stand dissolved between the parties, as there is no such admission in the evidence on record. Hence the finding of learned Appellate Judge as to Dower Amount, being not proper and legal is set-aside and the findings of learned Family Judge, as to Dower Amount, is hereby restored.

As to the issue of maintenance, the petitioner is staying away from the Respondent No. 1, and is not performing her part of marital obligation and that too without any legal justification inspite of the reconciliation efforts by the Respondent No. 1. Even otherwise, the petitioner has failed to prove the maltreatment against Respondent No. 1. Hence the petitioner is not legally entitled for Maintenance. Reliance is placed on NLR 2003 S.D. 350; PLD 1967 AJ&K 32 and PLD 1961 Pesh. 66.

So the findings of learned Appellate Judge and learned Family Judge as to the Maintenance are based on evidence and valid and legal reasons which requires no interference in this writ petition.

As to the Issue of Dowry Articles, the learned Family Judge has decreed the Suit in respect of Dowry Articles, which are admitted by the Respondent No. 1, except Gold Ornaments, and the Appellate Court has upheld the same. The petitioner has challenged such findings by way of this petition and submits that the Courts below have failed to appreciate that all the Dowry Articles, including the Gold Ornaments, are admittedly lying with the Respondent No. 1, and the petitioner in her Examination-in-Chief has deposed that petitioner’s Dowry Articles, including Gold Ornaments, are lying in the house of Respondent No. 1, and produced oral and documentary evidence in support thereof. In cross-examination to the petitioner the Respondent No. 1, has not challenged the same and only put suggestion to petitioner that she has taken away the entire Gold Ornaments, with her, which has been denied by the petitioner and as such petitioner has proved the Dowry Articles including Gold Ornaments; so the petitioner is entitled for recovery of the same. The Counsel for Respondent No. 1, submits as per Deposition of Respondent No. 1. while leaving the house of Respondent No. 1. the petitioner has taken away some of Dowry Articles i.e. Gold Ornaments, Iron and Gents Wrist Watch and Respondent No. 1, is ready to return all the Dowry Articles, which are lying with him.

The petitioner has deposed in her evidence that the Dowry Articles, including Gold, are with the Respondent No. 1, and her witness brother Muhammad Arif, has supported the petitioner; thereby petitioner has discharged/shifted her burden over the Respondent No. 1, who in cross to the petitioner has put a question that the petitioner has taken away the entire Gold Ornaments with her and the Respondent No. 1, in his Examination-in-chief has admitted that the petitioner was given Dowry Articles, which are lying in his house and the petitioner taken away some of the Dowry Articles i.e. Gold Ornaments with Iron and Gents Wrist Watch and while leaving the house she also took away the Respondent’s Gold Ornaments and further deposed that the Respondent No. 1, can return the Dowry Articles, which are lying with him.

Since the Respondent No. 1, has admitted the receipt of Dowry Articles, but taken a plea that the petitioner has taken away the same Dowry Articles including Gold etc, as stated above, so the burden of taking away some of the Dowry Articles, including Gold Ornaments, by the petitioner was on the Respondent No. 1, who on the other hand has admitted that the Dowry Articles, which are lying with Respondent No. 1 can be returned and has not proved that the petitioner has taken away the some Dowry Articles including all the Gold Ornaments, which has been denied by petitioner in Cross Examination to Respondent No. 1. Since the said admissions are in the evidence of Respondent No. 1, so the exclusion of Gold Ornaments from the Dowry Articles of petitioner, in the impugned judgments and Decrees by the two Courts below, are based on mis-reading & non-reading of evidence as such the same being not legal and proper are liable to interference for the justice by this Court. Hence, it is hereby

ruled that the petitioner is entitled for the recovery of entire Dowry Articles, including Gold Ornaments, and the petitioner’s Suit to the extent of entire Dowry Articles alongwith Gold Ornaments stand also decreed.

Hence, the learned Family Judge/Respondent No. 3, is directed to amend the Decree accordingly and in view of the above, this Constitutional Petition stands disposed of.

(R.A.) Petition disposed of

PLJ 2016 Karachi 198 (DB)

Present: MuhammadShafi Siddiqui & Anwar Hussain, JJ.

YAR MUHAMMAD and another--Petitioners

versus

GOVERNMENT OF PAKISTAN M/o Food & Agricultural andLinestock, Islamabad and 6 others--Respondents

C.P. No. D-998 of 2011, decided on 23.12.2015.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Up-gradation of post--Retired employees/field officers--Retired before date of up-gradation--Entitlement to payment of up-gradation amount--Validity--Petitioners were not entitled to up-gradation amount and service emoluments on basis of office memo No. F.37-8/PODB (Admin.)/401, dated 30.7.2008, as claimed and that too retrospectively. [P. 202] A

Mr.Irfan Ahmed Qureshi, Advocate for Petitioners.

Mr. MuhammadHamayoon Khan, Standing Counsel & Mr. Allah Bachayo Soomro, Addl. Advocate General Sindh for Respondents.

Date of hearing: 12.11.2015.

Judgment

Anwar Hussain, J.--The petitioners were appointed in the Ghee Corporation of Pakistan in 1976, and were retired on 01.08.2001 and 24.04.2008, respectively, from the Pakistan Oilseed Development Board, which is under the Ministry of Food, Agriculture/Respondent No. 1.

1. The case of the petitioners is that they are Graduates having B.Sc (Agriculture) Degrees, from the University of Sindh and were appointed in the Ghee Corporation of Pakistan and by Notification No. F-17-3, dated 08.02.1995, all assets and posts of National Monitoring and Co-ordination Unit (NMCU) of the National Oil Seed Development (NODB) and Seed Division of Ghee Corporation of Pakistan (GCP), were transferred to newly constituted Pakistan Oilseed Development Board (PODB), of Ministry of Food, Agriculture and Livestock, thereby the officers /officials named with their designation and pay scales mentioned in the List therein, stood absorbed/merged to PODB, with immediate effect.

2. The petitioners were working as Field Officers (BPS-16) in Seed Division of Ghee Corporation of Pakistan (GCP) and their names are shown in the said List at Sr. No. 39 and 37, respectively. Consequently the petitioners alongwith others, were absorbed in the newly constituted Pakistan Oilseed Development Board (PODB), Ministry of Finance, Agriculture and Livestock and the petitioners were designated as Field Officers in BPS-16, and are now retired employees of PODB.

3. The Respondent No. 5/Establishment Division, Govt. of Pakistan, vide their Office Memo. No. F.8/96/2005/R 1, dated 21.09.2005, agreed to the up-gradation of the Posts of Field Officers from BS-16 to BS-17, in PODB, with effect from the date of the up-graded posts are actually filled in by eligible persons in prescribed manner and subject to approval from the Secretary Finance.

4. The Finance Division/Respondent No. 4, vide their Office Memo. No. F.2(28) R-2/94-220, dated 26.06.2008, gave approval for the said up-gradation on regular basis w.e.f. the date the posts are actually filled in after finalization of Recruitment Rules, in accordance with Appointment, Promotion, Transfer Rules, 1973.

5. In pursuance of the said letter and Office Memo, the Respondent No. 1/Ministry of Food, Agriculture and Livestock, issued Notification No. F1-2/2002-S1(PODB) dated 17.7.2008, in respect of the said up-gradation.

6. Ultimately the PODB/Respondent No. 2, issued their Office Order No. F-37-8/PODB(Admn)/401, dated 30.7.2008, and thereby the post of Field Officer (having Qualification B.Sc. Agriculture) Hons, were upgraded from BS-16 to BS-17, in PODB w.e.f. from the date, the posts were actually filled in by eligible persons in prescribed manner.

7. In view of the above, on 02.6.2011 the petitioners filed this petition and prayed that Respondents be ordered to pay the up-gradation amount from 5.11.1980, till their retirements alongwith 14/% bank interest and after notices to the Respondents, they filed their Replies/Comments in the matter.

8. The Respondent No. 1/Ministry of Food, Agriculture and Livestock filed their Comments, wherein it has been submitted that all the Field Officers of PODB in 2008, have been upgraded in pursuance of the Establishment Divisionvide Office Memo. No. F.8/96/2005. R1, dated 21.09.2005. The Petitioners No. 1 & 2, retired on 01.08.2001 and 24.04.2008, respectively, before the date of up gradation of existing Field Officers at that time. To solve the dispute of the Field Officers, the Ministry of Food Agriculture & Livestock has directed to convene a meeting of the Management & Administrative Committee, which is to be held on 06.07.2011, in which up gradation of Field Officers, would be decided and recommendation of the Committee will be placed before the Board of Governors of PODB for approval in its coming meeting. The grievance of the petitioners was also to be redressed after the decision of the Board of Governors of PODB.

9. The Managing Director, PODB/Respondent No. 2, filed their Comments, thereby submitted that the petitioners are not entitled for emoluments and service benefits w.e.f. 05.11.1980, as the up gradation was not from the back dates and further submitted that up gradation w.e.f. the date, the posts were actually filled in after finalization of Recruitment Rules of PODB, which were approved and finalized on 31.10.2009, and the petitioners retired long before up gradation of post of Field Officers. Therefore, the petitioners are not entitled for any kind of arrears/emoluments and prayed for dismissal of the petition.

10. The Provincial Director PODB/Respondent No. 3, submitted Written Reply, and contended that in pursuance of 18th Amendment in the Constitution of Pakistan, PODB, has been wound up and its Administrative Ministry Food and Agriculture, is devolved to the Provinces w.e.f 01.07.2011. All the officers and staff have been transferred and posted to other Ministries and Departments vide Management Services Wing, Establishment Division’s Letter No. 105/09 MS-N/2011, dated 22nd and 24th August, 2011. All offices including Head Office of PODB, are closed and relevant record is in custody of Cabinet Division, who is dealing with all the pending matters in respect of the devolved Ministry/Department. Finally prayed that the matter be referred to the Cabinet Division.

11. The Cabinet Division/Respondent No. 5, did not file Comments but on 13.10.2015, learned Standing Counsel, submitted that he is willing to argue the matter in absence of the comments on the basis of material available on record.

12. The Federal Ministry of Finance/Respondent No. 4, filed their Comments, wherein they submitted that the issues in the matter basically relate to defunct Ministry of Food and Agriculture/ Respondent No. 1, and PODB/Respondent No. 2, and its Ministry “National Food Security” may be in better position to defend the matter and prayed that the Finance Division may be excluded from the list of Respondents.

13. The Ministry of Food, Sindh/Respondent No. 7, submitted Written Statement, wherein contended that the issues involved in this petition are neither relevant nor pertained to the Food Department Government of Sindh. Therefore, prayed for exclusion of the Respondent No. 7.

14. Heard the learned counsel for petitioners, learned standing counsel and learned Addl. Advocate General, Sindh and perused the record in the matter.

15. The learned counsel for the petitioners submits that the petitioners are retired employees/field officers of PODB/Respondent No. 2, and their Post BS-16, have been up-graded to BS-17, in PODB, in terms of PODB’s Office Order dated 30.07.2008 entitled to payment of their up-gradation amount/emoluments from 5.11.1980, till retirement from PODB.

16. The learned standing counsel submits that the Petitioners No. 1 & 2, retired from PODB as Field Officers on 1.8.2001 and 24.4,2008, respectively, before the date of up-gradation, as per Office Memo. dated 30.07.2008, of Respondents No. 2, and even the Recruitment Rules of PODB, were finalized on 31.10.2009, and petitioners retired long before up-gradation.

17. Further submitted that the PODB, by way of their Comments have opposed the case and claim of the petitioners on the ground that petitioners retired before the date of upgradation as per Office Memo. dated 30.7.2008 of PODB and PODB Recruitment Rules, were finalized on 31.10.2009.

18. We have observed that Petitioners No. 1 & 2, are retired field officers (BS-16) of the PODB, and retired on 01.08.2001 and 24.04.2008, respectively, and thereafter the said posts were up-graded by the PODB, vide their Office Order dated 30.07.2008, and as such on the basis of the same the petitioners on 02.06.2011, have filed this petition, with following prayers:-

(a) It be ordered to the respondents pay the up gradation amount from 5.11.1980 to till the retirement alongwith 14% bank interest as the petitioner are retired and entitled for their service/emolument.

(b) Any other relief deemed fit and proper granted in favour of the petitioner.

1. Admittedly the Petitioner Nos.1 & 2, having retired earlier to the said up-gradation of PODB, and even otherwise the Office Order dated 13.12.1980, relied upon by the petitioners, is not in respect of the employees of PODB, and relates to different situation and as such same is not helpful to the petitioners in the matter. Hence the petitioners are not entitled to the up-gradation amount and service emoluments on the basis of Office Memo. No. F.37-8/PODB (Admin.)/401, dated 30.7.2008, as claimed in the petition, and that too retrospectively. The Honourable Supreme Court in the case of Abdul Wajid Malik reported in 2006 SCMR 1360 has held that up-gradation is not promotion and as such the incumbent is not entitled to claim the benefit out of such up-gradation. Admittedly in this case the petitioners were not promoted.

2. In view of the above, the petition is dismissed.

(R.A.) Petition dismissed

PLJ 2016 Karachi 202 (DB)

Present: Sajjad Ali Shah, C.J. and Anwar Hussain, J.

NATIONAL HIGHWAY AUTHORITY--Appellant

versus

PAK KUWAIT INVESTMENT CO. (PVT.) LTD. and others--Respondents

S. H.C.A. No. 116 of 2013 and C.M.As. Nos. 1646 of 2013 and 539 of 2015, decided on 19.1.2016.

Financial Institutions (Recovery of Finances) Ordinance, 2001 (XLVI of 2001)--

----Ss. 9 & 19(7)--Civil Procedure Code, (V of 1908), S. 151 & O. XXI, Rr. 58 & 62--Suit for recovery amount, decreed--Execution proceedings--Attachment of assets of judgment debtors including bank accounts and amounts payable by NHA to judgment debtors to extent of decretal amount--Appeal against judgment and decree was pending before High Court--Amount could not be attached--Validity--Executing Court has been given discretion to execute decree in accordance with provisions of C.P.C. or any other manner it may deemed fit--While rejecting application has rightly relied upon Section 60 of C.P.C, which provides attachment of properties including money belonging to judgment-debtor--Appeal was dismissed. [Pp. 206 & 207] A & B

AIR 1947 Sindh 32, 2002 CLD 1550 & 2004 CLD 92, ref.

Mr.Yasir Ahmed Shah, Advocate for Appellant.

Mr. KhalidMehmood Siddiqui, Advocate for Respondent No. 1.

Mr. AbdulQayyum Abbasi, Advocate for Respondents No. 2 and 3.

Mr.Asim Mansoor Khan, D.A.G.

Date of hearing: 19.1.2016.

Order

Anwar Hussain, J.--By way of this appeal, the appellant has impugned the Order dated 20.08.2013, passed by learned single judge of this Court, finally dismissing the appellant’s application (CMA No. 425/2012) under Order XXI Rules 58 & 62, R/W. Section 151 CPC and U/S. 19(7) of the Financial Institutions (Recovery of Finances) Ordinance, 2001, in Execution Application No. 43/2011 (Banking Suit No. 53/2008).

Briefly, the Respondent No. 1 filed said Banking Suit in this Court against the Respondent No. 2 and others for Recovery of an amount of Rs. 258,383,690/- under Section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, which was decreed vide Judgment and Decree dated 23.12.2010, to the extent of Rs. 196,111,501/-. As such the Respondent No. 1, initiated Execution Proceedings, wherein firstly on 11.05.2011, the learned single judge directed the Nazir of this Court to attach the assets of the judgment Debtors/Respondents, including the Bank Accounts and amounts payable by the National Highway Authority (now Appellant) to the Judgment Debtors/Respondents, to the extent of Decretal Amount. Then by Order dated 31.01.2012, the Appellant/National Highway Authority, was directed to transmit 196 Million to the Nazir of this Court. The appellant on 07.08.2012, moved said CMA No. 425/2012, for recalling the Order dated 11.05.2011, and other subsequent Orders, which was opposed by way of Counter Affidavit of the Respondent No. 1. Then during pendency of the said application it was reported that in view of such orders the appellant have retained/withheld the amount of Rs. 196 Million, and the learned Single Judge vide Order dated 28.11.2012, directed the Appellant/National Highway Authority to deposit the withheld amount with the Nazir of this Court, which would not be released to the Appellant/National Highway Authority till the decision of the said application. Later on, as per the Order dated 26.06.2013, the appellant undertook to deposit a sum of Rs. 149,821,443/- by way of Pay Order No. BBB 10036526 dated 25.06.2013 with the Nazir of this Court and it was directed that until the issue of shortfall amount is decided, the Appellant would not make any further payment to the Respondent No. 2/J.D and retain the amount of shortfall.

Earlier to that on 23.01.2013, the Appellant filed Special High Court Appeal No. 08/2013, thereby impugned the Order dated 28.11.2012, which appeal vide Order dated 05.03.2013, was dismissed and concluding part of the said Order is as under:

“Contention of learned Counsel for the appellant that may be worth consideration is that the contingency amount cannot be claimed as a crystalized liability of the judgment debtor unless the contingency is performed or happened. In the instant case at least for the dates mentioned above contingency i.e. performance of the contract to a limited extent was duly made, verified and after measurement on date mentioned against such payment the amount has been released subsequent to the contingency and even on their own showing the amount of Rs. 196 Million has already been attached as per their own letter dated 28.10.2011 available at page 103 of the file. This change of heart or if at all is dawnning of the correct factual position occurred to the appellant four months after such letter as reflected from letter dated 23.02.2012 wherein it is stated that the lien has been marked on the amount that may be due and payable. No explanation has been offered and if at all there is any explanation the same can always be offered to the learned single judge who is also seized of the matter and the application is not yet decided, therefore, in our opinion this is not a case where any interference could be made; case is still open to the appellant to satisfy the Court as to whether the amount is neither due nor payable to the judgment debtor. The documents available on record prima facie show that substantial amount, if not Rs. 196 Million, was not only due but has also been paid to the Respondent No. 2 which needs to be explained to the learned Single Judge. We do not see any merit in this appeal which is accordingly dismissed alongwith pending applications.”

Ultimately the learned single judge after hearing the Parties through their respective counsels dismissed the said CMA of the Appellant, who by way of this appeal has impugned the same.

It is pertinent to mention here that the said judgment and decree have been impugned by way of High Court Appeals No. 135/2011 and No. 122/2012, filed by Respondent No. 2, pending before this Court.

We have heard the arguments of the learned Counsels for the parties and gone through the impugned Order and the record available.

The learned Counsel for the Appellant submits that the impugned order is garnishee one, discretionally not legal and proper and the appellant has been seriously prejudiced.

Per Counsel, there are other properties lying with Respondent No. 1, and the amount, which was lying with the Objector was payable to the judgment debtor for carrying out the Work under Contract dated 07.11.2009, for rehabilitation/up-gradation of Jalalpur Pir-wala, Uch Sharif Section of Shujaabad-TMP Road, District Multan, Package-III, which amount is not the “Asset” within the meaning of Section 19 of Financial Institutions (Recovery of Finances) Ordinance, 2001, and title and claim of the Respondent No. 2, was conditional subject to completion of the Work under Contract and in view of withholding of the said amount, as per Order of the Court, the Respondent No. 2, since July/August 2011, has completely stopped the work on the said Project, which is now in standstill position, thereby tremendous financial loss is being caused to the said Project.

Learned Counsel for Respondent No. 2, submits that his main appeal, against judgment and decree in the matter, is pending before this Court and further submits that in terms of Section 19 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, the amount could not be attached.

Whereas the learned Counsel for Respondent No. 1, submits that the first Order dated 11.05.2011, for the attachment of the amount in question has not been impugned and only the appellant has filed the said CMA No. 425/2012, for recalling of the same and prior to the disposal of the said CMA, the learned Single Judge of this Court vide Order dated 28.11.2012, has directed the appellant to deposit withheld amount with the Nazir of this Court, which should not be released to appellant till decision of said CMA and the appellant impugned the same by way of Special High Court Appeal No. 08/2013, which has been dismissed, by way of the Order reproduced hereinabove. Thereafter, the learned single judge has passed the impugned Order in terms of the Section 60 of the C.P.C, and observed that after the Order dated 11.05.2011, some amounts have been paid on different occasions by the Appellant and, as such, does not require any interference by way of this Appeal.

The case in hand is for recovery under the Banking Laws i.e. Financial Institutions (Recovery of Finances) Ordinance, 2001, which provides speedy measures for the recovery of outstanding loans and as per Section 19(2) of the Financial Institutions (Recovery of finances) Ordinance, 2001, the Executing Court has been given discretion to execute the Decree in accordance with the provisions of C.P.C. or any other manner it may deemed fit, for which reference can be made on the case of Nawazish Latif Bhatti v. Allied Bank of Pakistan reported in 2004 C.L.D. 92 (D.B), wherein reference has been placed on the case of Agha Attaullah reported in 2002 C.L.D. 1550 (D.B). The Respondent No. 2/Bank has obtained a Decree, under execution in the matter, whereby the outstanding amount is to be recovered from the Respondent No. 2/J.D, so such Decree is a money Decree and for its execution Section the 60 of C.P.C, as per its bare reading, would apply for which one can refer on the case of Shambhoo Khimiji Khoja v. Baloch Roze Shambe reported in AIR 1947 Sindh 32.

Admittedly on number of occasions the Appellant has paid some amounts out of the amount in question, which was available with the Appellant at that time and its Attachment Order has not been challenged, which was the basic one, but the Appellant has earlier impugned the subsequent Order dated 28.11.2012, which was consequential one and Appeal against the same was disposed of in terms of the Order reproduced hereinabove. Thereafter, the Appellant’s said CMA has been finally dismissed by way of Impugned Order, whereby the learned Single Judge while rejecting the Appellant’s said Application has rightly relied upon Section 60 of the C.P.C, which provides attachment of the Properties including the money belonging to the judgment-debtor, or over which, he has a disposing power, which he may exercise for his own benefit, whether the same be held in the name of the judgment-debtor or by another person in trust for him or on his behalf, and as such observed that in

terms of Section 19 of Financial Institutions (Recovery of Finances) Ordinance, 2001, the term “Asset of the Judgment-Debtor” mean and include the amount payable by the Appellant to the Judgment-Debtor, even otherwise the learned Single Judge vide order dated 11.5.2011, directed the Nazir to attach the assets of the J.Ds, including Bank Accounts and amounts payable by the National Highway Authority/Appellant to the extent of decreetal amount, so after attachment of amount in question in terms of Section 60 C.P.C, then its transmission and deposit with the Nazir of this Court is legal and proper.

The appellant has complied with the order dated 11.5.2011, and subsequent orders in respect of the amount in question passed by the learned single judge and the Respondent No. 2, have not objected to the such orders and as such the appellant’s said C.M.A. No. 425/2012, has been rightly rejected by way of Impugned Order.

Moreover, as per learned Counsel for Respondent No. 1, major work of the said Project has already been completed by and major payment have been made to the Respondent No. 2, as such, no prejudice would be caused to the appellant, which facts have not been rebutted by Appellant or Respondent No. 2, who has also not challenged the Order impugned in this Appeal.

In view of the above, this appeal is devoid of any merits and, as such, needs no interference, which is dismissed accordingly alongwith listed applications.

(R.A.) Appeal dismissed

PLJ 2016 Karachi 207 (DB)

Present: Sajjad Ali Shah, C.J. and Anwar Hussain, J.

M/s. RAAS SYSTEM ENTERPRISES through Authorize Representative--Petitioner

Versus

GOVERNMENT OF SINDH, SECRETARY LOCAL GOVERNMENT, KARACHI and 7 others--Respondents

C.P. No. D-3743 of 2015, decided on 14.1.2016.

S.P.P.R.A. Rules, 2010--

----R. 31--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Business of advertisement--Public tender for widening/ improvement of road--Contract was awarded--No locus standi--Petitioner had not participated in bid--Lapse of petition--Validity--Contract was awarded by official after completing all required formalities of bid to CEO and project director, being lowest one, which was accepted contentions--Project was about to be completed and petitioner had approached High Court after lapse of more than three years and he was not participant of tender proceedings for awarding of contract of work, as such, petition apparently seems to be motivated one and nothing had specifically been shown as to corrupt practice, rather mere words had been alleged without any substantial proof. [P. 210] A

Mr. MuhammadZafar Ahmad, Advocate for Petitioner.

Mr.Ishrat Alvi, Advocate for Respondent Nos. 2, 3 & 4 alongwith Irfan Ali Law Officer LDA, Aziz Memon, Chief Engineer and M. Shahid Hussain, Superintending Engineer, LDA.

Mr.Ghulam Hyder Shaikh, Advocate for Respondents No. 5 and 6.

Raza Ali Abidi, Respondent No. 8, present in Person.

Mr.Ghulam Mustafa Mahessar, A.A.G.

Date of hearing: 14.1.2016.

Order

The petitioner, who is doing business of Advertising and specially deals with the installation, maintenance and rental of Advertising Sign Boards and Billboards, has filed this petition against the Officers of L.D.A and Private Contractors. It has been asserted that L.D.A/Respondent through Daily Dawn Newspaper dated 30.04.2012, invited Public Tender for widening/improvement of main Hawksbay Road Karachi from ‘Y’ Junction to 5th Avenue, Contract No. MHR 01, only for the 4 kilometers. Then on 22.05.2012, the Contract was awarded to the Friends Construction Syndicate Ltd/Respondents No. 7 and 8, by accepting their First Lowest Bid of Rs. 568,778,845.00, vide Bid Evaluation Report dated 22.05.2012. The petitioner further contended that the said Road for which said Tender was awarded is of only 4 Km, at exhorbitant rate, as such, the Official Respondents have filled up their pockets by corrupt practice for illegal gain and ultimately prayed to pass an Order for Judicial Inquiry or Inquiry through NAB/FIA/Anti-Corruption against the Respondents in respect of the same and Declaration that the render awarded (sic) illegal and unlawful and blacklist the Respondents No. 7 and 8.

The Respondents/L.D.A, has filed the Counter Affidavit to the same and contended that the petition is not maintainable in law and facts as the same has been filed after three and a half month from the date of acceptance of the Work/Contract and the Contract has been awarded in terms of the Provisions of Rule 31 SPPRA Rules, 2010, framed under the Sindh Procurement Act, 2009, and the petitioner was not the participant in said Bid and awarding of Contract, rather this petition is motivated one for wrongful gain by the petitioner and have annexed certain documents in support of their contentions.

The Counter Affidavit was also filed on behalf of Respondents No. 7 and 8, contending thereby that the petitioner is a person of criminal mind and acting against them for wrongful gain and started demanding Bhatta/Gratification and on the refusal of Respondents No. 7 and 8, the petitioner filed false complaints against them before the DIGP and tried to lodge the FIR against them through Courts, but that went in vain. The Respondents No. 7 and 8 have also filed C.P. No. D-6260/2015, in this Court, against the petitioner and other Police Officials in respect of harassment to the Respondents No. 7 and 8, and the said petition was disposed off on the assurance of the Police Officials that no harassment shall be caused to Respondents No. 7, vide Order dated 21 October, 2015, which documents have already been annexed in this petition along with Counter Affidavit of Respondents No. 7.

The Counsel for the petitioner while arguing his case mainly contended that widening/improvement of 4 K.m. Road, has been awarded at the cost of Rs. 568,778,845.00, which is very excessive, exorbitant and fantastic, which shows the malpractice for illegal gain on the part of the Officials of LD.A/Respondents, but has not produced any document to show the length of Road of 4 K.m. from the Publication and relied on simply an Agenda of Meeting of PDWP dated 12.01.2012, wherein showed the cost of 1136.00 Million for widening/improvement of main Hawksbay Road Karachi.

Whereas, the Respondents contended that length of the Road is 8 Km and the widening of the Road is being carried out on a Motorway type with dual carriageway, cost of work is not exhorbitant or fantastic, and the allegations of petitioner are false and mala fide.

As such, the Chief Engineer of L.D.A/Respondents was called to show the exact sphere of the said Work and today the Chief Engineer and Respondent No. 8, appeared in person and submitted sphere of work in respect of said Project in detail showing the cost of Approved PC-1, at 1136 Million, Width of Road 300 feet, Length of Road 8 Km, Carpet Width 112, Track Dual Carriage Way, Kerb Block 4 Lane in 8 Km Length, Central Median 30' Wide, Carpet Thickness 5 Inches, Service Road 12 feet 8 Km. in Length, Pipe Sleeves at 10 places, Pipe Culvert of 150 feet in 8 Km. Length, Foot Path 6' Wide on both sides, Storm Water Drain 8 Km in Length, Pavement Making + Traffic Sign 8 Km in length, Stone Pitching, 3 Cell R.C.C. Culvert, Construction of 24' Wide Service Road 8 Km in Length, and Electrical Work Complete Solar Energy System with Galvanized Steel Pole all 8 Km in length, as the same is to be used for the Traffic of Heavy Trailers, Regular Trucks, Mazda Vans, Passenger Busses, Motorcycles, Vans/Cars 3162 Vehicles per day, which all proves that the widening/improvement of Dual Carriage Way like Motorway is being carried out and the Respondent No. 8, submits that the work is about to be completed and also submitted Photographs of the said Work, which are kept on Record in the matter.

We have observed that the petitioner has relied on an Agenda for PDWP Meeting, where the cost of said widening/improvement of the Project is mentioned as 1136 Million, which cost has also been mentioned in the sheet of Work Sphere and the Contract was awarded to the Respondents No. 7 & 8, to the tune of Rs. 568,778,845.00, for the widening and improvement of 8 Km Road, the details of which are already stated hereinabove, which shows that the contention of the petitioner is not sustainable in facts and law and even otherwise the contention of Respondents is that the petition is motivated one for wrongful gain and out of some business rivalry with Respondents No. 7 and 8. In other words the Contract awarded to the Respondents No. 7 and 8, whose Bid was the 1st lowest one, and below the estimated cost of 1136 Million.

Moreover, the contract has been awarded by the Official Respondents after completing all the required formalities of the Bid to the Respondents No. 7 and 8, being lowest one, which was accepted and as contended that the Project is about to be completed and the petitioner has approached this Court after lapse of more than three years and he was not the participant of the Tender Proceedings for awarding of the Contract of said work, as such, this petition apparently seems to be motivated one and nothing has specifically been shown as to the corrupt practice, rather mere words have been alleged without any substantial proof.

As such, in view of the above, we are of the view that the petition has no merits and is hereby dismissed alongwith listed Application.

(R.A.) Petition dismissed

PLJ 2016 Karachi 211 (DB)

Present: Sajjad Ali Shah, C.J. & Anwar Hussain, J.

LAGUARDIA LOGISTIC (PVT.) LTD. through General Manager Officer--Petitioner

versus

FEDERATION OF PAKISTAN through Customs Collectorate Preventive Customs House, Karachi--Respondent

C.P. No. D-2211 of 2012 and C.M. As. Nos. 13364 of 2012, 341213 of 2014, decided on 27.1.2016.

Custom Act, 1969 (IV of 1969)--

----S. 129--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Carrier company--Shipment transit custom authorities issued demand cum show-cause notices for non payment of custom duties, taxes chargeable for short delivery of law sulpher diesel and non submission of transit permits to NATO--Notice for recovery as custom duties and taxes--Maintainability--Validity--Payment of custom duties and taxes normally due shall be waived by custom authorities, for which authority has to be approached, which shows that duties & taxes are leviable and even otherwise decision of Supreme Court is not applicable as same relates to detention or confiscation of imported consignments by custom authorities in respect of trade under Afghanistan Transit Trade Agreement, 1965, for nationals of Governments of Pakistan and Afghanistan.

[P. 214] A

Mr. M. Abdul Rehman, Advocate for Petitioner.

Mr. Muhammad Khalil Dogar, Advocate alongwith Mr. Ilyas Ahsan, Appraising Officer Customs for Respondent.

Mr. Aslam Butt, D.A.G.

Date of hearing: 27.1.2016.

Order

The case of the petitioner is that the petitioner is a Carrier Company, under the Agreement with Supreme Fuels Trading FZE, at the time of Declaration of the Shipments, a letter was issued by the said Company to the National Logistic Cell (N.L.C), thereby confirmed the Shipment Transit to be transited to the Afghanistan, for the North Atlantic Treaty Organization, International Security Assistance Force, who also issued letters to the N.L.C, and the Custom Authorities/ Respondents and ultimately Shipments were transmitted for which, as per, Custom Goods Declaration Forms, the Shipment of the Low Sulpher Diesel were attacked and destroyed en route to the Afghanistan and the Custom Authorities/Respondents, issued Several Demand-cum-Show Cause Notices to the petitioner for non-payment of Custom Duties, Taxes etc., chargeable for the short delivery of Low Sulpher Diesel and non-submission of Transit Permits to ISAF/NATO Forces in Afghanistan and to the Oil Section Keamari, Karachi, within the stipulated period of 30 days, and the petitioners through their Tax Consultant replied to the such Notices. The Respondents/Custom Authorities passed the Orders-in-Original against the petitioner and thereby ordered the petitioner to pay the Duties and Taxes in view of the short supply/delivery of the Low Sulpher Diesel. The petitioner impugned the same by filing Appeals before the Collector of Customs and during pendency of the same, Notices for the recovery of Rs. 6,52,79,075/- as Custom Duties and Taxes as well as for suspension of the Custom License were issued by the respondents, and as such, the petitioner filed this petition. Thereafter, the petitioner withdrew the said appeals, which were dismissed as withdrawn vide Order dated 18.06.2012. The Respondents filed their Parawise Comments and thereby opposed the case and contentions of the petitioner.

The contentions of the learned Counsel for the petitioner are that the Transit from the Afghanistan is regulated in terms of an Agreement of year 1965, between the Governments of Pakistan and Afghanistan, as such, no Custom Duties, Taxes and other charges are payable in respect of the supply of transit Goods to Afghanistan, and the Custom General Order No. 12/2002, amendment by way of Custom General Order No. 06/2010, are also not applicable in view of Section 129 of the Custom Act, and Oil supplied/Transit Goods were destroyed during the transit on account of attack/fire caused over the same, by the terrorists and prayed for declaring that the said Orders against the petitioner passed by the Respondents are violative of Section 129 of the Custom Act and the said Agreement between the Governments of Pakistan and Afghanistan. Learned Counsel made reliance on the case of Federation of Pakistan v. Jamaluddin, reported in P.T.C.L 1996 C.L 534 (S.C).

Whereas contentions of the learned counsel for respondents are that the Low Sulpher Oils under the Transit, were for the use of I.S.A.F./N.A.T.O. Forces in the Afghanistan, which is not regulated in terms of the Afghanistan Transit Trade Agreements between the Governments of Pakistan and Afghanistan, rather a special procedure has been laid down vide Custom General Order No. 12/2002, amended vide Custom General Order No. 06/2010, r/w. Section 129 of the Custom Act, 1969; that M/s. Supreme Fuels Trading FZE, is a Company based in United States, who are Contractor in import and supply of Fuels for the I.S.A.F./N.A.T.O. Forces, based in Afghanistan and not for Afghanistan Nationals, as there were shortfalls in the supply/delivery of low Sulpher Oil, under Transit, which were not as per the Custom Goods Declarations and so the Demand-cum-Show Cause Notices were issued, Orders in Original passed, against which the petitioner filed appeals, which were dismissed as withdrawn after filing of the instant petition, which is, as such, not maintainable and prayed for the dismissal of the same.

Heard the arguments of the learned counsels for the parties, gone through the records available and referred to in the matter.

Since there were shortfalls in the supply/delivery of the Low Sulpher Diesel, which were not in consonance with the Custom Goods Declarations and as such, Demand-cum-Show Cause Notices for the payment of Custom Duties and Taxes etc. were issued on the basis of said Custom General Orders, and Section 129 of the Custom Act, and even otherwise the supply of Goods were transited out of Pakistan, as per Goods Declarations, the respondents were legally correct to take steps for the recovery of Duties and Taxes as per the provisions of the Custom Laws, and the Orders.

Ultimately, Orders in Original passed, against which the petitioner filed statutory appeals, which were dismissed as withdrawn after filing of instant petition as the Respondents demanded sum of Rs. 6,52,79,075/-as Duties and Taxes etc, by way of Demand-cum-Show Cause Notices on the basis of which the petitioner has filed the said appeals. In fact, the main Orders of the respondents/custom Authorities, which were impugned by way of statutory appeals have been withdrawn, the same attained finality and on the basis of which last Demand Notices for the payment of said amount were issued, so the petitioner filed this petition praying for declaring such Orders as violative of law, ultra vires and void, which in constitutional jurisdiction would not be sought, where the statutory appeals against the same have already been withdrawn by the petitioner and original orders attained finality, which thereby has been accepted as correct, then indirectly by way of this petition, such Orders cannot be assailed. In the words we are of the mind for the administration of justice that relief directly sought under statutory remedy, cannot be sought indirectly and that too in Constitutional Jurisdiction after withdrawing from the statutory remedy.

Even otherwise, the said agreement between the Governments of Pakistan and Afghanistan relied upon by the petitioner relates to a Trade between the said Governments for their Nationals, whereas the supply/transit of the Goods in the matter, were for the use of I.S.A.F./N.A.T.O. Forces, based in the Afghanistan, so the said Agreement would not be applicable to the case of the petitioner, who has also referred to and relied upon the Afghan/Pakistan Transit Trade Agreement, 2010 (APTTA), which is also between the two Governments in respect of general trade for their people, and even otherwise as per the Article 28 of the said Agreement, which is reproduced herein below:

“When it is established to the satisfaction of the Customs Authorities that goods specified in the Transit documents/GD have been destroyed or have been irretrievably lost by accident or other unforeseen events en route or that they are short by reason of their nature, payment of duties and taxes normally due, shall be waived.”

And as per the same, the payment of Custom Duties and Taxes normally due shall be waived by the Custom Authorities, for which the concerned Authority has to be approached, which shows that Duties & Taxes are leviable and even otherwise decision of the Supreme Court in the case of Federation of Pakistan v. Jamaluddin (supra) is not applicable to the case in hand as the same relates to detention or confiscation of the imported consignments by the Custom Authorities in respect of the Trade under Afghanistan Transit Trade Agreement, 1965, for the Nationals of the Governments of Pakistan and Afghanistan.

In view of the above, this petition is incompetent and devoid of any merits, which is dismissed accordingly alongwith listed applications.

(R.A.) Petition dismissed

PLJ 2016 Karachi 215

Present: Muhammad Shafi Siddiqui, J

Messrs GETZ PHARMA (PVT.) LIMITED through Authorised Person--Plaintiff

versus

PROVINCE OF SINDH through Chief Secretary, Government of Sindh and 7 others--Defendants

Suit No. 62 and CM.A. No. 543 of 2015, decided on 26.3.2015.

Civil Procedure Code, 1908 (V of 1908)

----O.XXXIX, Rr. 1 & 2--Specific Relief Act, (I of 1877), Ss. 42 & 54--Sindh Public Procurement Rules, 2010, Rr. 13, 21, 26 & 44--Suit for declaration and injunction--Interim injunction, grant of--Medicine, procurement of--Discrimination--Aggrieved of acceptance of tender submitted by company for a life-saving medicine--Validity--Discrimination in so far as procurement of goods, services and works were concerned--Quality that was required could be asked to be matched with the best quality available in market--Question of--Whether drugs of plaintiff were as good as products which were required through tender--Determination--When medicines/drugs were at least at par to each other, cost of life saving drugs would play a pivotal role as no justified reason was available to procure drug at a specific price or more as against specific amount which was being provided by plaintiff--Medicines were required for hepatitis patients on priority basis; therefore, authorities could opt to float tenders afresh for procurement in accordance with relevant laws--Application was allowed. [Pp. 233, 235 & 240] A, B & E

Sindh Public Procurement Rules, 2010--

----Rr. 2(cc), 23, 31, 32 & 32-A--Sindh Public Procurement Act, 2009, S. 2(a)--Civil Procedure Code (V of 1908), S. 9--Procurement authorities--Civil Courts, jurisdiction of--Scope--Civil suits which are filed in terms of S. 9, C.P.C., presence of remedy in terms of Rr.31, 32 & 32-A, of S.P.P.R. does not bar civil suit--No ouster clause relating to jurisdiction of S. 23 exists which relates to indemnity, bars suits against authority i.e. S.P.R.A. which is defined in S. 2(a) of Act, whereas the suit revolves around procurement agency which is separately defined in terms of S. 2(cc) of Rules, 2010--Mala fides attributed against procurement agencies would be sufficient for entertaining suit as only those facts which are performed under S.P.R.A. could be hit by ouster clauses.

[P. 235] C

PLD 2013 Isl. 85; 2014 SCMR 676; 2007 SCMR 554 & 1974 SCMR 356 rel.

Sindh Public Procurement Rules, 2010--

----R. 4--Procurements--Laches, principle of--Applicability--Where action apparently and prima facie appears to be mala fide or colourable exercise of power and not transparent and/or not in manner as required in terms of Sindh Public Procurement Rules, 2010 laches would not be an appropriate defence in such cases.

[P. 236] D

2013 MLD 433 rel.

Mr. Faisal Siddiqui along with Muhammad Vawda Advocate for Plaintiff.

Qazi Majid, A.A.G. and Ziauddin Junejo, A.A.G for Defendants Nos. 1 to 4.

Mr. Haider Ali Khan along with Sarmad Hani, Advocate for Defendant No. 5.

Mr. A. Sattar Pirzada along with Mamoon Chaudhary, Advocate for Defendant No. 6.

Mr. Yawar Farooqui along with Irfan Memon, Advocate for Defendant No. 7.

Mr. Khalid Jawed,Advocate for Defendant No. 8.

Dates of hearing: 29.1.2015, 10, 12, 19, 25, 27.2.2015, 2, 4 and 6.3.2015.

Order

Through these proceedings the plaintiff has challenged the transparency of the tender process initiated by Defendant No. 4 for supply of medicines, vaccines, machinery, equipment etc. for prevention and/or control of Hepatitis B & C in Sindh for the year 2014 and 2015 and through the listed application under Order XXXIX, Rules 1 and 2, C.P.C. the plaintiff has prayed for restraining orders till final disposal of the suit to the effect that the Defendants Nos. 1 to 4 be restrained from implementing the subject tender for procurement of Hepatitis B and C medicines and Defendants Nos.5 and 8 from supplying their medicines/drugs in respect thereof.

Learned counsel for the plaintiff in support of the application has contended that initially the subject tender process was advertised through newspapers of dated 28.11.2014 and 29.11.2014 however through a corrigendum issued in newspapers of 30.11.2014 the Defendant No. 4 extended the tender opening date to be 18.12.2014. The plaintiff also participated in the tender process through Defendant No. 6 A.J. Mirza Pharma (Pvt.) Limited.

Learned counsel for the plaintiff submitted that after obtaining complete set of tender and its related documents, the documents were submitted which pertain to eligibility criteria as well as the evaluation criteria. The counsel contended that in terms of eligibility, the manufacturer must have ISO certificate and either Good Manufacturing Practices (GMP) or Food and Drug Administration (FDA) (USA approved). The evaluation criteria are stated to be based on 22 points. The plaintiff through Defendant No. 6 submitted the bid in relation to its products Unipeg and Ribazole, along with all the requirements as emphasized and needed for the subject tender. It is claimed by the learned counsel that since the plaintiff has made/fulfilled all the eligibility and evaluation criteria, therefore, both the products of the plaintiff were eligible and entitled to have a highest number of points in evaluation however through letter dated 26.12.2014 the Defendant No. 4 accepted the technical bid of Defendant No. 6 on behalf of the plaintiff in relation to its product Ribazole but the same was declined in relation to its product Unipeg on approximately five points which are incorporated in remarks column of the said letter.

It is contended by the learned counsel that none of the grounds, as alleged, to such rejection are applicable to the product in question i.e. Unipeg. In addition, the learned counsel submitted that the mala fide on behalf of the defendants is apparent as the rejection letter of 26.12.2014 contains reference to an order passed in C.P. No. D-6723 of 2014 on 30-12-2014. Thus it is claimed that it is inconceivable that the defendants came to know about the order of 30-12-2014 on 26-12-2014. According to the learned counsel it clearly smells mala fide, apart from the fact that indeed it was never refused on 26.12.2014.

Learned counsel further, without prejudice to the above, submitted that perusal of order of 30.12.2014 passed in the aforesaid petition clearly shows that it does not contain any direction for the defendants, particularly Defendant No. 4, to enforce and/or implement any additional condition to the eligibility criteria i.e. it should be only FDA/EMA approved. Furthermore, as against this product of plaintiff, the Defendant No. 5's bid through Defendant No. 7, for its product was accepted in relation to Unipeg and the bid of Defendant No. 8 has also been accepted in relation to its product Pegintron through Defendant No. 7.

It is contended by the learned counsel that previously in the year 2013 and 2014 similar kind of tender was floated by Defendants Nos.2 to 4 in relation to Inj: Pegylated Interferon Alfa2a and Alfa2b with Cap: Ribavirin 400 m.g. wherein arbitrary and discriminatory conditions of FDA/EMA approval was incorporated, which led to the disqualification of the plaintiff and other similarly placed pharmaceutical companies. Prima facie this condition was imposed only to favour a single bidder i.e. Defendant No. 5 who could qualify such condition in respect of his previous medicine namely Pegasys. It is claimed that although such imposition of condition was challenged by the distributor of the plaintiff when he filed Petition No. D-3300 of 2013 however the same was dismissed on the ground that the principal/plaintiff/manufacturer did not itself challenge the impugned condition which order has been challenged by the Distributor before the Hon'ble Supreme Court and the same is pending adjudication wherein leave has been granted. It is urged that it is only on account of realization of imposition of such arbitrary and discriminatory condition that in the impugned tender, which is the subject matter of this suit, such conditions were not incorporated.

While arguing the case insofar as the rejection of plaintiff's medicine Unipeg is concerned, it is urged that the acceptance of Defendant No. 5's bid is also illegal and mala fide as the very registration of Defendant No. 5's product is under challenge on account of being deceptive marketing practices as it is claimed in the advertisement and promotion that Ropegra i.e. Pegylated Interferon alfa-2a 180 mcg (40KD) is identical to Pegasys. Learned counsel submitted that there is a series of litigation between the plaintiff and Defendant No. 5 as they are business competitors and in pursuit thereof some mala fide proceedings were initiated by defendants through their front man when a Constitution Petition No. 2891 of 2010 was instituted in relation to plaintiff's drug wherein he has filed certain documents which could not have been in his possession unless supported by Defendant No. 5. It is also contended that in those proceedings the respondents, including the Ministry of Health, Additional Secretary Health, Registration Board and Federal Drug Inspector have filed their comments and have denied the contention as raised in the petition against the present plaintiff by the petitioner in the said petition who is a front man of Defendant No. 5.

Thus, learned counsel submitted that rejection of the plaintiff's product in relation to Unipeg on the allegation that it does not have approval by FDA/EMA is illegal and mala fide as it is not the eligibility criteria in tender conditions and furthermore all other ancillary and co-related reasons for such rejection also do not borne out such conditions and that the self-claimed conditions, in terms of order of 30.12.2014 passed in C.P. No. 6723 of 2014, are also not established.

It is further contended by the learned counsel that the alleged disqualification of the plaintiff product on the pretext that the molecular weight of Unipeg is 23 Kilo Daltons (KDa) is also mala fide as the drug of Schering Plough (Defendant No. 8) has been accepted in relation to its product Pegintron which is 12 KDa. It is contended that if at all a molecular weight of 20 KDa in relation to the medicine Unipeg is not recommended how the product of Schering-Plough Defendant No. 8 which carries 12 KDa can be accepted. It is contended by the learned counsel that such rejection on the basis of its molecular weight was otherwise made only to favour the product of Defendant No. 5 as the mala fides are prima facie established.

It is urged that the plaintiff's product Unipeg has undergone all kinds of testing, which is established from various letters issued by the Centre for Applied Molecular Biology, Ministry of Science and Technology, Government of Pakistan, and on various occasions Government of Pakistan issued Lot Release Certificates from 07.07.2010 to 31.12.2014. Learned counsel submitted that this product is being exported to various countries such as Cambodia, Laos and Myanmar. Learned counsel has further added that the safety, reliability and effectiveness of plaintiff's products have also been approved by independent medical sources which are part of the record.

Learned counsel for the a plaintiff in support of his contention has relied upon the cases as under:--

(i) Transparency in respect of tender process:- 2012 CLC 1780, PLD 20﷑12 Sindh 434, 2013 CLC 476, 2012 SCMR 1651, PLD 2013 Islamab﷑﷑ad 1651, PLD 2012 Lahore 503, PLD 2010 Lahore 289, PLD 2012 Balochistan 208, 2012 YLR 1426 and 2014 SCMR 676;

(ii) Change in tender condition:- 2007 YLR 161, 2010 CLC 1370 and PLD 2011 Lahore 16;

(iii) Discrimination as against Pakistani products:- PLD 2020, SC 759(sic);

(iv) Injunction and damages:- PLD 1982 Lahore 49, 1993 MLD 1308 and 2008 YLR 2040;

(v) Laches:- AIR 1994 Delhi 322 and 2013 MLD 433;

(vi) Ouster clauses:- PLD 2005 SC 873, 1974 SCMR 356, 2007 SCMR 554, PLD 1994 SC 738, 2000 SCMR 1137, 1999 YLR 166, PLD 2000 Kar. 16, 1999 PTD 1310 and PLD 1997 SC 3;

(vii) Mala fides:- PLD 2014 SC 47 and PLD 1973 SC 49;

(viii) Alternate remedy:- 2001 CLC 1618;

(ix) Undertaking and Court order:- 1997 SCMR 193;

(x) Expert opinion:- AIR 1931 Lahore 364, 2001 YLR 749, 1989 MLD 3325, 1996 MLD 762 and 2004 SCMR 1859;

(xi) Court's role in-assigning medicine quality:- 1992 MLD 481, 2003 YLR 3056, PLD 2003 Lahore 115 and

(xii) Substandard drug and jurisdiction of Drug Court:- 2002 PTD 1800.

Mr. Qazi Majid, learned AAG appearing for Defendants Nos. 1 to 4, at the very outset contended that although this condition of FDA/EMA approved medicines was not the condition prescribed for the bidders to be qualified however in all previous tenders such evaluation in relation to FDA/EMA was a condition precedent and further the orders passed in C.P. No. 6723 of 2014 also confirms that no such medicines, which are in violation of FDA/EMA, could be approved.

Learned AAG further added that this parameter, insofar as the approval of the FDA/EMA is concerned, is internationally reliable as it confirms the safety and efficacy of the medicine. He further added that in terms of molecular weight of plaintiff's medicine, the committee has decided that its efficacy is not up to the mark.

Learned AAG further added that as far as reports of Unipeg is concerned it is not published at as great extent as compared to Ropegra (Pegasys). He argued that drug of Defendant No. 8, which contains molecular weight of 12 KDa, as it is recommended for children and under-weight patients.

He further submitted that the plaintiff's bid was rejected on 26.12.2014 which was dispatched in the afternoon of 30.12.2014 through TCS and this suit has been filed after delay of 16 days and as such the balance of inconvenience would not be in favour of the plaintiff.

Mr. Haider Ali, learned counsel for Defendant No. 5, contended that the plaintiff is not a bidder in the impugned bidding process for the procurement of Hepatitis B and C medicines and hence the plaintiff has no legal status to maintain the suit. He further submitted that it involves lapse/laches of 16 days and as such the plaintiff is not entitled for any relief on this score alone as during this 16 days the contract of supply was awarded.

It is further contended that the plaintiff is suppliers of spurious Peg-2A and its own manufacturer and exporter has stated it to be not fit for human therapy and that the specification of 20 KDa in respect of plaintiff's drug has no international testing or study. It is further argued that the plaintiff does not have a license/letter of registration to conduct any form of manufacture of its registered product Unipeg and they are only allowed to import and fill the products in vials. It is argued that whether or not the plaintiff's drug met the evaluation criteria is a question that can be answered by Government of Sindh.

It is further argued that one of the aggrieved bidder for the year 2014-2015 tender process initiated proceedings by filing C.P. No. D-6723 of 2014 and one of the preliminary objection therein was that the tender process of the Government of Sindh for 2014-2015 was tainted as the standard to meet the quality of the drug was reduced as compared to the previous evaluation criteria. The said petition was dismissed on 30.12.2014 upon the guarantee and undertaking of Defendant No. 2 that all drugs procured by the Government of Sindh for 2014-2015 tender for Hepatitis B and C would be of international standards and WHO, FDA and EMA approved and hence the Government of Sindh was bound by the undertaking given to the Court. It is further argued that Defendant No. 7 has informed Defendant No. 5 that it received letter of the Government accepting its bid on 02.01.2015 and also that Defendant No. 6 was present in meetings of 18th, 26th and 31st of December, 2014 and the presence of Defendant No. 6 was marked in the government record.

Learned counsel further contended that the government expert Dr. Bhika Ram and Dr. Badar Fayyaz Zuberi objected to the Unipeg on the ground as available to the rejection letter. Learned counsel also denied that Unipeg is certified by WHO as Annexure A/2 merely provide the list of WHO pre-qualified quality control laboratories. He argued that on the contrary Ropegra is EMA approved and such approval is a public document and is available on website.

Learned counsel further added that the word “international standard” as incorporated in order referred above means standard without any dispute. He contended that the impugned letter dated 26.12.2014 does not at all smell mala fide as it provided a plausible reason for rejecting bid of the plaintiff in respect of Unipeg. He further argued that if any one of the four reasons is correct then it should be held correct and the other incorrect decisions, if at all they are, does not come in the way of one correct decision. He asserted that in the instant case all the reasons assigned are correct. Learned counsel has also taken me to various definitions provided under the Rules called Drug License and Regulatory Rules, 1996 such as bulk product, manufacturer, goods manufacture practices and rules 2(j),(d),(s)(t) etc.

Learned counsel further added that Defendant No. 5 in fact is the original manufacturer of Pegasys Peginterferon Alpha 2a having molecule weight of 40 KDa and hence they have their patent registered. It is for this reason that the plaintiff neither can not has any sort of approval from EMA/FDA.

He contended that insofar as drug of Defendant No. 8 i.e. Alfa2b with 12 KDa is concerned it is a separate drug. He added that the pre-trial discovery proceedings available at pages 373 and 405 would come in the way insofar as the efficacy is concerned and the decree obtained in pursuance thereof is a collusive. He further added that the certificate of Goods Manufacturing Practices (Page 277 Part I) does not show that the Pegylated Interferon is manufactured by the plaintiff.

Insofar as the issue of Anti-Dumping Duty is concerned, learned counsel submitted that if the sale price in the country of import is lower than the price of country of origin, the country of import imposes Anti-Dumping Duty. Although they dispute such imposition but without prejudice in view of the orders of the Regulatory Authority as well as Court the Defendant No. 5 was coerced to reduce such prices. However, in order to overcome such issue, Defendant No. 5 has now registered the same drug under the name and style of “Ropegra”. Learned counsel has also relied upon Sections 15 and 16 of Sale of Goods Act on the ground that the plaintiff's goods are not sellable as they are not fit for human therapy as their efficacy is questioned, therefore, the plaintiff's bid also stands disapproved on this score as well.

Learned counsel for Defendant No. 5 in support of his contentions has relied upon the cases reported in PLD 1976 Lahore 580, 2012 CLC 1409, 2011 SCMR 1360, PLD 1969 SC 65, 2000 YLR 469, 2001 CLC 781, 2005 SCMR 564, 2009 SCMR 385, 2010 YLR 1161, PLD 1974 SC 151, 2002 SCMR 549, PLD 1964 W.P. Karachi 608, PLD 1970 Karachi 125, 1992 CLC 1138, PLD 1965 W.P. Karachi 202, PLD 1973 Karachi 361, 2012 CLC 1434, 2010 CLD 1648, PLD 2012 Sindh 434, 2004 SCMR 1092, 1999 CLC 1719, 1982 CLC 2369, PLD 1965 SC 83, 2007 CLD 966, 2009 CLD 716, 2011 CLC 1985, PLD 2008 SC 472, 2013 CLC 476, 2002 CLD 231, PLD 1974 Karachi 29, 1988 CLC 779, 1989 CLC 75, 1995 CLC 952, 1997 SCMR 906, PLD 1955 Sindh 351, 1987 CLC 345, 2010 SCMR 121, PLD 1975 SC 506, PLD 1966 SC 793, 2012 SCMR 455, PLD 1983 SC 151, 1994 SCMR 782, PLD 1992 SC 723, PLD 1971 SC 205, 1991 CLC 1277, PLD 2003 SC 344, 2010 CLC 285, 2011 MLD 925, 2007 MLD 2019, 2002 SCMR 1150, 2000 SCMR 1557, 2014 CLD 1410, 2014 CLD 1133, 2010 SCMR 286, 2010 SCMR 1811, 2010 SCMR 1861, PLD 1972 Karachi 119, PLD 1996 Karachi 365, PLD 2003 Karachi 691, 2003 CLC 1602 and 2013 MLD 1132.

Mr. Abdul Sattar Pirzada, learned counsel appearing for Defendant No. 6, has also argued in line and in support of the contention of the plaintiff as being the agent of the plaintiff. He submitted that they have submitted the bid for the manufacturer and the bid documents, which provide the evaluation criteria as Point No. 6. He submitted that the evaluation criteria is point-based system and the reasoning assigned in the rejection letter are devoid of the application of such evaluation criteria. Learned counsel for Defendant No. 6 further relied upon letter dated 15.12.2014 available at page 207 Part 1 which confirms that they are reputable manufacturer of Pegylated Interferon alfa-2a 180 whereby they have authorized Defendant No. 6 to submit a bid, subsequently to follow up, negotiate and sign the contract on their behalf. Learned counsel submitted that in response to a technical specification of an earlier tender one of the dealers has filed a petition bearing No. D-3300 of 2013 which was disposed of on 06.09.2013 on the ground that the petitioner who has filed the petition was not a manufacturer of the drug offered to Respondent No. 4 therein, whereas the actual manufacturer was M/s Getz Pharma, plaintiffs herein. It was observed in that case that the actual manufacturer has not come forward to question imposition of the conditions of the tender and that it was prerogative of purchaser to impose restrictions as it deemed fit and proper. Ultimately, the petition was disposed of on the ground that the plaintiff who is the actual manufacturer of the drug would have been an appropriate party to deny such position but it chooses not to take any legal action. Hence, it was dismissed. However, it was left open to the manufacturer to establish before the concerned authority regarding efficacy of its product which is equivalent to the drug having been approved by FDA/EMA. Learned counsel submitted that it is this background that perhaps the manufacturer has filed this suit and its agent (Defendant No. 6) has been arrayed as one of the defendants.

Learned counsel further relied upon the registration of the subject drug under Section 7 of Drugs Act, 1976 and rules framed therein on 29.03.2010 and that certificate of Goods Manufacture Practices was also issued by DRAP which is available at page 277 which shows that they are authorized to export in terms of bullet point 1 thereof. Learned counsel further submitted that the laboratory of the plaintiff has been pre-qualified by WHO as Eastern Mediterranean Region. He has further relied upon Bio-Activity Potency test carried out by Centre for Applied Molecule Biology which concerned the subject drugs as of good quality and these drugs through an Award/contract by respective governments are being supplied to Balochistan, Azad Jammu and Kashmir and such purchase orders are available at pages 1177 etc. and other purchase orders of different renowned hospitals such as Mayo Hospital Lahore, Fatima Jinnah Medical College, Services Institute of Medical Sciences, Department of Gastroenterology, Liauqat National Hospital, Agha Khan Hospital, Ayub Teaching Hospital and other private institutes and doctors are available on record which are not denied.

He submitted that in view of aforesaid facts and circumstances the undertaking given in C.P. No. D-6723 of 2014, as relied upon by other defendants, are ill-founded as such undertakings was not formed part of the order.

He further relied upon attendance sheet available at pages 527 and 529 of the file and argued that such attendance sheet and the endorsement therein only show that the sealed bids were opened in their presence” and the procedure adopted for opening such bids was transparent however it has nothing to do with the remarks as endorsed in the refusal note.

Learned counsel further submitted that insofar as the counter-affidavit filed by Defendant No. 5 is concerned that is misleading as in Para 4 it is stated that the Government of Sindh for the year 2014-2015 tender invited the drugs of international standard and WHO/FDA/EMA approved and hence the government is also bound by the undertaking to re-examine each of the technical bid on such basis. He further contended that in Para 10 of the written synopsis filed on behalf of Defendants Nos. 1 to 4 they have stated that the bid was rejected on 26.12.2014 and the rejection letter was dispatched on 30.12.2014 which include the observation of the learned Division Bench. He further relied upon the clause 2 of Para 13 of the written synopsis wherein the Defendants Nos. 1 to 4 have admitted that the expertise of notified purchased committee announced that for Pegylated Interferon (mentioned in tender No. 1) there is no criteria meant for technical evaluation and/or to adjudge and evaluate such an important life-saving drug. It is further highlighted that the first parameter that was considered was FDA and EMA approval followed by four phases which are also not tenable under the law. He further contended that the arguments were misconceived that there was no evaluation criteria as it is mentioned in the tender documents. He has argued that registration of Ropegra is also newly registered therefore it should not have been considered as compared to the plaintiff's product duly registered in the year 2010. It is claimed in Para 12 of the counter-affidavit that the Ropegra has been recently imported in Pakistan in January, 2014 and has been marketed and supplied since March, 2014 by Defendant No. 5.

Learned counsel has also relied upon Rules 4, 13, 36 and 44 of Sindh Public Procurement Rules 2010 (hereinafter referred to as Rules 2010) and so also Rules 21 and 32 thereof and submitted that perusal of these rules and the amended rules would show that the refusal and decision declining to accept the bid of the plaintiff through Defendant No. 6 is arbitrary, illegal and contrary to Rules 2010.

In support of case of Defendant No. 7, Mr. Yawar Farooqui learned counsel, argued that in terms of publication dated 28.11.2014 Defendants Nos. 1 to 4 invited bids in single stage two envelops through authorized dealers, manufacturers, distributors, wholesalers, and in terms of the publication the date of opening the technical bid was 15.12.2014 however in view of corrigendum three days' time was extended except the tender of Peg Interferon. It is contended that the attendance sheet available on record in respect of Hepatitis medicine clearly shows that the procedure adopted was transparent and the participants were satisfied. He submitted that all the bids except for tender 1 were opened on 18.12.2014. It is argued that the opening of the bid of Pegylated Interferon was not opened due to some reservations of evaluation criteria by the technical committee and hence it was adjourned to 26.12.2014. He further argued that even on 26.12.2014 it was not opened and the matter was adjourned to 30.12.2014 to be taken up at 2:30 p.m. It is urged that as per tender document there were certain conditions for eligibility including FDA condition. He has relied upon order passed in C.P. No. D-6723 of 2014 which was filed by some bidder alleging therein that the government intends to purchase substandard medicines and has willfully omitted condition of FDA/EMA and that on an undertaking given by the Secretary Health the petition was disposed of on the assurance that all the supplies in consequence to the tender process would be of international standard. Hence, in consequence thereof such meeting of the Evaluation/Technical Committee was adjourned to 30.17.2014 and the Defendant No. 6's bid for product 3 miv injection was accepted however for Peg Interferon, the Defendant No. 6's bid for plaintiff product was rejected.

Learned counsel on preliminary issue in view of the above contended that as per Rule 31 of SPP Rules the suit would not lie as an alternate remedy is provided to the aggrieved party who may avail such opportunity of filing of complaint to the Complaint Redressal Committee and hence they have not preferred any complaint before CRC until filing of the suit.

He further added that in all previous occasions when such tenders were invited there was condition of FDA/EMA approval and that previously plaintiffs bid through its distributor Hamza was also rejected by the Evaluation committee which reasons are also available on record at page 625 of the file. He further added that in view of such refusal the Distributor of the plaintiff at the relevant time filed C.P. No. D-3300 of 2013 however the learned Division Bench of this Court disposed of the same with the observation that is the prerogative of the purchaser to impose conditions and against this it is argued that the plaintiff's distributor filed CPLA before the Hon'ble Supreme Court in which leave has been granted vide order dated 06.11.2013.

In view of the above, it is argued by the learned counsel that instead of establishing the efficacy of their product being equal to FDA/EMA as observed in order dated 06.11.2013 in above referred C.P. the plaintiff has filed this suit directly challenging the well reasoning refusal of the evaluation committee. He argued that the suit has been filed apparently after delay of 16 days and hence when the contract has already been awarded, the balance of inconvenience does not lie in favour of the plaintiff. He argued that since the plaintiff has not participated in the tender proceedings, therefore, he has no locus standi and/or cause of action to file the present suit.

Mr. Khalid Jawed, learned counsel for Defendant No. 8. contended that the defendant is a leading research-based pharmaceutical company and is also one of the contestants of the subject tender who offered one of its product Peg Interferon (Alfa 2b) which is the only Alfa 2b. Pegelated Interferon available in Pakistan in four dosages strengths to suit the individual need of patients based on their body weight and is also based on clinical trial of high repute. Learned counsel further contended that this Pegylated Interferon Alfa 2b (Pegintron) is prescribed by doctors which is different and distinct from Pegylated Interferon Alfa 2a which is a product of plaintiff and Defendant No. 5. He further added that the product of Defendant No. 8 is duly approved by FDA and EMA and is also GMP certified. He added that in terms of its peculiar weight of 12 KDa which represents PEG-chain size in its molecule, is unique chain size and is thus responsible for certain clinical advantages like bioactivity and drug penetration in tissues and organs and hence the question as raised by the plaintiff is baseless.

Learned counsel lastly argued that the suit is barred under Rule 31 of SPP Rules, 2010. He further added that the balance of inconvenience is not in favour of plaintiff since the contract has already been awarded to the respective defendants for supply of medicines which is urgent requirement of the patients.

Learned counsel for Defendant No. 8 in support of his contentions has relied upon the cases reported in PLD 1993 Karachi 190, 1998 CLC 441 and 1998 CLC 374.

I have heard learned counsel for the parties at length and perused the material available on record.

There is no cavil to the proposition that the paramount consideration for deciding the pending issues is transparency in its process. Though other ancillary issues followed are inter linked which may transform themselves to expose transparency or otherwise.

In order to decide the controversy insofar as the rejection of the plaintiff's product is concerned, I would limit the scope of lengthy argument to the extent of refusal note available at page 441. For convenience I would reproduce these rejection note/remarks as under:-

(i) M/s Getz Pharma Pakistan are not FDA/EMA approved;

(ii) It is 20 KD which is not recommended for human being therapy;

iii) It is not available in its country of origin;

(iv) Phase-IV Efficacy and biogenrics

(v) Phase I-IV trial for bio similarity are not available.

(vi) Orders passed in C.P. No. D-6723 of 2014 dated 30.12.2014.

I would give my observation regarding transparency process once I would determine as to whether the Defendants Nos. 1 to 4 were justified in rejecting the plaintiff's product/bid offered for subject tender through Defendant No. 6. There is no cavil to this proposition that previously instant products were being procured by Defendants Nos. 1 to 4 through tender documents containing requirements of FDA/EMA approval. The primary remark attributed to the refusal is of course that the drugs as offered by the plaintiff are not FDA/EMA approved. The tender documents are available as Annexure D to the plaint. It provides the definition for eligible bidders as 2.1 which is reproduced as under:--

“2.1 This invitation for Bids is open to all original Manufacturers, within Pakistan and abroad, and their Authorized Agents/importers/Suppliers subject to the conditions that:

(a) ISO Certified manufacturer with the following standard:

(i) ISO

(ii) GMP or FDA approved.”

Thus, no rocket science is required to determine the eligibility of the bidders as it says that the bidders should be ISO certified manufacturer having standard as (i) ISO (ii) GMP or FDA approved. The procuring agency itself has highlighted the eligibility that it should be either GMP, Goods Manufacturing Practices or Federal Drug Agency USA approved. There is no denial that the plaintiff is GMP certificated dated 19.06.2014. Thus, it appears that insofar as the eligibility is concerned, the plaintiff has succeeded in qualifying the eligibility criteria in pursuance of tender documents.

I would now deal with the evaluation criteria which is point No. 23 in the tender documents. The eligibility criteria is based on point system. It contains a chart of as many as 22 points which the eligible bidder would contest and procure points accordingly. The rejection or refusal note as available at page 441 at the very outset does not describe as to what evaluation method has been applied as these 22 points are totally absent in the determination and some other criteria for its evaluation was imported and applied. This rejection note does not even discuss as to whether evaluation criteria, as mentioned in the tender documents was ever observed and/or that in addition to this criteria they have applied some other evaluation method. The evaluation criteria which each individual/bidder would undergo would fetch him points and the net result of the point scored and obtained could lead to a decision for a successful bidder which is not the case here.

The counsel for the defendants except Defendant No. 6 have heavily relied upon two orders of the learned Division Bench; one passed in C.P. No. D-3300 of 2013 and the other in C.P. No. 6723 of 2014. Since wordings of these two orders are very important and relevant, therefore, I would reproduce the same as under:-

“C.P. No. D-6723/2014

The petitioner has impugned notice inviting tender bearing No. INF/KRY-3611/2014 for procurement of medical products of various categories mentioned therein for Hepatitis Prevention and Control Program as unlawful and violative of Sindh Public Procurement, 2010.

Counsel for the petitioner contends that the respondents have invited tender for procurement of substandard medical products for Hepatitis Prevention and Control Program. According to the counsel the petitioner was awarded tender for the years 2008-09, 2011-12 and 2013-2014 for the procurement of various medical products for the Prevention and Control of Hepatitis and the technical specification always provided that all the supplies/ medical products should be WHO certified FDA/EMA approved and the petitioner has been supplying high quality of such drugs for the last many years but this year the Respondents have deliberately and malafidely omitted such condition for obvious reason. Counsel while referring to the technical specification for 2013-14 contends that the specification clearly provide that all the supplies should be WHO certified/FDA/EMA WHO compliant, per counsel however, the technical specification of this year does not provide such condition leaving it open for the Respondents to procure substandard drugs. It was next contended that the respondents deliberately delayed providing tender documents to petitioner in order to oust him from submitting his tender. According to the counsel petitioner was issued belated tender documents on 11th December 2014, knowing it very well that it will not be possible for him to complete the lengthy process and requirement by 15th December 2014 which was the date for opening the bids. It is, therefore, prayed that the process be declared unlawful and the Respondents be directed to initiate de novo process of tendering.

On the other hand concerned Secretary Health has effected appearance and stated that the petition is mala fide as petitioner has failed to participate in the process and therefore, he wants de novo process, according to him the tendering process stands concluded and even the bids were opened on 18th December 2014. He has categorically denied that any drugs of inferior quality is being purchased by the Respondents in consequent to the tendering process questioned in this petition would be of the best quality WHO certified, FDA/ EMA approved/compliant. Secretary Health has other denied the allegations of not issuing timely documents to the petitioner. He has made a very categorical statement that no sooner the petitioner requested tender documents were provided to him through the same process as were provided to all. He further says that the petitioner was quite experienced as he has remained successful tenderer for the last 2-3 years, therefore, he knew the requirements and could have filed a form within three days which were sufficient even for a new comer to submit his offers.

As to the first contention, since the Secretary Health has made a categorical statement and has assured that all supplies in consequent to the tendering process, subject matter of this petition, would be of international standard therefore, apprehension of the petitioner regarding procurement of substandard drugs appears to be misplaced and therefore, is turned down. As to the allegation regarding belated supply of tender documents, firstly, this appears to be a factual controversy which cannot be entertained while exercising constitutional jurisdiction and secondly, the petitioner admittedly had received the documents on 11th December 2014 which were to be submitted on 15th December 2014, leaving four days to complete the tender documents which was sufficient time for a tenderer of his experience. No case of interference is made out. Petition is dismissed.

C.P. No. D-3300 of 2013

1. We have noted that the petitioner is not a manufacturer of the drug offered to Respondent No. 4. The actual manufacturer is Getz Pharma. The bid documents show that it is not necessary that the participants should be manufacturer only. It could be distributor, supplier and importer but such person should have good reputation and sound financial position so that if the drugs are found to be harmful or substandard appropriate proceedings could be initiated against solvent supplier. In the present case the actual manufacturer has not come forward to question the imposition of the condition. We are of the view that it is the prerogative of the purchaser to impose restriction. Purchaser want that not only the medicine has approval of the FDA or EMA but they also want that some reputable and soured party should come forward. As the Getz Pharma which is actual manufacturer of the drug in question would have been appropriate party to defend its position but it chose not to take any legal action. We are, therefore, not inclined to interfere in such circumstances in our Constitutional Jurisdiction and dismiss this petition. However. Gets Pharma shall be at liberty to establish before the concerned Authority that the efficacy of its drug is equal to the drug having approval of FDA or EMA so that in future it may compete.”

Insofar, as orders passed in C.P. No. D-3300 of 2013 is concerned the petition was dismissed on the ground that it was not filed by the Manufacturer of the drug in question itself and since manufacturer self was not before the Court to challenge the imposition of the conditions, therefore the petition was dismissed as it was held that it was the prerogative of the purchaser to impose restriction as it deem fit. It is thus observed that it would be the buyer/purchaser who could impose conditions at the time the tender is floated which conditions of course could neither be arbitrary nor illegal since such parameter is also framed by the Procurement Rules of 2010, therefore, in my opinion though it is prerogative to set terms of the tender but in accordance with law and/or Procurement Rules of 2010. Hence, the defendants would gain nothing on the basis of this order as it only provides support to the plaintiff who has filed this suit as being manufacturer of the drug which was offered in response to the tender through its agent i.e. Defendant No. 6 and aggrieved and affected party in terms of above order. Whether an agent could be termed as aggrieved or affected party, since this issue is sub judice before Hon'ble Supreme Court therefore no comments are required.

Insofar as the imposition of terms is concerned, there is no doubt that on this tender the condition of approval of FDA/EMA was lifted.

Now I would deal with the order of 30.12.2014 passed in C.P. No. D-6273 of 2014 on the basis of which bid of the plaintiff was declined. Apparently it appears that drugs of the plaintiff were declined on 26.12.2014 however the arguments of the defendants except No. 6 tried to establish that in fact it was adjourned to 30.12.2014.

Firstly, the arguments are contrary to the pleadings which state that the decision was already taken on 26.12.2014. Why would it be adjourned to 30.12.2014 when the decision had already been taken. On the contrary if the bid was opened and it was adjourned to 30.12.2014 why it has been said that the evaluation committee of experts/doctors have decided the efficacy on 26.12.2014. The contrary statements of the defendants, particularly of Defendants Nos. 1 to 4, who have not only admitted that the bid was rejected on 26.12.2014 which was dispatched on 30.-12.2014 but have also admitted in terms of Para 13(ii) of the synopses that there was no criteria at all to evaluate the Peglated Interferon Alfa 2a on 18.12.2014 which is the initial time of opening of the technical bid. This reply of Defendants Nos. 1 to 4 is misconceived, mala fide and arbitrary. The synopsis filed by defendants is in term of pleadings and also form part of record now. It appears that these arguments were made without looking at the tender documents which provide an evaluation criteria based on point system. Hence, any novel criteria which is alien to the tender terms would be an unjustified and arbitrary imposition and that too after the bids were opened.

I would now discuss the order dated 30.12.2014 passed by learned Division Bench in C.P. No. D-6723/2014. It appears that the petitioner has filed the petition challenging present terms of the tender that the respondents have invited tender for procurement of substandard medical products/medicines of Hepatitis Prevention and Control Program. The petitioner therein argued that he was awarded contract for the previous years in respect of drugs/medicines which were. WHO certified and FDA/EMA approved and such drugs are being supplied to them. It was further emphasized by the learned counsel appearing for the petitioner therein that the technical specification of the previous tender provides that it should be WHO certified, FDA/EMA approved however such has not formed part of the present tender documents which proves that the respondents intend to procure substandard drug. Hence, he has filed the petition that the process of such procurement be declared as null and void and to initiate de novo process. On this contention the concerned Secretary Health appeared and denied the contention that since he has failed to participate therefore he wants de novo process. It is further contended that the tendering process stands concluded and even the bids were opened on 18.12.2014 and the concerned Secretary denied that any product of inferior quality was being procured. He however stated that through the subject tendering process the best quality medicines WHO certified, FDA/EMA approved are being procured. Learned Division Bench has disposed of the petition on the assurance of the Secretary that the medicine so procured would be of international standard. There was no such observation of the learned Division Bench insofar as approval of FDA/EMA is concerned, neither it could be as by that time the tender documents were already opened and it is inconceivable that at such stage such an alien condition could have been imposed. Rest of the orders of the learned Division Bench is not relevant as it deals with the personal grievance of the petitioner that he was not supplied the documents.

In my view the above referred order does not stipulate a condition of FDA/EMA approval. Whatever statement or undertaking claimed to have been given to the Court has not formed part of the order nor it could be in view of the above facts. There can be no two views that the plaintiffs drug Unipeg is being exported and that it has support of GMP issued for the purpose of export.

Insofar as provisions of Rules 2010 is concerned, Rule 4 thereof provides that while procuring goods or services, procuring agency shall ensure that the procurements are conducted in fair and transparent manner and the object of procurement is to bring value for money to the agency and the procurement process is efficient and economical. In the instant case it is a matter of fact that the price at which the plaintiff has offered the subject drug/medicine is much less than at that which Defendants Nos. 1 to 4 have procured from Defendants No. 7 who is agent of Defendants Nos. 5 and 8. The price could only become irrelevant had there been a transparent method adopted in procurement as then the efficacy of the drug would play a role.

Insofar as Rule 13 of Rules 2010 is concerned it deals with the specification, it allows the widest possible competition and that it shall not favour any single contractor or supplier nor put others at a disadvantage. It also emphasized that such specifications shall be generic and shall not include references to brand names, model numbers, catalogue numbers or similar classifications unless otherwise required.

Rule 21 of the Rules 2010 provides that the bidding documents shall include detailed and unambiguous evaluation criteria in terms of Rule 21(h). If at all it is claimed that there was no evaluation criteria as admitted by Defendants Nos. 1 to 4 then the matter should have ended here. Though the evaluation criteria is available in terms of Point 23 of tender terms however if at all it is claimed that there was no such evaluation criteria then it is highly unjustified to evaluate such medicine subsequent to the tenders being floated and opened at their own whims and wishes and self-designed reasons were imposed. Sub-rule (2) of Rule 21 also provides that any information that becomes necessary for bidding or for bid evaluation after the invitation to bid or issue of the bidding documents to the interested bidders, shall be provided in a timely manner and on equal opportunity basis. Where notification of such change, addition, modification or deletion becomes essential such notification shall be made in a manner similar to the original advertisement.

Rule 26 of the Rules 2010 deals with re-issuance of tenders in view of any infirmity in the bidding document while in terms of Rule 36 thereof the procuring agencies were obligated to allow the interested bidders to participate in procuring procedure without regard to nationality, except in cases in which any procuring agency decides to limit such-participation to national bidders only or prohibit participation of bidders of some nationalities. Thus emphasize was made to the national bidders instead of ousting them by applying FDA/EMA approval, if otherwise the drug meets the international standard as required in pursuance of tender terms in the instant case.

Rule 44 of Rules 2010 also provides that no procuring agency shall introduce any condition which discriminates amongst bidders. Certainty FDA/EMA approval means quality of high standard but then it can always be made a benchmark to provide medicines of equal standard if it is matched by other parties but it cannot be made the only condition precedent.

The rules discussed above emphasize that there should be no discrimination insofar as procurement of goods, services and works are concerned and that the quality that is being required could be asked to be matched with the best quality available in the market. It is certainly for the evaluation committee to decide that the drugs of the plaintiff are as good as the products which are required through tender. However this is not the case here as apparently in terms of refusal note 1 the plaintiff has been ousted on account of the fact that they are not FDA/EMA approved. It has not been said that their drug does not match the equivalence or the minimum standard prescribed by FDA/EMA. This debate is also not relevant for the simple reason that this term as to FDA/EMA approval is not at all included in the tender documents.

Hence, any import of terms, which may oust any of the parties contesting the bidding process, would amount to discrimination and in pursuance of the rules of procurement this condition would also deprive local manufacturers of drugs. Had there been a case of procuring agency that no such drug, as required, is being manufactured by the local manufacturers then imposition of such term FDA/EMA approval would be a better cause in defence but such is not the case here. Besides such discrimination it would be violative of Articles 18 and 25 of the Constitution.

Insofar as the expert opinion is concerned, the reliance was placed by the defendants on the deposition/statement of one Dr. Rademaker, however the same dees not contain any assertion which could under the law disentitle the plaintiff or could affect efficacy of drug. Opinion of the expert insofar as molecular weight is concerned is also not explained satisfactorily since Pegintron of Defendant No. 8 having a molecular weight of 12 KDa is being considered by the defendants favorably. This fact cannot be ignored that Peglated Interferon Alfa 2a of the plaintiff is being prescribed by a number of doctors and hospitals such as .Agha Khan Medical University Hospital, Mayo Hospital Lahore, Fatima Jinnah Medical College Lahore, Services Institute of Medical Sciences, Lady Reading Hospital Peshawar, Liaquat National Hospital, Ayub Teaching Hospital Abbottabad, besides a number of leading doctors.

Insofar as the issue relating to the availability of this drug, in country of its origin is concerned, this is hardly sustainable as this drug is being manufactured by the plaintiff in their laboratories which laboratories have been considered as one of the few in eastern Mediterranean region, Insofar as efficacy and biogenrics and Phase I-IV trial for bio similarity is concerned, learned counsel for the plaintiff has relied upon the research that has been filed along with statement on 09.02.2015. In the light of such research available and the recommendation by renowned hospitals and doctors, the alleged deficiencies as referred in the letter impugned dated 26.12.2014 creates enough doubt that they are less efficacious or not efficacious.

Insofar as the efficacy of Pegylated Interferon Alfa 2a being 20 KDa is concerned the research is also available as Annexure G/XX with all its beneficial effects. It is claimed that the country such as Egypt has highest HC prevalence in the world mostly genotype 4 and it has been tested and the evaluation report is available as Annexure G/XX and H/XX (Pages 1453 and 1459) respectively. In view of such facts and circumstances by a stroke of decision it cannot be said that it is not recommended for human therapy when it is being recommended by renowned hospitals and doctors.

The other requirement that such Pegylated Interferon Alfa 2a should have 40 KDa was never specified in the tender documents and hence on this score alone it cannot be refused as on the contrary Pegintron Alfa 2b of molecular weight of 12 KDa is being accepted on the assertion that it is for children and under-weight patients.

It is also very significant to point out that Defendants Nos.3 and 4 in their tender documents have shown the drug Pegintron as 40 KDa (Page 539 under heading 'Schering Plough' at Sr. No. 6 Part II) which is also admitted by Defendant No. 8. It appears that the only document relied upon by Defendants Nos.3 and 4 to substantiate the claim as to molecular weight of plaintiff product being not fit for human therapy is Email dated 29.10.2014. The solitary document, as mentioned, is neither addressed to this Evaluation Committee nor it relates to them as the aforesaid letter firstly is of a date much before the tenders were floated and secondly this email does not concern and/or is in reference to the subject tender. The conduct of these defendants also become highly doubtful as Dr. Hassan Mehmood addressed to Sammi HPCP of Baluchistan as to recommendation of 40 and 12 KDA Peg Interferon but Dr. Sammi of Hepatitis Program of Balochistan had issued letters of appreciation and praised plaintiff's medicine Unipeg (pages 501, 505 and 509-509 Part II) and they have been awarded contract of this medicine for the last two years for Balochistan

There is also research available to show that the Pegylated Interferon could carry molecule weight of 5 KDa to 40 KDa; relevant research is available at page 1479 Part II.

Insofar as efficacy and bio-generics and Phases I to IV, trials for bio-similarity is concerned all that has been said in the letter rejecting the bid was that such trials are not available although the bid documents submitted by the plaintiff show the status containing these trials which otherwise is admitted by Defendants Nos.3 and 4. Such reports are also stated to have been published however it claimed that they are not published as much as Ropegra (Pegasys) was. In support of these trials on animals and humans the plaintiff has filed a number of documents which learned counsel for the plaintiff has referred during course of his arguments and are available on record.

Though it is secondary issue insofar as cost of these lifesaving drugs is concerned but when these medicines/drugs are at least at par to each other then this would play a pivotal role as no justified reason would then be made available to procure the drug at a price of Rs. 5000/- or more as against Rs.2100/- which is being provided by the plaintiff.

Insofar as the preliminary issue relating to Rules 31, 32 and 32-A of SPP Rules, 2010 is concerned, Article 199 of the Constitution expressly contains bar that if efficacious remedy is available then petition would not lie however in case of civil suits, which are being filed in terms of section 9, C.P.C., the presence of remedy in terms of Rules 31, 32, 32-A SPP Rules does not bar civil suit. There is no ouster clause relating to the jurisdiction and section 23 which relates to indemnity bars suits against authority i.e. Sindh Public Procurement Regulatory Authority which is defined in section 2(a) of SPP. Act 2009 whereas the suit revolves around procurement agency which is separately defined in terms of section 2(cc) of SPP Rules, 2010. Even otherwise the mala fides attributed against these procuring agencies would be sufficient for entertaining suit as only those facts which are performed under the Act could be hit by the ouster clauses. The question as to whether Rule 31 of the ibid law provides an efficacious remedy is also a question which requires determination since the officials/procuring agency, against whom the complaint is made, are the officials forming part of the Committee for complaint redressal hence independent forum to undo their own wrong is not available.

The paramount consideration while entertaining such question is of course transparency as to the acts performed by public functionaries i.e. Defendants Nos. 1 to 4 while awarding the contract.

In the case of M.N: Construction Co. v. Federation of Pakistan (PLD 2013 Islamabad 85) while relying upon the judgment of the apex Court the learned Judge has observed that it is imperative to scrutinize the arbitrary functions and colourable exercise of power of the functionaries which prima facie involves looting/plundering of public exchequer by the executive functionaries in a manner which is not only discriminatory but also smells mala fide.

In the case of Asaf Fasihuddin v. Government of Pakistan (2014 SCMR 676) the Hon'ble Supreme Court has held that it is a duty of the Court to ensure that the relevant laws are adhered to strictly to exhibit transparency. It is universally recommended principle that the transaction involving public money must be made in the transparent manner for the satisfaction of the people who are the virtual owners of the national exchequer which is being invested in these projects.

The government is the trustee of all the amounts of the State and that these trustees should act in a manner which should be transparent and the paramount consideration should be to protect the financial interests of the State.

Insofar as the question of laches is concerned, it may be observed that in such cases where the action apparently and prima facie appears to be mala fide or colorable exercise of power and not transparent and/or not in the manner as required in terms of Procurement Rules, 2010, the laches would not be an appropriate deference in such cases. If any reference is needed one may look at the case of Mirpurkhas Sugar Mills v. Federation of Pakistan (2013 MLD 433).

Insofar as ouster clauses are concerned, it is needless to repeat that in case the exercise of power if found to be violative of law or tainted with mala fides the Civil Court has the ultimate .jurisdiction to take cognizance of such matter. Reliance is placed on the case of Province of the Punjab v. Haji Yaqoob Khan (2007 SCMR 554) and the case of Hamid Hussain v. Government of West Pakistan(1974 SCMR 356).

The Hon' ble Supreme Court in the case of Abbasia Cooperative Bank v. Hafiz Muhammad Ghaus (PLD 1997 SC 03) has held as under:--

“5. The next question which arises for consideration in the cases is, whether the Civil Court was competent to examine the validity of the auction conducted by the authorities? The Civil Court under section 9 of the Code of Civil Procedure are competent to try all suits of civil nature except those or which their jurisdiction is barred either expressly or by necessary implication. It is a well-settled principle of interpretation that the provision contained in a statute ousting the jurisdiction of Courts of general jurisdiction is to be construed very strictly and unless the case falls within the letter and spirit of the barring provision, it should not be given effect to. It is also well-settled law that where the jurisdiction of the Civil Court to examine the validity of an action or an order of executive authority or a special tribunal is challenged on the ground of ouster of jurisdiction of the Civil Court, it must be shown (a) that the authority or the tribunal was validly constituted under the Act; (b) that the order passed or the action taken by the authority or tribunal was not mala fide; (c) that the order passed or action taken was such which could be passed or taken under the law which conferred exclusive jurisdiction on the authority or tribunal; and (d) that in passing the order or taking the action, the principles of natural justice were not violated. Unless all the conditions mentioned above are satisfied, the order or action of the authority or the tribunal would not be immune from being challenged before a Civil Court. As a necessary corollary, it follows that where the authority or the tribunal acts in violation of the provisions of the statutes which conferred jurisdiction on it or the action or order is in excess or lack of jurisdiction or mala fide or passed in violation of the principles of natural justice, such an order could be challenged before the Civil Court in spite of a provision in the statute barring the jurisdiction of Civil Court. In the case before us, the action of the Cooperative Authorities in auctioning the suit property for recovery of the loan against Respondent No. 1 was challenged in the suit as contrary to the provisions of the Ordinance and M.L.O. 241.”

Insofar as undertaking is concerned learned counsel for the plaintiff has relied upon Naveed Nawazish Malik v. Ghulam Rasool Bhatti (1997 SCMR 193) on the pretext that though there is no such undertaking given yet such undertaking is required to form part of the order and in absence thereof it does not amount to be an undertaking to the Court.

On minutely observing order of learned Division Bench whereby in C.P. No. D-6723 of 2014 was disposed of it cannot be squeezed out from the order that insofar as applicability of PDA/EMA approval is concerned that forms part of order. Rather it has been rightly observed by the learned Division Bench that it is the prerogative of the authorities concerned to impose conditions and restrictions as they deem fit and proper and since no such condition was prescribed in the tender as to FDA/EMA therefore it cannot be ascertained that such condition was imposed in pursuance of order referred above. All that was ordered was that the medicine/drug so procured should not be substandard and in fact should be of international standard.

In the case of Abdur Rehman v. The State (2001 YLR 749) learned Division Bench observed that insofar as expert opinion is concerned that must be based on reasons for giving such opinion as expert and any opinion not backed by sound reasons is to be discarded and thrown out of consideration. Same observation was made in the case of Muhammad Aslam v. Allah Ditta (1989 MLD 3325). In the instant case also prima facie it appears that the expert opinion relied upon by Defendants Nos. 1 to 4 is without any reasoning.

In the case of Provincial Quality Control Board v. Irza Pharma (1992 MLD 481), learned Division Bench of Lahore High Court has observed as under:--

“6. …..There is nothing on the record to show, as to what is the nature of the particles found in the samples, and what are its consequences. If we allow these reports to hold the field, we would thereby give a long handle to the functionaries under the Statute to victimize anyone they choose. We cannot allow the way of arbitrariness and the capricious course of action to be adopted by the functionaries so as to render the lives of the citizens miserable. It is well settled that when the law requires a particular thing to be done, it should be done in that way, or not at all. The learned single Judge rightly held that the term substandard drug with particles is not known to the Drugs Act; and that is true. We have reproduced earlier the definition of the adulterated, spurious and substandard drugs. To hold the samples as spurious or adulterated drugs, it was incumbent upon the Government Analyst to state so, or to declare the same as filthy, putrid or decomposed or to contain vermin, worm, rodent or insect or the same had been prepared under the unsanitary conditions so as to be contaminated with dirt, filth or any foreign matter, whereby it could have been rendered injurious to the health. A careful perusal of the definition of the adulterated drug clearly lays down the test and a report which does not conform to the test provided by law cannot be considered to be valid and legal report. Similarly, we have also considered the reports of the Government Analyst within the meanings of the definition of the spurious drugs, but the same also fall outside, the category of the said definition.”

Similarly in the case of Kakasian Pharmaceuticals (Pvt.) Limited v. Government of Punjab (2003 YLR 3056) it was observed as under:--

“7-A. The perusal of the reports and the definitions of the adulterated drug and the substandard drug would show that the report issued by the Central Drug Laboratory at Karachi does not indicate any filthy, putrid or decomposed substance or which, contains any foreign matter, vermin, worm, rodent or insect or the drug has been manufactured, packed or held under unsanitary conditions whereby it may have been contaminated with dirt, filth or any other foreign matter or whereby it may have been rendered injurious to health and simply remarking that the sample contained suspended particles which are visible to the naked eye would not be sufficient to declare the drug as substandard and adulterated and so far the second report issued by the Drugs Control and Traditional Medicines Division, National Institute of Health, Islamabad, is concerned it has been mentioned in the column of remarks that manufacturer as repeatedly directed to supply complete specification/method of testing but he failed to respond within stipulated time and on basis of the test the sample was found of substandard quality and whereas the order dated 5-7-2002 is concerned, it indicates that Muhammad Iqbal Khan Executive of the Firm was provided an opportunity of personal hearing who was not a Technical Expert. Therefore, it looks that the entire exercise was completed with delay in collection of samples and preparation of the reports against the relevant provisions or the Drugs Act and that of giving of opportunity of hearing to the representatives of the firm who was not an expert, therefore, the circumstances require the re-start of the same exercise but in accordance with law and to be positively concluded by both the parties within two months from the date of drawing samples.

1. In view of above, reports dated 6-11-2000 and 17-4-2001 and also the order dated 5-7-2002 are set aside with the direction to decide the matter afresh in the light of the observations as made above by collecting the fresh samples in accordance with rules.”

The drug reports as available on record in relation to the medicine of the plaintiff, not only provide the analyses but also prescribes the standard as to the contents of the drug and the method applied to test a drug. These reports are issued by DRAP and in the presence of these reports it would be difficult to swallow the observation given by the technical committee and that too without reasoning.

Insofar as the question as raised by the learned counsel for Defendant No. 5 in relation to severability, it appears that all the points on the basis of which the bid in respect of drug of the plaintiff was declined are seriously interlinked and netted with each other. No doubt every possible explanation for validity of the decision of the public authorities should be explored however when some of the conditions imposed for the rejection which are interlinked with rest of the conditions are so colorable that none other but a non-transparent procedure is revealed and since they are interlinked the entire structure would tend to fall.

In the case of State Bank of Pakistan v. Franklin Credit and Investment Co. (2010 SCMR 121) it has been observed as under:

“Now, we need to examine whether an order based on several reasons should or should not be struck down if one or some of them are found to be bad in law. In our view, if the bad reasons are severable from the good ones and are not intertwined or inter-linked, an order passed by an administrative authority may not be quashed if otherwise sustainable on remaining valid grounds.”

Therefore the principle of severability, as relied upon by learned counsel for Defendant No. 5 could not be applied in the instant case. No doubt if any one independent ground and reasoning could stand alone to oust the plaintiff in the instant case then it can form a solitary ground to decline the plaintiff's stand however as observed all such points assigned in the rejection note are so closely interlinked that if any one falls it would take rest of the grounds and points with itself.

The case law relied upon by the learned counsel appearing for the defendants, except Defendant No. 6, are not applicable.

In view of above facts and circumstances the application is allowed as prayed however since these medicines are required for the hepatitis patients on priority basis therefore Defendants Nos. 1 to 4 may opt to float the tenders afresh for procurement in accordance with relevant laws and the observations as made above as by this order only interlocutory steps are taken and by any means it is not a final judgment.

(R.A.) Application allowed

PLJ 2016 Lahore 1

Present: Erum Sajad Gull, J.

MALIK SHERAZ ZAFAR--Petitioner

versus

STATE, etc.--Respondents

W.P. No. 20527 of 2015, decided on 4.9.2015.

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

----S. 540--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Permission for summoning witnesses and to exhibit documents were not allowed--Challenge to--Erred in law by not allowing to exhibit documents--If such documents will not be able to prove elementary issue of serious fraud committed by accused--Validity--Trial Court has been given wide discretionary powers to summon all relevant evidence at any stage of trial, necessary to decide controversy--If documents desired to be exhibited by petitioner were even remotely found necessary for just conclusion of trial, documents would be allowed to be exhibited--Petition was accepted. [Pp. 4 & 5] A & B

PLJ 2005 Lah. 563, PLD 2007 Kar. 194, 2012 PCr.LJ 73 Lah. 2002 SCMR 468, 2001 SCMR 308, 2001 YLR 746, PLD 1994 Lah. 93, rel.

M/s. Muhammad Ehsan Bhoon and Chaudhry Rab Nawaz,Advocates for Petitioner.

Mr. Muhammad Nasir Chohan, Addl. A.G. for Punjab for State.

Mian Ghulam Rasool, Advocate for Respondents.

Date of hearing: 4.9.2015.

Order

The captioned Constitutional Petition has been preferred on behalf of the petitioner to assail the legality of impugned order dated 26.2.2015 through which the learned Additional District Judge Faisalabad dismissed petitioner’s criminal revision against the impugned order dated 1.11.2014, whereby, the Judicial Magistrate Section 30, Samundri, dismissed petitioner’s application moved in terms of Section 540, Cr.P.C., soliciting permission for summoning witnesses and to exhibit certain documents.

1. Brief facts of the case are that the petitioner lodged F.I.R. No. 383 dated 18.06.2011, under Sections 420, 467 and 471, PPC, at Police Station City Samundari, District Faisalabad, stating that on 06.01.2000 accused Bilqees Bibi, Syeda Jillani (Respondents No. 5 and 6) and their deceased sister namely Jameela Begum were offered plot No. 80 by CDA Islamabad in the Orchard Scheme Murree Road Islamabad in lieu of their previous allotment. It was further submitted that Mst. Jameela Begum deceased mother of the accused Zafar Iqal, Respondent No. 8, died on 05-05-1999 before the plot was offered. But the accused Zafar Iqbal Respondent No. 8, in connivance with his co accused real aunts Respondents No. 5 and 6 did not disclose the factum of demise of Mst.Jamila Begum so that they were able to maneuver the allotment without any legal hurdles. Respondent No. 8 Zafar Iqbal then prepared a forged General Power of Attorney of his mother Mst.Jameela Begum, Respondents No. 5 and 6 in his favour even though his mother was not alive at that time. And from the aforesaid plot, a portion was sold to the petitioner fraudulently against consideration of huge amount, but the plot could not be transferred in favour of the petitioner causing him serious and substantial financial loss.

2. The learned counsel for the petitioner has argued before this Court only to the extent of placing on record some important documents germane for just and fair adjudication of the lis. The counsel argued that the trial Court erred in law by not allowing the petitioner to exhibit the important documents, inasmuch as, the whole case of the petitioner revolves around the judicial determination of these crucial documents. Once these documents are allowed to be placed on record, the fraud committed by the respondents will be proved, and if these documents are not permitted to be exhibited, then the petitioner will not be able to prove the elementary issue of serious fraud committed by the accused of the F.I.R. The learned counsel further argued that as the accused/respondents are very influential, therefore, the Police refused to place these crucial and vital documents on record. The learned counsel further argued that all these documents solicited to be exhibited are duly mentioned in the F.I.R and in the statements of the prosecution witnesses, therefore, the Court could not have refused to exhibit per se admissible documents. The learned counsel elaborated that at the time of recording the evidence, the questioned documents were not allowed to be exhibited by the trial Court on the ground that they were the photo copies, and at that time certified copies were not available, which have now become available, but the trial Court arbitrarily and summarily refused to allow the petitioner to exhibit the said documents causing irreparable loss and grave miscarriage of justice. Hence, it was prayed that this petition be accepted with the consequence that the list of documents annexed with the writ petition and duly mentioned in the F.I.R be allowed to be exhibited. The counsel relied upon (PLD 2007 Karachi 194) Begum Salma Ahmed Versus The State through Chairman, (2012 P.Cr.L.J 73 Lahore) Rizwan Ahmad and 5 others Versus The State and another, (2002 SCMR 468) Abdul Hamid Mian Versus Muhammad Nawaz Kasuri, (PLJ 2005 Lahore 563) Muhammad Ishaq Versus State and 6 others, (2009 YLR 1449 Karachi) Chaman Aslam versus Muhammad Aurangzeb and another,(2001 SCMR 308) The State Versus Muhammad Yaqoob and others, (2001 YLR 746 Lahore) Mst Shama Akram versus Muhammad Latif @ Teefa @ Liqat and 7 others and (PLD 1994 Lahore 93) Nusrat @Nusree versus The State.

3. The learned counsel for the respondents and the learned Additional Advocate General argued that the impugned orders of both the Courts below have legally and concurrently declined petitioner’s prayer with lawful authority and jurisdiction, therefore, this writ petition being misconceived, merits dismissal. It was also contended that the petitioner has no case, inasmuch as, he malafidely filed the application for summoning of witnesses and placing some documents on record just to fill in the lacunas in the case. And if this writ petition is allowed, then this litigation will have no end. To substantiate his contentions, learned counsel for the respondents relied upon (2014 P.CrL.J 108 Shariat Court AJ&K) Abraiz Babu and 2 others versus The State and another, (2010 P.Cr.LJ 1051 Lahore) Noor Muhammad Versus Amin and others (PLD 2001 Supreme Court 384) Dildar Versus The State through Pakistan Narcotics Control Board Quetta.

4. The learned counsels have been heard at length and with their able assistance, the record before this Court was also perused. The case laws relied upon by the counsel for the respondents emanating from different facts and circumstances are not applicable to the case in hand, therefore, the reliance of the learned counsel on the aforesaid judgments is misconceived. Both the Courts below dismissed the application of the petitioner primarily on the ground that if the said documents were allowed to be exhibited in the statement of the Prosecutor, the right of the accused would be prejudiced. On perusal of the F.I.R and the statements of the prosecution witnesses it is evident that detail of the said documents is duly and categorically mentioned, hence the accused/respondents will not be taken by surprise if the said documents are allowed to be exhibited. Admittedly the evidence has not been closed yet and of course the defence can rebut these documents by producing evidence. Even otherwise the Court has the power not to rely on the said documents if they are not convincing.

5. The Honourable Supreme Court in the case reported as PLD 2013 Supreme Court 160 Nawabzada Shah Zain Bugti and others versus The State, held that the trial Court should not summarily dismiss an application under Section 540, Cr.P.C. merely on the grounds that it was filed just to fill lacuna of the case or that it was a belated application. The trial Court was under an obligation to scrutinize the material before it and then come to a decision whether the said material placed before the trial Court was essential for a just and proper decision of the case or not.

6. It is the duty of the trial Court while hearing a case, to dig out the truth of the case and for that the trial Court should carefully scrutinize all evidence before it and even call for the evidence that is crucial for the just decision of a case. Under Section 540, Cr.P.C. trial Court has been given wide discretionary powers to summon all relevant evidence at any stage of the trial, necessary to decide the controversy in question. In the first part of the Section 540, Cr.P.C. the Court may in its discretion summon for evidence but under the second part, it is compulsory upon the Courts to summon the evidence essential for the just decision of the case.

7. Apparently both the Courts below have failed to exercise their powers vested in them under the law thereby causing irreparable loss and miscarriage of justice, therefore, case for interference and invalidation of both the impugned orders is made out. While accepting this petition, both impugned orders of the Judicial Magistrate Samundari dated 1.11.2014 and that of the learned Additional District Judge Faisalabad dated 26.6.2015 are set aside with direction to the trial Court to decide the application of the petitioner afresh, after scrutinizing/evaluating all the documents which the petitioner wants to exhibit, and thereafter to pass a speaking order as to whether documents intended to be exhibited are necessary for the just and proper decision of the case or not. If the documents desired to be exhibited by the petitioner are even remotely found necessary for a just conclusion of the trial, the said documents should be allowed to be exhibited. Of course, the respondents would also be allowed to further cross-examine the witnesses and to raise any/all objections on the admissibility of the said evidence and to produce defense evidence in rebuttal if they so desire. Petition accepted. Case remanded to the Trial Court.

(R.A.) Petition accepted

PLJ 2016 Lahore 5 (DB)

Present: Muhammad Anwaar-ul-Haq and Mrs. Erum Sajad Gull, JJ.

Mst. NUSRAT PERVEEN--Petitioner

versus

HOME DEPARTMENT, etc.--Respondents

W.P. No. 22496 of 2015, decided on 1.9.2015.

Constitution of Pakistan, 1973--

----Art. 199--Criminal Procedure Code, (V of 1898), S. 381--Pakistan Prisons Rules, 1978, R. 350--Pakistan Penal Code, (XLV of 1860), Ss. 302(b)449 & 34--Constitutional petition--Conviction and sentence was confirmed and maintained by Supreme Court--Black warrant--Mercy petition was dismissed--Question of maintainability of petition--Accused had availed all legal remedies available to him against his conviction and execution and his repeated mercy petitions to President of Pakistan were not accepted, even though he was paralyzed at that time--Neither petitioner nor accused chose to challenge dismissal of mercy petitions before any forum--Law is clear that in Pakistan ball is always in Court of legal heirs of a deceased person and they can pardon an accused even at eleventh hour--Petitioner still has a chance to avail that remedy to set-aside execution of accused if legal heirs of deceased agree to do so--Writ jurisdiction is not proper forum to suspend or set-aside execution of a death sentence. [Pp. 7 & 8] A, C & D

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

----S. 381--Right of compromise--Criminal law--Islamic law--Distinctive features--Criminal law of Pakistan has distinctive features as it gives right of compromise/pardon to legal heirs of a deceased person in murder cases as contemplated under Islamic law. [P. 8] B

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

----S. 382--Pakistan Prisons Rules, 1978, R. 350--Black warrant regarding execution--Discretion of superintendent--Pregnant woman--While hanging an accused person discretion lies with Superintendent as to how hanging is to take place--Only bar for execution is laid down in Section 382, Cr.P.C. and Rule 350 of Pakistan Prisons Rules, 1978 is that of a pregnant woman and there is no bar for executing a disabled accused. [P. 8] E

Ms. Sara Bilal, Advocate for Petitioner.

Mr. Muhammad Nasir Chohan, Additional Advocate General.

Raja Abdul Qayyum, Law Officer, Directorate of Prisons, Punjab, Lahore.

Dr. Shahid Ahmed, Senior Medical Officer, Central Jail, Faisalabad.

Mr. Muhammad Zubair, Deputy Superintendent and Mr. Muhammad Imran Assistant Superintendent, Central Jail, Faisalabad.

Date of hearing: 1.9.2015

Order

Petitioner (Mst.Nusrat Perveen) has filed the captioned Constitutional Petition for setting aside the black warrant dated 25.7.2015, regarding execution of her son Abdul Basit, primarily on the ground that he is permanently paralyzed being a chronic patient of tuberculosis meningitis. On 28-07-2015 this Court suspended the black warrant issued for 25-07-2015 till further Orders. Civil Miscellaneous Number 6499/15 was filed in the afore mentioned Writ Petition on 31.08.2015 praying that the Respondents Nos. 1 & 3 be restrained for submitting any further requests for issuance of black warrants until the mercy petition, dated 22-07-2015 of the accused Abdul Basit is decided. It was further prayed that the entire medical record of the son of the Petitioner be produced before this Court.

1. Brief facts of the case are that the petitioner’s son namely Abdul Basit was a nominated accused in case F.I.R No. 208 dated 31.03.2008 registered under Section 302/449/34 at Police Station A-Division Okara. The trial Court vide judgment dated 19.5.2009, sentenced him to death under Section 302(b), P.P.C. On appeal, his conviction and sentence was confirmed by this Court on 12-06-2012 in Criminal Appeal No. 772/2009 and finally his death sentence was upheld and maintained by the Honorable Supreme Court of Pakistanvide Order dated 13-12-2012 in Criminal Appeal No. 490-L of 2012. It has been mentioned in Paragraph No. 23 of the afore-titled Writ Petition, that the family of the accused Abdul Basit filed various mercy petitions before the President of Pakistan but all the mercy petitions were not accepted.

2. The Counsel for the Petitioner has argued that the petitioner’s son was initially lodged in the Sahiwal Jail and was later shifted to Central Jail Faisalabad. In February 2010 there was a clash between the jail authorities and the prisoners of Faisalabad Jail. The son of the petitioner and other jail prisoners confined in Faisalabad jail were subjected to severe torture by the then Superintendent of jail, they were kept in inhumane conditions due to which the petitioner’s son contracted infection and is now paralyzed. The counsel has further argued that as the accused Abdul Basit, has become medically unfit therefore he cannot be executed according to Rule 356 of The Pakistan Prison Rules, 1978. And his execution will violate Articles 9, 13, 14 and 25 of The Constitution of Islamic Republic of Pakistan, 1973. The learned counsel relied upon a number of case laws which are jotted down in the Writ Petition.

3. The Learned Additional Advocate General and the Counsel for the Complainant vehemently opposed the Writ Petition and argued that the death sentence of the accused Abdul Basit has attained finality hence the Writ Petition be dismissed and he be executed as per law.

4. Arguments heard. Record perused. It is admitted that the son of the petitioner, accused Abdul Basit has availed all the legal remedies available to him against his conviction and execution and his repeated mercy petitions to the President of Pakistan were not accepted, even though he was paralyzed at that time. Neither the petitioner nor the accused Abdul Basit chose to challenge the dismissals of the mercy petitions before any forum.

5. The criminal law of Pakistan has distinctive features as it gives the right of compromise/pardon to the legal heirs of a deceased person in murder cases as contemplated under the Islamic law. Chapter XXVIII of the Code of Criminal Procedure, 1898, is on Execution. Proviso of Section 381, Cr.P.C. is reproduced as under:

“Provided, that the sentence of death shall not be executed if the heirs of the deceased pardon the convict or enter into compromise with him even at the last moment before execution of the sentence.”

The law is clear that in Pakistan the ball is always in the Court of the legal heirs of a deceased person and they can pardon an accused even at the eleventh hour. Hence the Petitioner still has a chance to avail this remedy to set-aside the execution of the accused Abdul Basit if the legal heirs of the deceased agree to do so.

1. We are of the view that the writ jurisdiction is not the proper forum to suspend or set-aside the execution of a death sentence. The proper forum for that is the Sessions Court as laid down under the Law given in Section 381, Cr.P.C., which is re-produced as under:

S. 381. Execution of order passed under Section 376.--When a sentence of death passed by a Court of Session is submitted to the High Court for confirmation, such Court of Session shall, on receiving the order of confirmation or other order of the High Court thereon, cause such order to be carried into effect by issuing a warrant or taking such other steps as may be necessary.”

1. We do not agree with the argument of the Counsel for the Petitioner that as the accused is now paralyzed he cannot be hanged as per the Prison rules. As there is no rule declaring the hanging of a disabled person as illegal. Rule 356(2) of the Pakistan Prisons Rules, 1978 is reproduced as under:

“The following scale of drop proportionate to the weight of the prisoner is given for general guidance, the Superintendent must use his discretion and also be guided by the advice of the Medical Officer and the physical condition of the prisoner.”

It is clear in the afore mentioned rule that while hanging an accused person the discretion lies with the Superintendent as to how the hanging is to take place. The only bar for execution is laid down in Section 382, Cr.P.C. and Rule 350 of The Pakistan Prisons Rules, 1978 is that of a pregnant woman and there is no bar for executing a disabled accused.

1. In the case titled ‘Shafqat Hussain Versus President of Pakistan and others’ Civil Petition No. 1127 of 2015 the Honourable Supreme Court of Pakistan dismissed the Appeal on 10-06-2015 and held that when all legal remedies have been exhausted then there will be no legal justification to suspend an execution and matter should be dealt in accordance with the laws of Pakistan and the International laws should be kept aside.

2. In a case titled ‘Maqbool Hussain @ Jamala Dogar Versus Federation of Pakistan and another’ in WP No. 19907 of 2015 vide judgment dated 12.8.2015 this Court did not stay the execution of an accused who had a similar plea that he could not be executed as he had lost both his legs. The Review Application No. 76 of 2015 was also dismissed by this Court on 20.8.2015.

3. As deliberated above, this Writ Petition is not maintainable and is dismissed. And upon dismissal of the main Writ Petition the Civil Miscellaneous No. 6499 of 2015 automatically stands dismissed. There is now no injunctive Order in field regarding the execution of the accused Abdul Basit.

(R.A.) Petition dismissed

PLJ 2016 Lahore 9 (DB)

Present: MuhammadAnwaar-ul-Haq and Mrs. Erum Sajad Gull, JJ.

BASHIR AHMAD--Petitioner

versus

STATE etc.--Respondents

W.P. No. 34275 of 2014, heard on 19.8.2015.

Constitution ofPakistan, 1973--

----Art. 199--Pakistan Penal Code, (XLV of 1860), Ss. 336-B, 452 & 34--Anti-Terrorism Act, (XXVII of 1997), S. 23--Constitutional petition--Application for transfer of case, allowed--Challenge to--Schedule offence is triable by special Court--Not sustainable in eyes of law--No nexus with terrorism--Jurisdiction--Validity--Offence committed by accused in instant case falls under Section 336-B, PPC and same duly reflects in Third Schedule to A.T.A.--Anti-Terrorism Court to exclusion of any other Court shall try offence relating to hurt caused by corrosive substance or attempt to cause hurt by means of a corrosive substance--M.L.C. clearly reflected that injuries on person of victim were result of acid--Petition was allowed.

[Pp. 10 & 11] A & B

M/s. Ch.Zaheer Ahmad Cheema and Muhammad Younas Bhullar, Advocates for Petitioner.

Ch. Muhammad Mustafa,Deputy Prosecutor General for State.

Ch. Muhammad AnwarBhinder, Advocate for Respondents.

Date of hearing: 19.8.2015.

Judgment

Muhammad Anwaar-ul-Haq, J.--Through this petition, the petitioner assails the order dated 15.12.2014 passed by the learned Special Judge, Anti-Terrorism Court-II, Gujranwala, whereby the application under Section 23 of Anti-Terrorism Act, 1997 moved by Respondents No. 2 and 3/accused for transfer of case F.I.R No. 200/2014 dated 15.05.2014 under Sections 336-B, 452, 34, PPC to a Court of ordinary jurisdiction has been allowed.

1. Learned counsel for the petitioner contends that offence under Section 336-B, PPC is a scheduled offence and is triable by the special Court constituted under Anti-Terrorism Act, 1997, therefore, the impugned order is not sustainable in the eyes of law.

2. Learned counsel for Respondents No. 2 and 3 has vehemently argued that irrespective of the fact that offence under Section 336-B, PPC has been included in the Schedule to Anti-Terrorism Act, 1997, the same has to be read jointly with the provisions of Sections 6 and 7 of Anti-Terrorism Act, 1997 as well as with the preamble of the Act and that the offences mentioned in the Schedule to the Act should have nexus with Sections 6 and 7 of Anti-Terrorism Act, 1997; further that the offence mentioned in the F.I.R has no nexus with terrorism as the alleged occurrence took place in a room of the house of the victim and that has not created any sense of fear and insecurity in the mind of public at large.

3. Heard. Record perused.

4. Law on the subject is very much clear. Section 12 of Anti-Terrorism Act, 1997 clearly provides that a scheduled offence committed in an area in a province shall be triable only by Anti-Terrorism Court exercising territorial jurisdiction in relation to such area. Offence committed by the accused in this case falls under Section 336-B, PPC and the same duly reflects in the Third Schedule to Anti-Terrorism Act, 1997. Plain reading of Section 336-A, PPC provides that “Whoever with the intention or knowingly causes or attempts to cause hurt by means of a corrosive substance or any substance which is deleterious to human body when it is swallowed, inhaled, comes into contact or received into human body or otherwise shall be said to cause hurt by corrosive substance”, and in the Explanation it has been clarified that “corrosive substance” also includes every kind of acid which has a corroding effect and is deleterious to human body. Paragraph No. 4(iv) of the Third Schedule to Anti-Terrorism Act, 1997 clearly postulates that the Anti-Terrorism Court to the exclusion of any other Court shall try the offence relating to hurt caused by corrosive substance or attempt to cause hurt by means of a corrosive substance. Medico-Legal Certificate issued in this case clearly reflects that the injuries on the person of the victim were result of acid.

5. Learned trial Judge while deciding the application of Respondents No. 2 and 3 has relied upon the judgment dated 23.04.2013 passed in Writ Petition No. 2902 of 2013 by another Hon’ble Division Bench of this Court and has been reported as 2013 P. Cr. L J (Lahore) 1880, and has further observed that the same has been upheld by the Hon’ble Supreme Court of Pakistan in Civil Petition No. 700 of 2013 titled “Malik Zafar Hussain vs. Saifullah Saleem Arshad & others”. We are afraid, the learned trial Judge remained totally fail to distinguish the present case than the case in the aforementioned Writ Petition No. 2902 of 2013 as in that case the matter under consideration was application of Section 7 of Anti-Terrorism Act, 1997 and the Hon’ble Supreme Court of Pakistan while dismissing Civil Petition No. 700 of 2013 filed against the judgment dated 23.04.2013 passed in Writ Petition No. 2902 of 2013 has observed as under:

“We have heard the learned counsel for the petitioner and have also gone through the impugned judgment, particularly Para 7 thereof reproduced herein above. The learned High Court after having taken into consideration the peculiar facts and circumstances of the case, rightly came to the conclusion that Section 7 of the Act does not attract in this case as the offence did not create panic or sense of insecurity among the people in terms of the provisions of the Act.”

The above referred paragraph clearly reflects that Section 7 of Anti-Terrorism Act, 1997 does not attract in the absence of any panic or sense of insecurity among the people as provided under the law itself, but the learned trial Judge remained oblivious of Para-5 of the judgment of the Apex Court wherein it has been observed as under:--

“In view of the foregoing discussion, we find no merit in this petition which is dismissed and leave to appeal is declined. However, we leave it open for examination the jurisdiction of Anti-Terrorism Court in respect of the offence of causing hurt by corrosive substance or attempt to cause hurt by means of a corrosive substance, as inserted in the Third Schedule vide notification noted herein above.”

In this case, there was no question of application of Section 7 of Anti-Terrorism Act, 1997 that, as observed by the Hon’ble Supreme Court of Pakistan, necessarily requires its nexus with the preamble of the Act, rather the matter only relates to the trial of offence against the respondents under Section 336-B, PPC that is a scheduled offence. In the case of Muhammad Yousaf vs. The State and another (PLD 2014 Lahore 644), another Hon’ble Division Bench of this Court after taking into consideration the facts and circumstances of a case relating to the similar offence has observed that the Special Court constituted under the Anti-Terrorism Act, 1997 shall have direct jurisdiction in the offences mentioned in Paragraph No. 4 of the Schedule to Anti-Terrorism Act, 1997 and no nexus is required to be searched for such scheduled offences as very commission of the said offences creates terror, panic and sense of insecurity amongst the general public. The Hon’ble Division Bench has also taken into consideration the case of Malik Zafar Hussain vs. Saifullah Saleem Arshad & others (Civil Petition No. 700 of 2013) supra and while dismissing the writ petitions filed against the orders of dismissal of applications under Section 23 of Anti-Terrorism Act, 1997 for transferring the matters to the ordinary Court has observed as under:--

“From the above mentioned verdict of the August Supreme Court of Pakistan, it is clear that above said judgment passed by the learned Division Bench of this Court was confined to the fact and circumstances of the case in question and point of jurisdiction in respect of the offences of causing hurt by corrosive substance or attempt to cause hurt by means of corrosive substances as inserted in Third Schedule was kept open for Anti-Terrorism Court.”

In the case of Rana Abdul Ghaffar vs. Abdul Shakoor and 3 others (PLD 2006 Lahore 64), the Hon’ble Division Bench of this Court has observed as under:--

“According to sub-section (1) of Section 12 of the Anti-Terrorism Act, 1997 an offence mentioned in the Third Schedule appended with the Anti-Terrorism Act, 1997 can be tried only by an Anti-Terrorism Court

constitutedunder the said Act and no other Court has any jurisdiction in that regard. The Third Schedule appended with the Anti-Terrorism Act, 1997 not only mentions the offence of ‘terrorism’ but also mentions other offences which now, through the above mentioned amendment introduced on 11.01.2005, includes an offence of abduction or kidnapping for ransom. This unmistakably shows that an Anti-Terrorism Court can try not only an offence of ‘terrorism’ as defined in Section 6 of the Anti-Terrorism Act, 1997 but it can also try any other offence which is declared by the law to be exclusively triable by such a Court.”

The same view has also been expressed in the case of Mst. Ruqqia Bibi vs. Special Judge, Anti-Terrorism Court and 2 others (2015 PCr.LJ 456).

1. Therefore, keeping in view the peculiar circumstances of this case and the case law referred above, this writ petition is allowed, the impugned order dated 15.12.2015 passed by the learned Special Judge, Anti-Terrorism Court-II, Gujranwala being not sustainable in the eyes of law is set aside resulting in dismissal of the application moved by the Accused/Respondents No. 2 and 3 for transfer of case to the Court of ordinary jurisdiction. However, the learned trial Court is directed to conclude the trial of the case within a period of four months after the receipt of this order.

(R.A.) Petition allowed

PLJ 2016 Lahore 13 [Multan Bench, Multan]

Present: MuhammadQasim Khan, J.

Mst. RIFFAT SATTAR--Petitioner

versus

GOVERNMENT OFPUNJAB, etc.--Respondents

W.P. No. 11995 of 2015, decided on 2.9.2015.

West Pakistan Civil Servants Pension Rules, 1963--

----Rr. 5.7 & 5.8--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Preparation of pension case of government employee--Despite expiry of almost one year pension case was not finalized--Challenge to--Pension of a retired government employee has to be sanctioned one month in advance of due date of his retirement and final payment order must be issued not more than a fortnight in advance thereof--It was a vested right and a legitimate expectation of a retiring civil servant, same being a right conferred by law, could not be arbitrarily abridged or reduced except in accordance with law--Pension has not been paid to petitioner despite expiry of about one year after her retirement and thus petitioner has suffered agony for a long period without their being any fault on her part--Such delay occurred mainly due to inefficiency or slackness on part of respondents authorities, therefore, that is deemed to be a fit case for initiation of criminal proceedings as well as simultaneous action for gross contempt--However, instead of opting for criminal action or contempt proceedings against concerned officials, writ petition was allowed in terms prayed for, and in order to set an example and to convey an alert for future to government functionaries deliberately delaying pension cases of retired employees for their nefarious designs, costs be paid to petitioner by Government of Punjab through Secretary education within six months from today. [Pp. 15 & 17] A, B & C

Syed Muhammad Ali Gillani, Advocates for Petitioner.

Mr.Mubashir Latif Gill,Assistant Advocate General with Tariq Hameed Bhatti, Deputy Secretary (Admn) Higher Education Department, Lahore.

Pir Masood-ul-Hassan Chishti, Advocate for Respondent University of Education with Ashiq Dogar Registrar University of Education, Lahore.

Date of hearing: 2.9.2015

Order

Precisely the facts of the instant case are that petitioner stood superannuated as Assistant Professor of Economics (BPS-18) from respondent-University of Education, Multan Campus, on 10.09.2014 and the grievance highlighted through this writ petition is that despite expiry of almost one year her pension case has not be finalized.

1. I have heard the arguments of learned counsel for the petitioner as well as the learned Law Officer and examined the available record.

2. Before proceeding further, it may be mentioned here that preparation of pension case of a government employee is regulated by The West Pakistan Civil Servants Pension Rules, 1963. Relevant Rules 5.7 and 5.8 under (Chapter-V. Application for grant of pension) are reproduced hereunder for facility of reference:-

“5.7 (i) A pension/gratuity which is certified by the Audit Officer shall be sanctioned by the authority competent to sanction the pension.

(ii) Orders sanctioning the pension may issue not more than one month in advance of the due date of retirement and the Audit Officer may issue the pension/pension payment order not more than a fortnight in advance thereof to the Treasury Officer who is to pay the pension/gratuity.

5.8. Date of commencement of pension--Apart from special orders, an ordinary pension is payment from the date on which the pensioner ceases to be in Government service. A gratuity (other than anticipatory gratuity) shall be paid in a single sum.”

It is thus quite obvious that pension of a retired government employee has to be sanctioned one month in advance of the due date of his retirement and final payment order must be issued not more than a fortnight in advance thereof. Furthermore, the Hon’ble Supreme Court of Pakistan in the case “Secretary, Government Of Punjab, Finance Department and 269 others versus M. Ismail Tayer and 269 others” (2015 PLC (C.S) 296), in clear words held that pension is not a bounty or an ex-gratia payment but a right acquired in consideration of past services. It was a vested right and a legitimate expectation of a retiring civil servant, the same being a right conferred by law, could not be arbitrarily abridged or reduced except in accordance with law.

1. Keeping in mind the above legal aspects, respondents’ authorities were directed to submit report and parawise comments. After going through the report submitted on behalf of Respondents No. 4 and 5 (University authorities), it is observed that successful completion of service tenure by the petitioner is a fact not disputed by them. Similarly, there is no plea available with respondents authorities that the petitioner carried any stigmatic service record, that any departmental inquiry was either pending or was in the offing or that in any way the petitioner herself contributed towards delayed finalization of her pension case. As such, no explanation, worth the name, has been put before the Court from respondents authorities as to why the pension case of the present petitioner was not finalized despite passage of nearly one year. Rather, it has been observed that in their earlier report/parawise comments the respondents-University of Education had tried to play deception with this Court by stating that there is no pendency on their part and complete cases of the petitioner has been forwarded to the concerned quarters well in time. Subsequently, however, when the Higher Education Department, Government of Punjab denied receipt of any such record in their office, it was only then that the University of Education authorities admitted their fault, thus the malafide on the part of the official respondents is manifest from their record itself.

2. In the case “Haji Muhammad Ismail Memon, Advocate (Criminal Miscellaneous Application No. 226 of 2006) reported in PLD 2007 Supreme Court 35), the apex Court while taking notice of slackness on the part of the government department in preparation of pension papers of the retired government employees expressed utter dismay as under:--

“It is pathetic condition that Government servants, after having served for a considerable long period during which they give their blood and sweat to the department had to die in a miserable condition on account of non payment of pension/pensionary benefits etc. The responsibility, of course, can be fixed upon the persons who were directly responsible for the same but at the same time we are of the opinion that it is an over all problem mostly in every department, where public functionaries failed to play their due role even in accordance with law. Resultantly, good governance is suffering badly. Thus every one who is responsible in any manner in delaying the case of such retired officers/official or widows or orphan children for the recovery of pension/gratuity and G.P. Fund has to be penalized. As their such lethargic action is in violation of Articles 9 and 14 of the Constitution of Islamic Republic of Pakistan, 1973. Admittedly it is against the dignity of a human being that he has to die in miserable condition and for about three years no action has been taken by the concerned quarters in finalizing the pension case and now when the matter came up before the Court, for the first time, they are moving in different directions just to show their efficiency and to clear their position before the Court. Such conduct on their behalf is highly condemnable and cannot be encouraged in any manner.”

In order to set guidelines for future, the apex Court in the said judgment issued the following directions:--

“We, therefore, direct that all the Government Departments, Agencies and Officers deployed to serve the general public within the limit by the Constitution as well as by the law shall not cause unnecessary hurdle or delay in finalizing the payment of pensionary/retirement benefit cases in future and violation of these directions shall amount to criminal negligence and dereliction of the duty assigned to them.”

For strict adherence to the above verdict, specific directions were issued to all the Chief Secretaries of the Provincial Governments as well as the Accountant Generals and the Account General Pakistan Revenue, Islamabad, to clear pension cases within a period not more than two weeks without fail.

1. But, as shall be seen from the facts of instant case, exactly on same lines the respondents authorities paid no heed to the directions of the Hon’ble Supreme Court of Pakistan, when the matter has come before this Court, they tried to shuffle their responsibility, as according to University of Education all the relevant papers were sent to the Secretary Higher Education and the stance of Higher Education Department is that pension case of the petitioner was not received to them, rather through letter dated 28th of August, 2015, the Registrar University of Education was requested to provide the papers, but he failed. In this respect a copy of written apology on behalf of Respondents No. 4 and 5 has been tendered, wherein, it is clearly mentioned that as a matter of fact one Additional Director (Admn), University of Education, had provided false information about forwarding of petitioner’s pension papers and as the said official was found responsible for delay, therefore, he has been asked to submit his resignation, he has resigned from office and the said issue is in the process. In any way, slackness and then concealment of facts on the part of official respondents is apparent from the record produced by them.

2. Be that as it may, the fact of the matter is that pension has not been paid to the petitioner despite expiry of about one year after her retirement and thus the petitioner has suffered agony for a long period without their being any fault on her part. Furthermore the documents now available on the file, go on to establish that such delay occurred mainly due to the inefficiency or slackness on the part of respondents authorities, therefore, this is deemed to be a fit case for initiation of criminal proceedings as well as simultaneous action for gross contempt of the above cited judgment of the apex Court. However, instead of opting for criminal action or contempt proceedings against the concerned officials, this writ petition is allowed in the terms prayed for, and in order to set an example and to convey an alert for future to the government functionaries deliberately delaying the pension cases of retired employees for their nefarious designs, I order that costs of Rs. 100,000/- be paid to the petitioner by the Government of Punjab through Secretary Education within six months from today.

It is however, for the Government of Punjab to recover the said amount from University of Education, Lahore.

(R.A.) Petition allowed

PLJ 2016 Lahore 18 [Multan Bench, Multan]

Present: MuhammadQasim Khan, J.

MUHAMMAD ANWAR--Petitioner

versus

ADDITIONAL SESSIONS JUDGE, etc.--Respondents

W.P. No. 14300 of 2011, decided on 2.9.2015.

Constitution ofPakistan, 1973--

----Art. 199--Criminal Procedure Code, (V of 1898), S. 161--Constitutional petition--Private complaint--Summoning of witness of calendar, allowed--Order was set aside by revision Court--Challenge to--Cursory statement--Validity--Cursory statements of the witnesses sought to be summoned by petitioner were not recorded, therefore, they could not be summoned, as in absence of their cursory statements accused would not have opportunity to confront them--Vast powers have been given to trial Court with regard to summoning of any person as witness but very slight condition that such person shall be acquainted with facts and will also be able to give evidence--Recording of cursory statement or statement under Section 161, Cr.P.C. is not requirement of law--Sole purpose of inserting these Sections in Cr.P.C. is that fair trial must be ensured--Names of witnesses sought to be summoned, were duly incorporated in calendar of witnesses which had been attached with private complaint--Accused/respondents would not have opportunity to confront them with their earlier statements under Section 161, Cr.P.C. or their cursory statements, has no backing of law, as when those witnesses would appear in witness box rival party would have ample opportunity to cross-examine them so as to shatter their testimony. [Pp. 19 & 20] A, B, C & D

Syed Jaffar Tayyar Bokhari, Advocate for Petitioner.

Mr.Mubashir Latif Gill, Assistant Advocate General and Ch. Muhammad Akbar Kamboh, Advocate for Respondents.

Date of hearing: 2.9.2015

Order

Briefly the facts of the case are that regarding an occurrence earlier the present petitioner got registered an FIR No. 193/2001 at Police Station Chab Kalan, but after cancellation of the said FIR, he filed a private complaint under Sections 452/148/149 P.P.C. against the private respondents, wherein, accused were summoned and charge sheeted. During trial the petitioner/complainant filed an application for summoning of the witnesses mentioned in the calendar of witness attached to the private complaint. The said application was allowed by the learned trial Court vide order dated 23.12.2009, but on a criminal revision filed by the respondents/accused the said order was upset by the learned Additional Sessions Judge vide order dated 27.03.2010. This order of the revisional Court is under challenge through the instant writ petition.

1. The contention of learned counsel for the petitioner is that the witnesses whose statements under Section 161, Cr.P.C. or for that matter their cursory statements are not recorded, cannot be subsequently summoned during trial for the purposes of recording their evidence, as it will prejudice the rights of the accused side.

2. The learned Law Officer assisted by learned counsel for the respondent/complainant opposed this petition by arguing that there is no bar in criminal law to summon a witness at any stage, whose statement is considered necessary by the learned trial Court to reach at fair determination of trial.

3. Heard. Record perused.

4. A perusal of the impugned order dated 27.03.2010 passed by learned Additional Sessions Judge, reveals that the same is based on the sole ground that cursory statements of the witnesses sought to be summoned by the petitioner were not recorded, therefore, they could not be summoned, as in the absence of their cursory statements the accused would not have opportunity to confront them. I am afraid the approach of the learned Additional Sessions Judge while allowing the criminal revision is totally misconceived. Section 244 (2), Cr.P.C. dealing with trial of cases by Magistrates and Section 265-F(2), Cr.P.C. relating to trials before High Court and Court of Sessions, when read together, in clear terms provide that the Court shall ascertain from the public prosecutor, or, as the case may be, from the complainant, the names of any persons likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution, and shall summon such persons to give evidence before it. It therefore, is quite clear that vast powers have been given to the trial Court with regard to summoning of any person as witness but very slight condition that

such person shall be acquainted with the facts and will also be able to give evidence. As shall be seen from the above referred provisions, recording of cursory statement or statement under Section 161, Cr.P.C. is not the requirement of law. The sole purpose of inserting these Sections in the Code of Criminal Procedure, 1898 is that fair trial must be ensured.

1. Here in this case, it is not disputed that the names of the witnesses sought to be summoned, were duly incorporated in the calendar of witnesses which had been attached with the private complaint. The ground that accused/ respondents would not have opportunity to confront them with their earlier statements under Section 161, Cr.P.C. or their cursory statements, has no backing of law, as when those witnesses would appear in the witness box the rival party would have ample opportunity to cross-examine them so as to shatter their testimony. As compared to the order of learned revisional Court, the learned trial Court/Magistrate Section 30, Mianchannu had passed a well reasons order on correct legal approach. Consequently, this writ petition is allowed, the order dated 27.03.2010 passed by learned Additional Sessions Judge is set-aside and the order dated 23.12.2009 passed by the learned trial Court is resurrected.

(R.A.) Petition allowed

PLJ 2016 Lahore 20

Present: Ch. Muhammad Masood Jahangir, J.

GOHAR ALI--Petitioner

versus

MUHAMMAD YOUSAF, etc.--Respondents

W.P. No. 26121 of 2011, heard on 2.9.2015.

West Pakistan Land Revenue Rules, 1968--

----R. 17--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--Appointment of permanent lumberdar--Controversy of eligibility to be decided according to law while taking into consideration requirements--Hereditary claim--Personal influence, character, ability and extent of property in estate--Validity--Appointment of lumberdar is purely an administrative matter and it is obligatory upon revenue hierarchy to appoint a suitable candidate as because office of lumberdar is a link between villagers and administration and suitability or otherwise regarding appointment to offer lies with relevant revenue authorities—M.B.R. had failed to consider qualifications of available candidates as per requirement of Rule 17 and parameters settled--Which has rendered impugned orders illegal, unlawful, ultra vires and without jurisdiction and same are amenable by High Court in exercise of writ jurisdiction. [Pp. 26] A, B & C

M/s. Hafiz Agha Rooh-ul-Amin Zafar and Qazi Muhammad Arshad Bhatti, Advocates for Petitioner.

Ch. Nawab Ali Mayo, Advocate for Respondent No. 1.

Mr. Muhammad Arif Yaqoob Khan, Addl. A.G. for Respondent No. 2 to 4.

Date of hearing: 2.9.2015

Judgment

The facts germane for the disposal of the instant Constitutional petition are that Muhammad Jaimal son of Sader Din was Lumberdar of the village Bhagokay Arain, Tehsil Chunain, District Kasur, who was removed from his office by the competent authority/District Collector vide his order dated 22.09.1942. The said vacancy was temporarily filled by the competent authority while appointing Barkhurdar father of Respondent No. 1 as Lumberdar of the said village and on his death the affairs of Lumberdari were handed over to Respondent No. 1 on temporary basis. The revenue hierarchy initiated process for the appointment of Lumberdar and applications were invited from the candidates. Gohar Ali, present petitioner, Muhammad Yousaf, Respondent No. 1 and Muhammad Ibrahim preferred their applications for the said post. The revenue staff right from Naib Tehsildar to Assistant Commissioner had recommended the present petitioner being eligible candidate for the said post. One of the above referred candidates, namely, Muhammad Ibrahim withdrew his application in favour of the petitioner and the District Collector, Kasurvide his order dated 01.02.2006 appointed the present petitioner as Lumberdar against the said vacant post. The order of the District Collector was assailed by Respondent No. 1 by filing an appeal before the Executive District Officer (Revenue), Kasur, which was dismissed vide order dated 23.08.2006. Being aggrieved, Respondent No. 1 brought R.O.R No. 1699 of 2006 before the Board of Revenue, which was accepted vide order dated 25.11.2009 and order dated 01.02.2006 passed by the District Collector as well as order dated 23.08.2006 delivered by the Executive District Officer (Revenue), Kasur was set aside and Respondent No. 1 was appointed as Lumberdar of the concerned village. The petitioner being dissatisfied with the said order filed Review Petition No. 428 of 2009 in ROR No. 1699 of 2006 before the Board of Revenue, which was dismissed vide order dated 29.10.2011. The petitioner being aggrieved of the orders dated 25.11.2009 and 29.10.2011 passed by Board of Revenue has assailed the same by filing the instant writ petition.

1. It is submitted by the learned counsel for the petitioner that impugned orders suffer from serious misreading and non-reading of record and were passed in a mechanical manner without application of judicious mind; that the Revenue field staff as well as the District Collector and Executive District Officer (Revenue) after considering the merits and demerits of the candidates rightly found the petitioner eligible for the post of Lumberdar, but the Member, Board of Revenue passed the impugned orders in complete derogation of record and without application of his judicious mind. It is further argued that Respondent No. 1 had been convicted in a criminal casevide F.I.R. No. 310 of 2002 registered under Section 430 of Pakistan Penal Code, 1860 at Police Station Kanganpur, District Kasur and a fine of Rs. 1,000/- was imposed against him, which was deposited by him, but the said fact has been ignored by the MBR/Respondent No. 4 while passing the impugned orders; that Respondent No. 1 also remained involved in a criminal case F.I.R. No. 285/2008 registered under Sections 302, 324, 148, 149 of Pakistan Penal Code, 1860; that Respondent No. 1 being not a man of good character was not entitled for the appointment against the post of Lumberdar; that petitioner had neither been involved in any criminal case nor was convicted rather he is a popular, famous and influential person of the locality; that the petitioner owns more chunk of land than Respondent No. 1 and also possesses the hereditary claim, but the said aspect of the case has been ignored by the Board of Revenue while passing the impugned orders. He has lastly prayed for the acceptance of writ petition, setting aside of the impugned orders and restoration of orders passed by the District Collector as well as Executive District Officer (Revenue), Kasur.

2. Conversely, learned counsel for the Respondent No. 1 has refuted the arguments advanced by the learned counsel for the petitioner and submitted that being son of Ex- Lumberdar, Respondent No. 1 possess the hereditary claim and that Board of Revenue after considering the merits and demerits of the case rightly appointed the Respondent No. 1 as Lumberdar of the concerned village.

3. Arguments of both the parties heard and record perused.

4. For the appointment of permanent Lumberdar of the village the controversy of eligibility is to be decided according to law while taking into consideration all the requirements provided under Rule 17 of the West Pakistan Land Revenue Rules, 1968. Among other matters which have to be seen conjunctively, those are (i) the hereditary claim of the candidates; (ii) extent of property in the estate, if there are no sub-divisions of the estate, and in case there be sub-divisions of the estate the extent of the property in the sub-division for which appointment is to be made, possessed by the candidate; (iii) services rendered to the Government by him or by his family; (iv) his personal influence, character, ability and freedom from indebtedness; (v) the strength and importance of the community from which selection of a headman is to be made; and (vi) his ability to undergo training in Civil Defence in the case or headman in Tehsils situated along the Border. There is no denial of the fact that Muhammad Jaimal was the permanent Lumberdar of the village, who was removed from the said post on account of his inefficiency and thereafter Barkhurdar, the father of Respondent No. 1 was appointed as temporary Lumberdar and on his demise Respondent No. 1 also performed the duties of Lumberdar on temporary basis. During the course of arguments, it is admitted that last permanent Lumberdar Muhammad Jaimal was real brother of grand-father of the present petitioner and Muhammad Ibrahim, who withdrew his candidature in favour of the present petitioner is the real grand- son of the above referred permanent Lumberdar, whereas Respondent No. 1 is not related to Muhammad Jaimal, ex-Lumberdar. The revenue officials also indicated the said fact in their report dated 25.01.2006 so the factor of hereditary claim, if is advanced, will must favour the present petitioner. No doubt, Barkhurdar the father of Respondent No. 1 had been appointed as Lumberdar of the concerned village after the removal of Muhammad Jaimal, but he was never appointed as permanent Lumberdar and the said post was filled for interim period on temporary basis. The father of Respondent No. 1 was appointed as temporary Lumberdar and as at the time of such appointment hereditary claim was not considered, then how the factor of hereditary claim can be extended to any of legal heir of temporary Lumberdar at the time of appointment of a permanent Lumberdar.

5. According to report of revenue officials, the petitioner owned land measuring 115-kanal 17-marla whereas Respondent No. 1 was owner of land measuring 64-kanal 19-marla. The factor to the extent of the property in the estate was also in favour of the present petitioner. The withdrawal of candidature of Muhammad Ibrahim grandson of Muhammad Jaimal ex-Lumberdar of the village in favour of the petitioner was also a plus point in his favour. The petitioner had been elected as Councilor of the village for four times and his son was also elected as Councilor, which is also an evidence of his personal influence and credibility in the area. It is also admitted during the course of arguments that Respondent No. 1 had been convicted in the above referred criminal case under Section 430 of the Pakistan Penal Code, 1860, whereas the petitioner does not possess any such discredit and therefore, on moral side, the petitioner has also better edge over Respondent No. 1. However, the petitioner as well as Respondent No. 1 are of similar age, who belong to the Jutt community and also illiterate persons, thus on all these three aspects, one cannot be given preference over the other.

6. The above referred discussion reflects that the case of the present petitioner is on better footings than Respondent No. 1 on the count of hereditary claim, his personal influence, character, ability and extent of property in the estate. The apex Court in landmark judgment reported as Maqbool Ahmad Qureshi vs. The Islamic Republic of Pakistan (PLD 1999 SC 484) after discussing plethora of judgments and while relying upon various Verses of Holy Quran has observed as under:

All these principles laid down by the Holy Qur'an and the Sunnah of the Holy Prophet (SAW) are sufficient to indicate that the appointments to an office of the Government are to be made on the basis of merits. Verse 2:124 of the Holy Qur'an has not approved the concept of hereditary claim as sole basis or criteria for appointment to an office, what to say of applying rule of primogeniture in making appointment of a successor to the office and the principle deducible appear to be that offices which are regarded as sacred trust are to be passed on to those who are entitled thereto i.e. to those who are qualified and trustworthy to discharge the duties of office honestly. Thus, merits of the appointee with reference to the requirements of the job assigned is to be the criteria. What should be the qualifications of the person to be appointed would naturally depend on the nature of the employment, service or the job keeping, however, in view the distinction between employment against a job or service and tilling a public office which entails discharge of obligations of State or functions of sovereign nature.

The principle deducible from the Injunctions of Islam noted above is that appointment against an office, official agency, job or employment has to he made on merit of a person who is honest, trustworthy, bodily strong and possessed of qualities of head and heart and that blood relationship or descent cannot be made basis for claiming preference in the matter of appointment. Thus the provisions contained in sub-rule (1) of Rule 19 of the Rules providing for rule of primogeniture as the basis of appointment successor, though interpreted by the Supreme Court as directory rule designed to select a most fit person from amongst eligibles who is free from any of the disqualifications, is violative of the aforenoted principle deducible from Injunctions of Islam. The objection with regard to provision of hereditary claim amongst other factors to be considered in matter of appointment under Rule 17 is without merit as this rule provides the relevant considerations which the Collector is to keep in view while making selection of the most suitable persons amongst the candidates. The cause to raise objection in respect of this Rule arose as the officer in the graded hierarchy of, the Revenue administration in their judgments came to accord “hereditary claims”, overriding effect, as against other considerations of area, tribe community etc. If “hereditary claim” is taken only as one of the relevant considerations, as contemplated in the rules, in favour of a candidate whose other merits are favourable comparable with other contestants, no cause of grievance will arise, rather it will meet the plea of the administration that by appointing a person from amongst the nearest eligible heir of previous Lambardar continuity in the work and in the liaison created between the land owners and the administration is intended to be achieved. Rule 17 is, therefore, not repugnant to any Injunction of Islam.

The bare perusal of the above referred dicta has left no room that a suitable person acquiring more qualifications as referred in Rule 17 ibid is to be given preference.

1. There is much force in the contention of the learned counsel for the petitioner that choice of the District Collector in appointment of Lumberdar should be given preference. Member, Board of Revenue/Respondent No. 4 while passing the impugned orders has brushed aside the choice of District Collector in the selection of Lambardar, which as per various decisions of the Member, Board of Revenue itself, is not to be interfered with, especially when the Collector exercised his discretion in a reasonable manner. Reliance is placed upon the judgments reported as Abdus Salam Rajput vs. Muhammad Amin Khan Rajput (PLD 1972 Revenue 16) and Haji Burhan vs. Haji Ibrahim (PLD 1974 Revenue 82). The apex revenue hierarchy can only upset the choice of the District Collector when his choice is found to be perverse. No finding of perversity of choice has been recorded by the Member, Board of Revenue/Respondent No. 4 in the impugned orders. The appointment of Lumberdar is purely an

administrative matter and it is obligatory upon the revenue hierarchy to appoint a suitable candidate as Village Headman because office of Lumberdar is a link between villagers and administration and suitability or otherwise regarding appointment to offer lies with the relevant revenue authorities. The Member, Board of Revenue has failed to consider the qualifications of the available candidates i.e. petitioner and Respondent No. 1 as per the requirement of Rule 17 ibid and the parameters settled in Maqbool Ahmed Qureshi’s case (supra), which has rendered the impugned orders illegal, unlawful, ultra vires and without jurisdiction and the same are amenable by this Court in the exercise of writ jurisdiction.

1. Consequently, the instant writ petition is accepted, impugned orders dated 25.11.2009 and 29.10.2011 passed by Member, Board of Revenue are hereby set aside, while the orders dated 01.02.2006 and 23.08.2006 passed by the District Collector, Kasur and Executive District Officer (Revenue), Kasur respectively are restored.

(R.A.) Petition accepted

PLJ 2016 Lahore 26 [Multan Bench Multan]

Present: Ch. MuhammadMasood Jahangir, J.

MUHAMMAD RAMZAN--Appellant

versus

Mst. AYESHA BIBI--Respondent

F.A.O. No. 113 of 2007, heard on 10.9.2015.

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

----O. XXXVII, Rr. 1 & 2--Suit for recovery on basis of pronote--Plaint of suit was returned for institution before Court of ordinary jurisdiction--Pronote was signed by two witnesses--Negotiable instrument--Validity--Promissory note even if was attested by two witnesses, same remains within definition of pro-note and a recovery suit on basis of negotiable instrument is triable by District Court under Order XXXVII Rules 1 & 2 of CPC. [P. 28] A

Syed Muhammad Aurangzeb Gilani, Advocate for Appellant.

Nemo for Respondent.

Date of hearing: 10.9.2015

Judgment

The precise facts of the case are that Muhammad Ramzan appellant filed a recovery suit under Order XXXVII Rules 1 & 2 of the Civil Procedure Code of 1908 against the respondent/defendant on the basis of a pro-note dated 6.1.2005 with the assertion that she had borrowed an amount of Rs. 95,000/-from him for two months and promised to return the same till 06.3.2005, but on demand she refused to repay the same. The respondent/defendant was proceeded against ex parte on 09.2.2007. However she put in appearance before the learned trial Court on 21.3.2007 by filing two separate applications one for leave to defend the suit and the other for setting aside of ex parte order dated 09.2.2007 and the case was fixed for arguments for 03.7.2007 when the plaint of the suit filed by the appellant/plaintiff was returned to him for institution before the Court of Ordinary jurisdictionvide order dated 03.7.2007. Hence the instant appeal.

1. On calls none has appeared on behalf of the respondent. The report of the Process Server shows that the respondent was once served through her husband and twice she refused to accept service of the notice. It appears that the respondent is not interested to pursue this matter on merits, who is proceeded against ex parte.

2. Arguments of learned counsel for the appellant heard and record perused.

3. The learned trial Court after having found that the pro- note was signed by two witnesses and while relying upon the dicta laid down in judgment reported as Abdul Rauf Vs. Farooq Ahmed and another (PLD 2007 Lahore 114) observed that the disputed pro-note on the basis of which suit was filed did not fall within the definition of negotiable instrument rather the same would be covered by the definition of bond and while passing the impugned order returned the plaint of the suit to the appellant/plaintiff to institute the same before the Court of ordinary jurisdiction.

4. The view rendered by the learned Division Bench of this Court in case of Abdul Rauf (supra) has not been approved by the apex Court while accepting Civil Appeal No. 1784 of 2008 vide judgment dated 5.6.2014 authored by his lordship Ejaz Afzal Khan, J observed as under:--

“…For the word bond as defined in Section 2(5)(b) of the Stamp Act means and includes any instrument attested by witnesses and not payable to order or bearer whereby a person obliges himself to pay money to another. When we confronted the learned ASC for the respondent whether the instrument contains an unconditional undertaking to pay on demand or at a fixed or determinable future time, a certain sum of money either to the order of a certain person or the bearer of the instrument, he answered in the affirmative. When so the mere fact that it bears attestation of witnesses would not make it a bond. Therefore, the impugned judgment and the judgments relied upon being against the letter and spirit of Section 4 of the Negotiable instruments Act cannot be upheld. The case of “Farid Akhtar Hadi vs. Muhammad Latif Ghazi and another” (supra) being in tune with the letter and spirit of Section 4 of the Act may well be cited in this behalf. Reference to the case of “Ram Narayan Bhagat and another vs. Ram Chandra Singh and others (supra) is misconceived as in that case there was nothing in the instrument indicating that the amount was payable to order or bearer. If thus follows that the promissory note containing all the conditions described in Section 4 of the Negotiable Instrument Act cannot be treated as bond.”

1. On the touchstone of above dicta a promissory note even if was attested by two witnesses, the same remains within the definition of pro-note and a recovery suit on the basis of negotiable instrument is triable by the District Court under Order XXXVII Rules 1 & 2 of the Civil Procedure Code of 1908. The pronouncement of the apex Court is binding on all the subordinate Courts under Article 189 of the Constitution of Islamic Republic of Pakistan, 1973 and the impugned order cannot be maintained. Consequently, the instant appeal is accepted, impugned order is hereby set aside and the suit filed by the appellant/plaintiff will be deemed to be pending before the learned trial Court for decision in accordance with law, who before proceeding with the trial will ensure that service is effected upon the respondent-defendant.

2. The appellant/plaintiff is directed to appear before the learned District Judge, Multan on 01.10.2015, who may hear the suit himself or entrust the same to any other Court of competent jurisdiction for further proceedings.

(R.A.) Appeal accepted

PLJ 2016 Lahore 29

Present: MuhammadSajid Mehmood Sethi, J.

M/s. M. Z. INTERNATIONAL--Petitioner

versus

ASSISTANT COMMISSIONER INLAND REVENUE AUDIT-05, & another--Respondents

W.P. No. 12904 of 2010, heard on 3.9.2015.

Sales Tax Act, 1990 (VII of 1990)--

----Ss. 11(2) & 36(1)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Claimed refund amount--Order in original was passed after expiry of 120 days--Statutory period--Jurisdiction--Limitation for adjudication of 120 days--Delay of 175 days--Maintainability of writ petition--It is well settled that period prescribed by provisions for completion of adjudication proceedings is mandatory and not directory--When impugned order suffers from want of jurisdiction and is void ab-initio, then writ is competent despite availability of alternate remedies. [Pp. 32 & 34] A & B

Mr. M. M.Akram, Advocate for Petitioner.

Ms.Kausar Parveen, Advocate for Respondents.

Date of hearing: 3.9.2015.

Judgment

This writ petition is directed against the show-cause notice (“SCN”) dated 11.05.2009 and Order-in-Original No. 04/2010 dated 31.05.2010 passed by Respondent No. 1/Assistant Commissioner Inland Revenue Audit-05, on the basis of said SCN issued by Deputy Collector (Adjudication).

1. Brief facts, as narrated in this writ petition, are that petitioner is an individual engaged in the business of manufacture/ import/export of cutlery items, who claimed the refund amounting to Rs. 222,847/- for the tax period of December 2006 in accordance with the Sales Tax Refund Rules, 2002. The Processing Officer, after verifying the genuineness and admissibility of the refund claimed, issued the Refund Processing Order (RPO) Bearing No. 7159 dated 11.05.2007. After lapse of two years, the Deputy Collector (Adjudication) issued the SCN dated 11.05.2009 under Sections 11(2) and 36(1) of the Sales Tax Act, 1990, (“Act”) and called upon the petitioner as to why the sales tax refund of Rs. 222,847/- besides additional tax and penalty should not be recovered from them which was allegedly issued on the basis of fake invoices. Petitioner filed reply dated 02.07.2009 to the said SCN. After hearing the arguments, the Assistant Collector (Adjudication), proceeded to pass the Order-in-Original No. 04/2010 dated 31.05.2010. Through the instant petition, the petitioner has sought the following relief from this Court:

“Under the facts and in the circumstances of the case, it is, therefore, respectfully prayed that the impugned show-cause notice dated 11.05.2009 may graciously be declared void ab-initio, illegal, without jurisdiction and of no legal effect.

It is further prayed that the Order-in-Original No. 04/2010 dated 31.05.2010 on the basis of the show-cause notice dated 11.05.2009 may also kindly be declared illegal and without jurisdiction.

Any other relief deems fit and appropriate may graciously be granted to the petitioner.”

1. Learned counsel for petitioner submits that the SCN was issued on 11.05.2009 and the Order-in-Original was passed on 31.05.2010, i.e. after the expiry of 120 days as envisaged in Section 36(3) of the Act, therefore, the order passed after the statutory period, is without jurisdiction. Learned counsel has placed reliance in this regard on M/s. Super Asia Muhammad Din Sons (Pvt.) Ltd v. The Collector of Sales Tax, Gujranwala, & another (PTCL 2008 CL 1) and Messrs Hanif Straw Board Factory through Proprietor v. Additional Collector (Adjudication), Customs, Central Excise and Sales Tax, Gujranwala and others (2008 PTD 578). Further submits that the SCN dated 11.05.2009 issued by Deputy Collector (Adjudication) is void ab-initio, illegal and without jurisdiction, as under Section 45 of the Act the Deputy Collector has only the power to adjudicate those cases where the amount of tax involved or the amount erroneously refunded exceeds one million rupees, but does not exceed two and a half million rupees, whereas in the instant case, the amount of sales tax involved is Rs. 222,847/- which is less than the lower limit i.e. one million rupees, the pecuniary jurisdiction of the Deputy Collector envisaged in Section 45 for adjudication of the case. Adds that when the basic SCN is void ab-initio, the subsequent Order-in-Original No. 04/2010 dated 31.05.2010 automatically falls to ground.

2. On the other hand, learned legal advisor for respondents submits that the refund claim amounting to Rs. 222,847/- sanctioned vide Refund Processing Order No. 7159 dated 11.05.2007 was obtained by the petitioner against fake and flying invoices in violation of the provisions of law as well as relevant refund rules. Adds that the SCN dated 11.05.2009 has been issued by the Deputy Collector (Adjudication) in accordance with the relevant provisions of the Act. Further contends that provisions of Section 32 of the Act also prescribe delegation of powers. Further contends that the adjudicating authority, under the provisions of Section 74 of the Act sought extension in time limitation for adjudication from the competent authority vide Letter No. ST/AC/Adj/Grw/248/09 dated 27.03.2010 and the extension was granted up to 31.05.2010 vide Letter No. 4(11)S(L-IDT)10 dated 10.05.2010. Further submits that the instant petition is not maintainable and the judgments quoted by the petitioner are not relevant in the instant petition.

3. I have heard the arguments of learned counsel for the parties and perused the record.

4. Respondent No. 1 vide his aforementioned letter dated 27.03.2010, admitted that the time limitation for adjudication of 120 days and further extended period of 60 days, has been expired on 07.12.2009. Detail mentioned in the said letter is reproduced as under:

| | | | --- | --- | | Contravention Report Dated | 16.01.2009 | | Show-Cause Notice Dated | 11.05.2009 | | The Limitation for Adjudication | 120 days | | Expired on | 08.09.2009 | | Adjournment taken by the taxpayer | 30 days | | Expired after adjournment on | 08.10.2009 | | Extension granted by the Commissioner | 60 days | | Expired on | 07.12.2009 | | Action Required | 144 days Extension under Section 74 of the Sales Tax Act, 1990 |

1. Admittedly, the SCN was issued on 11.05.2009 and the Order-in-Original was passed on 31.05.2010. Law required passing of such order within 120 days excluding extended period but it has been passed with inordinate delay of 175 days even after excluding the period of 30 days for adjournment taken by the petitioner, and period of 60 days for extension granted by the Commissioner. Extension of time limitation for adjudication granted by Federal Board of Revenue on 10.05.2010 was patently time barred as limitation provided in Section 36(3) had already expired. Authority has not shown any reasonable justification for such delay in adjudication. The Order-in-Original dated 31.05.2010 is hit by time limitation as provided in Sections 11(4) and 36(3) of the Act. It is well settled that the period prescribed by the above provisions for completion of adjudication proceedings is mandatory and not directory. In this regard, reference can be made to the following observations of this Court passed in Messrs Super Asia Muhammad Din Sons (Pvt.) Ltd. through Chief Executive v. Collector of Sales Tax, Gujranwala and another (2008 PTD 60):--

“11. The facts regarding the issue of limitation being properly documented I will not take long to allow this petition for the following reasons:

(i) The claim of the revenue that the prescribed limitation of 45 days for completion of adjudication proceedings as provided through Finance Ordinance, 2000 and enhanced to 90 days by Finance Act, 2003 is merely directory cannot be accepted. It is settled law that where inaction on the part of a public functionary within the prescribed time is likely to affect the rights of a citizen the prescription of time is deemed directory. However, where a public functionary is empowered to create liability against a citizen only within the prescribed time, it is mandatory. The acceptance of contention of the revenue in that regard will make a provision of law redundant and nugatory. Redundancy or superfluity of an Act of Parliament and a provision of law cannot be readily accepted. All the more so when the prescribed limit is beneficial for the citizen and restricts the executive power to touch the pocket of a tax-payer thereby creating certainty that after its expiry even If there was a good case for creation of liability he will not be dragged in.”

In M/s. Meraj Din v. Collector Customs, Excise and Sales Tax (Appeals), Lahore and others (2009 PTD 2004), and Messrs Tanveer Weaving Mills v. Deputy Collector Sales Tax and others (2009 PTD 762), this Court has held that the order under Section 36(3) of the Sales Tax Act, 1990 must be passed within the period prescribed in proviso to Section 36(3) of the Act. Similar observations, regarding limitation provided in law in terms of Section 11(4) of the Act, have been made in another case reported as (2009) 100 Tax 32(H.C. Lah.). Reliance, in this regard, can be placed on the judgment passed by this Court in Messrs Hanif Straw Board Factory through Proprietor v. Additional Collector (Adjudication), Customs, Central Excise and Sales Tax, Gujranwala and others (2008 PTD 578) and judgment passed by the Hon’ble Islamabad High Court in Messrs Pakistan Ordnance Factories (POF) Wah, Cantt v. Collector of Customs, Sales Tax and Central Excise Adjudication), Islamabad and others (2012 PTD 1016), judgment dated 12.03.2013 passed by the Hon’ble Supreme Court of Pakistan in C. P. No. 925 of 2012 in the case of Commissioner Inland Revenue (Zone-III) LTU Islamabad v. M/s. POF, Wah Cantt. and another. In the case of Messrs Hanif Straw Board Factory supra, learned Division Bench of this Court held as under:

“6. Be that as it may in this case the illegalities are so apparent that one cannot agree with the learned counsel for the respondents with respect to the status of show-cause notice vis-a-vis subsequent proceeding continued on the basis of the same. In this case the important factor is that the proceedings were continued and finalized beyond prescribed limit of 45 days which alone is enough to decide the issue. In this regard we are supported by the Writ Petition No. 13331 of 2006 which among other things hold that the above provision regarding limitation is mandatory and not directory, hence its application on the subject case is without any doubt.

1. The notice was issued on 19-6-2000 while limitation to complete an assessment on the basis of a show-cause notice under Section 36 and S.11 for (Recovery of tax not levied or short levied or erroneously refunded) and for assessment was 45 days. In this case the date of notice was 19-6-2000 and order was finalized on 30-10-2000, hence we have no hesitation in holding that the decision was time-barred and the same is set aside.”

2. It is also well settled that Government departments cannot be put at higher pedestal in matter of limitation, rather they are supposed to act within statutory period. In this regard, learned Division Bench of the Hon’ble Islamabad High Court has made the following observations in the case of Messrs Pakistan Ordnance Factories (POF) supra:

“13. An important aspect of the matter is that above section falls in Chapter-VII of the Act ibid, which relates to OFFENCES AND PENALTIES. Any provision which brings penal consequences is required to be invoked or exercised within the limit prescribed by the Statute itself. This is an admitted fact that impugned order-in-original was passed with a delay of 313 days and no reasonable justification has been shown, on the contrary, it demonstrate that authorities proceeded in the matter in a mechanical fashion. It is well settled law, with the mandate of dictums of the Court of Apex that Govt. department cannot be put at higher pedestal, when it come to limitation. The executive functionaries, quasi and non-quasi judicial forums/tribunals are supposed to follow the mandate of law and perform their duties, exercise their jurisdiction and execute their authority within the period provided by law.”

1. Learned legal advisor for the respondents has argued that instant writ petition is not maintainable as the petitioner has another adequate, alternate and efficacious remedy available under the law. Suffice it to say that when the impugned order suffers from want of jurisdiction and is void ab-initio, then the writ is competent despite availability of alternate remedies. Reliance in this regard can be placed on Messrs Tanveer Weaving Mills supra and Commissioner of Income Tax v. Eli Lilly Pakistan (Pvt.) Ltd and other (2009) 100 TAX 81 (S.C. Pak.). In Messrs Tanveer Weaving Mills supra, this Court has held as under:--

“5. It is true that this Court generally does not entertain writ petitions in the case where alternate remedy is available. However, the alternate remedy has to be adequate and efficacious. In the present case, the issue involved is invocation of a proper jurisdiction after expiry of the period provided through proviso to Section 36(3) of the Sales Tax Act, 1990.

1. In fact this Court has already in a number of writ jurisdictions have exercised its jurisdiction under such circumstances. The reliance can be placed to the decision in the case of “Super Asia v. The Additional Collector and other” Writ Petition No. 16270 of 2000. This judgment has now been followed in number of other writ petitions, hence, no exception would be required.

2. The facts of the case being very clear and the order-in-original having been finalized after the expiry of one year of the issuance of the show-cause notice was totally without jurisdiction. The same, therefore, is set aside and the writ petition is accordingly disposed of.”

I, therefore, overrule the objection of maintainability of petition raised by learned legal advisor for the respondents and hold the constitutional petition to be maintainable.

1. In view of the aforesaid, this petition is allowed and the impugned SCN dated 11.05.2009 and Order-in-Original No. 04/2010 dated 31.05.2010 are held to be illegal, void and without lawful authority.

(R.A.) Petition allowed

PLJ 2016 Lahore 35

Present: MuhammadSajid Mehmood Sethi, J.

M/s. J.K. BROTHERS PAKISTAN (PVT.) LTD.--Petitioner

versus

ADDITIONAL COMMISSIONER INLAND REVENUE

etc.--Respondents

Writ Petition No. 24581 of 2011, heard on 31.8.2015.

Sales Tax Act, 1990 (VII of 1990)--

----S. 11(4)--Show-cause notice--Void ab-initio--Limitation--Five years--Recovery of tax cannot be made after expiry of statutory period--Illegality--Notice, having been issued after one year of expiry of relevant date is barred by limitation and thus is without lawful authority and of no legal effect and is liable to be set aside. [P. 38] A

Constitution ofPakistan, 1973--

----Art. 199--Constitutional petition--Show-cause notice—Maint-ainability of petition--If an act is illegal and facts of case confirm said illegality, there is no bar in exercising writ jurisdiction--Superior Courts of country have already held that if show-cause notice is ultra vires--Without jurisdiction or with mala fide intent, such action is to be nipped in bud--Petition was allowed. [P. 39] B

Mr. M. M.Akram, Advocate for Petitioner.

Mr.Sarfraz Ahmad Cheema, Advocate for Respondents.

Date of hearing: 31.8.2015.

Judgment

Brief facts, as narrated in this writ petition, are that Respondent No. 1 issued show-cause notice C.No. 329 dated 28.05.2011 to the petitioner, requiring to show-cause as to why input tax refund amounting to Rs. 2,488,515/- claim for the tax period 04/2005 may not be rejected in terms of Section 11(2) of the Sales Tax Act, 1990 and why penal action may not be taken under Section 33 of the said Act. In response to the said notice, petitioner submitted its reply stating therein that the show-cause notice is void ab-initio as the same has been issued beyond the limitation of five years as prescribed in sub-section (4) of Section 11 of the Sales Tax Act, 1990 and requested the Respondent No. 1 to withdraw the show-cause notice and issue refund to the petitioner. Through instant petition, aforesaid show-cause notice has been challenged with the following prayer:

“Under the facts and in the circumstances of the case, it is most respectfully prayed that the impugned show-cause notice dated 28-05-2011 may graciously be declared void ab-initio, illegal, without jurisdiction and of no legal effect and in consequential relief the Respondents may graciously be directed to issue the Refund of Rs. 2,488,515/- claimed for the tax period April, 2005.

It is further prayed that pending the petition before this Honourable Court, the Respondent No. 1 may graciously be directed not to pass the final order till the decision on the writ petition by this Honourable Court.”

1. Learned counsel for petitioner contends that the impugned show-cause notice has been issued and served upon the petitioner beyond the period of five years as prescribed in sub-section (4) of Section 11 of the Sales Tax Act, 1990. Further submits that the recovery of tax cannot be made after the expiry of statutory period of limitation. Adds that the impugned show-cause notice is void ab-initio and liable to be declared illegal and without lawful authority. He relied upon case law reported as Collector of Customs, Sales Tax (West), Karachi v. M/s. K & A Industries, Karachi (PTCL 2006 CL 373 (S.C.)), XEN Shahpur Division v. Collector Sales Tax (Appeals) Collectorate of Customs Federal Excise and Sales Tax, Faisalabad and 2 others (2008 PTD 1973) and Messrs Gulistan Textile Mills Ltd., Karachi v. Collector (Appeals) Customs Sales Tax and Federal Excise, Karachi and another (2010 PTD 251).

2. On the other hand, learned counsel for the respondents submitted that in compliance with the direction of learned Appellate Tribunal Pakistan, issued in STA No. 1115/LB/2009, dated 01.04.2011, the impugned show-cause notice was issued to the petitioner. Further submits that the learned Tribunalvide aforesaid judgment remanded the case to the officer with competent jurisdiction under Section 45(1) of the Sales Tax Act, 1990, with the direction to pass fresh order after verification and hearing of both sides. Adds that since the earlier show-cause issued by the then Assistant Collector (Refund) has been set aside by the learned Tribunal on the grounds of jurisdiction, therefore, in the light of Tribunal’s direction fresh show-cause notice has been issued by an officer (i.e. Additional Commissioner Inland Revenue) under Section 45(1) of the said Act, having competent jurisdiction, thus, the impugned show-cause notice is within time. He further argues that the instant writ petition is not maintainable against issuance of notice. He has placed reliance on case law reported as West Pakistan Tanks Terminal (Pvt.) Ltd. v. Collector (Appraisement) (2007 SCMR 1318), Deputy Commissioner of Income Tax / Wealth Tax, Faisalabad and others v. Messrs Punjab Beverage Company (Pvt.) Ltd. (2007 PTD 1347), Collector of Sales Tax and Central Excise, Lahore v. Zamindara Paper and Board Mills and others (2008 SCMR 615) and Mughal-e-Azam Banquet Complex through Managing Partner v. Federation of Pakistan through Secretary and 4 others (2011 PTD 2260).

3. Arguments heard and record perused.

4. Admittedly, the first show-cause notice in the instant case was issued on 01.11.2006, which was decided vide Order-in-Original 96/2007 dated 03.02.2007, by the then Assistant Collector (Refund). Feeling aggrieved by the aforesaid order, the petitioner preferred an appeal under Section 45-B of the Act ibid before the then Collector (Appeals) who vide Order-in-Appeal No. 298/2008 dated 29.02.2008 partially modified the said Order-in-Original. Again feeling aggrieved by the order of Collector (Appeals), petitioner filed second appeal before learned Appellate Tribunal Inland Revenue, Lahore through STA No. 1115/LB/2009, which was disposed, vide order dated 01.04.2011, with the following observations:-

“7. In view of the above we deem it fit to set aside the impugned order and remand the case to the officer with competent jurisdiction under Section 45(1) of Sales Tax Act, 1990 with the directions to pass fresh orders after verification and hearing both sides. The appellant is directed to produce supportive documents before the officer having competent jurisdiction for scrutiny and verification. The adjudicating officer should verify from the record as to whether sales tax returns were filed by M/s. Jannat Textile and amount of Sales Tax against the under reference invoices were deposited by them against the supplies shown to have been made to the appellant.”

1. It is evident from the order passed by learned Tribunal that first show-cause notice was issued by an officer, who has having no jurisdiction to issue the same. It has also been admitted in Para No. 3 of the parawise comments submitted by the respondents that earlier show-cause notice issued by the then Assistant Collector (Refund) was set-aside by the learned Tribunal on the grounds of jurisdiction. Section 11(4) of the Act ibid provide the period of limitation of five years for issuance of show-cause notice. In the instant case, refund claim pertains to the tax period of April, 2005 and the specified period of five years was to expire in May, 2010, but the impugned show-cause notice has been issued on 28.05.2011 i.e. beyond limitation. It has been held by the Hon’ble Supreme Court of Pakistan in Federation of Pakistan through Secretary, Finance, Islamabad and others v. Messrs Ibrahim Textile Mills Ltd. and others (1992 SCMR 1898) that if a law prescribes period of time for recovery of money, after its lapse recovery is not enforceable. In the case of M/s. Ibrahim Textile Mills Ltd. supra, Hon’ble Supreme Court, while considering the issue of recovery of short-levied duty after expiry of time prescribed for issuance of recovery notice, held as under:

2. Due consideration was given as to whether the respondents should not pay the short-levied duty and whether the State should suffer in public finance. But the cardinal principle of law is that all are equal before law, whether citizen or State. Secondly if - a law prescribes period of time for recovery of money, after its lapse recovery is not enforceable through Courts. Thirdly, while construing a financial statute, its terms are strictly to be followed. Keeping in view these principles, for short-levied duties on account “of inadvertence, error or misconstruction”, Section 32(3) of the Customs Act, 1969 provides that for recovery notice shall be served ‘within six months'. If that not done, like “a suit for recovery of money after lapse of time prescribed by law of limitation, the recovery becomes unenforceable.”

Notice, in the present case, having been issued after one year of the expiry of the relevant date is barred by limitation and thus is without lawful authority and of no legal effect and is liable to be set aside. Reliance in this regard can also be placed on the following judgments:

(i) Collector of Customs, Sales Tax (West), Karachi v. M/s. K & A Industries, Karachi (2006 PTD 537)

(ii) XEN Shahpur Division’s case supra

(iii) M/s. Gulistan Textile Mills Limited ’s case supra

(iv) Messrs Rose Colour Laboratories Nayab No. 1 (Pvt.) Ltd. v. Chairman, C.B.R. and others (2003 PTD 1047)

(v) Abdul Sattar v. Federation of Pakistan through Secretary, Revenue Division/Chairman, Central Board of Revenue, Islamabad and others (2006 PTD 1171)

(vi) Pakistan International Airlines Corporation v. Central Board of Revenue, Islamabad and others (1990 CLC 868)

(vii) Assistant Collector Customs and others v. Messrs Khyber Electric Lamps and others (2001 SCMR 838).

1. The objection of the learned counsel for the respondents that the writ petition against impugned show-cause notice was not maintainable, is not of much substance. If an act is illegal and facts of the case confirm the said illegality, there is no bar in exercising writ jurisdiction. Superior Courts of the country have already held that if the show-cause notice is ultra vires, without jurisdiction or with mala fide intent, such action is to be nipped in the bud. Reference, in this regard, can be made to the case of Mughal-E-Azam Banquet Complex supra, and Northern Power Generation Company Ltd. v. Federation of Pakistan etc. (2015 LHC 3623).

2. For what has been discussed above, the impugned show-cause notice C. No. 329 dated 28.05.2011 is declared illegal and without jurisdiction. Resultantly, the instant writ petition is allowed.

(R.A.) Petition allowed

PLJ 2016 Lahore 39

Present: Ch. MuhammadIqbal, J.

MUHAMMAD IDREES--Petitioner

versus

DISTRICT OFFICER (REVENUE) etc.--Respondents

W.P. No. 9618 of 2011, decided on 1.9.2015.

Stamp Act, 1899 (II of 1899)--

----Ss. 49(d)(6) & 50(3)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Non-judicial stamp papers were purchased--Sale deed was written but could not be finalized--Application for refund of stamp papers, dismissed by DOR--Challenge to--Limitation--Case of petitioner falls under ambit of Section 49(d)(6) read with 50(3) of Stamp Act, 1899, which prescribes a period of six months for refund of stamp, as such, application for refund of stamp papers was filed within time by petitioner--Impugned orders are patently illegal and revenue authorities have not applied their judicious mind while passing same. [P. 41] A

Mr. MuhammadAkram Chaudhry, Advocate on behalf of Petitioner.

Ms. Asma Hamid, Addl. Advocate General for State.

Date of hearing: 1.9.2015

Order

Through this writ petition, the petitioner has challenged the order dated 24.2.2010 passed by the District Officer (Revenue)/ Collector, Sialkot whereby he rejected the petitioner’s application for refund of stamp papers worth Rs. 1,40,000/- and order dated 24.8.2010 whereby the Senior Member/Chief Revenue Authority, Board of Revenue, Punjab, dismissed the revision petition of the petitioner.

1. Brief facts for the disposal of this petition are that on 23.6.2009, the petitioner purchased non-judicial stamp papers worth Rs. 1,40,000/- from Sadder Treasury, Sialkot and on the same date, the sale deed was written/ executed thereon but the same could not be finalized due to some dispute between the parties. Hence, on 19.12.2009, the petitioner submitted an application for refund of these stamp papers to the District Collector (Revenue)/Collector, Sialkot, who dismissed the same vide order dated 24.2.2010. Being aggrieved of the same, the petitioner filed a revision petition, which was also dismissed by the Senior Member/Chief Revenue Authority, Board of Revenue, Punjab, holding the application as time barred vide order dated 24.8.2010. Hence, this writ petition.

2. It has been contended on behalf of the petitioner that the impugned orders are against the law and facts of the case; that while passing the impugned orders, the Revenue authorities have not applied their judicious mind to the facts and circumstances of the case; and that the case of the petitioner is fully covered under Section 50(3) of the Stamp Act, 1899, which provides a period of six months for filing the application for refund of stamp papers but the Senior Member/Chief Revenue Authority, Board of Revenue, Punjab has illegally dismissed the petitioner’s revision petition holding that under Section 49(d) (5) read with Section 50 (1) of the Stamp Act, 1899, the prescribed period for refund of stamp papers is two months, as such, the impugned orders are illegal and liable to be set aside.

3. Contrarily, the learned law officer has supported the impugned orders on the ground that the case of the petitioner comes within the purview of Section 49(d) (5) read with Section 50 (1) of the Stamp Act, 1899, as such, the Revenue authorities have rightly passed the impugned orders.

4. Heard. Record perused.

5. It is an admitted fact that on 23.6.2009 the petitioner had purchased non-judicial stamp papers valuing Rs. 1,40,000/- from Sadder Treasury, Sialkot, on which, a sale deed was written/executed but the same could not be completed due to some dispute between the parties. So, on 19.12.2009, the petitioner submitted an application before the District Collector (Revenue), Sialkot for refund of these stamp but he rejected the same being time barred vide order dated 24.2.2010. Similarly, the Senior Member/Chief Revenue Authority, Board of Revenue, Punjab has also dismissed the petitioner’s revision petition holding the petitioner’s application for refund of stamp papers as time barred vide order dated 24.8.2010 by observing that case of the petitioner is covered under Section 49(d)(5) read with Section 50(1) of the Stamp Act, 1899, but the same is not in consonance with the law for the reasons that the order dated 24.2.2010 is not a speaking order as it is just an intimation to the petitioner that his application has been rejected being time barred; and that it is nowhere mentioned in the revision petition of the petitioner that the sale deed could not be completed due to refusal rather some dispute had arisen between the parties due to which the sale deed could not be registered and later on, the parties settled the said dispute and the petitioner got registered a sale deed in favour of the same purchaser on new stamp papers. Hence, in these circumstances, the case of the petitioner falls under the ambit of Section 49(d)(6) read with 50(3) of the Stamp Act, 1899, which prescribes a period of six months for refund of stamp, as such, the application for refund of stamp papers was filed within time by the petitioner. So, I am of the considered view that the impugned orders are patently illegal and the revenue authorities have not applied their judicious mind while passing the same. Reliance is placed on the cases of “Zahid Pervaiz VS Commissioner Rwalpindi Division Rawalpindi and 3 others” (PLJ 2004 Lahore 567) and “Riaz Hussain VS Board of Revenue Punjab through Senior Member and 2 others” (2010 CLC 1575).

6. In view of the above, the instant writ petition is accepted and the impugned orders dated 24.2.2010 and 24.8.2010 are hereby set aside with the direction to the respondents to issue refund of the above said stamp papers to the petitioner immediately.

(R.A.) Petition accepted

PLJ 2016 Lahore 42

Present: Mirza Viqas Rauf, J.

MUHAMMAD SHAHID AKRAM--Petitioner

versus

GOVERNMENT OF PUNJAB through Chief Secretary, Civil Secretariat,Lahore and 3 others--Respondents

W.P. No. 18593 of 2012, heard on 31.3.2015.

Punjab Emergency Service Act, 2006--

----S. 9--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--Appointment as director general emergency service 1122--Non-transparent and illegal manner--Malafide intent--Removed from service--Maintainability--Question of--Laches and malafide intent--Validity--Question of laches cannot be equated with limitation--Same can be determined on basis of facts and circumstances of each case. [P. 47] A

PLD 2013 SC 413, ref.

Constitution ofPakistan, 1973--

----Art. 199(1)(b)(ii)--Punjab Emergency Service Act, 2006, S. 9--Appointment on basis of non-transparent and illegal manner--Challenge to--Laches as well as principle of locus standi--Writ of quo warranto--Disqualification--Petition is in nature of quo-warranto and it is settled principle of law by, now that writ of quo-warrantto can proceed when claimed disqualification of respondents hold field till date of decision of writ petition--Though proceedings in terms of writ of quo-warranto are not adversarial in nature but these are inquisitorial and anybody can move for same being wrestle blower but blowing of wrestle must be for benefit of public in general and not for personal vengeance--It is always up to judicial conscious of Court to examine as to whether same qualifies yardsticks laid down in Art. 199(1)(b)(ii) of Constitution or not--But at same time grant of relief in quo-warranto is based on principles of equity and thus conduct and motive of petitioner can be looked into by High Court while entertaining writ of quo-warranto.

[Pp. 47] B & C

Constitution ofPakistan, 1973--

----Art. 199--Employee of Punjab Emergency Service Rescue 1122--Motiviation and mala fide to file petition challenging appointment--Jurisdiction--Constitutional jurisdiction cannot be resorted to settle personal differences between parties--High Court is inclined to observe that petition is outcome of personal vengeance and same is not maintainable on that score. [P. 48] D

PLD 2013 SC 413, 2012 PLC (SC) 1057, 2011 YLR 2899, PLC 2010 (CS) 1415, rel.

Punjab Emergency Service Act, 2006--

----Ss. 5, 6 & 9--Constitution of Pakistan, 1973, Art. 199--Appointment on basis of non-transparent and illegal manner--Determine validity of appointment as D.G. of Punjab E.S.R.--Validity--Punjab Emergency Service Act, 2006, was-promulgated to establish emergency service for purpose of maintaining a state of preparedness to deal with emergencies to provide timely response, rescue and emergency medical treatment to persons affected by emergencies and recommending measures to be taken by related organizations to avoid emergencies--Service or department was established in terms of Section 4 of Act which is called Punjab Emergency Service or Rescue who has to perform such functions as are assigned to it under Act--Powers and functions of service are enumerated in Section 5 of Punjab Emergency Service Act, 2006--Section 6 of Punjab Emergency Service Act, 2006 provides a composition of council, comprising of a number of members headed by C.M. being its Chairman--Petitioner has not challenged appointment of respondent on basis of lack of his eligibility to hold office of D.G. rather his appointment is challenged on ground that it was made in non-transparent and unfair manner, by depriving other qualified persons to present themselves for said post--While choosing a person for public service transparency and fairness would be maintained, as appointment and holding of a public office is not just for providing a job too a blue eyed or a mean of earning to one in need but is a sacred trust which must be discharged honestly, fairly and in a just and transparent manner and in best interest of public--There can be no other opinion in presence of these principles from time to time in its judgments--Appointment of as D.G. is fully covered under law and there is no illegality warranting interference by High Court in exercise of writ of quo-warranto. [Pp. 48, 49 & 55] E, G, H & I

Punjab Emergency Service Act, 2006--

----Ss. 2(J)--Scope--Appointment as D.G.--Non-transparent and illegal manner--Elgibility of a person to be appointed--Government is defined in Section 2-(j) of “Act, 2006” as Government of Punjab. Sub Section 3 described that Director General shall be appointed initially for a period of three years--However, Council may extend his tenure keeping in view his performance. [P. 49] F

M/s. Mian Bilal Bashir and Raja Tassawar Iqbal, Advocates for Petitioner.

Syed Moazzam Ali Shah, Advocate for Respondent No. 3.

Rana Shamshad Khan, Asstt. A.G. Punjab for Respondents No. 1 & 2.

Date of hearing: 31.3.2015.

Judgment

This single judgment shall decide the fate of instant petition as well as Writ Petition No. 14596/2014 as similar questions of facts and law are involved in both these petitions.

1. Through instant petition the petitioner has challenged the appointment of Respondent No. 3 namely Dr. Rizwan Naseer as Director General, Punjab Emergency Service 1122, Headquarters Ferozepur Road, Lahore, on the ground that he has been appointed as such in a non-transparent and illegal manner. As per averments contained in the petition, the Respondent No. 3 was appointed as Director General Punjab Emergency Service 1122 initially for a period of three years vide notification dated 27th of July, 2006 and later on his tenure was extended from time to time and last notification to this effect was issued on 28th of July, 2012, whereby his tenure was extended for further three years.

2. In order to refute the averments in the petition, the respondents submitted their report and parawise comments.

3. Learned counsel for the petitioner submitted that Section 9 of The Punjab Emergency Service Act, 2006 prescribes the mode of appointment of Director General but while appointing the Respondent No. 3 as Director General, the Appointing Authority has violated the mandatory requirements for the said provision. He maintained that the Respondent No. 3 was illegally appointed in the year 2006 and later on his tenure was extended from time to time which is not permissible under the law. Learned counsel further submitted that the appointment of Respondent No. 3 was even made without advertisement and through a back door channel. He contended that the Respondent No. 3 is holding the office without any lawful authority. Learned counsel argued that choosing a person for a public office is a sacred trust but while appointing Respondent No. 3 as Director General, the Appointing Authority has invoked non-transparent and oblique method. In the last learned counsel submitted that the appointment of Respondent No. 3 offends the fundamental rights enshrined in Article 9 of the Islamic Republic of Pakistan, 1973. In support of his contentions learned counsel for the petitioner placed reliance on the following cases:--

“Director, Social Welfare, N.W.FP, PESHWAR versus Sadullah Khan” (1996 SCMR 1350), “Barrister Sardar Muhammad versus Federation of Pakistan and others” (PLD 2013 Lahore 343).

“Dr. Altaf Hussain Verus Federation of Pakistan and others” (2013 PLC (CS) 1178).

“Abdul Malik and Others versus Government of Balochistan through Secretary, Home and Tribal Affairs Department and other” (2013 PLC (CS) 736).

“Capt. (Retd.) Muhammad Naseem Jijazi versus Province of Punjab Through Secretary, Housing and Physical Planning and 2 others” (2000 SCMR 1720).

“Shahid Orakazi and another versus Pakistan through Secretary Law, Ministry of Law, Islamabad and another” (PLD 2011 S.C 365).

“Mashood Ali versus Senior Member, Board of Revenue Balochistan and others (2011 PLC (SC) 548).

“Dr. Shagufta Shahjehan versus Government of Punjab through Chief Secretary and another” (2008 PLC (SC) 659).

“Abdul Bashir and 9 others versus Government of Balochistan through Secretary, Civil Secretariat, Quetta and 3 others” (2001 PLC (SC) 771).

“Chief Secretary Punjab and others versus Abdul Raoof Dasti” (2006 SCMR 1876)

“Government of N.W.F.P through Secretary, Forest Department, Peshawar and others versus Muhammad Tufail Khan” (PLD 2004 S.C 313).

1. Conversely learned Assistant Advocate General representing Respondents No. 1, 2 and 4 submitted that the appointment of Respondent No. 3 was made strictly in accordance with Section 9 of The Punjab Emergency Service Act, 2006. Learned Law Officer contended that Respondent No. 3 was duly qualified for the said post and he was pioneer of the department. He submitted that even before the existence of the department the services of the Respondent No. 3 in the field were commendable. Learned Assistant Advocate General further submitted that the instant petition is filed with mala fide intent. In order to substantiate his contentions learned Law Officer drew the attention of this Court towards the documents appended with the comments filed by the respondents. Learned Law Officer with reference to said documents submitted that one of the petitioner namely Faisal Mehboob is ex-employee of the Punjab Emergency Service 1122, who was proceeded departmentally and was removed from service on 23rd of August 2012 by the orders of the Respondent No. 3. He further contended that previously through Writ Petition No. 13264/2009 one Major Rtd. Tahir Hussain Bukhari had already questioned the appointment of Respondent No. 3 being Director General but the same was dismissed vide order dated 28th of October 2009. In the last of the limbs of his arguments, learned Law Officer argued that the appointment of Respondent No. 3 was made in the year 2006 thus the instant petition badly suffers from laches. In support of his contentions learned Assistant Advocate General Punjab has placed reliance on the cases of “Dr. Shazia Khawaja versus Chairman and Dean of Sheikh Zayed Post Graduate Medical Institute And Hospital, Lahore and 7 others” (2012 PLC (SC) 1057), Tariq Mehmood A. Khan and 3 others versus Sindh Bar Council through Secretary and others” (2011 YLR 2899), “Allauddin Abbasey versus Province of Sindh through Chief Secretary, New Sindh Secretariat, Karachi and 3 others” (2010 PLC (CS) 1415), and Dr. Muhammad Tahir-ul-Qadri versus Federation of Pakistan through Secretary M/O Law, Islamabad and others (PLD 2013 S.C 413).

2. In addition to above submissions, the learned counsel for Respondent No. 3, while referring to Sections 6, 7 & 9 of the Punjab Emergency Service Act, 2006 has submitted that the appointment of Respondent No. 3 is fulfils all the mandatory requirements of law. Learned counsel further added that being the Director General of the department Respondent No. 3 has contributed a lot to his department. He submitted that the grant of extension to the Respondent No. 3 was accorded on the basis of his remarkable performance. Learned counsel argued that the petitioner is a motivated person and he has also filed a complaint against the Respondent No. 3 before Human Rights Cell Established under the Hon’ble Supreme Court of Pakistan. In support of his contention learned counsel for the Respondent No. 3 has placed reliance on the case of “Ghulam Rasool versus Government of Pakistan through Secretary, Establishment Division Islamabad and others” (PLD 2015 S.C 6).

3. I have heard learned counsel for the parties and perused the record.

4. The respondents have resisted the instant petition on account of merits as well as on issue of its maintainability. Thus before coming to the merits of the instant petition I would like to first address the question of its maintainability which is raised by the respondents on the ground of laches and the malafide intent on the part of the petitioner. So far the question of laches is concerned the same cannot be equated with limitation. The same can be determined on the basis of facts and circumstances of each case. In the judgment cited by the learned Assistant Advocate General Punjab in the case of “Dr. Muhammad Tahir-ul-Qadri versus Federation of Pakistan through Secretary M/o Law Islamabad and others (PLD 2013 S.C 413) the Hon’ble Supreme Court of Pakistan while taking into consideration the factum of dual Nationality of the petitioner and the consequential disqualification to be chosen as Member of the Parliament coupled with the other features dismissed the said petition on the ground of laches as well as principle of locus standi but in the instant case the Respondent No. 3 was appointed on 27th of June 2006 and his appointment will remain intact till 27th of July 2015. The present petition is in the nature of quo-warranto and it is settled principle of law by now that writ of quo-warrantto can proceed when the claimed disqualification of the respondents hold the field till the date of decision of the writ petition. Thus in my humble view the question of laches does not come in the way of the petitioner. Reliance in this respect can be placed on the case of “Muhammad Raza Naqvi and 5 others versus Muhammad Din through Legal Heir”(2004 SCMR 400). “Dr. Jalil Qadir versus Province of Sindh through Chief Secretary, Government of Sindh and 2 others” (2010 PLC (CS) 731).

5. The next point raised on behalf of the respondents that the petition is fraught with mala fide. Though the proceedings in terms of writ of quo-warranto are not adversarial in nature but these are inquisitorial and anybody can move for the same being the wrestle blower but the blowing of wrestle must be for the benefit of public in general and not for the personal vengeance. It is always up to the judicial conscious of the Court to examine as to whether the same qualifies the yardsticks laid down in Article 199(1)(b)(ii) of the Constitution of the Islamic Republic of Pakistan, 1973 or not. But at the same time grant of relief in quo-warranto is based on principles of equity and thus the conduct and motive of the petitioner can be looked into by the High Court while entertaining the writ of quo-warranto. It is evident from the record that one of the petitioner Faisal Mehmood Khan is an ex-employee of Punjab Emergency Service Rescue 1122 who was proceeded departmentally under the orders of Respondent No. 3, being the Director General and as a result of the departmental proceedings he was removed from the service vide order dated 23rd of August, 2012. This clearly shows the motivation and malafide on the part of the said petitioner to file the petition challenging the appointment of Respondent No. 3. Even the petitioner in the instant petition also approached Human Rights Cell of the Hon’ble Supreme Court of Pakistan Islamabad through an application in the year 2012. The Constitutional jurisdiction cannot be resorted to settle the personal differences between the parties. Thus this Court is inclined to observe that the petition is outcome of the personal vengeance and the same is not maintainable on this score. Guidance in this respect can be sought from the cases of “Dr. Muhammad Tahir-ul-Qadri versus Federation Of Pakistan through Secretary M/o Law, Islamabad and others (PLD 2013 S.C 413), “Dr. Shazia Khawaja versus Chairman and Dean of Sheikh Zayed Post Graduate Medical Institute and Hospital, Lahore and 7 others” (2012 PLC (SC) 1057), Tariq Mehmood A. Khan and 3 others versus Sindh Bar Council through Secretary and others” (2011 YLR 2899), “Allauddin Abbasey versus Province of Sindh through Chief Secretary, New Sindh Secretariat, Karachi and 3 others” 2010 PLC (CS) 1415.

6. While adverting to the merits of the case and in order to determine the validity of the appointment of Respondent No. 3 as Director General of Punjab Emergency Service Rescue 1122. It would be relevant to examine The Punjab Emergency Service Act, 2006, which was promulgated to establish the Emergency Service for the purpose of maintaining a State of preparedness to deal with emergencies to provide timely response, rescue and emergency medical treatment to the persons affected by emergencies and recommending measures to be taken by related organizations to avoid emergencies. The service or department was established in terms of Section 4 of the said Act which is called Punjab Emergency Service or the Rescue who has to perform such functions as are assigned to it under the Act. Powers and functions of the service are enumerated in Section 5 of The Punjab Emergency Service Act, 2006. Section 6 of The Punjab Emergency Service Act, 2006 here-in-after referred as “The Act, 2006” provides a composition of council, comprising of a number of members headed by Chief Minister of the Punjab being its Chairman. The Director General of the Service is one of the Member of the Council. Section 9 of “The Act, 2006” lays down the qualifications of a person to be appointed as Director General under the said provision. Section 9 reads as under:

Section. 9. “Director General.--(1) The Government shall appoint a Director General who shall be the chief executive officer of the Service and shall exercise such powers and perform such functions as may be specified by the Council.

(2) The Director General shall be a person who--

(a) is a postgraduate in emergency management or an emergency subject or has specialization in management of trauma or emergency patients or is a medical postgraduate;

(b) has adequate knowledge, formal training and expertise in the field of emergency management; and

(c) is not more than sixty years of age.

(3) The Director General shall be appointed initially for a period of three years but the Council may extend his tenure keeping in view his performance and may remove him before the expiry of his tenure if he is not physically or mentally fit or is incapable of performing his duties;

(4) The Director General shall be paid such salary, allowances and other benefits and shall be subject to such terms and conditions as are laid down in his service contract;

(5) The Director General shall be responsible for the day to day administration of the affairs of the Service and he may, subject to the regulations, appoint, post and transfer any of the employees working under him in the Service.

(6) The Director General shall follow and comply with such directions of the Council as may be given to him in writing in the public interest.

(7) Subject to the directions of the Council, the Director General may delegate any of his powers or functions to a Director or to an officer of the Service.

Sub-section (2) of the above quoted provision of law describes the eligibility of a person to be appointed as Director General, who is to be appointed by the Government. The Government is defined in Section 2(j) of The “Act, 2006” as the Government of the Punjab. Sub-section (3) described that the Director General shall be appointed initially for a period of three years. However, the Council may extend his tenure keeping in view his performance.

1. The petitioner has not challenged the appointment of the Respondent No. 3 on the basis of lack of his eligibility to hold the office of Director General rather his appointment is challenged on the ground that it was made in non-transparent and unfair manner, by depriving the other qualified persons to present themselves for the said post. The judgments cited by the learned counsel for the petitioner, in order to substantiate this plea have laid down unequivocal principle that while choosing a person for public service transparency and fairness should be maintained, as appointment and holding of a public office is not just for providing a job too a blue eyed or a mean of earning to one in need but is a sacred trust which must be discharged honestly, fairly and in a just and transparent manner and in the best interest of the public. There can be no other opinion to this in the presence of these principles laid down by the Hon’ble Supreme Court of Pakistan from time to time in its judgments, including the above referred judgments on behalf of the petitioner. However the Hon’ble Apex Court in its recent pronouncement in the case of “Ghulam Rasool versus Government of Pakistan through Secretary, Establishment Division Islamabad and others” (PLD 2015 S.C 6) has further elaborated the said principles by providing the guidelines for properly resolving the issue in hand. For the purpose of connivance and ready reference the relevant extract from the same is reproduced below:

2. During the last care-taker Government, a large number of appointments were made without following any merit or procedure that were against the Constitutional mandate of a care-taker Government. Khawaja Muhammad Asif, a Parliamentarian, had filed a petition before this Court under Article 184(3) of the Constitution against the said appointments and this Court had inter alia made following directions:--

“26. Be that as it may, in order to ensure the enforcement of the fundamental right enshrined in Article 9 of the Constitution and considering it to be a question of public importance, a Commission headed by and comprising two other competent and independent members having impeccable integrity, may be the Federal Ombudsman or Chairman NAB or a Member of Civil Society having exceptional ability and integrity, is required to be constituted by the Federal Government through open merit based process having fixed tenure of four years to ensure appointments in statutory bodies, autonomous bodies, semi-autonomous bodies, regulatory authorities to ensure appointment of all the government controlled corporations, autonomous and semi-autonomous bodies.etc. The Commission should be mandated to ensure that all public appointments are made solely on merits. The Commission should discharge mainly the following functions:--

(i) Regulate public appointments processes within his remit;

(ii) implement a Code of Practice that sets out the principles and core processes for fair and transparent merit-based selections;

(iii) chair the selection panels for appointing heads of public/statutory bodies and chairs and members of their boards, where necessary;

(iv) appoint Public Appointments Assessors to chair the selection panels for appointing heads of public/statutory bodies and chairs and members of their boards, where appropriate;

(v) report publicly on a public/statutory body's compliance with the Code of Practice, including examples of poor and good performance, and best practice;

(vi) investigate complaints about unfair appointment process;

(vii) Monitor compliance with the Code of Practice;

(viii) Ensure regular audit of appointments processes within his remit;

(ix) Issue an annual report giving detailed information about appointments processes, complaints handled, and highlights of the main issues which have arisen during the previous year. The annual report for the previous calendar year should be laid before the Parliament by 31st March;

(x) Take any other measures deemed necessary for ensuring that processes for public sector appointments that fall in his remit are conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are fully guarded against.

1. The Code of Practice should provide foundations for transparent merit-based public appointments. All public appointments must, be governed by the overriding principle of selection based on merit, out of individuals who through abilities, experience and qualities have a proven record that they best match the need of the public body in question. No public appointment must take place without first being recommended by the Commission. The appointments procedures should be subjected to the principle of proportionality, that is, what is appropriate for the nature of the post and the size and weight of its responsibilities. Those, selected must be committed to the principles and values of public service and perform their duties with highest level of integrity. The information provided about the potential appointees must be made public. The Commission may from time to time conduct an inquiry into the policies and procedures followed by an appointing authority in relation to any appointment. He may also issue a statement or publish a report commenting publicly on any breach or anticipated breach of the Code. The appointment of the successful candidate must be publicized.

……………..

……………..

……………..

30(e) The appointments in autonomous/semi-autonomous bodies, corporations, regulatory authorities, etc., made before the appointment of Caretaker Government shall also be subjected to review by the elected Government by adopting the prescribed procedure to ensure that right persons are appointed on the right job, in view of the observations made in above paras (Paras. Nos. 25 and 26)”

1. We have noted that while making such directions, the provisions of Article 90 of the Constitution were overlooked by this Court. Article 90 reads as under:--

“90. (I) Subject to the Constitution, the executive authority of the Federation shall be exercised in the name of the President by the Federal Government consisting of the Prime Minister and the Federal Ministers, which shall act through the Prime Minister, who shall be the Chief Executive of the Federation.

(2) In the performance of his functions under the Constitution, the Prime Minister may act either directly or through the Federal Ministers.”

1. The appointment of a Commission and the power to make recommendations for such appointments is not in accordance with Article 90 of the Constitution where the power of appointment has been vested in the Federal Government. It appears that in the light of the observations made in paras 26 and 27 of the Khawaja Asif supra judgment the legal authority has been vested in a Commission and its recommendations are being made binding upon the Prime Minister. It is by now a well-settled law that the responsibility of deciding suitability of an appointment, posting or transfer fell primarily on the executive branch of the State. It is also a settled law that the Courts should ordinarily refrain from interfering in policy making domain of the Executive. In Executive District Officer (Revenue), District Khushab v. Ijaz Hussain (2012 PLC (CS) 917) this Court has held that framing of recruitment policy and rules thereunder fell in the executive domain; that the Constitution of Pakistan is based on the principle of trichotomy of powers where legislature is vested with the functions of law making, the executive with its enforcement and judiciary of interpreting the law and that Courts could neither assume the role of policy maker nor that of a law maker. The contents of the said paras were in the form of certain recommendations, which could not have assumed the status of law. In Shahid Orakzai and another v. Pakistan (PLD 2011 SC 365) the importance of consulting the Hon’ble Chief Justice of Pakistan has been stated in the matter of appointment of Chairman of the National Accountability Bureau and it was expected that such recommendation had to be given effect for all future appointments. Subsequently in Ch. Nisar Ali Khan v. Federation of Pakistan etc. (PLD 2013 SC 568) this Court had clarified that in the absence of the Hon’ble Chief Justice of Pakistan from the appointment process of Chairman NAB, the observations in Shahid Orakzai supra case were not to be treated as binding and that “a suggestion or recommendation made by the Court in a judgment though entitled to due respect, deference and consideration, does not travel beyond a suggestion or a recommendation and it does not by itself assume the status of law. By its nature and form a suggestion or a recommendation is simply what it is, nothing more and nothing less.” In Syed Mahmood Akhtar Naqvi and others v. Federation of Pakistan etc (PLD 2013 SC 195), this Court has held that “whenever there are statutory provisions or rules or regulations which govern the matter of appointments, the same must be followed”. Keeping in view the above discussion, it can be said that the matter of appointment of heads of statutory bodies, autonomous/semi-autonomous bodies, corporations, regulatory authorities etcetera are governed under specific statutory provisions which cannot be overlooked or substituted by some other mechanism. We have noted that various Acts/Ordinances lay down a specific criteria/qualifications for high-level appointments and empower the Federal Government to make such appointments. Some of them are Federal Public Service Commission of Pakistan Ordinance, 1977, Competition Act, 2010, (iii) Pakistan Electronic Media Regulatory Authority Ordinance, 2002, (iv) Oil and Gas Regulatory Authority Ordinance, 2002, (v) NEPRA Act, 1997, (vi) Securities and Exchange Commission Act, 1997, (vii) Pakistan Telecommunication (Re-organization) Act, 1996, and (viii) Companies Ordinance, 1984. The above referred Acts/ Ordinances provide a complete procedure of appointments, which the Federal Government is bound to comply with as mandated under Article 5 of the Constitution. The Federal Government has been expressly empowered by the Legislature to make high-level appointments in accordance with the criteria specified in the concerned Acts / Ordinances. In case of companies incorporated in the public sector under the Companies Ordinance. 1984, the appointment and removal of Directors is comprehensively dealt with under the said Ordinance and the memorandums, rules/regulations framed thereunder. However, it is also made clear that the Court's deference to the Executive Authority lasts for only as long as the Executive makes a manifest and demonstrable effort to comply with and remain within the legal limits which circumscribe its power. Even where appointments are to be made in exercise of discretionary powers, such powers are to be employed in a reasonable manner. Even otherwise, the policy adopted by the Federal Government in making appointments is open to judicial review on the touchstone of the Constitution and the laws made thereunder i.e. in case of ant illegality in the ordinary process of appointment, this Court as well as the High Courts have sufficient powers under Articles 184 and 199 of the Constitution to exercise judicial review. There are similar Commissions in other countries including the United Kingdom, Canada and India. However, all those commissions were made pursuant to specific laws/statutes enacted for that purpose. In Australia, the Australian Public Service Commission was established pursuant to the Public Service Act, 1999. Similarly in Canada, the Federal Accountability Act, 2006, was enacted by the Parliament for inter alia putting in place measures respecting administrative transparency, oversight and accountability. However, no public appointments commission has yet been created. No statutory Commission has been created in Pakistan for examining suitability of persons for appointment to high public offices. The Government may consider the establishment of such a Commission through legislation in order to ensure transparency which would also enable the executive authority to make an informed decision while making appointments.”

2. The precise inference which can be drawn from the above quoted principle laid down by the Hon’ble Supreme Court of Pakistan can be that when there are statutory provisions, rules and regulations governing the matter of appointment the same must be followed. As already observed that Section 9 of “The Act, 2006” regulates the appointment and eligibility of the condition of Director General, the Respondent No. 3 undeniably fulfills all the eligibility conditions enumerated therein and the Provincial Government was competent to appoint a person fulfilling the said conditions to be a Director General for the service and also extend its tenure on the basis of satisfactory performance.

3. There is yet another important aspect that even on previous account one Major Rtd. Tahir Hussain Bukhari filed Writ Petition No. 13264/2009, wherein he challenged the actions of Respondent No. 3 almost in similar manner and the said Writ Petition was dismissed by this Court vide order dated 28th of October, 2009 with cost of Rs. 20,000/-.

4. Thus this Court is of the considered opinion that the appointment of Respondent No. 3 as Director General Punjab Emergency Service Rescue 1122 is fully covered under the law and there is no illegality warranting interference by this Court in the exercise of writ of quo-warranto.

5. The nutshell of above discussion is that I find no merit in the instant petition, resultantly the same is dismissed with no order as to costs.

(R.A.) Petition dismissed

PLJ 2016 Lahore 56 [Multan Bench Multan]

Present: Amin-ud-Din Khan, J.

KHADIM HUSSAIN & another--Petitioners

versus

ABDUL HAMEED--Respondent

C.R. No. 625-D of 2004, heard on 8.5.2015.

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

----S. 115--Suit for preemption--No time of knowledge of sale was mentioned in paint--Validity--As a plaintiff of pre-emption suit under law has to plead and prove date, time and place of knowledge of impugned sale and till time he is not able to prove specific date, time and place of knowledge of impugned sale, he cannot succeed in a pre-emption suit--Acknowledgement due has been produced in statement of plaintiff under objection and further that postman has not been produced to prove service of notice of talb-e-ishhad upon defendant--Therefore, talb-e-ishhad has not been proved in accordance with law--Therefore, no case for interference by High Court while exercising jurisdiction under Section 115 of CPC has been made out--Revision dismissed. [Pp. 57] A, B & C

Mian Arshad Ali,Advocate for Petitioners.

M/s.Bashir Ahmad Chaudhry and Faisal Bashir Chaudhry, Advocates for Respondent.

Date of hearing: 8.5.2015.

Judgment

Through this civil revision the petitioners/plaintiffs have challenged the judgment and decree dated 04.03.2004 passed by the learned Additional District Judge, Jampur, whereby the appeal filed by the respondent-defendant was accepted, by way of which, the judgment and decree dated 21.10.2003 passed by the learned Civil Judge, Jampur decreeing the suit for pre-emption filed by the petitioners/plaintiffs, were set aside.

1. The brief facts of the case are that on 22.02.2003 the petitioners/plaintiffs filed a suit to pre-empt the sale of land in favour of respondent/defendant through Mutation No. 1718 attested on 24.10.2002. The written statement was filed and suit was contested. Issues were framed and the parties were directed to produce their respective evidence. Both the parties produced oral as well as documentary evidence in support of their versions. After the completion of trial suit was decreed by the learned trial Courtvide judgment and decree dated 21.10.2003. Feeling aggrieved thereby an appeal was preferred by the respondent/defendant-judgment debtor before the learned first appellate Court, which was accepted vide judgment & decree dated 04.03.2004, whereby suit for pre-emption filed by the petitioners/plaintiffs was dismissed. Hence, this civil revision.

2. I have heard the learned counsel for the parties and gone through the record minutely with their able assistance.

3. I have noticed that in Para 3 of the plaint no time of knowledge of impugned sale has been mentioned. One of the plaintiffs appeared as PW-1, who has not stated the time of knowledge of impugned sale. PW-2 has stated the time as 9:30/9:45 a.m, there is a difference of 15 minutes. PW-3 the Informer has stated the time as 10:00 a.m. In the light of celebrated judgment of august Supreme Court of Pakistan reported as “PLD 2007 Supreme Court 302(Mian Pir Muhammad and another vs. Faqir Muhammad through L.Rs. and others)” the petitioners/plaintiffs have not been able to prove their case pleaded by them, as a plaintiff of pre-emption suit under the law has to plead and prove the date, time and place of knowledge of impugned sale and till the time he is not able to prove the specific date, time and place of knowledge of impugned sale, he cannot succeed in a pre-emption suit. Furthermore, the acknowledgement due has been produced in the statement of plaintiff under objection and further that the Postman has not been produced to prove the service of notice of Talb-e-Ishhad upon the defendant. Therefore, Talb-e-Ishhad has not been proved in accordance with law. I would like to take light from the judgment of august Supreme Court reported as “2013 SCMR 866 (Allah Ditta through L.Rs. and others Vs. Muhammad Anar)”. In this view of the matter, the findings recorded by the learned first appellate Court are in accordance with law, as no any illegality or material irregularity has been shown by the petitioners/plaintiffs. Therefore, no case for interference by this Court while exercising jurisdiction under Section 115 of the, CPC has been made out. Resultantly, this civil revision having no force stands dismissed.

(R.A.) Revision dismissed

PLJ 2016 Lahore 58

Present: Shahid Mubeen, J.

ABDUL RAUF, ACTING ASSTT. DIRECTOR (FOOD)--Petitioner

versus

GOVERNMENT OF PUNJAB through Secretary (Food), Civil Secretariat,Lahore and another--Respondents

W.P. No. 7261 of 2009, decided on 27.7.2015.

Constitution ofPakistan, 1973--

----Art. 199--Constitutional petition--Right of promotion from date of occurring of vacancies--Back benefits--Eligible for promotion--Deferment of promotion--Validity--Departmental representative who produced record did not disclose any penalty available in petitioner's record except pendency of inquiry--When a civil servant is deferred for promotion due to pendency of some enquiry case does fall within ambit of fitness and against that order appeal before Punjab Service Tribunal is not competent. [P. 59] A & B

Mr.Bilal Bashir Mian & Raja Tasawar Iqbal, Advocates for Petitioner.

Mr.Asim Aziz Butt, Asstt. A.G. for State.

Date of hearing: 27.7.2015.

Order

Through this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has prayed that the respondents may very kindly be directed to promote the petitioner to the post of Assistant Director (Food) BPS-17 right from the date of occurring of the vacancies i.e. 2003 when he took, over the charge of the post of Assistant Director (Food) with all consequential back benefits.

1. Briefly the facts of the case are that the petitioner was appointed as Assistant Accounts Officer in the Food Department through Punjab Public Service Commission. It is further asserted in the writ petition that he became eligible for promotion to the post of Assistant Director (Food) BPS-17 in the year 2006 which post is lying vacant with the department since 2003 and the petitioner is holding the post of Assistant Director (Food) since 04.08.2003. However, the petitioner was considered by the Department Promotion Committee (DPC) but he was deferred on the following grounds:--

“His qualification is M.Com. He joined Food Department in 1999 as Assistant Accounts Officer through Punjab Public Service Commission against initial requirement quota. He has more than seven years experience at his credit. His ACRs upto the year, 2008 are complete and satisfactory. The ACR for the period 04.03.2008 to 13.08.2008 is pending with CO. At present one enquiry on account of criminal negligence for non-ensuring safety of Govt. wheat, in D.G. Khan District is pending against him. No recovery/printed draft para is pending against him. He is not clear for promotion due to pending enquiry.”

1. It is contended by the learned counsel for the petitioner that pending enquiry is no ground for deferment of promotion. On the other hand learned Assistant Advocate General contends that he is a civil servant, hence writ is not competent. In reply to this contention of the learned Assistant Advocate General, learned counsel for the petitioner contends that when a person is deferred for promotion on account of some pending enquiry then it becomes a case of fitness against which appeal before the Punjab Service Tribunal is not competent.

2. Arguments heard. Record perused.

3. It is an established law laid down by the Apex Court that pendency of enquiry and even minor penalty cannot come in the way of promotion. In the present case the departmental representative who produced the record did not disclose any penalty available in the petitioner's record except pendency of inquiry. Reference may be made to 2003 PLC (CS) 1496, 2008 PLC (CS) 1019 and 2009 PLC (CS) 40. When a civil servant is deferred for promotion due to pendency of some enquiry the case does fall within the ambit of fitness and against that order appeal before the Punjab Service Tribunal is not competent.

4. In the attending facts and circumstances of the case, this Court has no option but to accept the writ petition. The respondents are directed to place the petitioner's promotion case before the Departmental Promotion Committee within a period of two months positively from the receipt of certified copy of this order. The Departmental Promotion Committee shall consider the petitioner's case fairly, justly and in accordance with law, rules and regulations. This exercise must be concluded within two months and result thereof be conveyed to the Deputy Registrar (Judicial) of this Court. This writ petition is disposed off in the above terms.

(R.A.) Petition disposed of.

PLJ 2016 Lahore 60 (DB)

Present:Mrs. Ayesha A.Malik and Faisal Zaman Khan, JJ.

GOVERNMENT OF PUNJAB through Chief Secretary Civil Secretariat,Lahore and 2 others--Appellants

versus

Syed RIAZ ALI ZAIDI--Respondent

I.C.A. No. 565 of 2015 in W.P. No. 5406 of 2011, heard on 9.7.2015.

High Court Rules--

----R. 17--Constitution of Pakistan, 1973, Arts. 122, 175 & 208--Law Reforms Ordinance, 1972, S. 3--Intra Court Appeal--Adhoc allowance--Employees of Lahore High Court--Grant of judicial and adhoc allowance staff of superior judiciary--Sought to be act upon letter--Directive of Prime Minister--No positive action was taken on basis of directive--Challenge to--No role of Governor--Employees of High Court fall directly under control of chief justice--No approval was required from governor--Administrative expenses--Validity--Fixation of posts, appointment to posts, grant of increment, seniority and promotion are all subject to decision of Chief Justice without any approval from Governor--Once rules are, approved, Governor has no role and cannot interfere in pay and allowances fixed by Chief Justice--Finding in judgment that approval of Governor under Rule 17 is a one off act is in accordance with mandate of Constitution and spirit of High Court Rules--Annual Budget Statement and its explanatory memorandums include expenses related to Lahore High Court--Appellants are obligated to comply with decision of Chief Justice and AC--Since obligation is mandate of Constitution question of retrospectivity and reliance on notification does not arise--If employees of High Court are granted adhoc allowance for year 2010, it will prompt claims from other departments who have been specifically ousted on basis of notification, to agitate their right to adhoc allowance for year 2010--No justification in denying adhoc allowance for year 2010 on basis of notification--Employees of Lahore High Court do not fall under control and management of appellants/provincial government hence question of discrimination would not arise--However, since they are not civil servants said notification cannot be made binding on them and question of discrimination, will not arise as they do not fall under control of Provincial Government--Appeal was dismissed.

[Pp. 65, 66, 67 & 68] A, B, C, D, E, F & G

Mr. Muhammad Shan Gull, Additional Advocate General assisted by Mr.Naeem Yousaf, Advocate alongwith Mr. Ahmad Raza Sarwar,Special Secretary Finance Department, Muhammad Akhtar,Treasury Officer and Nadeem Riaz Malik, Section Officer, Finance Department for Appellants.

Mian Bilal Bashir, Advocate assisted by Raja Tassawar Iqbal,Advocate for Respondent.

Mr. MuhammadAzhar Siddique,Advocate for Applicant (in C.M. Nos. 5061 and 5062 of 2015) and for Petitioner (in Crl. Org. No. 1719-W/2015).

Date of hearing: 9.7.2015.

Judgment

Mrs. Ayesha A. Malik, J.--The Appellants are aggrieved by the impugned judgment dated 10.2.2015 in WP No. 5406/2011 as the learned Single Judge has granted fifty percent increase in Judicial Allowance and fifty percent increase in Adhoc Allowance with effect from 1.7.2010 to the employees of the Lahore High Court.

1. The case of the Appellants is that the Respondent is an, employee of the Lahore High Court Establishment who sought a direction to the Provincial Government to act upon Letter No. F.3(1)/2009-A-II dated 26.1.2011 issued by the Government of Pakistan, Law, Justice and Parliamentary Affairs Division, Islamabad wherein the Prime Minister approved a fifty percent increase in Judicial Allowance and a fifty percent increase at the uniform rate of the basic pay, known as Adhoc Allowance to the staff of all superior judiciary with effect from 1.7.2010. The learned Additional Advocate General, (“AAG”) Mr. Shan Gull argued that the Prime Minister does not have any executive or legislative authority to direct the Province to make any such payment out of the Provincial Consolidated Fund. He argued that the Prime Minister cannot require the Provincial Government to make any kind of payment from the Provincial Consolidated Fund. He further argued that any payment with respect to Judicial Allowance or Adhoc Allowance must be first approved by the Governor of the Province in terms of Rule 17 of Chapter 10, Part “C” of the High Court Rules and Orders (Volume-V), (“High Court Rules”). Further argued that the Respondent has no legal right on the basis of the Prime Minister's directive to agitate a claim for fifty percent increase in the Judicial Allowance with effect from 1.7.2010. He explained that the Administrative Committee (“AC”) of the Lahore High Court took, a decision on 13.5.2013 whereby it approved the payment of fifty percent increase in Judicial Allowance and Adhoc Allowance to its employees with effect from 1.7.2010. He stated that the decision of the AC is premised on the directive issued by the Prime Minister dated 26.1.2011. Hence it cannot be followed. He further argued that Judicial Allowance has been granted with retrospective effect which is patently illegal as a liability has been imposed on the Provincial Government retrospectively. He argued that the Appellants are aggrieved by the interpretation given to Rule 17 of the High Court Rules in the impugned judgment as the same is contrary to the mandate of the Constitution of Islamic Republic of Pakistan, 1973 (“Constitution”). With respect to Adhoc Allowance the learned AAG argued that the same cannot be granted to the employees of the Lahore High Court because in terms of Notification dated 15.7.2010, issued by the Finance Department of the Provincial Government, Adhoc Allowance granted in the year 2010 was not admissible to persons who were already getting allowance equal to one month's basic pay. He stated that on the basis of the said Notification, many employees of the Provincial Government including members of the Armed Forces, National Highway and Motorway Police were denied Adhoc Allowance for the year 2010. For this reason since the employees of the High Court also fall in the category of persons who have received an allowance equal to one month's basic pay as provided in the Notification dated 15.7.2010 they are not entitled to this allowance. He clarified that with respect to Adhoc Allowance the dispute pertains to the year 2010 only as Adhoc Allowance for all other years has been paid.

2. Mr. Ahmad Raza Sarwar, Special Secretary, Finance Department appeared before us to explain the rationale of the case of the Appellants and to assist the Court with reference to the manner in which the process for granting the allowances with respect to the employees of the High Court is carried out. He explained that the payment for the employees of the judiciary comes from the Provincial Consolidated Fund which is a single and unified fund from which expenses are met by the Provincial Government. It is his understanding that in terms of the Constitution and Punjab Government Rules of Business, 2011 and the High Court Rules, if the AC and the Chief Justice recommend an allowance for its employees then that recommendation must be approved by the Governor of the Province. He stated that the Governor can modify the recommendation and send the matter back to the AC and the Chief Justice for reconsideration. He further stated that as per practice the AC has been submitting its recommendation to the Governor since 2003 which has been processed under the law and approved by the Governor. In this regard, he has placed before us the record containing approvals sought and granted for judicial allowance from the year 2003. He stated that if any allowance is recommended by the AC without the approval of the Governor, then as per his understanding the Provincial Government is under no obligation to make the funds available. The Government of Punjab sanctioned fifty percent increase of the existing basic pay known as Adhoc Allowance in the year 2010 to its employees with effect from 1.7.2010 subject to the condition that those employees who were already in receipt of any special allowance equal to one month's basic pay would not be allowed Adhoc Allowance. He stated that the employees of the High Court have been denied the grant of Adhoc Allowance as they were in receipt of different allowances equal to one month's pay hence they do not qualify for the Adhoc Allowance. He stated that the Government of Punjab is paying Judicial Allowance from 1.7.2014 which was duly approved by the Governor. As to the Adhoc Allowance, since there is a bar on the payment of Adhoc Allowance pursuant to Notification dated 15.7.2010, they are not willing to pay the same. He clarified that the issue of Adhoc Allowance is only with respect to the year 2010 as the Adhoc Allowances for the subsequent years have been paid to the employees of Lahore High Court.

3. Mian Bilal Bashir, learned counsel for the Respondent in support of the impugned judgment argued that fifty percent increase in Judicial Allowance and fifty percent increase in Adhoc Allowance have been given to all the employees of the other High Courts of the country and the august Supreme Court of Pakistan except for the employees of the Lahore High Court. He stated that Adhoc Allowance is granted every year to the employees of the Lahore High Court and could not be refused for the year 2010. He stated that there is no basis to deny the employees the Adhoc Allowance on the strength of the Notification dated 15.7.2010 as they are not at par with the civil servants mentioned in Notification dated 15.7.2010. He stated that the employees of the Lahore High Court fall directly under the control of the Hon’ble Chief Justice. He stated that the Hon’ble Chief Justice and the AC approved fifty percent increase in Judicial Allowance and in Adhoc Allowance with effect from 1.7.2010 for its employees on 15.5.2013. He stated that the Appellants are obligated to comply with the decision of the AC and the Hon’ble Chief Justice in terms of Rule 17 of the High Court Rules.

4. Mr. Muhammad Azhar Siddique, learned counsel for Applicant in C.M. Nos. 5061 and 5062 of 2015 and for the Petitioner in Criminal Original No. 1719-W/2015 while supporting the impugned judgment argued that the Appellants have never challenged the directive of the Prime Minister dated 26.1.2011. They have also not challenged the decision of the AC dated 15.5.2013. Therefore they are obligated to comply with the same. Learned counsel further stated that the matter for grant of Judicial Allowance and Adhoc Allowance falls exclusively within the domain of the Hon’ble Chief Justice and the AC in terms of Rule 17 of the High Court Rules and as such no approval is required from the Governor.

5. Heard and record perused.

6. The facts of the case are that on 26.1.2011, the Prime Minister through a directive approved a fifty percent increase at the uniform rate of basic pay, referred to as Adhoc Allowance and fifty percent increase in Judicial Allowance to the staff of the superior judiciary across the country with effect from 1.7.2010. No positive action was taken by the Appellants on the basis of the directive hence on 15.5.2013 the AC in its meeting approved a fifty percent increase in the Judicial Allowance and in the Adhoc Allowance with effect from 1.7.2010. The said allowances were not granted by the Provincial Government, hence the Respondent filed WP No. 5406/2011 before this Court seeking implementation of the Prime Minister's directive dated 26.1.2011. The impugned judgment while relying on Articles 121, 122, 175 and 208 of the Constitution essentially held that judicial independence means and includes financial independence which means that the High Court has total budgetary and financial control and it can draw its own administrative expenses including remuneration of its officers and servants. The judgment farther holds that administrative expenses do not require the approval of the Governor or the assent of the Provincial Assembly in terms of Article 121 of the Constitution. The impugned judgment concludes that the expenses proposed by the High Court cannot be turned down, revised or altered by the executive or by the legislature and that there is no provision under the Constitution that allows the Provincial Executive to delay or reconsider, negate, alter, reduce the administrative expenses of the High Court which is a charged expenditure under Article 121 of the Constitution.

7. The basic issue raised by the Appellants is that in terms of Rule 17 of the High Court Rules approval of the Governor is necessary before any allowance, Judicial or Adhoc, can be increased. The said Rule is reproduced hereunder for convenience:--

Members of the High Court Establishment shall be entitled to pay (including special pay) and allowances as fixed by the Chief Justice, from time to time with the approval of the Governor to these rules.

The learned AAG while relying on the stated Rule argued that no other rule in the High Court Rules requires the approval of the Governor except Rule 17. Since Rule 17 specifically makes mention of the approval of the Governor it means that an approval was thought to be necessary for the purposes of pay and allowances.

1. We have considered the arguments made before us however, we find that the emphasis on the approval of the Governor is totally misplaced. The High Court Rules provide for the appointment and conditions of service for the Establishment of the Lahore High Court. These Rules have admittedly been approved by the Governor and essentially lay down the terms and conditions of service of the employees of the High Court. The case of the Appellants is that the approval under Rule 17 is mandatory for the gram of increase in Judicial Allowance and Adhoc Allowance because when compared with the other rules, Rule 17 is the only Rule which requires approval from the Governor. We have gone through the High Court Rules and find that Rule 4 provides for the establishment of as many posts as may be fixed from time to time by the Chief Justice. As per the High Court Rules, all appointments are made by the Chief Justice and increments are granted under Rule 18 by the Chief Justice. In all these cases, the approval of the Governor is not required. Rule 17 however, provides that members of the High Court Establishment shall be entitled to pay, special pay and allowances as fixed by the Chief Justice, from time to time, with the approval of the Governor to these rules. We find that reference to 'approval of the Governor' is specifically in relation to the approval sought for making the High Court Rules and not for approval each time pay or allowance has to be increased. Not only does this understanding fit in well when reading the High Court Rules in its entirety but it is also in consonance with the principles of independence of the judiciary as held by the august Supreme Court of Pakistan in the case titled Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others (PLD 1993 SC 341), Government of Sindh through Chief Secretary to Government of Sindh, Karachi and others v. Sharaf Faridi and others (PLD 1994 SC 105) and Abdul Rasheed and others v. Province of Sindh and others (2011 PLC (CS) 926). The Chief Justice as the competent authority creates the posts, makes the appointments, fixes the seniority and grants promotion. He is also competent authority to determine pay and allowances of the members of the Establishment of Lahore High Court. The argument that only for the purposes of pay and allowances the approval of the Governor is required but for all other matters relating to terms and conditions of service the Chief Justice is the competent authority does not find favour with the spirit of the High Court Rules. To our mind when reading the High Court Rules, it is evident that fixation of posts, appointment to the posts, grant of increment, seniority and promotion are all subject to the decision of the Chief Justice without any approval from the Governor. On the basis of the same understanding, the terms and conditions of service, the pay and any increase thereof along with grant of any allowance will also be decided by the Chief Justice without any approval of the Governor. It is only the rules themselves when promulgated that need approval of the Governor in terms of Article 208 of the Constitution. It is the Constitution when mandates that the Governor approve the rules related to the terms and conditions of service. Once the rules are approved, the Governor has no role and cannot interfere in the pay and allowances fixed by the Chief Justice. Therefore the finding in the impugned judgment that the approval of the Governor under Rule 17 is a one off act is in accordance with the mandate of the Constitution and the spirit of the High Court Rules. In this regard, it is held in the case titled Government of the Punjab through Secretary, Finance Department, Lahore v. Mubarik Ali Khan and 8 others (PLD 1993 SC 375) that in the context of the Constitutional provisions reproduced above, it is clear that in the matter of the officers and servants employed in the establishment of the Supreme Court of Pakistan and the High Courts the legislature had not been given any role to determine the terms and conditions of the employees which of course would include their remuneration also. Such an exclusionary role was attributed to the requirement of maintaining the independence of judiciary. It was further held in this case that it is admitted that under Rule 17 no separate dispensation with the approval of the Governor has taken place in respect of pay and allowances. For this reason the residuary Rule 22 gets attracted.

2. The next issue is with respect to the implementation of the decision dated 15.5.2013 of the Chief Justice and the AC wherein the increase in Judicial Allowance and Adhoc Allowance was allowed. A lot of emphasis was placed on the fact that the decision of the AC was based on the Prime Minister's directive dated 26.1.2011 which directive is not binding on the Provincial Government. Although the Appellants have argued that they are not bound by the said directive, we are of the opinion that this argument is not relevant to the controversy at hand because the Chief Justice and the AC took a decision on 15.5.2013 that it will give all its employees fifty percent increase in Judicial Allowance and Adhoc Allowance with effect from 1.7.2010. Given that a decision was taken by the AC and the Chief Justice, the Appellants were obligated to follow the same and ensure its compliance irrespective of the fact that the decision may have been based on the Prime Minister's directive dated 26.1.2011. The only answer to the question as to why the decision of the AC was not followed is that Rule 17 of the High Court Rules requires the approval of the Governor. Therefore there is no merit in this argument as the Appellants are bound to comply with the decision of the Chief Justice through the AC. The issue that the decision of the AC required Judicial Allowance and Adhoc Allowance to be paid with effect from 1.7.2010, being retrospective in nature is also misconceived as the Appellants are bound to comply with the orders of the Chief Justice and the AC. The Constitution protects the independence of the judiciary from the executive and the legislature which includes financial independence from the other two pillars of the state. The doctrine of separation of power means that each pillar of the State shall take care of itself. Hence the Constitution specifically provides under Article 120 that an Annual Budget Statement be submitted in respect of every financial year before the Provincial Assembly. The Annual Budget Statement and its explanatory memorandums include the expenses related to the Lahore High Court. Article 121 of the Constitution protects the administrative expenses and remunerations payable to the officers and servants of the High Court by declaring it to be an expenditure charged upon the Provincial Consolidate Fund, Article 122 of the Constitution provides that charged expenditures as detailed in the Annual Budget Statement may be discussed in the Assembly but shall not be submitted to the vote. Therefore the Constitution specifically provides that no interference shall be made with respect to the administrative expenses and remuneration payable to the employees of the High Court. The strength and effectiveness of an independent judicial system means that it has absolute control over its employees and in this context that it decides on all matters related to the terms and conditions of their service. As an independent branch it is presumed that the judiciary will regulate and monitor its finances in the most prudent manner possible and take reasonable decisions. Such decisions cannot be made subject to the approval of the Governor and any matter related to pay and allowances cannot be turned down, modified or sent back by the Governor to the AC and the Chief Justice for reconsideration. In the instant case the Minutes of the Meeting of the AC dated 15.5.2013 show that the decision to grant Judicial Allowance and Adhoc Allowance with effect from 1.7.2010 was subjected to a process of deliberation by the AC and the Chief Justice, who in their wisdom concluded that the allowances should be granted with effect from 1.7.2010. The Appellants before us accept that the Judicial Allowance should be given to the employees of the High Court and they have stated that they are paying it with effect from 1.7.2014. Therefore with respect to Judicial Allowance they essentially dispute the effective date of 1.7.2010 and the amount due from 1.7.2010 to 30.6.2014. As to Adhoc Allowance they have expressed their inability to accept the decision of the AC and the Chief Justice on the strength of Notification dated 15.7.2010. However we are of the opinion that the Appellants are obligated to comply with the decision of the Chief Justice and the AC dated 15.5.2013. Since this obligation is the mandate of the Constitution the question of retrospectivity and reliance on Notification dated 15.7.2010 does not arise. Furthermore reference to past practice when the increase in Judicial Allowance was sent to the Governor will also not change the mandate of the Constitution. In this regard, we find that the impugned judgment has aptly dealt with the matter by finding that The budgetary process of the High Court must be a collaborative exercise, where comments, suggestions and inputs are solicited from the provincial government, financial experts and other relevant institutions, in order to examine, appreciate and gauge the fiscal and economic conditions and realities of the Province before finalizing the charged expenditure. This is in line with the democratic spirit of co-operation, coordination, responsibility and accountability. Working relationship between different organs of the State is a path that enriches and strengthens democracy.

3. With respect to the Adhoc Allowance, the issue raised by the Appellants is on the basis of Notification dated 15.7.2010 where certain departments of the Provincial Governments have been denied Adhoc Allowance. They argue that the same will be made applicable to the employees of the Lahore High Court. The basic concern as explained by Mr. Ahmad Raza Sarwar, Special Secretary, Finance Department and the learned AAG is that if the employees of the High Court are granted the Adhoc Allowance for the year 2010, it will prompt claims from other Departments who have been specifically ousted on the basis of the Notification dated 15.7.2010, to agitate their right to Adhoc Allowance for the year 2010. However we find that there is no justification in denying Adhoc Allowance for the year 2010 on the basis of Notification dated 15.7.2010. The employees of the Lahore High Court do not fall under the control and management of the Appellants/Provincial Government hence the question of discrimination would not arise. As per Rule 22 of the High Court Rules they have only adopted to be governed by the provisions of the Civil Service Rules (Punjab) in matters of salaries, allowance, leave or pension. However, since they are not civil servants the said Notification cannot be made binding on them and the question of discrimination, in our opinion will not arise as they do not fall under the control of the Provincial Government.

4. In view of the aforesaid, impugned judgment dated 10.2.2015 passed by the learned Single Judge is upheld and this appeal is dismissed.

(R.A.) Appeal dismissed

PLJ 2016 Lahore 69 [Multan Bench Multan]

Present: HafizShahid Nadeem Kahloon, J.

MUHAMMAD MUDASSIR BHUTTA--Petitioner

versus

EX-OFFICIO JUSTICE OF PEACE, etc.--Respondents

W.P. No. 578 of 2015, decided on 28.7.2015.

Constitution ofPakistan, 1973--

----Art. 199--Criminal Procedure Code, (V of 1898), Ss. 22-A, 22-B, & 145--Constitutional petition--Registration of case--Fake stamp paper on behalf of deceased father was prepared and made efforts to dispossessed illegally from inherited property--Civil as well as criminal litigation was pending--Filing of private complaint can provide equal adequate remedy--Validity--Constitution it is not obligatory for High Court to issue writ in each case especially when adequate remedy in form of private complaint being available to petitioner--Petition was dismissed.. [P. 70] A

2005 SCMR 951, PLD 2010 SC 691 & 2014 MLD 1033, rel.

Mr.Tanveer Haider Buzdar,Advocate for Petitioner.

Mr.Mazhar Jamil Qureshi, A.A.G. for State.

Date of hearing: 28.7.2015.

Order

Through this writ petition, the petitioner has assailed the legality of order dated 12.01.2015 passed by learned Ex-Officio Justice of Peace (Addl. Sessions Judge) Multan, whereby the application made by the petitioner under Sections 22-A & 22-B, Cr.P.C. seeking direction for registration of a case against Respondent No. 3 was dismissed.

1. The petitioner made an application under Sections 22-A & 22-B, Cr.P.C. seeking direction for the registration of case against Respondent No. 3 before Ex-officio Justice of Peace stating therein that on 05.08.2013 he received a cheque of Rs. 14,00,000/-from Respondent No. 3 as his share inherited by his father Maqbool Ahmad, who died on 20.09.2012 and Respondent No. 3 prepared a fake stamp paper on behalf of his dead father and making efforts to dispossess the petitioner illegally from a shop inherited to him by his father. In this regard, proceedings under Section 145, Cr.P.C. are also pending in the Court of Special Judicial Magistrate. The petitioner has also filed an application under Section 476, Cr.P.C. before the competent Court of law, which was dismissed. The learned Ex-Officio Justice of Peace after procuring the report from the police, dismissed the application of the petitioner on the ground that civil litigation is pending between the parties and petitioner submitted the said petition as counterblast to convert a civil dispute into a criminal case. The petitioner being aggrieved by the aforesaid order, filed the instant writ petition.

2. Learned counsel for the petitioner has contended that cognizable offence was made out but even then learned Ex-officio Justice of Peace dismissed the application of the petitioner arbitrarily.

3. On the other hand, learned law officer has contended that civil as well as criminal litigation is pending between the parties and petitioner wants to convert a civil dispute into a criminal one. The other efficacious remedy is available to the petitioner.

4. Arguments heard and record perused.

5. Learned counsel for the petitioner could not point out any legal and factual infirmity in the impugned order and also could not controvert what has been stated in the police report and parawise comments furnished by the police. There is nothing on record that the learned Ex-officio Justice of Peace has improperly exercised discretion vested in him and impugned order has not shut the door of the petitioner to initiate the criminal proceedings by lodging private complaint. The filing of private complaint can provide an equal adequate remedy to the petitioner and he can lead the entire evidence himself before the trial Court and his grievance can adequately be redressed. The proceedings under Section 145, Cr.P.C. are also pending adjudication between the parties before learned Special Judicial Magistrate.

6. Under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, it is not obligatory for the High Court to issue writ in each case especially when the adequate remedy in the form of private complaint being available to the petitioner. Reliance can be placed in case “Habib-ullah Vs. Political Assistant, Dera Ghazi Khan & others” (2005 S.C.M.R. 951), “Rai Ashraf and others Vs. Muhammad Saleem Bhatti” (PLD 2010 S.C. 691), and “Muhammad Waris Vs. SHO and another” (2014 M.L.D. 1033) in this behalf.

7. I have seen no illegality and infirmity in the impugned order dated 12.01.2015 passed by learned Ex-officio Justice of Peace and same is hereby maintained. Consequently, this writ petition being devoid of any merits is hereby dismissed.

(R.A.) Petition dismissed

PLJ 2016 Lahore 71 (DB)

Present: MuhammadAmeer Bhatti and Ch. Muhammad Iqbal, JJ.

IYAZ-UL-HAQ CHAUDHRY--Appellant

versus

NIB BANK LTD. through Authorized Attorney and 4 others--Respondents

R.F.A. No. 642 of 2015, heard on 8.7.2015.

Void Order--

----Limitation--Impugned judgment and decree to his extent is void and it is settled principle of law that no limitation is ran against a void order. [P. 72] A

Financial Institutions (Recovery of Finances) Ordinance, 2001 (XLVI of 2001)--

----S. 24--Limitation Act, (IX of 1908), S. 5--Decree was passed on basis of forged signatures--Validity--Bank has neither filed any reply to application under Section 24 of Ordinance, 2001 read with Section 5 of Limitation Act, nor counter affidavit to controvert narration of facts and grounds raised in that application, which means an admission on part of Bank. [P. 72] B

Mr.Taffazul H. Rizvi, Advocate for Appellant.

Rana Haseeb Ahmad Khan, Advocate for Respondent No. 1.

Date of hearing: 8.7.2015.

Judgment

Ch. Muhammad Iqbal, J.--Through this appeal, the appellant has challenged the judgment and decree dated 26.12.2014 passed by the learned Banking Judge whereby the COS No. 24/2012 was decreed in favour of Respondent No. 1.

1. Brief facts of the case are that Respondent No. 1 filed a suit for recovery of Rs. 5,24,72,390/12 under Section 9 of the Finance Institutions (Recovery of Finances) Ordinance, 2001 against the appellant and Respondents No. 2 to 5. The appellant filed PLA No. 67/B/2012 while Respondent No. 2 filed PLA No. 96/B/2012. On 9.5.2012, the case was adjourned for replication to the PLAs for 11.7.2012. On 24.12.2014, the ex-parte proceedings were initiated against the appellant and Respondents No. 2 to 5 and thereafter the suit, filed by Respondent No. 1, was decreed by the learned Banking Judge vide judgment and decree dated 26.12.2012. Hence, this appeal.

2. It has been contended on behalf of the appellant that the impugned judgment and decree is against the law and facts of the case; that while passing the impugned judgment and decree, the learned Banking Judge has not decided PLA No. 67/B/2012, filed by the appellant; that not only the signature of the appellant were forged on the guarantee/documents but also the signature of witness Hassan Bin Shujah were forged who sworn an affidavit in this regard and the same is placed on the record, therefor, the matter requires deep probe by this Court because the impugned judgment and decree has been passed on the basis of these forged signatures; that the appellant cannot be held liable for the debts of the company which he never guaranteed; and that the appellant came to know about passing of the impugned judgment and decree on 10.4.2015 when the Bank informed him regarding filing of execution petition.

3. On the other hand, the learned counsel for Respondent No. 1 has supported the impugned judgment and decree on the ground that the appeal is hopelessly barred by time. In support of his contention, he has placed reliance on the cases of “Mst. Khalida Khatoon and another VS Askari Bank Limited and 2 others” (2012 CLD 194) and “Gul Muhammad VS MCB Bank Limited through President and others” (2012 SCMR 136).

4. Heard. Record perused.

5. It is an admitted fact that PLA No. 67/B/2012, filed by the appellant, has not been decided by the learned Banking Judge while passing the impugned judgment and decree dated 26.12.2014, as such, on this sole ground the impugned judgment and decree on the face of it is void to the extent of the appellant. So far as the contention of the learned counsel for Respondent No. 1 that the appeal is barred by time it is submitted that as the PLA filed by the appellant has not been decided, therefore, the impugned judgment and decree to his extent is void and it is settled principle of law that no limitation is ran against a void order. In this regard, reliance is placed on the case of “Province of Sindh and others VS Ghulam Fareed and others” [2015 PLC (C.S) 151] and “Fazli Hakeem and another VS Secretary State and Frontier Regions Division Islamabad and others” (2015 SCMR 795).

Even otherwise, Respondent No. 1 has neither filed any reply to application under Section 24 of the Finance Institutions (Recovery of Finances) Ordinance, 2001 read with Section 5 of the Limitation Act, 1908 (CM. No. 1/C/2015) nor counter affidavit to controvert the narration of facts and the grounds raised in this application, which means an admission on the part of Respondent No. 1. In this regard, reliance is placed on the case of “Islamic Republic of Pakistan through

the Secretary, Ministry of Defence, Government of Pakistan, Rawalpindi and another vs. Amjad Ali Mirza”(PLD 1977 SC 182).

1. The case law referred by the learned counsel for Respondent No. 1 are not applicable in this case as in the said cases the petition for leave to appeal was granted/decided while in the instant case the learned Banking Judge has not decided the PLA.

2. In view of the above, the instant appeal is accepted, the impugned judgment and decree dated 26.12.2014 is hereby set aside to the extent of the appellant and PLA No. 67/B/2012 filed by the appellant/Respondent No. 1 will be deemed to be pending before the learned Banking Judge, who shall decide the same on merits and in accordance with law. C. M. No. 1/C/2015 also stands allowed.

(R.A.) Appeal allowed

PLJ 2016 Lahore 73 (DB) [Multan Bench Multan]

Present: MuhammadAmeer Bhatti and Khalid Mahmood Malik, JJ.

BASHIR AHMAD--Appellant

versus

HABIB BANK LIMITED, etc.--Respondents

F.A.O. No. 64 of 2015, heard on 15.6.2015.

Financial Institutions (Recovery of Finances) Ordinance, 2001 (XLVI of 2001)--

----Ss. 19(7) & 22--Repayment of amount allegedly deposited in auction proceedings when objection petition of judgment debtor was accepted--Awarding of compensation on auction amount being successful bidder as sale price of mortgaged property--Validity--Auction purchaser of mortgaged property had deposited specific amount which was being used by bank--Appellant had participated in auction proceedings in good faith and he remained deprived of fruit of said amount till today--Bank opposing his application throughout and act of bank does not appear to have acted in good faith in matter in hand--Appeal was allowed. [P. 76] A

Ch.Sagheer Ahmad, Advocate for Appellant.

Ch.Saleem Akhtar Warraich, Advocate with Muhammad Qasim, Credit & Marketing Officer HBL for Respondents.

Date of hearing: 15.6.2015.

Judgment

Khalid Mahmood Malik, J.--This first Appeal under Section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 is directed against the Order dated 22.4.2015, passed by Judge Banking Court No. 1, Multan, whereby he dismissed the application filed by appellant/auction purchaser under Section 19(7) Proviso 1st of the Financial Institutions (recovery of Finances) Ordinance, 2001 for awarding of compensation on auction amount Rs. 50,50,000/- deposited by appellant being successful bidder as sale price of mortgaged property.

1. Precisely facts of the case are that respondent (bank) being, decree-holder in order to recover decretal amount put the mortgaged property in auction on 02.07.2008. The appellant participated in auction bid and being highest bidder of Rs. 50,50,000/-, the auction of the mortgaged property was confirmed by the Banking Court, Multan, M/S Multan Textile Allied. Industries (Pvt.) limited, and others (judgment Debtors/Respondents No. 2 to 7) filed an appeal, which was accepted by this Court and case was remanded back to the Banking Court for its fresh decision; that Banking Court has dismissed the objection petition videorder dated 08.08.2012 and once again FAO No. 131/2012 was filed by' the judgment debtor, which was allowed on 05.11.2012. In pursuance to the said order, Banking Court framed issues, recorded evidence of parties and then again dismissed objection petition. The judgment debtors again preferred FAO No. 110/2013 before this Court against the order dated 07.05.2013, which was accepted vide judgment dated 29.05.2014 and the order dated 07.05.2013 was set aside. Being aggrieved, Respondent No. 1 (bank) filed CPSLA before the Hon’ble Supreme Court of Pakistan, which is still subjudice. The appellant has filed Civil Miscellaneous No. 2531/C of 2014 in FAO No. 110/2013 with the prayer that Bank may kindly be directed to return the amount of the appellant deposited by him along-with 20% as provided under Section 19(7) Proviso (i) of the Financial Institutions (Recovery of Finances) Ordinance, 2001, which was adjourned vide order dated 28.01.2015 as the learned counsel for appellant seeks time to file application before the learned Banking Court for redressal of his grievances voiced in the instant application. In consequence, the appellant moved an application for redressal of his grievance, which was contested by respondent (bank) and learned Banking Court dismissed the application of petitioner vide impugned order dated 22.04.2015. The F.A.O No. 110/2013 has been decided vide judgment dated 29.5.2014 therefore, CM No. 2531/2014 filed by appellant has become infructuous.

2. After having heard learned counsel for parties and survey of record, we observed that there is no controversy between the parties on the following facts:--

(i) Earlier suit for recovery of Rs. 56,68,890.45/- instituted by respondent(bank) was decreed against the judgment debtors M/S Multan Textile Allied lndustries (Pvt) Limited and others.

(ii) In order to recover decretal amount, mortgaged property of judgment debtors was put to auction on 02.07.2008.

(iii) The appellant participated in auction bid and being highest bidder of Rs. 50,50,000/-, the auction of mortgaged property was confirmed by the Banking Court, Multan.

(iv) FAO No. 110/2013 filed against order dated 07.05.2013 passed by learned Banking Court No. 1, Multan whereby objection petition filed by judgment debtors (respondents) has been dismissed, was accepted vide judgment dated 29.5.2014.

(v) The Respondent No. 1/decree-holder (bank) has challenged the judgment dated 29.5.2014 before Apex Supreme Court of Pakistan, which is still pending.

1. On a Court question, learned counsel for decree-holder (bank) has admitted that appellant has deposited Rs. 50,50,000/- being highest bidder in the bank. Learned Banking Court has dismissed the afore-mentioned application of appellant mainly on the grounds that:--

“Objection petition filed by judgment debtors was accepted by this Court and no such order was passed in favour of petitioner/auction purchaser; petitioner/auction purchaser has filed similar application in this Court, which is still pending adjudication over there. Therefore, Court has got no jurisdiction to pass any order on this application”.

1. Learned counsel for respondent (bank) opposed this application merely on the ground that Bank has challenged the judgment dated 29.5.2014 before the Apex Supreme Court of Pakistan. No doubt CPSLA against judgment dated 29.5.2014 is subjudice before august Supreme Court of Pakistan but mere filing of CPSLA does not bar the appellant from claiming repayment of amount in question allegedly deposited by the appellant in auction proceedings particularly when the objection petition of the judgment debtors was accepted and on Court questions, representative of bank and learned counsel for

respondent (bank) admitted that the appellant has deposited amount with the bank and no stay order was passed by the Apex. Supreme Court of Pakistan with regard to the auction amount i.e. Rs. 50,50,000/- deposited by the appellant/auction purchaser. Learned Banking Court has not appreciated the facts'-of the case in its true perspective as civil miscellaneous filed by petitioner in FAO No. 110/2013 has become infructuous. Admittedly, appellant/auction purchaser of the mortgaged property has deposited Rs. 50,50,000/-, which was being used by respondent(bank) since 2008. Appellant has participated in auction proceedings in good faith and he remained deprived of the fruit of said amount till today. The respondent (bank) opposing his application throughout and the act of the bank does not appear to have acted in good faith in the matter in hand.

1. In view of above discussed facts, we allowed instant appeal by setting aside order dated 22.4.2015 and application filed by appellant is accepted by holding that appellant is entitled to auction amount with penalty @ 10% per annum on the amount of auction withheld by bank.

(R.A.) Appeal allowed

PLJ 2016 Lahore 76[Bahawalpur Bench, Bahawalpur]

Present: Sadaqat Ali Khan, J.

SAEED AKHTAR KHAN (deceased) through legal heirs etc.--Petitioners

versus

RAZA AHMED KHAN and 42 others--Respondents

W.P. No. 995 of 2007, heard on 4.6.2015.

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

----S. 151 & O. XIII, Rr. 1 & 2--Qanun-e-Shahadat Order, (10 of 1984), Art. 89(5)--Constitution of Pakistan, 1973, Art. 199--Application for production public document was dismissed--Challenge to--Inheritance mutation was sanctioned in India before partition--Attestation of documents by Indian and Pakistani Embassies--Validity--Certificate copies of public documents should have been certified under seal of Pakistan counsel or diplomatic agent or certificate under seal of notary public was sufficient--Documents bear seal of notary public did not require seal of Pakistan counsel or diplomatic agent--Public documents in foreign country or certified copies must had certificate under seal of notary public or of Pakistan counsel or diplomatic agent and of not both--Documents were not filed with plaint and application for production of documents moved at belated stage had no substance because non-filing of documents with plaint were not considered fatal which empowers Court to receive documentary evidence during trial--Held: Documents were not in custody of petitioners rather same being public documents were in custody of office of Indian Govt. and copies were obtained in accordance with law and documents were received through registered post thereafter, petitioners had moved an application to produce same before trial Court--Petition was allowed. [Pp. 80 & 81] A, B & C

2005 SCMR 152 rel.

Moeen-ud-Din Qureshi, Advocate for Petitioners.

Mr.Nadeem Iqbal Ch. and Rana Rizwan, Advocates for Respondents.

Date of hearing: 4.6.2015.

Judgment

This Writ Petition No. 995 of 2007 has been filed by the present petitioners/defendants against the order dated 14.4.2007 passed by Additional District Judge, Khanpur according to which civil revision of the present petitioners was dismissed, filed by them against the order dated 30.1.2006 passed by Civil Judge, Khanpur according to which application of the present petitioners under Order XIII Rule 1 & 2 read with Section 151 of CPC to produce documents i.e. inheritance Mutation No. 1744 dated 7.5.1942 and pedigree table pertaining to years 1942-43 was dismissed.

1. The brief facts of the case are that plaintiffs/respondents filed a suit for declaration with the assertion that Mst. Mubarak Begum and Latifan are owners in possession of the suit property being widows of Barkhurdar Khan died in India before partition and his inheritance Mutation No. 1465 dated 20.12.1974 in favour of all the legal heirs is against law and facts and is liable to be set-aside.

2. Present petitioners being defendants contested the suit by filing written statement and submitted that Mst. Mubarak Begum and Latifan widows of Barkhurdar Khan were not the sole owners of the suit property rather were limited owners of the suit property and the disputed inheritance Mutation No. 1465 pertaining to Barkhurdar Khan last male owner of the suit property mentioned above was rightly sanctioned in favour of his all the legal heirs.

3. Learned trial Court, out of the divergent pleadings of the parties, framed the following issues:--

“Issues:

1. Whether plaintiffs namely Mst. Mubarak Begum and Mst.Latifan widows of Barkhurdar Khan are full owners of the suit properties as detailed in the plaint? OPP

2. Whether late Mst.Aisha and Mst. Fatima are sisters of Barkhurdar Khan? OPD

3. If Issue No. 1 proves in negative and Issue No. 2 in positive, whether the suit property was allotted to the two plaintiffs as widows of Barkhurdar Khan, if so respective shares of contesting parties? OPP

4. Whether the plaintiffs have become the owners of the suit properties through adverse possession? OPP

5. Whether the suit is not maintainable in the present form?

6. Whether the suit is insufficiently and wrongly stamped?

7. Whether the plaintiffs has no locus standi for the suit?

8. Whether the plaintiffs suit is collusive one with Defendants No. 1 to 3?

9. Whether the Defendants No. 1 to 3 are necessary parties to the suit?

10. Whether Defendants No. 4, 5 are entitled to the compensatory costs under Section 35-A, CPC?

11. Relief.

12. Evidence of the plaintiffs has been recorded.

13. During the evidence of the defendants present petitioners have moved an application for seeking permission to produce documents i.e. inheritance Mutation No. 1744 dated 7.5.1942 pertaining to Barkhurdar Khan last male owner of the suit property sanctioned in India before partition in favour of Mst. Latifan alias Chooti and Mst. Mubarak Begum widows of Barkhurdar Khan being limited owners and pedigree table pertaining to year 1942-43.

14. Application was contested by the present respondents/ plaintiffs and same was dismissed by the trial Court vide order dated 30.1.2006.

15. Civil Revision filed by the present petitioners was also dismissed by Additional District Judge, Khanpur vide order dated 14.4.2007 hence this petition.

16. Learned counsel for the petitioners submitted that impugned orders of the Courts below are against law and facts and are liable to be set-aside.

17. On the other hand, learned counsel for the respondents has vehemently opposed this writ petition and supported the impugned orders of the Courts below.

18. I have heard the learned counsel for the parties and perused the record.

19. Inheritance Mutation No. 1465 pertaining to Barkhurdar Khan last male owner of the suit property was sanctioned on 20.12.1974 in favour of (i) Mst. Rafiqan and Nusrat Begum (his daughters) (ii) Mst. Mubarak Begum and Latifan (his widows) and (iii) Mst.Fatima and Ayesha (his sisters). Above mentioned mutation has been challenged by Mst. Mubarak Begum and Latifan widows of Barkhurdar Khan last male owner of the suit property by filing instant suit with the assertion that they are owners of the suit property and remaining legal heirs mentioned above have no concern with the suit property.

20. Suit has been contested by the present petitioners by filing written statement with the assertion that Mst. Mubarak Begum and Mst. Latifan widows of Barkhurdar Khan last male owner of the suit property were limited owners and disputed inheritance Mutation No. 1465 pertaining to Barkhurdar Khan deceased has rightly been sanctioned in favour of all the legal heirs of Barkhurdar Khan deceased.

21. After framing of the issues by the trial Court, plaintiffs have produced their evidence whereas during evidence of the defendants present petitioners have moved an application under Order XIII Rules 1 & 2 read with Section 151, CPC to produce documents i.e. inheritance Mutation No. 1744 dated 7.5.1942 pertaining to Barkhurdar Khan last male owner of the suit property and pedigree table for the years 1942-43 to prove that Mst.Mubarak Begum and Latifan widows of Barkhurdar Khan last male owner of the suit property were limited owners and relation of the parties with Barkhurdar Khan deceased.

22. I have perused these two documents with the assistance of the learned counsel for the parties. Both these mutations are public documents. An application Bearing No. 4929 has been moved to obtain the attested copy of inheritance Mutation No. 1744 dated 7.5.1942 pertaining to Barkhurdar Khan deceased in foreign country (India) on 10.3.2005 in the concerned office and same was issued by the concerned office on the same day. This document bears relevant endorsement of the concerned copying agency.

23. Admittedly, Barkhurdar Khan last male-owner of the suit property died in India before partition. Likewise, an application Bearing No. 4924 has been moved to obtain the attested copy of the pedigree table of Barkhurdar Khan last male owner of the suit property pertaining to years 1942-43 on 10.3.2005 and on the same day it was issued by concerned office. Both these documents have been attested by Notary Public District Hisar India with following endorsement:

“certified that this copy has been duly certified by the office pertaining to legal custody of original as per Indian Law dated 10.3.2005”

And received through registered post in Pakistan on 14.3.2005.

1. Learned revisional Court while dismissing the civil revision of the present petitioners has observed that both these documents have not been attested by the Indian and Pakistani Embassies. The relevant portion of the order is hereby reproduced: -

“the case is fairly old one. Though these documents may throw light on the controversy between the parties yet the fact remains that these have not been got certified/attested by the Indian and Pakistani Embassies to exclude the possibility of forgery and fabrication. Hence, on this sole ground the revision petition merits dismissal which is accordingly dismissed with no order as to cost”.

1. The relevant Article 89 (5) of Qanun-e-Shahadat Order, 1984 is hereby reproduced:--

“public documents of any other class in a foreign country, by the original, or by a copy certified by the legal keeper thereof with a certificate under the seal of a notary public, or of a Pakistan Counsel or diplomatic agent, that the copy is duly certified by the officer having the legal custody of the original, and upon proof of the character of the document according to the law of the foreign country”

1. Considering Article 89 sub-clause (5) of Qanun-e-Shahadat Order 1984, I am of the view that it is not the only requirement of law that certified copies of public documents should have been certified under the seal of Pakistan Counsel or diplomatic agent or a certificate under the seal of Notary Public is sufficient. Both the documents under discussion being public documents bear seal of Notary Public mentioned above do not require the seal of Pakistan Counsel or diplomatic agent. Public documents in a foreign country or certified copies thereof must have certificate under the seal of Notary Public or of a Pakistan Counsel or diplomatic agent and of not the both. Both the documents under discussion are the public documents, copies of which have been obtained in accordance with law. Further, both the documents have been attested by concerned Notary Public with certificate that copies have been certified by the officer having the legal custody of the original.

2. The argument of the learned counsel for the respondents that both the documents under consideration have not been filed with the plaint and application for production of the documents moved at belated stage has no substance because non-filing of the documents with plaint has never been considered fatal in view of the provisions of Order XIII Rule 2, CPC which empowers the Court to receive documentary evidence during trial. Reliance is placed on case Anwar Ahmad v. Mst. Nafis Bono through legal heirs (2005 SCMR 152) in which Hon’ble Supreme Court of Pakistan has observed at page 168 as under:--

“As far as non-filing of documents along with plaint is concerned, it has never been considered fatal in view of provisions of Order XIII, Rule 2, CPC which empowers the Court to receive documentary evidence during the trial”.

1. Even otherwise, these two documents were not in the custody of the present petitioners rather same being public documents were in the custody of relevant office of Indian Government and copies of which have been obtained on 10.3.2005 in accordance with law from the concerned office of Indian Government and these documents have been received by the present petitioners on 14.3.2005 through registered post thereafter present petitioners have moved an application on 3.5.2005 to produce the same before the trial Court.

2. It is important to note here that evidence of the present petitioners has not been closed.

3. In view of the above discussion, both the Courts below have committed illegality by dismissing the application of the present petitioners to produce above mentioned documents.

4. For the foregoing reasons this petition is allowed. Impugned orders of the Courts below are hereby set-aside. Application of the present petitioners to produce inheritance Mutation No. 1744 dated 7.5.1942 and pedigree table pertaining to years 1942-43 is hereby accepted as prayed for. However, present respondents/plaintiffs would be at liberty to rebut the same and the authenticity of the documents under discussion will be seen by the trial Court after recording of the evidence. At this stage, learned counsel for the respondents submitted that direction may be issued to the learned trial Court to conclude the trial expeditiously. With the consent of both the learned counsel for the parties, learned trial Court is directed to decide the case expeditiously within a period of two months positively form the date of receipt of this order.

(R.A.) Petition allowed

PLJ 2016 Lahore 82 [Multan Bench Multan]

Present: Ali AkbarQureshi, J.

Mst. SAKINA BEGUM--Petitioner

versus

GOVERNMENT OF PUNJAB through Secretary EDUCATION PUNAJB, LAHORE and 6 others--Respondents

W.P. No. 4096 of 2013, decided on 22.1.2015.

Constitution ofPakistan, 1973--

----Art. 199--Constitutional Petition--Promotion--Fake degree was provided at time of promotion--No action was taken--Challenge to--EDO (Education), was directed to take action as recommended by inquiry officer against delinquent and if necessary, EDO (Education) will seek; permission from competent authority including secretary education (Schools) EDO (Education), will also determine validity of promotion order passed in favour of respondent--Process will be completed positively within a period of 20 days. [P. 85] A

Rana Asif Saeed,Advocate for Petitioner.

Mr.Mubashar Latif Gill, Asstt.A.G. with Shaukat Ali Tahir, EDO (Education), Vehari for Respondents.

RajaNaveed Azam and Shakil Javed Chaudhry,Advocates for Respondents No. 7.

Date of hearing: 22.1.2015.

Order

The petitioner, who is working as EST at Govt. Girls Primary School Chak No. 138/WB, has challenged the promotion of Respondent No. 7, on the ground, that the Respondent No. 7 on the basis of a fake B.Ed. degree, managed to promote herself as SST.

1. Learned counsel for the petitioner submits, that in an inquiry conducted by the District Monitoring Officer, Vehari, in compliance of the order passed by this Court, it has been proved, that the Respondent No. 7 used a fake B.Ed, degree but no action till today, has been taken and lastly prayed, that the promotion of Respondent No. 7 may be declared illegal.

2. Mr. Shoukat Ali Tahir, EDO (Education), Vehari, present in the Court and submitted, that after verification, it has been proved, that the Respondent No. 7 used fake B.Ed degree at the time of her promotion.

3. The aforesaid statement made by the EDO (Education), Vehari, was controverted by the learned counsel appearing on behalf of the Respondent No. 7 and submitted, that the Respondent No. 7 did not use the fake decree as in fact it was submitted by the petitioner and further submitted, that even otherwise as per the Recruitment Rules, the requisite qualification to promote as SST is B.Sc., B.Ed/M.Ed, or M.A in Education, therefore, the Respondent No. 7, having the qualification of M.A Education, is entitled to be promoted as SST. At this stage, learned counsel for the petitioner has referred the seniority list duly signed and attested by the DEO (SE), Vehari, wherein the Respondent No. 7 is at Sr. No. 1 and in column “Date of Passing B.Ed. Examination” is mentioned 15.02.1995. When it was confronted to the learned counsel for the Respondent No. 7 and particularly EDO (Education), Vehari, the EDO (Education), Vehari frankly conceded, that this seniority list has been issued by the department and it is correct.

4. After hearing the arguments by learned counsel for the parties and perusing the record, it appears, that the Respondent No. 7 herself submitted the B.Ed degree issued on 15.02.1995 to the department and subsequently on the basis of this, the department mentioned the date in the column of “Date of Passing B.Ed Examination”. Further, as evident from the contents of the seniority list, the Respondent No. 7, on the basis of the aforesaid degree dated 15.02.1995, was placed at Sr. No. 1. This B.Ed degree in the inquiry conducted by the District monitoring Officer, Vehari, has been proved fake and the said inquiry officer, at the time of making the report, observed as under:

“The degree record of Mst. Sakina Begum (petitioner) is available from the website of AIOU, however, the degree record of Mst. Musarrat Parveen, as per her roll number 15565204 is not traceable on the website on the academic year and seems to be fake.”

1. The inquiry officer while concluding the inquiry dated 12.11.2012, made the following findings:

• “It is obvious that Mst. Sakina Begum is senior to Mst. Musarrat Parveen in terms of date of joining, length of service and promotion as EST.

• The base on which Mst. Musarrat Parveen was given undue seniority (i.e. academic qualification) is dubious at best.

• There is no plausible explanation as to how suddenly Mst. Musarrat Parveen sprang up to the top in the SST seniority list of year 2005.

• Then EDO Education in his inquiry report dated 26.05.2009 recommended withdrawal of SST orders of Mst. Musarrat Parveen, and forwarding case to ACE establishment on account of forgery. This action was never initiated against the accused.

• A dubious report was initiated by the EDO Education office in the year 2011, which seems to have a favourable bias for Mst. Musarrat Parveen, it did not take into account the matter of fake degree of the accused. The report is devoid of clarity and on face value seems to be a result of collusion between the education authorities and the undersigned.

• It is clear to the undersigned that the promotion orders of Mst. Musarrat Parveen in 2005 as SST were not on merit and warrants to be cancelled.

• The case of Mst. Musarrat Parveen may be referred to ACE establishment for initiating criminal proceedings.

Furthermore, the pecuniary benefits that she enjoyed during her period as SST may be reclaimed.”

1. When EDO (Education), who was present in the Court, asked as to whether any action has been taken against the Respondent No. 7, he replied, that till today, no action in this regard has been taken.

2. It is very strange, that although the respondent department conducted a detailed inquiry and finally the inquiry officer reached to the conclusion, that the B.Ed, degree provided by the Respondent No. 7 at the time of her promotion, is fake but till today no action, as recommended by the inquiry officer/District Monitoring Officer, Vehari, has been taken, therefore, the EDO (Education), Vehari is directed to take action as recommended by the inquiry officer against the delinquent and if necessary, the EDO (Education) will seek the permission from the competent authority including the Secretary Education (Schools). The EDO (Education), Vehari will also determine the validity of the promotion order passed in favour of the Respondent No. 7. The process will be completed positively within a period of 20 days from today and compliance report whereof shall be submitted to Deputy Registrar (Judicial) of this Bench who will submit the same for perusal.

3. A copy of this order alongwith the petition shall also be transmitted to the Secretary Education (Schools), Govt. of the Punjab, to take action in the light of the record and the order passed by this Court.

4. With the above observations, this petition is disposed of with no order as to cost.

(R.A.) Petition disposed of

PLJ 2016 Lahore 85 [Multan Bench Multan]

Present: Shahid Karim, J.

MUHAMMAD ILYAS (deceased) & others--Petitioners

versus

Mst. AMNA & others--Respondents

C.R. No. 73-D of 1993, decided on 17.4.2015.

Muslim Family Law of Inheritance--

----Scope--Customary law--Inheritance--Material irregularity--Committed jurisdictional error by not adverting to real controversy--Discrepancies and material irregularity--Onus to prove--Question of--Whether plaintiff is owner in possession as legal heir of deceased--Whether property had devolved was ousted from inheritance--Validity--Nub of controversy at heart of dispute was assertion of plaintiff that her entitlement flowed from shariah and not custom--Trial Court has proceeded to recognize and appreciate such vital aspect as real and determinative issue and thereafter render a finding--Oral evidence produced by plaintiff is unconvincing and does not inspire much confidence--No proof was adduced to establish that at time of their father's death, Shariat and not custom regulated matters of inheritance--Right must be squared against rights of said parties on basis of principle that certainty has to be given to affairs of men and concluded rights cannot be upset on basis of flimsy challenges.

[Pp. 89, 90 & 91] A, B, C & E

Inheritance--

----Limitation--Matter of inheritance--Issue of limitation was not relevant--Validity--Question of limitation though cannot be used as a lever to oust and set at naught right of a person on basis of inheritance, however, said issue assumes importance in a case of instant nature where conduct of plaintiff starkly comes into focus and plaintiff does not offer a valid justification for delay in filing of suit to assert a right on basis of inheritance. [P. 91] D

Rana Muhammad Ashraf Jamil and Wasif Saeed, Advocates for Petitioners.

Nemo for Respondents.

Date of hearing: 14.4.2015.

Judgment

This is an application under Section 115 of Code of Civil Procedure, 1908 (CPC) by way of revision petition against the judgment and decree dated 09.04.1991 passed by the Civil Judge. Kabirwala whereby the suit filed by the predecessor of the respondents Mst. Amna was dismissed. Upon appeal, the suit was decreed by the Addl. District Judge, Khanewal vide judgment and decree dated 10,12.1992. The instant revision petition assails the judgment and decree passed by the Addl. District Judge, Khanewal.

1. During the course of the pendency of this petition, the respondent Mst. Amna died and her legal heirs were impleaded as Respondents No. 1-A, 1-B and 1-C. Notices were served upon them and vide order of this Court dated 24.7.2013, the Respondents No. 1-A and 1--B were proceeded against ex-parte. On 11.3.2014 the Respondent No. 1-C was also proceeded against ex-parte. No one has appeared on their behalf today.

2. Mst. Amna filed a suit for declaration on the basis of inheritance on 16.4.1989. This suit was dismissed on 9.4.1991. An appeal was filed by Mst. Amna which was accepted by the Addl. District Judge, Khanewal vide the impugned judgment and decree dated 10.12.1992. The parties to the instant petition as well as to the suit are real siblings i.e. Mst. Amna, Muhammad Ilyas and Ameer Ali are all offspring of Muhammad Yasin.

3. The case set up in the plaint is that Muhammad Yasin, predecessor-in-interest of the parties died in the year 1945. He had certain property which devolved upon the parties. Upon migration to Pakistan, the claims were filed by the parties which were granted and the property in dispute was allotted in Mauza Kohiwala, Distt. Khanewal. The respondent/plaintiff Mst. Amna claimed that she had continued to be given her share of the yield/lease money but in the year 1989 it was refused by the defendants, her brothers. Mst. Amna claimed 1/5th share in the disputed property, which is described in the body of the plaint and which comes to 19-Kanals and 16-Marlas.

4. Umaid Ali, Defendant No. 1 in the plaint conceded the claim of the respondent/plaintiff. However, it was contested by the Defendants No. 2 and the present petitioner. In the written statement filed by Muhammad Ilyas, it was averred that their father had died in the year 1940 and that according to the customary law of inheritance which was prevalent at that time, the property devolved upon the two brothers, to the exclusion of the sister. It was further stated in the written statement that the claims filed upon partition of India was as regards the property of the defendants and therefore, no claim with regard to the plaintiffs property was ever filed or granted.

5. The following issues were framed by the civil Court:

6. “Whether the plaintiff is the owner in possession of the suit land as legal heir of Yasin deceased? OPP.

7. Whether the plaintiff has no cause of action? OPD.

8. Whether the suit is based on malafide intention? OPD.

9. Whether the suit is not maintainable in its present form? OPD

10. Whether the suit is barred by time? OPD

11. Whether the defendant is entitled to special cost u/S. 35-C.P.C?OPD.

12. Relief.”

13. I have gone through the judgments of the Courts below which are at variance to each other and find that the Addl. District Judge, Khanewal has committed a material irregularity in setting aside the judgment of the Civil Judge, Kabirwala and has misread the evidence brought on record. The Addl. District Judge, Khanewal has committed a jurisdictional error by not adverting to the real controversy involved in the suit. In situations where the finding of fact reached by first appellate Court is at variance with that of trial Court, the following observations of the Supreme Court of Pakistan in Madan Gopal and 4 others v. Maran Bepari and 3 others (PLD 1969 Supreme Court 617) should serve the guiding principle:

“...If the finding of fact reached by the first appellate Court is at variance with that of the trial Court, the former will ordinarily prevail, although it would not possess the same value or sanctity as a concurrent finding. Such a finding by the lower appellate Court will be immune from interference in second appeal only if it is found to be substantiated by evidence on the record and is supported by logical reasoning, duly taking note of the reasons adduced by the first Court which have been disfavoured in the contrary finding. The finding being at variance with that of the trial judge, the two will naturally come in for comparison for their comparative merits in the light of the facts of the case and the reasons on which the two different findings have respectively proceeded. If the finding of the fact of the first appellate Court cannot be supported on the evidence on record or if it has failed to take into account in material piece of evidence or if it does not reveal a logical basis for differing from the finding of the trial Court, or is otherwise found to be arbitrary or capricious, it will have to be rejected in second appeal.”

This rule was reiterated in Amjad Ikram v. Mst. Asiya Kausar and 2 others (2015 SCMR 1).

1. The Issue No. 1 has been the pivotal issue for both the Courts below and the entire controversy has been decided and is based upon the said Issue No. 1. I will thus take up the said issue and bring to fore the discrepancies and material irregularity which has crept in the judgment and decree of the Addl. District Judge, Khanewal.

2. The onus to prove the Issue No. 1 was on the respondent/plaintiff Mst. Amna. The issue as couched by the Civil Judge, Khanewal is whether the plaintiff is the owner-in-possession of the suit land as legal heir of Yasin deceased. The issue is not happily worded and is not in consonance with the respective pleadings of the parties. It was not the case of the plaintiff Mst. Amna that she was in possession of the suit property and it was not a dispute between the parties that the parties were legal heirs of Yasin deceased. The controversy was whether the property of Yasin had devolved upon the defendants in accordance with the customary law of inheritance or according to the Muslim Family Law of Inheritance. The defence set up in the written statement was that it was on the basis of customary law that the property of Yasin had devolved upon the defendants to the exclusion of their sister Mst. Amna. Thus, it was for the plaintiff to prove that she became the owner of her share of the property in the year 1940 when their father died. It was also for the plaintiff to allege and prove that the claim had been validly filed upon partition by the plaintiff and had been granted in her favour. No documents to that effect have been produced by the plaintiff to establish any claim having been filed or having been granted as a consequence. Therefore, in my opinion, the important ingredients which were necessary for proving the Issue No. 1 are conspicuously missing and the plaintiff has not brought home the said issue.

3. Here I shall pause to observe that the nub of the controversy at the heart of the dispute was the assertion of the plaintiff that her entitlement flowed from Shariah and not custom. The trial Court has proceeded to recognize and appreciate this vital aspect as the real and determinative issue and thereafter render a finding. The observations of the Supreme Court of Pakistan in Bashir Ahmed v. Abdul Aziz and others (2009 SCMR 1014), epitomizes the rule which ought to govern such matter. It was stated thus:

“9. Once it is settled that rule of inheritance at certain time was custom and some person acquired the property under custom from a Muslim, he shall be deemed to have become an absolute owner of such land as if such land had devolved on him under the Muslim Personal Law (Shariat) provided such acquisition had occurred prior to the enforcement of Punjab Muslim Personal Law (Shariat) Application Act, 1984. Such devolution has been declared absolute by Section 2-A of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, the relevant portion of which is reproduced as under:--

“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) ……………………………………

(c) ……………………………………”

1. In the instant case it has sufficiently been proved through oral as well as documentary evidence that the rule of inheritance at the relevant time was custom. Once inheritance had devolved under such custom and prior to 1948, the person acquiring such agricultural land becomes absolute owner thereof. The learned High Court has rightly appreciated the evidence as well as the law, in favour of Abdul Aziz, the defendant. The revisional jurisdiction has rightly been exercised by setting aside the concurrent findings of the Courts below. There being no force in the appeal, it is hereby dismissed with no order as 'to costs.”

2. The oral evidence produced by the plaintiff is unconvincing and does not inspire much confidence. Umaid Ali Defendant No. 1 appeared as PW.1 and ostensibly supported the stance of the plaintiff. However, he admitted to strained relations between the plaintiff and Defendant No. 1/petitioner Muhammad Ilyas on account of divorce between their children. He feigns ignorance whether the property of their father had devolved on the two brothers and their sister was ousted from the inheritance. He is also ignorant as to the custom which ousted the sister. He admits to filing a joint claim by the brothers and the property having been allotted to the brothers only. PW.2 is a witness who does not have any concern with the transaction nor does he have knowledge of contemporaneous events. He is ignorant regarding the payment of share to the plaintiff and as to how it was handed over to her.

3. There are certain important facts which escaped the attention of the Addl. District Judge, Khanewal and which impacted the outcome of the matter. It is common ground that the plaintiff knew about the property being in the name of her brothers yet did not challenge it in the year 1989. She also admits that her father died in the year 1945 (although the defendants say that it was the year 1940). In the suit which has been filed, the plaintiff did not challenge the aspect of inheritance on the sons only and simply claims that the parties were allotted land in dispute against the claims that the parties filed yet she does not produce any document in respect of her independent claim. This is a grey and no proof is forthcoming nor is there any justification on behalf of the respondent/plaintiff for ignoring to do so. The plaintiff also did not produce any evidence showing that she had some property in India which was claimed upon partition and which was accordingly granted. She has alleged that she received her share of the yield/lease money but again there is no proof forthcoming except for the bald assertion made by PW.4, her attorney as also by PW.1. It is not disputed that in the revenue record which has been produced in evidence, the property is in the name of the defendants. PW.4 who appeared for the plaintiff did not utter a word in the examination-in-chief as to the assertion that share of the lease money was being given to the plaintiff through all these years. The plaintiff did not seek cancellation of the entries in the revenue record as a relief in the suit. Most importantly, no proof was adduced to establish that at the time of their father's death, the Shariat and not custom regulated matters of inheritance.

4. The Addl. District Judge, Khanewal has, while deciding the Issue No. 5 which relates to the question of limitation, held that in such matters of inheritance the issue of limitation is not relevant. This is based on the rulings of the superior Courts and there is no cavil with this proposition. However, the question of limitation though cannot be used as a lever to oust and set at naught the right of a person on the basis of inheritance, however, the said issue assumes importance in a case of the instant nature where the conduct of the plaintiff starkly comes into focus and the plaintiff does not offer a valid justification for the delay in the filing of the suit to assert a right on the basis of inheritance. In such matters that right must be squared against rights of the said parties on the basis of the principle that certainty has to be given to the affairs of men and concluded rights cannot be upset on the basis of flimsy challenges. Therefore, the finding of the Addl. District Judge, Khanewal on the Issue No. 1 is set aside.

13-A. In view of the above, this revision petition is accepted and the suit filed by the respondent/plaintiff Mst. Amna is dismissed consequently.

(R.A.) Petition accepted

PLJ 2016 Lahore 92 (DB) [Bahawalpur Bench Bahawalpur]

Present: Syed Shahbaz Ali Rizvi and Farrukh Gulzar Awan, JJ.

ABDUL HAMEED ASLAM--Petitioner

versus

ADDITIONAL SESSIONS JUDGE, CHISHTIAN and 2 others--Respondents

W.P. No. 3769 of 2015, decided on 26.8.2015.

Constitution ofPakistan, 1973--

----Art. 199--Police Order, 2002, S. 155(c)--Constitutional petition--Non-compliance of order of Court--Non-cognizable offence--Not competent to issue direction for registration of FIR--Order did not reflect anything--Validity--Subsequent order sheets of trial Court reflected that PWs were produced and their statements stand recorded though they had not been cross-examined yet by defence as accused of case was reluctant to engage his private counsel to cross-examine witnesses--Impugned order passed by A.S.J. is harsh and against principles of administration of justice. [P. 93] A

Mr. MuhammadSaleem Faiz, Advocate for Petitioner.

Mr. MuhammadIqbal Mahar, Asstt. AG for Respondents.

Date of hearing: 26.8.2015.

Order

By means of this constitutional petition, the petitioner, who is serving as Station House Officer, impugns the order dated 19.03.2015 whereby Respondent No. 1 issued direction to the District Police Officer, Bahawalnagar, to register a criminal case against the petitioner under Section 155-C of Police Order, 2002, for non-compliance of the order of the Court.

1. Brief facts of the matter in hand, necessitating the petitioner to file the instant petition are that during proceedings of trial in case FIR No. 140 dated 05.05.2014 offence under Section 9-C of Control of Narcotic Substances Act, 1997, registered with Police Station Bakhsh Khan, District Bahawalnagar, due to non-production of prosecution witnesses, show-cause notice was issued to the petitioner with direction also to appear in person but this direction was not complied-with by the petitioner resulting into passing of the impugned order.

2. Learned counsel for the petitioner maintains that the impugned order is without any legal justification; that neither petitioner was served with any show-cause notice nor was afforded the opportunity of hearing which is against the principles of natural justice; that even otherwise offence under Section 155-C of Police Order, 2002, is non-cognizable so Respondent No. 1 is not competent to issue direction for registration of FIR and finally craves for setting aside the impugned order.

3. Learned Assistant Advocate General vehemently opposes the contentions raised by learned counsel for the petitioner maintaining that the impugned order is quite in accordance with law.

4. Arguments heard. Record available on the file has been perused.

5. The perusal of impugned order does not reflect anything from which it can be derived that the order dated 16.03.2015 issuing show-cause notice to the petitioner and directing him qua the production of entire prosecution evidence before the Court on 19.03.2015 was communicated to the present petitioner. Even otherwise, the subsequent order sheets of the learned trial Court reflect that the PWs were produced and their statements stand recorded though they have not been cross-examined yet by the defence as the accused of the case was reluctant to engage his private learned counsel to cross-examine the witnesses. In this view of the matter, we are of the opinion that the impugned order passed by learned Additional Sessions Judge is harsh and against the principles of administration of justice.

6. For all discussed above, the instant petition is allowed and the impugned order dated 19.03.2015 to the extent of direction qua the registration of criminal case for offence under Section 155-C of Police Order, 2002, against the petitioner, is set aside. However, District Police Officer, Bahawalnagar, is directed to look into the matter and submit a report to the learned trial Court within fifteen days after receipt of this order.

(R.A.) Petition allowed

PLJ 2016 Lahore 94 [Multan Bench Multan]

Present: Mirza Viqas Rauf, J.

RanaJANG SHER ALI--Petitioner

versus

DELIMITATION AUTHORITY, MULTAN and 7 others--Respondents

W.P. No. 11912 of 2015, heard on 26.8.2015.

Punjab Local Government Act, 2013--

----Ss. 8 & 9--Delimitation of union councils and wards in municipal committees--Violative of law--Validity--Neither Section 8 nor Section 9 of Punjab Local Government Act, 2013 covers all eventualities ensuing from delimitation process--Sections 8 & 9 neither provided any forum for resolution of disputes arising from process nor these give a guideline for resolution of issues arising there from. [P. 97] A

Delimitation of Constituencies Act, 1974 (XXXIV of 1974)--

----Scope of--Punjab Local Government Act, 2013--Part 2 of Chap-II--Principles of delimitation of constituencies with regard to union councils and wards--Delimitation process--Any person who is listed as a voter in union council or ward is entitled to prefer an objection or make a representation within fifteen days from expiry of publication period before delimitation authority relating to delimitation of union council and ward either personally or through duly authorized agent. [P. 98] B

Constitution of Pakistan, 1973--

----Arts. 10-A & 199--General Clauses Act, 1897, S. 24-A--Delimitation of Constituencies Act, 1974, Scope--Punjab Local Government Act, 2013, Ss. 8 & 9--Delimitation process--Delimitation of union councils and wards issued by election commission--Order of delimitation authority lack any reason--Non speaking order--Impugned orders even lack any lawful reasoning for acceptance or rejection of objections--Authority vested in delimitation authority has a mandate of law which oozes from constitutional mandate and it is expected that any order passed by authority in exercise of such powers would carry reasoning and must be speaking one--Section 24-A of General Clauses Act, 1897 bound down even executive to assign reasoning and pass a speaking order, while determining rights of parties--Delimitation authority did not adhere to these principles while deciding objections--Impugned orders even offend provisions contained in Art. 10-A of “Constitution”. [P. 98] C & D

M/s.Rana Asif Saeed and Malik Muhammad Abu Baker, Advocates for Petitioner.

Mr. Muhammad Naveed Rana, Standing Counsel for Respondent Nos. 1 to 4 alongwith Muhammad Adnan Zafar, District Election Commissioner II, Multan.

Syed Athar Hassan Bukhari, Advocate for Respondent No. 6.

Date of hearing: 26.8.2015.

Judgment

This single judgment shall decide the instant petition as well as the following identical Writ Petitions:--

| | | | | --- | --- | --- | | Sr. | Writ Petition # | Title | | 1. | Writ Petition No. 11892 of 2015 | Malik Nazar Muhammad Bhatti versus The Delimitation Authority, Multan Division, Multan and another | | 2. | Writ Petition No. 11911 of 2015 | Muhammad Jamal versus Delimitation Authority, Multan and 7 others |

As there is similarity of questions of facts and law in all these petitions.

1. Precisely the facts necessary for adjudication of all the petitions are that the Delimitation Officer/District Election Commissioner, Multan, after conducting delimitation process issued preliminary list of the constituencies falling within the limits of Multan. Feeling, dissatisfied from the process, objections were preferred by the inhabitants of the constituencies delimitized, who are now before the Court mostly as petitioners as well as respondents. In all the three cases, the objections filed by the petitioner as well as the respondents were allowed by the Delimitation Authority by way of order impugned herein on the basis of conceding statement of Delimitation Officer.

2. Learned counsels representing the petitioners in all these petitions arc mainly aggrieved from the impugned order dated 16th of July, 2015 on account of the fact that while conducting the delimitation process, the Delimitation Officer ignored the mandatory provisions of The Delimitation of Constituencies Act, 1974, the rules framed thereunder as well as The Punjab Local Government Act, 2013. It is contended by the learned counsels for the petitioners that the Delimitation Authority, while adjudicating the objections filed before it has completely ignored its mandate and passed the impugned order in a mechanical manner. Learned counsels in support of their contentions also referred the instructions for the delimitation of union councils and wards issued by the Election Commission of Pakistan under The Delimitation of Constituencies Act, 1974. A great emphasis has been laid down by the learned counsels for the petitioners that the order of the Delimitation Authority lacks any reasoning and the same is non-speaking order which is not tenable under the law.

3. The official respondents were directed to file report and parawise comments which have been accordingly submitted. Learned Standing Counsel on the strength comments submitted by the official respondents as well as the learned counsels appearing on behalf of private respondents endeavored to defend the impugned orders with hilt.

4. I have heard both the sides and also perused the record with their assistance.

5. In order to properly appreciate the controversy involved in the instant petitions, it would be advantageous to first have a recourse to the relevant and guiding provisions of law governing the subject. Part VIII of Chapter 1 of The Constitution of The Islamic Republic of Pakistan, 1973 (hereinafter referred as “The Constitution”) provides the establishment of office of Chief Election Commissioner and Election Commission. Article 218 of “The Constitution” bestows a duty upon the Election Commission to organize election for both Houses of Majlis-e-Shoora (Parliament), Provincial Assemblies and for election to such other public officers as may be specified by law. Whereas Article 219 of “The Constitution” casts certain duties upon the Commissioner, enumerated therein. Chapter 2 of Part VIII of “The Constitution” relates to electoral laws and conduct of election whereas Article 222 gives a mandate to the Majlis-e-Shoora (Parliament) to make election laws for the matters mentioned therein. The same is reproduced below:--

“222. Election Laws. Subject to the Constitution, [Majlis-e-Shoora (Parliament)] may by law provide for--

(a) the allocation of seats in the National Assembly as required by clauses (3) and (4) of Article 51;

(b) the delimitation of constituencies by the Election Commission;

(c) the preparation of electoral rolls, the requirements as to residence in a constituency, the determination of objections pertaining to and the commencement of electoral rolls;

(d) the conduct of elections and election petitions; the decision of doubts and disputes arising in connection with, elections;

(e) matters relating to corrupt practices and other offences in connection with elections; and

(f) all other matters necessary for the due constitution of the two Houses and the Provincial Assemblies;

but no such law shall have the effect of taking away or abridging any of the powers of the Commissioner or an Election Commission under this Part.”

The Parliament in furtherance of Article 222 of “The Constitution” in order to provide for the delimitation of the constituencies for elections to the National Assembly and the Provincial Assemblies and for matters connected therewith or ancillary thereto promulgated The Delimitation of Constituencies Act (XXXIV of 1974) which was later on amended by The Delimitation of Constituencies (Amendment) Act, 2012. For the purpose of holding election of the Local Governments, the legislature by way of Chapter II of The Punjab Local Government Act, 2013 provided a mechanism and Section 8 of the said Act deals with the issue of delimitation of union councils whereas Section 9 of the Act ibid deals with the delimitation of wards and municipal committees. Since at present, the issue involved in the instant petitions relates to the delimitation of the union councils and the wards in the municipal committees, so for the said purpose both the above referred Sections are relevant. It is however noteworthy that neither Section 8 nor Section 9 of The Punjab Local Government Act, 2013 covers all the eventualities ensuing from the delimitation process. The said Sections neither provided any forum for the resolution of disputes arising from the said process nor these give a guideline for the resolution of issues arising there from.

1. The Election Commission of Pakistan in order to fill the gap issued instructions for delimitation of union councils and wards in terms of The Delimitation of Constituencies Act, 1974, the rules made thereunder and The Punjab Local Government Act, 2013. Part 2 of Chapter II of the said instructions lays down the principles of delimitation of constituencies with regard to union councils and wards which are to be observed by the Delimitation Officer at the time of delimitation of the constituencies. For the matter in hand Part III “Chapter I of the said instructions is of great import which deals with the filing of objections/representations. In terms of item No. 27, any person who is listed as a voter in the union council or ward is entitled to prefer an objection or make a representation within fifteen days from the expiry of the publication period before the concerned Delimitation Authority relating to the delimitation of union council and ward concerned either personally or through duly authorized agent. Chapter II of Part 3 prescribes responsibilities of the Delimitation Authorities. Item No. 37 casts a duty upon the Delimitation Authority to hold an inquiry, summon witnesses and record evidence for the purpose of deciding the objections preferred before it. When the impugned orders are seen in this context it becomes evident that the Delimitation Authority did not advert at all to these basic requirements, while deciding the objection petitions/representations. The orders passed by the Delimitation Authority seem to be in oblivion of the mandatory provisions of law. It is also observed with concern that the impugned orders even lack any lawful reasoning for the acceptance or rejection of the objections. The Authority vested in the Delimitation Authority has a mandate of law which oozes from the Constitutional mandate and it is expected that any order passed by the Authority in exercise of such powers would carry reasoning and must be speaking one. Section 24-A of The General Act, 1897 bound down even the executive to assign reasoning and pass a speaking order, while determining the rights of the parties. Guidance in this respect can be sought from “Government of Pakistan through Director-General, Ministry of Interior, Islamabad and others versus Farheen Rashid” (2011 SCMR 1), “Messers United Wollen Mills Ltd. Workers' Union versus Messers United Wollen Mills Ltd.” (2010 SCMR 1475) and “Fasih-ud-Din Khan and others versus Government Of Punjab and others” (2010 SCMR 1778). While keeping in mind the principles laid down in the judgments supra there can be no second opinion that the Delimitation Authority did not adhere to these Principles while deciding the objections. The impugned orders even offend the provisions contained in Article 10-A of “The Constitution”.

2. For the foregoing reasons, I am persuaded to allow all these petitions, while declaring the impugned order dated 16th of July, 2015 passed by the Delimitation Authority as well as impugned notification dated 28th of July, 2015 issued by the Delimitation Officer/District Election Commissioner, Multan as illegal and unlawful, being violative of the law. As a consequence thereof, all the objections filed by the parties resulted into filing all these petitions shall be deemed to be pending before the Delimitation Authority, who shall re-adjudicate the same in the light of above observations by providing opportunity of hearing to all the concerned, strictly in accordance with law by way of speaking order. The parties are directed to appear before the District

Election Commissioner, Multan on 1st of September, 2015 who shall take all necessary steps for further proceedings in the matter in accordance with law.

(R.A.) Petitions allowed

PLJ 2016 Lahore 99 (DB) [Multan Bench Multan]

Present: MuhammadQasim Khan and Aslam Javed Minhas, JJ.

ABDUL RAZZAQ--Petitioner

versus

STATE and 2 others--Respondents

W.P. No. 10465 of 2015, decided on 17.8.2015.

Constitution ofPakistan, 1973--

----Art. 199--Criminal Procedure Code, 1898--S. 540--Pakistan Penal Code, 1860--Ss. 302 & 365-A--Abduction and murder--Application to summon call data of mobile phones pertaining to specific period was turned down--Challenge to--Fair trial is a right of every accused as guaranteed in constitution--Without obtaining desired data from cellular companies trial proceedings would be futile exercise--Right to prove him innocent by producing evidence--Validity--When prosecution has employed modern device and adopted sophisticated technique to connect petitioner with commission of offence, petitioner has got every legitimate right to prove himself innocent by using same device/CD.R. for period of his choice--Dispensation of justice is to be treated even-handed and under no circumstances it should be allowed to be tipped in favour of one party at costs of other--An application under Section 540, Cr.P.C., mere on ground that same has been moved to delay trial is not a valid ground in eyes of law to reject same--Call data record related to those witnesses who had already been examined and same could not be confronted with same, suffice it to observe that they might be re-summoned and re-examined by prosecution so as to provide them an adequate opportunity to explain their conduct and point of view with regard to C.D.R in question--Raison deter of Courts is to dispense justice and to strive hard to get truth rather than rushing through trials/cases. [Pp. 101 & 102] A, B & C

Mr.Mushtaq Ahmad Tanveer, Advocate for Petitioner.

Ch. MuhammadIftikhar Arif,Advocate for Respondents.

Mr.Mubashir Latif Gill, AAG for State.

Date of hearing: 17.8.2015.

Order

Through this single order, we intend to decide instant writ petition filed by Abdul Razzaq, the accused and Writ Petition No. 9789 of 2015 filed by Altaf Hussain, the complainant as both these matters have arisen out of same F.I.R. No. 616 dated 28.11.2013 for offence under Sections 302 and 365-A P.P.C., registered at Police Station Chowk Azam, District Layyah.

1. The brief facts of the matter are that Abdul Razzaq, the petitioner in W.P. No. 10465 of 2015 was booked in the aforesaid F.I.R. and is facing the trial for abduction and murder of Muhammad Umar aged about six years who is the son of the complainant. He submitted an application under Section 540, Cr.P.C. before the learned trial Court to summon Call Data of Mobile Phone Nos. 0302-6767991 of Zafar Iqbal (PW-2), 0346-2298893 of Altaf Hussain (PW-1) and 0344-3687306 of Muhammad Riaz Hussain (PW-3) pertaining to the period dated 23.11.2013 to 29.11.2013 and the date of the Mobile Phone of Naseeb Ullah Bearing No. 0344-8555990 for the period dated 15.12.2013 at 5:15 P.M. This application was turned down by the learned trial Court vide order dated 18.02.2015. Aggrieved of the said order, Abdul Razzaq, the petitioner filed Writ Petition No. 2559 of 2015 before this Court which vide order dated 30.03.2015 was allowed and the order impugned therein was set aside. Now the petitioner impugns the order dated 03.07.2015 passed by the learned trial Court whereby an application filed by the petitioner for correction of some paras of SOP “Mark-A” was rejected in violation of this Court's order dated 30.03.2015 and it is prayed that the impugned order may be set aside and trial Court may be directed to implement the order dated 30.03.2015 passed by this Court in W.P. No. 2559 of 2015 in letter and spirit. On the other hand, complainant/petitioner in Writ Petition No. 9789 of 2015 has prayed for a direction to the learned trial Court for early conclusion of the trial to meet the ends of justice.

2. The learned counsel for the petitioner in Writ Petition No. 10465 of 2015, inter alia contends, that the learned trial Court has not complied with the direction contained in order dated 30.03.2015 passed by this Court in W.P. No. 2559 of 2015; that the plea taken by the cellular companies regarding their inability to produce the record of CDR for more than one year is not worth relies; that the fair trial is a right of every accused as guaranteed in the constitution; that without obtaining the desired data from the concerned cellular companies, the trial proceedings would be a futile exercise; that it is case of heinous nature and the petitioner has every right to prove him innocent by producing the evidence favouring him; that the impugned order is a colorful exercise of authority by the learned trial Court which suffers from gross illegalities or irregularities. Lastly, prays that the impugned order may be set aside.

3. The learned counsel appearing on behalf of complainant/ petitioner in W.P. No. 9789 of 2015 contends, that trial proceedings are being prolonged due to the delaying tactics adopted by Abdul Razzaq, the accused; that the learned trial Court has already adopted the entire procedure and recorded the evidence to conclude the trial. The case is now fixed for final arguments but filing of frivolous application on behalf of the accused is nothing but to linger on the trial. Finally craves that the learned trial Court may be directed to conclude the trial expeditiously.

4. The learned Assistant Advocate General has adopted the arguments advanced by the learned counsel for the petitioner Altaf Hussain.

5. We have heard the learned counsel for the petitioner, learned counsel for respondent, AAG and also gone through the record.

6. Perusal of record available on file reveals that the complainant received calls on his Cell Phone, demanding a ransom of Rs. 20,00,000/- for the return of his missing child. Similarly, Zafar Iqbal (PW-2) made a statement regarding his mobile phone (Exh. P.1) and SIM No. 0344-3687306 (Exh. P.2). In the same way, Inam ul Haq, P.W-12, who was posted as ASI/In charge Crime Sceme, DPO Office, Layyah in 2013 testified on oath about C.D.R consisting of 27 pages, which were exhibited as Exh.P.6/1 to 27. When the prosecution has employed the modern device and adopted sophisticated technique to connect the petitioner with the commission of the offence, the petitioner has got every legitimate right to prove himself innocent by using the same device/CDR for the period of his choice. It goes without saying that the dispensation of justice is to be treated even-handed and under no circumstances it should be allowed to be tipped in favour of one party at the costs of the other.

7. It is pertinent to mention that the provisions of Section 540, Cr.P.C. as under:--

Power to summon material witness or examine person present:--

“Any Court may, at any stage of any inquiry, that or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, through not summoned as a witness, or re-call and re-examine may person already examined; and the Court shall summon and examine or re-call and re-examine any such person if his evidence appears to it essential to the just decision of the case.

1. Apart from the provisions of Section 540, Cr.P.C., Section 94 Criminal Procedure Code, 1898 is also relevant in the context of this case. It would be expedient to reproduce sub-section (1) thereof, which reads as under:--

“94. Summons to produce document or other thing.--(1) Whenever any Court, or any officer in charge of a Police Station considers 'that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officers a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, at the time and place stated in the summons or order.”

1. From the bare reading of the above said Sections, it is crystal clear that an application under Section 540, Cr.P.C., mere on the ground that the same has been moved to delay the trial is not a valid ground in the eyes of law to reject the same. As for the apprehension of the learned trial Court that some of the Call Data Record relates to those witnesses who have already been examined and the same could not be confronted with the same, suffice it to observe that they might be re-summoned and re-examined by the prosecution so as to provide them an adequate opportunity to explain their conduct and point of view with regard to the C.D.R in question. As such, the course followed by the learned trial Court would strike a balance between the prosecution and the defence. Needless to say, that the raison deter of the Courts is to dispense justice and to strive hard to get the truth rather than rushing through the trials/cases.

2. For what has been discussed above, Writ Petition No. 10465 of 2015 filed by Abdul Razaq is allowed by setting aside the order dated 03.07.2015 passed by the learned Judge Anti-Terrorism Court, Dera Ghazi Khan. Resultantly, the application moved by the petitioner under Section 540, Cr.P.C. before the learned trial Court is accepted with the result that the above-said PWs be summoned in accordance with law.

3. However, Writ Petition No. 9789 of 2015 filed by the petitioner (complainant) Altaf Hussain is disposed of with a direction to the learned trial Court to expedite the trial of the case and decide the same expeditiously.

(R.A.) Petition disposed of

PLJ 2016 Lahore 103 (DB) [Multan Bench Multan]

Present: Amin-ud-Din Khan and Mahmood Ahmad Bhatti, JJ.

M/s. SARWAR BROTHERS--Appellant

versus

HABIB BANK LIMITED, etc.--Respondents

R.F.A. No. 20 of 2010, heard on 4.5.2015.

Financial Institutions (Recovery of Finances) Ordinance, 2001 (XLVI of 2001)--

----S. 22--Civil Procedure Code, (V of 1908), O. XX, R. 5--Suit for recovery with costs and costs of funds from date of default until realization of decretal amount was decreed--Challenge to--Payment of guaranteed amount--Claimed penalty for delay--Proof of liability--Failed to make payment--Gross miscarriage of justice--Issues framed in suit were not dealt with--Parameters of a judgment--Validity--Banking Court did not give any finding under issues framed in suit instituted by appellants--Banking Court was under an obligation to record issue wise findings--While trial Court is duty bound to give issue wise findings, an appellate Court is not required to do so--Unsound and flawed approach of Courts below has necessitated remanding of case Banking Court.

[Pp. 109 & 110] A, B & C

2006 SCMR 185, 1991 SCMR 1816, rel.

Syed Kabir Mahmood, Advocate for Appellant.

Mr. Muhammad Waseem Shahab, Advocate for Respondents.

Date of hearing: 4.5.2015.

Judgment

Mahmood Ahmad Bhatti, J.--This appeal has been preferred under Section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 against the judgment and decree dated 08.12.2009 passed by the learned Judge Banking Court No. 1, Multan, whereby suit of Habib Bank Limited for the recovery of Rs. 34,38,352.08 with costs and costs of funds from the date of default i.e. 30.08.2001. until the realization of the entire decretal amount was decreed, whereas the suit, of the appellants for the recovery and adjustment through rendition of accounts was dismissed.

1. The facts stated by the parties in the two suits instituted by them have been encapsulated by the learned Judge Banking Court No. 1, Multan in the following words:--

'Habib Bank Limited, a Banking Company, herein after called the plaintiff through manager of its Old Tehsil Road, Burewala, District Vehari has filed this suit for recovery of Rs. 34,38,352.08 inclusive of Rs. 5,73,058.67 as liquidated damages by alleging that on the request of the Defendant No. 1 firm, the plaintiff bank issued following three Bank Guarantees for Rs. 1.000 Million each for payment of Rs. 3.000 Millions on behalf of the defendants in favour and in consideration of M/s. Ciba Giegy Limited having agreed to supply pesticides to the defendants.

| | | | | | | --- | --- | --- | --- | --- | | L/G No. | Date of Issue | Date of Expiry | Amount | Creditor | | 04 | 30.8.1994 | 28.02.1995 | Rs. 1000(M) | Ciba Giegy | | 04/A | 04.09.1994 | 03.03.1995 | Rs. 1000(M) | -do- | | 04/B | 04.09.1994 | 03.03.1995 | Rs. 1000(M) | -do- | | | | Total:-- | 3.00(M) | |

It has been alleged that the plaintiff agreed respective amounts of these guarantees if the claim for guaranteed amounts was preferred by the said creditor/beneficiary before the respective expiry dates' wherein the defendants provided the following securities to the plaintiff.

1. Cash margin of 25%.

2. Equitable and registered mortgage of property bearing Khasra No. 18/12 13, 14, 7 MIN, 8, Khatooni No. 838 MIN, Khewat No. 240/241, admeasuring about 32-Kanal.

It has been further stated that on the issuance of the said three bank guarantees, the defendants executed two counter guarantees to keep the plaintiff indemnified from all claims paid on the basis of the said bank guarantees and the defendants also undertook that any such payment by the plaintiff and debits in the accounts of the defendants would be conclusive proof of their liability. It has been alleged that the defendants failed to make payment of the said guaranteed amount to the said creditor/beneficiaries on the agreed dates, therefore, the claim was lodged under the said three bank guarantees which is detailed below:-

| | | | | | --- | --- | --- | --- | | L/G No. | Dt of Claim | Beneficiary | Amount Paid | | 04 | 27.03.1995 | Ciba Giegy | Rs. 999,738.18 | | 04/A | 27.03.1995 | -do- | Rs. 999,986.12 | | 04/B | 27.03.1995 | -do- | Rs. 999,938.10 |

It has been stated that all the above said payments were made through demand draft No. 0476636/0786/04 dated 16.04.1995 amounting to Rs. 29,99,662.40. Out of the said amount, Rs. 7,50,000/- represented as cash margin held by the plaintiff and after deduction of this margin, the plaintiff was compelled to make payment of Rs. 22,49,662.40 on behalf of the defendants, wherein, due to the default committed by the defendants in the payment of the guaranteed amount, the beneficiary M/s. Ciba Gaiegy Pakistan Limited claimed penalty of Rs,95,989/- for delay as per contract. Whereas the defendants agreed through their counter guarantees and letter dated 04.09.1994 that the amount of the said penalty might be debited to this finance account and that they would be bound to pay the same to the plaintiff. It has been alleged that the plaintiff intimated to the defendants for the payment by the plaintiff to the claimants and demand reimbursement of the said amount but the defendants expressed their inability to do so and asked the plaintiff that the said amount be treated as to be a finance advanced to the defendants and the Defendants No. 2 to 5 executed demand promissory note on 16.04.1995 for Rs. 28,68,290/- inclusive of the said penalty and markup for agreed period and cushion period of 210 days. It is stated that the defendants also executed markup agreement IB-26. The plaintiff alleged that as a result of default committed by the defendants, the plaintiff is being kept deprived of the said huge amount continuously and also deprived from the right to invest the said amount, therefore, the plaintiff is entitled to recover Rs. 5,73,058.68 as 20% liquidated damages agreed and actually accrued in addition to the said outstanding finance amount of Rs. 28,65,293.40 and, thus, the total recoverable by the plaintiff from the defendants comes to Rs. 34,41,948 and claimed the said amount by stating the particulars of the mortgaged property.

The defendants/appellants also brought a suit for recovery and adjustment through rendition of account by admitting that they obtained loan from the plaintiff for industrial concern which was, insured by the plaintiff bank but due to heavy rains, the oil cake badly damaged and the defendants suffered loss about 15 to 20 lacs. Therefore, the defendants contacted the plaintiff bank and requested to make arrangement for raising the demand and to get the compensation from the insurance company in order to meet the damages and wrote a letter to plaintiff on 30.05.1993 vide endorsement No. 386/93 and also issued a reminder. It has been alleged on 06.07.1993, another letter was written through JSP but no reply was received. On 27.7.1993, loans were arranged for Rs. 3,50,000/- through Habib Bank Limited Daudabad branch, Burewala and on 28.07.1993, an agricultural loan amounting to Rs. 2,50,000/- was sanctioned through Habib Bank Limited, Mana Morr Branch and Rs. 6,00,000/- were adjusted in the C.F. Limit. It has been alleged that the pesticides guarantee was Rs. 40,00,000/-but only Rs. 30,00,000/- were given. It has been further alleged that on 16.09.1993, C.F. Limit of M/s. Sarwar Brothers Cotton Ginning Factor was sent to the plaintiff bank but the same was not reviewed on the ground that M/s. Hussain Oil Mills, the sister concern of the defendants was defaulter and partners of both the industries are one and the same. On 28.12.1993, the defendants met the Zonal Chief and Circle Chief of the plaintiff bank who assured them for immediate redressal, whereupon, the plaintiff bank asked the defendants to make demand of Rs. 2,78,000/- and the defendants were advanced running finance facility of Rs. 5,00,000/- by assuring that the limit would be the same as previously and the defendants paid Rs. 2,78,000/- and the limit was adjusted. However, the limits were not reviewed/renewed, therefore, the defendants suffered loss of Rs. 6,00,000/- and on the repeated requests of the defendants, bank guarantee was sanctioned for Rs. 40,00,000/- on 04.09.1994 whereas the defendants utilized Rs. 30,00,000/- and remaining amount of the guarantee was not allowed to be utilized on the ground of being defaulter in the agricultural loan issued by the Habib Bank Limited, Daudabad Branch, Burewala and the defendants were forced to make payment of Rs. 40,00,000/- in spite of the fact that the defendants have to pay the same by 31.12.1994. It has been further alleged that the defendants issued a cheque for Rs. 3,50,000/- of Daudabad Branch and cheque worth Rs. 2,50,000/- of Mana Morr Branch but despite the said fact, the defendants were not issued remaining guaranteed amount of Rs. 10,00,000/-. It has been stated that the plaintiff bank deliberately reduced the limit of the defendants from Rs. 80,00,000/- to Rs. 50,00,000/- with ulterior motive. Therefore, the defendants suffered loss due to the behavior of the plaintiff bank and, hence, they prayed for a decree of rendition of accounts be passed in favour of the defendants.

1. The defendants/appellants sought leave to defend the suit, which was granted. It is pertinent to mention that the application for granting leave to defend the suit was treated as a written statement. As a result, the following issues were framed:--

ISSUES:--

1. Whether the suit is not maintainable in view of the preliminary objections No. 1 and 2 of the written statement? OPD.

2. Whether the suit is not in proper form? OPD

3. Whether the claim is time barred? OPD

4. Whether there is no agreement between the parties regarding markup? OPD

5. Whether the defendants have not executed promissory note? OPD

6. If the above said issues are not proved, whether the plaintiff is entitled to recover amount of Rs. 34,38,352.08? OPP

7. Relief:

8. As it is, Habib Bank Limited was also granted leave to defend the suit instituted by the appellant herein. In that suit, the following issues were framed.

ISSUES:--

1. Whether the suit is bad in the present form? OPD.

2. Whether the improper parties have been arrayed by the plaintiff? OPD

3. Whether the plaintiff is entitled to demand accounts of transaction of payments and repayments and insurance claim for composition as damages? OPD

4. Relief.

5. On 21.10.2003, both the suits were consolidated. However, consolidated issues were not framed. At the same time, it was held that the proceedings shall be carried out in the suit titled 'Habib Bank Limited versus M/s. Sarwar Brothers Cotton Ginning and Pressing Factory'.

6. Both the parties lead pro and contra evidence in support of their respective pleas. Be that as it may, the suit of Habib Bank Limited was decreed in the terms set out in Paragraph No. 1 of this judgment, whereas the suit filed by M/s. Sarwar Brothers Cotton Ginning and Pressing Factory' was dismissed. Feeling aggrieved, the latter filed the instant appeal.

7. In support of the appeal, learned counsel for the appellants has submitted that the impugned judgment passed by the learned Judge Banking Court No. 1 Multan is contrary to the facts and law; that it proceeded on conjectures, surmises, suppositions and presumptions; that the learned Court below did not apply its judicial mind to the facts and circumstances of the case, resulting in gross miscarriage of justice; that the issues framed in the suit instituted by the appellants were not dealt with, and no finding was recorded in respect of them. It is urged by him that the impugned judgment and decree being violative of the provisions of Order XX, Rule 5, CPC is liable to be set aside, requiring the matter to be remitted to the learned trial Court for decision afresh. It has also been pointed out that the application moved by the appellants seeking to compare their disputed signatures on the -promissory notes with their admitted signatures by a handwriting expert remained unattended and was not decided prior to the passing of the impugned judgment in flagrant disregard of the law laid down in the judgments reported as ‘HafizMuhammad Hussain and another versus Abbas Khan and another' (1981 SCMR 1233), ‘Ch. Noor Ahmad through Legal Heirs versus Abdul Majid through Legal Representatives' (2005 MLD 620), Messers M.A. Chaudhry, and 3 others versus National Bank of Pakistan, Fqisalbad through General Attorney' (2005 CLD 875), Malik Sher Muhammad through Legal Heirs versus Karachi Development Authority and another' (2006 YLR 2889), 'Gul Muhammad through Legal Heirs versus Karachi Development Authority and another' (1998 MLD 150), 'Pak Carpet Industries Limited versus Government of Sindh and 2 others' (1993 CLC 334),' 'Muhammad Yaqoob versus Baqir and 2 others' (1993 CLC 1319) and 'Khair Deen versus Rehm Deen and 4 others' (1996 CLC 1731).

8. On the other hand, Mr. Muhammad Waseem Shahab Advocate, learned counsel for the decree-holders, Habib Bank Limited has argued that the impugned judgment is well-considered; that the learned Court below dealt with all the material issues in a comprehensive manner, therefore, if it did not give issue wise findings or omitted to give findings on the issues arising from the suit instituted by the appellants, it would not adversely affect the outcome of the real controversy between the parties to the appeal. In this respect, he made reference to the provisions of Section 99 of Civil Procedure Code, 1908, besides placing reliance upon the judgments reported as Qadir Bakhsh (deceased) through L.Rs, versus Allah Dewaya and another' (2011 SCMR 1162) 'Muhammad Amir through L.Rs. versus Muhammad Sher and others' (2006 SCMR 185), Mst. Husna Bano alias Mst. Bibi Hussain Bano and others versus Faiz Muhammad through Legal Heirs and others' (2002 SCMR 667), 'Raja Ali Shan versus Messers Essem Hotel Limited and others' (2007 SCMR 741). It is further argued by him that the suit of the appellants was not maintainable; rather the plaint was liable to be rejected. To fortify his submissions in this regard, he has placed reliance on the judgments reported as 'Muhammad Azam Khan versus Askari Leasing Limited through Branch Manager' (2014 CLD 462), 'Gulistan Textile Mills Ltd versus Askari Bank Ltd. and others '(PLD 2013 Lahore 716), 'Muhammad Shafi and 5 others versus Amanat Ali and 5 others' (2005 MLD 559) and 'Riasat Ali versus Muhammad Yaseen through Legal Heirs and another' (2006 CLC 1390).

9. We have heard the learned counsel for the parties and perused the record with their assistance.

10. From a perusal of the impugned judgment, it is crystal clear that the learned Judge Banking Court No. 1, Multan did not give any finding under the issues framed in the suit instituted by the appellants. With utmost respect to the learned counsel for the decree-holder Bank, the learned Judge Banking Court was under an obligation to record issue wise findings. Order XX, Rule 5, CPC that lays down the parameters of a judgment has repeatedly come up for consideration before the Superior Courts. In the case of 'Ali Muhammad versus Muhammad Hayat and others' (1982 SCMR 816), the provisions of Order XX, Rule 5, CPC were held to be mandatory. The recording of issue wise findings was also highlighted in the cases reported as 'Rehmatullah Khan and another versus Ghulam Farid and others' (2009 SCMR 371), Syed Iftikhar-ud-Din Haider Gardezi and 9 others versus Central Bank of india Ltd. Lahore and 2 others' (1996 SCMR 669), 'Muhammad Mustafa versus Sri Abu Bakar and others ' (AIR 1971 SC 361), 'Abdul Sattar versus Bashir Ahmed and others' (2004 CLC 370), 'Mst. Feroza versus Anjuman-e-Ittehad-e-Baluchan and others '(2004 YLR 1535), 'Darayus Crus Minwala versus National Accountability Bureau through Its Chairman and 2 others' (2010 MLD 1931), 'Farid Ullah Khan Kundi versus Rustam Khan' (PLD 2012 Peshawar 121), 'Haji Abdul Jalil versus Anjuman Jame Masjid Haquani' (1996 MLD 818), 'Sakhi Muhammad versus Mst, Taj Begum and 4 others ' (1985 CLC 734), 'Abdul Karim versus Hoshiar Khan and 2 others' (1983 CLC 1450), 'Mahomed Sulaiman versus Kumar Birendra Chandra Singh' (AIR 1922 PC 405), 'Kutoor Vengayil Rayarappan Nayanar versus Kutoor Vengiyil Valia Madhavi Amma and others' (AIR (37) 1950 FC 140), 'Nasir Abbas versus Manzoor Haider Shah' (PLD 1989 SC 568), 'Shoukat Ali versus Mst. Razia Bibi and others' (1999 CLC 62), 'Abdul Qayyum versus The State' (1999 MLD 2026), 'Nadar Ali versus Mst. Hussain Bibi and 5 others' (1998 MLD 250), 'Muhammad Tufail versus Mst. Sardar Bibi and 2 others' (1998 CLC 1969), 'Haji Abdul Jalil versus Anjuman Jame Masjid Haquani' (1996 MLD 818), 'Asadullah Khan versus Abdul Karim' (1997 CLC 1334), 'Alaf Din versus Mst. Soni Bibi' (1999 CLC 1808), Mst. Husna Band versus Faiz Muhammad Magsi and another' (2000 CLC 709), 'Syed Khurshid Ahmed alias Wahid Hussain through General Attorney versus Rao Muhammad Akram Khan' (2000 CLC 825), 'Kistan Tobacco Company Ltd. Versus Pakistan Chest Foundation'(PLD 1998 Lahore. 100(106), 'Mst. Fatima Bibi versus Mst. Raheem Bibi' (1999 MLD 1026), 'Suleman and others versus Dadoo and others' (2001 YLR 764), Syed Rehmat Ali through Lesal heirs and 2, others versus Syed Sadique Ali through Legal Heirs' (1999 YLR 1656) and 'Muhammad Nawaz Shah versus Imam Bakhsh and 4 Others (2000 YLR 1456).

11. As to the judgments relied upon by the learned counsel for the respondents, they proceed on their own facts. Moreover, they are based upon the interpretation of Order XLI, Rule 31, CPC. It needs to be underscored that while the trial Court is duty bound to give issue wise findings, an appellate Court is not required to do so. And this is exactly what was held by the Hon'ble Supreme Court of Pakistan in the cases of 'Muhammad Amir' (2006 SCMR 185) and 'Umer Din' (1991 SCMR 1816) relied upon by the learned counsel for the respondents.

12. As to the other set of the authorities relied upon by the learned counsel for the respondents that deal with the rejection of a plaint and non-maintainability of suit, we Would refrain from discussing them for a simple reason that they bear relation to the issues which were not decided by the learned Court below. Any observation made by us would pre-judge those issues.

13. The unsound and flawed approach of the learned Court below has necessitated the remanding of the case to the learned Judge Banking Court No. 1, Multan. We cannot but resist the temptation to dilate upon the merits of the case lest it should prejudice the case of either of the parties.

14. The upshot of the above discussion is that this appeal is allowed and the impugned judgment and decree dated 8.12.2009 passed by the learned Judge Banking Court No. 1, Multan is hereby set aside, remitting the matter to it for decision afresh in accordance with law, after affording an opportunity of hearing to all the parties. If any application filed by the appellants is pending decision, it shall be decided either way before passing the final judgment and decree.

(R.A.) Appeal allowed

PLJ 2016 Lahore 111 [Multan Bench, Multan]

Present: Khalid Mahmood Malik, J.

M/s. LUCKY IRANI CIRCUS through its Manager--Petitioner

versus

DISTRICT CO-ORDINATION OFFICER KHANEWAL and 5 others--Respondents

W.P. No. 8513 of 2015, decided on 18.6.2015.

Constitution of Pakistan, 1973--

----Arts. 198 & 199--Constitutional petition--Application for permission and issuance of NOC to install circus shows eve of Mela, was declined--Challenge to--Validity--To carry out lawful business and trade is a fundamental right protected under Constitution, Art. 9 of Constitution ensures security of person to be an obligation of State--No such permission could have been denied by respondents on mere presumption of security risk--Respondent is directed to facilitate petitioner in holding Circus shows, according to schedule mentioned in application for grant of permission filed before him and DPO, is further directed to provide appropriate security measures for holding circus shows as proposed--Petition was allowed. [P. 112] A & B

Rana Asif Saeed, Advocate for Petitioner.

Rana Muhammad Hussain, AAG for Respondents.

Date of hearing: 18.6.2015.

Order

By way of this writ petition, the petitioner has sought direction to Respondents No. 1 and 2 to grant permission to install Circus shows from 19.6.2015 to 25.6.2015 on the eve of Mela Abdul Hakim by maintaining that petitioner moved application to the said respondents seeking permission and for issuance of NOC, but the same was declined; hence this writ petition.

1. Heard. Comments submitted by District Police Officer, Khanewal have been perused.

2. The reasons assigned for refusing such permission are not valid and against the fundamental right of the petitioner as provided under the law, so the same cannot be allowed to remain in field, because it is the bounded duty of Respondent No. 1 to allow any

business or trade activity which is not barred under the law. To carry out lawful business and trade is a fundamental right protected under the Constitution of Islamic Republic of Pakistan, 1973. In the same manner, Article 9 of the Constitution of Islamic Republic of Pakistan, 1973 ensures security of person to be an obligation of the State. No such permission could have been denied by the respondents on mere presumption of security risk. Therefore, by allowing this writ petition, Respondent No. 1 is directed to facilitate the petitioner in holding Circus shows, according to the schedule mentioned in the application for grant of permission filed before him and Respondent No. 2, DPO, Khanewal is further directed to provide appropriate security measures for holding Circus Shows as proposed. The petitioner is further directed to fulfill his undertaking and to arrange his own security plan as described in his application. Said respondents are directed to convene a meeting in which the Manager of petitioner should be associated and mutual arrangements may be made for smooth running of the said activities i.e. lawful business. However, it is observed that no illegal, immoral activity should be performed at the site.

(R.A.) Petition allowed.

PLJ 2016 Lahore 112 [Multan Bench Multan]

Present: Mirza Viqas Rauf, J.

MUHAMMAD RAZAQ--Petitioner

versus

ADDITIONAL DISTRICT & SESSION JUDGE/ELECTION APPELLATE AUTHORITY, TEHSIL BUREWALA, DISTRICT VEHARI and 3 others--Respondents

W.P. No. 14401 of 2015, decided on 2.10.2015.

Punjab Local Governments (Conduct of Elections)Rules, 2013--

----R. 14(7)--Punjab Local Government Act, 2013, S. 27(1)(c)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Nomination paper for contesting election--Registered voter--Papers were rejected--Clerical mistake--Validity--While submitting nomination papers, mentioned Ward No. 2 instead of Ward No. 1 which was due to inadvertence and same cannot be made basis for rejection of nomination papers--Held: Rejection of nomination papers by R.O. as well as dismissal of appeal by way of impugned order was not in accord with spirit of Rule 14(7) of Rules, 2013--Nomination papers cannot be rejected on hyper technical grounds--Petition was allowed. [P. 113] A & B

M/s. Khawaja Qaiser Butt and Mian Shahzad Burana,Advocates for Petitioner.

Mr. Muhammad Naveed Rana, Standing Council on Court’s call.

Date of hearing: 2.10.2015.

Order

The petitioner is a resident of Chak No. 467/EB Tehsil Burewala District Vehari. He being a registered voter in Union Council No. 67 Tehsil Burewala District Vehari submitted his nomination papers for General Councilor in order to contest the Local Government Elections, 2015. The nomination papers were rejected by the Returning Officer videorder dated 17th of September, 2015 on the ground that the petitioner is not enrolled as voter in the relevant ward. The petitioner, feeling aggrieved from the said order filed an appeal before the Appellate Authority which was also dismissed vide order dated 28th of September, 2015, hence this petition.

1. Learned counsel contends that the petitioner was a registered voter in Ward No. 1 Union Council No. 67 and he submitted his nomination papers for contesting the elections, however due to inadvertence the ward number was mentioned as “2” instead of “1”. Learned counsel further contends that the petitioner though requested the respondents to allow him to correct the clerical mistake but he was not allowed to do so and his appeal was also dismissed on technical ground. Learned counsel submits that the impugned order is not tenable under the law.

2. Conversely, learned Standing Counsel who is present on Court's call defended the impugned order and submitted that no illegality has been committed by the Authority, while rejecting the nomination papers of the petitioner.

3. I have heard the learned counsel for the petitioner as well as learned Law Officer and perused the record.

4. It is evident that Union Council No. 67 Tehsil Burewala District Vehari comprises of various wards including wards No. 1 and 2. The petitioner was registered as voter in Ward No. 1 at Serial No. 212 of the electoral roll list. Similarly his proposer as well as seconder are also duly registered as voters in the same ward. It is the case of the petitioner that while submitting his nomination papers, he mentioned the Ward No. 2 instead of 1 which is due to inadvertence and the same cannot be made basis for rejection of his nomination papers.

5. Section 144 of The Punjab Local Government Act, 2013 gives powers to the Government to make rules for the matter me mentioned therein. In exercise of the powers conferred under said section, the Government of Punjab was pleased to make the rules for regulating the election affairs termed as The Punjab Local Governments (Conduct of Elections) Rules, 2013. Rule 12 of the said Rules deals with the nomination for elections whereas the scrutiny of the nomination papers is to be regulated in terms of Rule 14 of The Punjab Local Governments (Conduct of Elections) Rules, 2013. The nomination papers of the petitioner were rejected by the Returning Officer in terms of Section 27(1)(c) of the Punjab Local Government Act, 2013 holding that the petitioner is not registered voter in Ward No. 2. The petitioner filed an appeal before the Appellate Authority wherein he pleaded that he is a registered voter in Ward No. 1 of the same union council but due to some inadvertence, while mentioning the name of ward, Ward No. 2 was incorporated instead of Ward No. 1 in the nomination papers. Article 32 of The Constitution of The Islamic of Republic of Pakistan, 1973 make it incumbent upon the State as a principles of policy to encourage Local Government institutions composed of elected representatives of the areas concerned and in such institutions special representation will be given to peasants, workers and women. The petitioner was a valid voter of Ward No. 1 which forms the part of same union council i.e. Union Council No. 67 Tehsil Burewala District Vehari. Similar is the position with his seconder and proposer. There is no other disqualification attributed to the petitioner except that he is not a voter member of Ward No. 1. It appears from the record that the mentioning of Ward No. 2 in the nomination papers is due to some oversight and inadvertence which is not sufficient to deprive the petitioner from a vested right to contest the election for the Local Government. The case of the petitioner is fully covered in sub-rule (7) of Rule 14 of The Punjab Local Governments (Conduct of Elections) Rules, 2013 which is reproduced below for reach reference and convenience:--

“14. Scrutiny.--(1)

(2) -----------------------------------

(3) -----------------------------------

(4) -----------------------------------

(5) -----------------------------------

(6) -----------------------------------

(7) The Returning officer shall not reject a nomination paper on the ground of any defect which is not of a substantial nature and may allow such defect to be remedied forthwith, including an error with regard to the name, serial number in

the electoral roll or other particulars of the candidate or his proposer and seconder so as to bring them in conformity with the corresponding entries in the electoral rolls.”

Bare reading of the above referred sub-rule postulates that it is never the intent of legislature to knock out the contesting candidates of Local Government on the basis of technicalities nor the same can be stretched in a stringent manner on the basis of clerical mistakes.

1. In view of above discussion, I have no doubt in my mind to hold that the rejection of nomination papers by the Returning Officer as well as the dismissal of appeal by way of impugned order dated 28th of September, 2015 is not in accord with the spirit of sub-rule (7) of Rule 14 of The Punjab Local Governments (Conduct of Elections) Rules, 2013. The nomination papers cannot be rejected on hyper technical grounds. The petitioner was registered voter of Ward No. 1 which forms part of Union Council No. 67 Tehsil Burewala District Vehari. The instant petition is thus allowed and the impugned order dated 28th of September, 2015 passed by the Appellate Authority as well as the Returning Officer is set aside and consequently, the nomination papers of the petitioner be deemed to be accepted for Ward No. 1 Union Council No. 67 Teshil Burewala District Vehari.

(R.A.) Petition allowed

PLJ 2016 Lahore 115

Present: Ibad-ur-Rehman Lodhi, J.

SHOUKAT ALI--Petitioner

versus

ELECTION COMMISSIONER, DISTRICT KASUR and others--Respondents

W.P. Nos. 29531, 29442, 29533, 29534, 29576, 29619, 29638, 29678, 29737 of 2015, decided on 7.10.2015.

Punjab Local Government (Conduct of Elections) Rules, 2013--

----R. 12(2)--Punjab Local Government Act, 2013, S. 27--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Nomination papers for election of local government, rejected--Proposers or seconders were not voters of relevant ward--Qualifications for candidates and elected members, does not contain any embargo or proposal or secondment--Union council and ward--Significance--Validity--Returning officers and then appellate authorities also fell in error while not appreciating real spirit and legislative intent in providing at least two entities in which either of any one can be adopted to adjudge qualification of proposer or seconder to hold such valid position on showing their inclusion as voters in union council or ward and thus rejection of nomination papers of petitioners was an act which was not supported by any law and therefore, was not sustainable--Petitions were allowed. [P. 118] A

Punjab Local Government (Conduct of Elections) Rules, 2015--

----R. 12(2)--Principle of interpretation--Union Council and Ward--Validity--Word “Union Council” and “Ward” are used separately providing two different bodies or entities for proposers and seconders of any duly qualified person as to his candidature for his election to office of member or as case may be, chairman and vice-chairman of a union council. [P. 118] B

Ch. Muhammad Yousaf, Advocate for Petitioner.

Mr. Muhammad Shafique Malik, Advocate for Petitioner (in W.P. No. 29442 of 2015).

Mr. Muhammad Shahzad Ijaz, Advocate for Petitioner (in W.P. No. 29533 of 2015).

M/s. Ch. Muhammad Yousaf and Shahid Rafiq Mayo, Advocates for Petitioner (in W.P. No. 29534 of 2015).

Mr. Abid Hussain Khichi, Advocate for Petitioner (in W.P. No. 29576 of 2015).

Mr. Zia Haider Rizvi, Advocate for Petitioner (in W.P. No. 29619 of 2015).

Malik Dilbahar, Advocate for Petitioner (in W.P. No. 29638 of 2015).

M/s. Tahir Mahmood Mughal and Muhammad Amer Kazi, Advocates for Petitioner (in W.P. No. 29678 of 2015).

Mian Arshad Ali Mahar, Advocate for Petitioner (in W.P. No. 29737 of 2015).

Mr. Khawar Ikram Bhatti, Addl.A.G.P. for Respondent.

Date of hearing: 7.10.2015.

Order

Through this judgment, this Constitutional petition as also following petitions:--

1. Writ Petition No. 29442 of 2015

2. Writ Petition No. 29533 of 2015

3. Writ Petition No. 29534 of 2015

4. Writ Petition No. 29576 of 2015.

5. Writ Petition No. 29619 of 2015

6. Writ Petition No. 29638 of 2015

7. Writ Petition No. 29678 of 2015

8. Writ Petition No. 29737 of 2015.

are to be disposed of together, as common question of law and facts is involved in all these matters.

1. In all the petitions, nomination papers of all the duly qualified persons/candidates were rejected only on the ground that, their proposers or seconders, were not the voters of the relevant Wards and appeals filed there-against were also dismissed.

2. Section 27 of the Punjab Local Government Act, 2013, which provides qualifications and disqualifications for candidates and elected members, does not contain any embargo or his proposal or secondment as to the candidature by the persons, who must be the voters of the relevant “ward”.

3. In exercise of the powers conferred under Section 144 of the Act, Governor of the Punjab was pleased to make Punjab Local Governments (Conduct of Elections) Rules, 2013. Such rules provide minute details for the conduct of elections in Chapter-IV thereof. Rule 12(2) of such Rules provides that any voter of “a Union Council or Ward” may propose or second the name of any duly qualified person to be a candidate for an election of a member or as the case may be, the Chairman and the Vice-Chairman of a Union Council.

4. The word “or” figuring in between “Union Council” and “Ward” is of much significance. In view of the principles of interpretation, word “or” is commonly and ordinarily used in disjunctive sense.

Mr. S.M. Zafar, in Understanding Statutes, Canons of Construction, while giving broad principles of interpretation of word “or” has noted that the same is used in a Statute in disjunctive sense indicating an alternative, presenting a choice of either. Further, it is noted that if this disjunctive conjunction “or” is used, the various members of the sentence are to be taken separately.

Almost same view has been expressed in cases of Muhammad. Arif and, others vs. District and Sessions Judge, Sialkot and others (2011 SCMR 1591), Salehon and others vs. The State (PLD 1969

Supreme Court 267) and Fakir Mohd. (Dead) by Lrs vs. Sita Ram (2002 AIR (SC) 433)

1. Applying such principle of interpretation on the provisions of Rule 12(2) of the Punjab Local Governments (Conduct of Elections) Rules, 2013, the word “Union Council” and “Ward” are used separately providing two different bodies or entities for proposers and seconders of any duly qualified person as to his candidature for his election to the office of member or as the case may be, the Chairman and the Vice-Chairman of a Union Council.

2. It is nobody's case in all the matters, under consideration, that proposers or seconders are not from the relevant “Union Council”. The candidature of the duly qualified persons was rejected on the sole ground that their proposers or seconders were not the voters of the relevant “Ward”.

3. Firstly, the Returning Officers and then the appellate authorities also fell in error while not appreciating the real spirit and legislative intent in providing at least two entities in which either of any one can be adopted to adjudge the qualification of proposer or seconder to hold such valid position on showing their inclusion as voters in either the Union Council or the Ward and, thus, rejection of nomination papers of the petitioners is an act, which is not supported by any law and, therefore, is not sustainable.

4. In this view of the matter, all the writ petitions are allowed; the impugned orders rejecting the nomination papers of the petitioners and dismissal of their appeals are set-aside, and the nomination papers, respectively filed by the petitioners in concerned Constituencies, stand accepted.

(R.A.) Petitions allowed

PLJ 2016 Lahore 118 [Bahawalpur Bench Bahawalpur]

Present: Amin-ud-Din Khan, J.

GHULAM BARI--Petitioner

versus

HAJI BASHER AHMAD through L.Rs. & others--Respondents

C.R. Nos. 619 & 618 of 2011, heard on 30.3.2012.

Agreement to sell--

----Power of attorney--Principle--Beneficiary of documents--Proof of--Given power of attorney only with regard to administration of suit land--Power of--Power of attorney was deemed to have not been proved in accordance with law--Validity--Agreement to sell is registered one, which is based upon a power of attorney by principal in favour of agent--If such power of attorney is taken as registered document, then powers to sell property or to mortgage property--There are no powers to enter into an agreement to sell with regard to suit property. [P. 122] A & B

Power of Attorney--

----Agreement to sell--Powers to entering into agreement to sell--Not given alleged power of attorney--Validity--Agent cannot enter into an agreement to sell with regard to property, as in an agreement there are conditions imposed upon both parties--In case of default by party there is ever a penalty clause in agreement to sell--When a person has given powers to sell his property, that does not automatically give powers to agent to enter into an agreement to sell property of Principal--In power of attorney when powers are not given to an Agent to enter into an agreement to sell, then he cannot do so--Thus, has not proved validity of agreement to sell by principal and he was not entitled to decree for specific performance--When clog of agreement to sell on property of plaintiff is vanished, then there is no other defence with defendants to defend suit filed by plaintiff for possession of suit property. [P. 123] C & D

Court Fee--

----Order of trial Court with regard to payment of Court fee was challenged--Court fee was not paid--Ready to pay Court Fee on plaint--Validity--Petitioner-plaintiff is ready to pay Court fee in accordance with price of land determined by trial Court--Though it is not in accordance with law but to resolve controversy and to shorten litigation and when petitioner has himself offered for payment of more Court fee, petitioner is ready to pay Court fee on plaint, appeal and on that civil revision--Petitioner-plaintiff is directed to deposit Court fee in trial Court for plaint, Rs. 4950/- in first appellate Court for appeal and Rs. 4950/- in High Court for civil revision, within a period of two months and will also submit requisite stamp papers of Court before Courts. [P. 123] E & F

Mr. Muhammad Mehr Hussain Khan Dharija, Advocate for Petitioner.

Mr. Muhammad Farooq Warind, Advocate for Respondents.

Date of hearing: 30.3.2012.

Judgment

Through this single judgment I intend to decide the above captioned civil revisions, as the same are directed against the impugned judgments and decrees passed by two Courts below.

1. The petitioner (Ghulam Bari) has impugned the judgment and decrees dated 25.07.2011 passed by the learned Addl: District Judge, Rahim Yar Khan, whereby the appeals filed by him were dismissed, and the judgment and decrees dated 29.07.1986 passed by the learned Senior Civil Judge, Rahim Yar Khan, whereby suit for possession filed by the petitioner was dismissed and suit for specific performance filed by Muhammad Younas was decreed.

2. Briefly, the fact are that on 14.12.1978 petitioner-plaintiff (Ghulam Bari) filed a suit for possession of suit land mentioned in the plaint. Muhammad Younas also filed a suit for specific performance of the same suit land on 08.03.1979 on the basis of an agreement to sell dated 20.01.1979 allegedly on behalf of Ghulam Bari by his Attorney Ahmad Din. Both the suits were consolidated and out of the divergent pleadings of the parties consolidated issues were framed. In support of their versions both the parties adduced their oral as well as documentary evidence. After the close of trial, vide judgment and decree dated 29.07.1986, suit of petitioner-plaintiff (Ghulam Bari) was dismissed, whereas suit filed by Muhammad Younas for specific, performance was decreed. The petitioner-plaintiff filed two appeals before the first appellate Court.

There is checkered history of appeals, revisions and remand orders. The appeals of petitioner-plaintiff were dismissed by the learned Addl; District Judge, Rahim Yar Khan on 16.03.1987, which were challenged before this Court through C.R. No. 249-D-1987 and were accepted on 29.08.2002 by this Court. In Paragraph No. 3 of this judgment, this Court issued some directions to the learned first appellate Court to decide the appeals afresh taking into consideration the directions of this Court.Vide judgment and decrees dated 22.11.2003, learned Addl; District Judge, Rahim Yar Khan, remanded the cases to the trial Court for decision afresh. These remand orders were challenged by Muhammad Younas before this Court through C.R. No. 71-2004 and C.R. No. 80-2004. Vide judgment dated 23.06.2008 passed by this Court, remand orders dated 22.11.2003 passed by the learned A.D.J, remanding the cases to the trial Court, were set aside and the learned A.D.J was directed to decide the appeals himself in the light of directions issued in C.R. No. 249-D-1987.

It is on the record that another learned Addl; District Judge, Rahim Yar Khan, vide remand order dated 7.4.2010 ignoring the directions of this Court, once again remanded the cases to the trial Court. Against this order, C.R. No. 450-2010 was filed before this Court, which was acceptedvide order dated 24.03.2011, whereby learned A.D.J was directed to decide the appeals in the light of directions issued by this Court in C.R. No. 249-D-1987 and RSA No. 88-1987 on 29.08.2012. Thereafter learned Addl.; District Judge, Rahim Yar Khan, vide judgment and decrees dated 25.07.2011 has decided the appeals and dismissed the same, which are under challenge before this Court.

1. Learned counsel for the petitioner-plaintiff (Ghulam Bari) states that admittedly petitioner purchased the suit and jointly with Defendants No. 1 to 4, who were admittedly partners of the Firm; that when they were in possession of the suit property, petitioner filed a suit for possession on 14.12.1978 and Ahmad Din who was not having any valid registered power of attorney by the plaintiff, dishonestly with the connivance of Muhammad Din (partner of his Firm) has shown an agreement to sell dated 20.01.1979 in favour of Muhammad Younas s/o Muhammad Din, whereas the suit for possession was filed on 14.12.1978, therefore, the malafide of defendants and Muhammad Younas is visible from the circumstances of this case. Further states that Muhammad Younas filed a suit for specific performance on 08.03.1979 on the basis of said agreement to sell and in the remand order it was directed to the learned first appellate Court to consider the statement of D.W.4 (Nazir Ahmad).

2. On the other hard, learned counsel for the respondents stated that there are concurrent findings of facts in the matter recorded by the Courts below, therefore, these civil revisions are liable to be dismissed.

3. I have heard the learned counsel for the parties at full length and also gone through the record minutely with their able assistance.

4. I have gone through the statement of Nazir Ahmad, which is the most important piece of evidence to decide the lis in hand coupled with the circumstances noted above. He has clearly stated that he never identified the plaintiff (Ghulam Bari) before the Sub Registrar, rather it was the signature of Ahmad Din upon the alleged power of attorney and on the asking of one Arshad, who was known to him, he identified the person to be Ghulam Bari appeared before the Sub Registrar. D.W.5 (Sub Registrar) stated that he has attested this document upon the identification of Nazir Ahmad, as he was Bank Official and he was known to him. D.W.6 (Petition Writer) says that his Register has been lost. Admittedly, the petitioner-plaintiff is owner of the suit property. He has filed the suit for possession against Bashir Ahmad, Muhammad Din, Nazir Ahmad and Ahmad Din and after that Muhammad Younas also. Admittedly, this property was purchased jointly by the plaintiff with Defendants No. 1 to 4 and when he was ousted, therefore, he filed the suit for possession on 14.12.1978.

5. On the other hand there is an agreement to sell dated 20.01.1979 on the basis of which Muhammad Younas filed suit for specific performance on 08.03.1979. The agreement is allegedly by the Attorney of plaintiff (Ghulam Bari), namely, Ahmad Din. Muhammad Younas was bound under the law to prove this valid agreement to sell in his favour and when the alleged agreement is by the Attorney of original owner, he was bound under the law to prove the valid execution of attorney in favour of person who entered into an agreement to sell with Muhammad Younas. The admitted position is that Muhammad Younas is son of Muhammad Din, who is a partner of Ahmad Din. First of all, the genuineness and proof of correct power of attorney is required, and further, when the Attorney is transferring the property of Principal in favour of a person of his close relation, then he is bound under the law to seek special permission from the Principal for selling the property of Principal.

6. First of all, I take the matter of agreement to sell. The agreement to sell is registered one, which is based upon a power of attorney by the Principal in favour of Agent. The beneficiary of this document i.e. Muhammad Younas is bound urder the law to prove the valid execution of power of attorney by the Principal in favour of the Attorney. The simple execution of power of attorney has not been denied by the plaintiff (Ghulam Bari). He has stated that he was not willing to give the powers to transfer the suit property in favour of anyone, therefore, he refused to appear before the Sub Registrar for registration of the said document. He has only given the power of attorney with regard to the administration of suit land and further to deal with the loan case etc. I have minutely scrutinized this document. When the alleged Identifier, before the Sub Registrar, of the Principal has denied the identification of Ghulam Bari and the Sub Registrar also states that he did not personally know. Ghulam Bari and he has attested this document on the identification of D.W.4, who has made statement before the Court that Ghulam Bari was not present at the time of attestation of this power of attorney, therefore, the power of attorney is deemed to have not been proved in accordance with law. If this power of attorney is taken as registered document, then I gives the powers to sell the property or to mortgage the property. There are no powers to enter into an agreement to sell with regard to the suit property. When the powers to entering into the agreement to sell of suit property and not given in this alleged power of attorney, therefore, I am clear in my mind that the Agent cannot enter into an agreement to sell with regard to the property, as in an agreement there are conditions imposed upon both the parties. In case of default by the party there is ever a penalty clause in the agreement to sell. When a person has given powers to sell his property, that does not automatically give the powers to the Agent to enter into an agreement to sell the property of Principal. As I have earlier observed that in an agreement to sell both the parties are bound to the conditions mentioned therein. In this view of the matter, I am of the considered view that in the power of attorney when the powers are not given to an Agent to enter into an agreement to sell, then he cannot do so. Thus, Muhammad Younas has not proved the validity of agreement to sell by the Principal and he was not entitled to the decree for specific performance. When the clog of agreement to sell on the property of plaintiff (Ghulam Bari) is vanished, then there is no other defence with the defendants to defend the suit filed by the plaintiff (Ghulam Bari) for possession of suit property. In these circumstances, while reversing the concurrent findings recorded by two Courts below, the impugned judgments and decrees dated 25.07.2011 and 29.07.1986 passed by the Courts below in favour of Muhammad Younas, are hereby set aside.

7. Learned counsel for the respondents has raised the objection that petitioner plaintiff has not paid the Court fee on Civil Revision No. 619 of 2011. Learned counsel for the petitioner-plaintiff states that he has challenged the order of trial Court with regard to payment of Court fee, as it was payable in accordance with the net profit and not on the alleged sale price of suit land. Besides, learned counsel for the petitioner-plaintiff is ready to pay the Court fee in accordance with the price of land i.e. Rs. 66,000/- determined by the trial Court. Though it is not in accordance with law but to resolve the controversy and to shorten the litigation and when petitioner has himself offered for payment of more Court fee, learned counsel states that petitioner is ready to pay the Court fee on plaint, appeal and on this civil revision.

In this view of the matter, the petitioner-plaintiff (Ghulam Bari) is directed to deposit Court fee of Rs. 4950/- in the trial Court for plaint, Rs. 4950/- in the first appellate Court for appeal and Rs. 4950/- in this Court for this civil revision, within a period of two Months from 01.04.2012 and will also submit the requisite stamp papers of Court before the Courts, respectively.

1. In the light of what has been discussed above, both the Civil Revisions are allowed. The result would be, the suit for possession filed by the petitioner-plaintiff (Ghulam Bari) shall stand

decreed, whereas the suit for specific performance filed by Muhammad Younas shall stand dismissed.

(R.A.) Revisions allowed

PLJ 2016 Lahore 124 [Multan Bench Multan]

Present: Shahid Karim, J.

GHULAM SARWAR & others--Petitioners

versus

HABIB BUKHSH & others--Respondents

C.R. No. 330-D of 2005, decided on 15.4.2015.

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

----S. 115--Civil revision--Concurrent judgments--Descendants of real brother--Inheritance--Mutation was not challenged in his life time--Estopped from challenging mutation--Substantial discrepancies in evidence--Question of--Whether plaintiff could challenge it now having acquiesced in mutation and subsequent mutation--Validity--Exercises a gravitational pull on entire controversy was issue viz. “whether plaintiffs are estopped by their words and conduct to file present suit--Respondents/ plaintiffs were estopped by their words and conduct to file suit and to claim inheritance while admitting that their predecessor-in-interest had not challenged said mutation while he was alive knowing fully well regarding mutation and having participated in proceedings for consolidation.

[Pp. 128 & 129] A & B

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

----S. 4--Muhammadan Law--Shares--Succession opens--Principle of inheritance--Applicability--In event of death of any son or daughter of propositus before opening of succession, children of such son or daughter, if any, living at time succession opens, shall per stripes receive a share equivalent to share which such son or daughter, as case may be, would have received, if alive--Once again, mandate of Section 4 of Muslim Family Law Ordinance, 1961, is not disputed nor is it in dispute that in ordinary circumstances principles of inheritance would be full applicable. [Pp. 130 & 131] C

Sahibzada Mehboob Ali Khan, Advocate for Petitioners.

Mr. Najam-ul-Saqib, Advocate for Respondents.

Date of hearing: 8.4.2015.

Judgment

This is an application under Section 115 of Civil Procedure Code, 1908 by way of revision petition against the concurrent judgments and decrees dated 13.3.2001 passed by the Civil Judge, Muzaffar Garh and dated 02.03.2005 by Addl. District Judge, Muzaffar Garh.

1. This case has historical facts and a summary of these facts can be gleaned from the plaint as well as the written statements filed by the parties.

2. The case set up in the plaint was that the petitioners were sons of Hamid Khan who was the husband of Mst. Saddan. Mst. Saddan in turn was the daughter of Gohar Khan who was the son born out of the wedlock of one Habib Khan and Mst. Sahib. It is not denied by the parties that the Respondents No. 1 to 3/plaintiffs are all brothers and Respondent N0.4 is their sister. The petitioners are the descendants of real brother of Hamid Khan. The cause of action in the plaint relates to the inheritance of Habib Khan who was the brother of Kaura, the predecessor of Hamid Khan and his brothers. It has been submitted in the plaint that Habib Khan had two wives Mst. Jannat and Mst. Sahib. Mst. Sahib predeceased Habib Khan in the year 1924. Habib Khan died in the year 1925. They had a son Gohar Khan out of their wedlock who died in the year 1918. Gohar Khan had two daughters Mst. Saddan and Mst. Allah Wasai alias Wassu. Mst. Saddan was married to Hamid Khan and it is this part of the inheritance of Mst. Saddan which is in dispute. According to the plaint, sister of Mst. Saddan, Mst. Wassu died in the year 1951 and so the property belonging to Mst. Wassu reverted to Mst. Saddan as Mst. Wassu had no offspring. Mst. Saddan died in the year 1930 and Wahid Bukhsh, her son, also died in the year 1938. In a nub, the claim in the plaint is that the property or Mst. Saddan and Wahid Bukhsh should have devolved upon Hamid Khan and the respondents/plaintiffs being the sons of Hamid Khan were entitled to the share to his extent. A declaration had, therefore, been sought for setting aside the Mutation No. 87 dated 07.05.1925 in respect of land measuring 111 Kanals, 5-Marlas out of a total land measuring 268 Kanals belonging to Habib Khan. The cause of action, according to the plaint, arose precisely because after the death of Habib Khan, the entire property was acquired in inheritance by the impugned mutation by Mst. Jannat claiming to be the only wife of Mabib Khan. Thus, according to the averments in the plaint, the respondents/plaintiffs had been deprived of their lawful share.

3. The plaint was filed on 28.10.1993 to challenge the Mutation No. 87 entered on 07.05.1925.

4. In the written statement, the petitioners/defendants took a number of objections. On the threshold, it was asserted that the plaint was barred by limitation. It was also asserted that after so many years it was not permissible for a suit to be filed to set aside a mutation entered in the year 1925. Also it was asserted that since Hamid Khan had not challenged the said mutation in his lifetime, the respondents/plaintiffs were estopped from challenging that mutation now.

5. Learned counsel for the petitioners/defendants has referred to the evidence produced by the respondents/plaintiffs and has pointed out substantial discrepancies in the said evidence. He denies that Mst. Sahib was the wife of Habib Khan and submits by referring to various documents that the fact that Mst. Sahib was the wife of Habib Khan, has not been brought home by the respondents/plaintiffs.

6. The learned counsel for the respondents/plaintiffs, however, refers to the pedigree table Ex.P. 17 to assert that according to the said pedigree table Mst. Sahib is the wife of Habib Khan and since the pedigree table has not been rebutted, presumption of truth is attached to it. He has relied upon Noor Salam and others v. Gul Badshah and others (PLD 2002 SC 622) in this regard. His precise submission is that Mst. Jannat claiming to be the only wife of Habib Khan had taken the entire inheritance of Habib Khan and by playing fraud got executed the impugned Mutation No. 87 dated 07.05.1925.

7. As is evident from the facts explicated above, the dispute between the parties is only with regard to the property which was to devolve upon Mst. Sahib as the lawful wife of Habib Khan from whom, Hamid Khan was to claim it and which in turn was to devolve upon the respondents/plaintiffs as the sons of Hamid Khan. It is pertinent to mention that the petitioners had been proceeded against ex-parte on 20.01.2001 and thus no evidence was produced in defence by the petitioners. However, the learned counsel for the petitioners has taken me through the evidence produced by the respondents/plaintiffs and has asserted on the basis of that evidence that the respondents/plaintiffs have failed to bring home the onus of the issues which was cast upon them. It must be borne in mind that Habib Khan died issueless and it seems that the property has all along been devolved upon his heirs under the customary law. By virtue of that, the property was inherited by Mst. Jannat as the widow of Habib Khan. When Mst. Jannat died it devolved upon the nephews as collaterals once again under the customary law of inheritance.

8. I have gone through the oral as well as documentary evidence produced by the respondents/plaintiffs. Habib Bukhsh PW.1 (one of the plaintiffs) in the cross-examination admitted that the land under dispute has been subject to two consolidation proceedings and that their father Hamid Khan was part of those consolidation proceedings. He also admits in his deposition that consolidation proceedings took place after the death of his father too and the said witness was part of those consolidation proceedings. He also admits to filing an appeal against the consolidation proceedings which was dismissed by the Commissioner. Allah Wasaya appeared as PW.2. He seems to be unrelated to the entire transaction. He feigns complete ignorance as to inheriting the property of Habib Khan. In the latter part of the examination in chief he admits that the nephews of Habib Khan are entitled to his inheritance. In the cross-examination, he again expresses his ignorance as to the fact that from which wife, Habib Khan had sons and daughters. He was put a question to which he replied that Sukkhan was the name of his wife and then retracted in the same breath and said that Sukkhan was the name of his mother. The trial Court was constrained to observe that the witness could not tell the difference between the wife and the mother.

9. As for the documentary evidence, both the learned counsel for the parties have referred to the entries in the revenue record Ex. P.14. P.15 and P. 17. which contained the Shajrah of Habib Khan and according to them, Mst. Sahib is mentioned as wife of Habib Khan in the Shajrah prepared in the said entry of revenue record.

10. Both the Courts below have made the findings on Issue Nos. 1 and 2 as the foundation of the case and have on the basis of findings on these issues, proceeded to decide the rest of the issues. Issues No. 1 and 2 have been decided primarily on the basis that the fact of Mst. Sahib being the wife of Habib Khan having been proved by the respondents/plaintiffs, by necessary corollary the respondents/ plaintiffs were entitled to inheritance under the Muslim Law of Inheritance and thus proceeded to declare the Mutation No. 87 in favour of Mst. Jannat as without lawful authority. This mutation, it would be relevant to submit, was inserted in the year 1925 however, the subsequent Mutation No. 707 which was executed in favour of the petitioners, has not been challenged and no declaration has been sought in respect thereof. This seems to be a palpable mistake and the Courts below have not paid any heed to this aspect.

11. However, in my opinion, the pivotal issue and the one that exercises a gravitational pull on the entire controversy was the Issue No. 5, viz. “whether the plaintiffs are estopped by their words and conduct to file the present suit? OPD.” It is admitted on all hands and is a common ground that Hamid Khan had, during his lifetime, chosen not to challenge the inheritance in favour of Mst. Jannat. It is also an admitted fact brought forth from the oral evidence of the respondents/plaintiffs that three consolidation proceedings in respect of the disputed property had taken place, in two of which Hamid Khan himself participated and in one the respondents/plaintiffs have participated. In view of the admitted position that Hamid Khan had not chosen to challenge the inheritance during his lifetime, the question was whether the respondents/plaintiffs could challenge it now having acquiesced in the mutation in favour of Mst. Jannat and subsequent mutation in favour of the petitioners and having kept their silence for decades. Two judgments of the Supreme Court of Pakistan have dilated upon an issue of a similar nature and the observations and the findings returned give some actuality co the facts of the instant case. In Abdul Haq and another v. Mst. Surayya Begum (2002 SCMR 1330) the dispute related to a mutation executed in the year 1960 in favour of one of the heirs of the owner of the property who died in that year. The heirs of the predeceased son filed a suit in the year 1979 for declaration and sought to inherit the property. The Supreme Court of Pakistan observed as under:

“11. Atta Muhammad was deprived of right to inherit the property as a consequence of mutation in dispute but he did not challenge the same during his lifetime. The petitioners claimed the property through Atta Muhammad as his heirs who filed the suit as late in 1979 about nine years after the sanction of mutation which had already been given effect to in the record of rights. The petitioners, therefore, had no locus standi to challenge the mutation independently, for Atta Muhammad through whom they claimed inheritance himself had not challenged the same during his lifetime.”

1. This judgment was approved and relied upon in Muhammad Rustam and another v. Mst. Makhan Jan and others (2013 SCMR 299). In the latter judgment of Supreme Court of Pakistan, the petitioners sued for declaration impugning the mutation of inheritance dated 09.07.1927 and claim for their share of inheritance was decreed by the trial Court and was affirmed in appeal. It was, however, reversed by the High Court and the suit was dismissed. Upon a challenge to the said judgment of the High Court, the Supreme Court of Pakistan refused to grant leave to appeal with the following observations:

“3. Having heard petitioners' learned counsel at some length, we find that admittedly the impugned mutation of inheritance Bearing No. 571 dated 9-7-1927 was never challenged by Mst. Karam Jan; that she remained alive till 1975 and no reason whatsoever is reflected either in the plaint or in the evidence led to indicate as to why she did not challenge the said mutation. It has never been the case of the petitioners that either they or their predecessor-in-interest were unaware of the said mutation. In the afore-referred circumstances, the judgment of the learned High Court is unexceptionable. So far as the precedent case-Jaw to which reference has been made by petitioner's learned counsel is concerned, the same is distinguishable as in none of the judgments the question of locus standi was a moot point. In Abdul Haq and another v. Mst. Surayya Begum (2002 SCMR 1330), this Court inter alia was seized of a similar issue and while dismissing the petition, it observed as follows:

“11. Atta Muhammad was deprived of right to inherit the property as a consequence of mutation in dispute but he did not challenge the same during his lifetime. The petitioners claimed the property through Atta Muhammad as his heirs who filed the suit as late in 1979 about nine years after the sanction of mutation which had already been given effect to in the record of rights. The petitioners, therefore, had no locus standi to challenge the mutation independently, for Atta Muhammad through whom, they claimed inheritance himself had not challenged the same during his lifetime.”

1. The judgments referred to above, in my opinion, should be the guiding principles in such matters. The Courts below have utterly failed to advert to this aspect of the case. By the impugned judgments, a mutation effected in the year 1925 has been upset while much water had flowed under the bridge. The respondents/plaintiffs were estopped by their words and conduct to file the suit and to claim inheritance in the year 1993 while admitting that their predecessor-in-interest Hamid Khan had not challenged the said mutation while he was alive knowing fully well regarding the mutation and having participated in the proceedings for consolidation.

2. The learned counsel for the respondents/plaintiffs has referred to case law in support of the proposition that in matters of inheritance, the issue relating to limitation is not relevant and should come in the way of granting relief to a person otherwise entitled. That principle is not without its exceptions. Moreover, the Courts below have generally accepted the said prayer depending upon the facts and circumstances of each case. In Mehrban and 3 others v. Mst. Sahib Jan (2005 SCMR 1832) the Supreme Court accepted the view taken by the High Court that the suit was within time on the ground that limitation would start from the date of knowledge of transaction and not from the date of mutation. Rehmatullah and others v. Saleh Khan and others (2007 SCMR 729) was relied upon for the proposition that in case of a void order limitation would not run in such order. Also that in matters of inheritance the question of limitation would not arise in such cases. The proposition that in matters of inheritance the question of limitation would not necessarily arise, is not precisely the proposition in issue in the instant case. The issue here is that the mutation in question was not challenged by Hamid Khan during his lifetime and it has not been asserted either in the plaint or brought forth in the oral evidence as to why the said challenge was not made. The issue of limitation being not a valid defence in matters of inheritance would pale into insignificance in the peculiar facts and circumstances of the present case. It will have to be juxtaposed and squared against other factors like the conduct and acquiescence of a party. It is also not the case of the respondents/plaintiffs that they or their predecessor-in-interest were unaware of the said mutation. Juma Khan and others v. Mst. Bibi Zenaba and others (PLD 2002 Supreme Court 823) is also to effect that in a case relating to rights of inheritance the question of limitation would not arise. Noor Salam and others v. Gul Badshah and others (PLD 2002 Supreme Court 622) has been cited for the proposition that presumption of truth and genuineness was attached to a pedigree table under the Land Revenue Act, 1967. There is no cavil with the proposition. However, as brought forth above, the proposition in the instant case is materially different from the one which has been canvassed by the respondents/plaintiffs and on the basis of which both the Courts below have returned their findings. In Bashir Ahmed v. Abdul Aziz and others (2009 SCMR 1014) the question related to West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962) and inheritance under that Act. The said question does not arise in the instant case and, therefore, the cited judgment is not applicable.

3. The learned counsel for the respondents/plaintiffs has relied upon various provisions of Mulla on Mahomedan Law as well as Section 4 of Muslim Family Law Ordinance, 1961 to assert that in the event of the death of any son or daughter of the propositus before the opening of succession, the children of such son or daughter, if any, living at the time the succession opens, shall per stripes receive a share equivalent to the share which such son or daughter, as the case may

be, would have received, if alive. Once again, the mandate of Section 4 of Muslim Family Law Ordinance, 1961, is not disputed nor is it in dispute that in ordinary circumstances the principles of inheritance would be full applicable. However, in the peculiar facts and circumstances of the case, the ratio decidendi of the cases decided by the Supreme Court of Pakistan viz. Muhammad Rustam (2013 SCMR 299) and Abdul Haq (2002 SCMR 1330) supra would be fully applicable and would form the foundational basis on which the decision ought to have been rendered by the Courts below.

1. In view of what has been adumbrated, the revision petition is accepted; the findings of the Courts below on Issues No. 1, 2 and 5 are set aside, these issues are decided in favour of the petitioners/defendants. The decision on the Issues No. 4 and 8 vide the impugned judgments and decrees are also set aside. As a consequence, the suit of the respondents/plaintiffs is dismissed.

(R.A.) Petition accepted

PLJ 2016 Lahore 131 [Multan Bench Multan]

Present: Shams Mehmood Mirza, J.

ZAHOOR AHMAD--Appellant

versus

MUSHTAQ AHMAD--Respondent

RFA No. 84 of 2006, heard on 22.5.2015.

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

----O. XXXVII, Rr. 2 & 3--Negotiable Instruments Act, 1881, S. 118--Suits for recovery on basis of cheques--Failed to repay amount of loan--Witnesses to transaction of loan and issuance of cheques--Necessary and relevant facts were not pleaded--Denied signature on cheques--Ignored material discrepancies in oral evidence of witnesses--Documentary evidence--Presumption of consideration--Validity-- It is well settled principle of law that evidence adduced beyond pleadings would not be admissible nor any evidence can be permitted to be adduced which is at variance with pleadings--Evidence led by respondent-plaintiff which is inconsistent with averments of pleadings cannot be considered and has to be rejected--Cheques were not only signed but were also thumb marked by appellant but cheques produced in evidence did not show they were thumb marked--Similarly, statement of PW that each cheque was signed three times by appellant-plaintiff also proved not to be correct as cheques only contained one signature--For filing of a suit under Order XXXVII, CPC on basis of a cheque, it is necessary for plaintiff to present cheque to bank for its dishonour in order for cause of action to accrue to him against drawer of cheque--If a cheque is not presented to bank for its payment, procedure provided for in Order XXXVII, CPC shall not be available to a plaintiff and suit so filed shall not be maintainable.

[Pp. 135, 135 & 136] A, B & C

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

----S. 118--Civil Procedure Code, (V of 1908), O. XXXVII, Rr. 2 & 3--Promissory note--Non presentment of cheque to bank for encashment--Cheques were never dishonored--Question of--Whether accounts had sufficient funds for honouring amount--Validity--Unless a cheque is presented for payment, drawer of cheque will be absolved from liability--Presentment of a cheque is a condition precedent in order for a payee to charge drawer/maker of a cheque--For filing of a suit under Order XXXVII, CPC based on a cheque, it is necessary to present said cheque to bank--Admittedly, cheques allegedly given by appellant-defendant were not presented for payment--Suits under Order XXXVII, CPC, therefore, were not maintainable before A.S.J.--Tenor of plaint showed that respondent-plaintiff had relied solely upon cheques to agitate his cause of action against appellant. [P. 137] D

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

----O. II, R. 2--Cause of action--Definition of--Whether suits originated out of same cause of action or whether separate cheques provided separate causes--Obligation and collateral security for performance one cause of action--Validity--Landlord can bring only one suit for recovery of arrears of entire rent and not for a particular year and if he does so he shall subsequently be precluded from suing for rent due under other years--Obligation to repay specific amount and collateral security of cheques was but one cause of action in respect of which respondent-plaintiff had to bring one suit--Where a plaintiff omits to sue in respect of any portion of his claim, he shall not afterwards sue in respect of portion so omitted--No difficulty should arise in view of simultaneous filing of suits as each suit is numbered and ones which bear later numbers will be taken to have been filed afterwards--Suits bearing numbers shall be deemed to have been filed after suit and consequently shall be hit by provisions of Order II Rule 2, CPC.

[Pp. 139, 140 & 141] E, F, G, H & I

Syed Muhammad Jamil Anwar Shah, Advocate for Appellant.

Mr. Fakhar Raza Malana, Advocate for Respondent.

Date of hearing: 22.5.2015.

Judgment

This judgment shall dispose of RFA No. 84 of 2006 as well as fifteen other connected appeals bearing RFA No. 85 to RFA No. 99 of 2006 on account of similarity of identical questions of fact and law involved in these appeals as also the fact that the parties in all the cases are the same.

1. Brief facts of the case are that the respondent-plaintiff filed sixteen (16) suits (Suit No. 8/1 to Suit No. 23/1) seeking recovery of Rs. 25,000/- in each suit against the appellant-defendant under the provisions of Order XXXVII of the Code of Civil Procedure, 1908 (CPC) on the basis of sixteen cheques dated 22.02.2000. The case of the respondent-plaintiff as emerging from the evidence of his witnesses (PW1 to PW3) (minus the inconsistencies in their evidence) can be summarized as follows. The appellant-defendant was a friend of respondent-plaintiff who borrowed Rs. 900,000/- from him as loan. The said amount was given by the respondent-plaintiff to the appellant-defendant on 18.02.2000 in the presence of witnesses in lieu whereof the appellant-defendant delivered sixteen (16) cheques of Rs. 25,000/- each. On 22.02.2000, the appellant-defendant failed to repay the amount of the loan to the respondent-plaintiff resulting in filing of the suits. For the completeness of facts, it may be stated that the suit was earlier decreed on 07.03.2000 on the statement made allegedly by the counsel of the appellant-defendant whereafter the appellant-defendant filed an application for setting aside of the decree on the ground of fraud. The said application was contested by respondent-plaintiff whereafter the trial Court framed issues and recorded the evidence of both the parties. The said application was finally dismissed on 19.01.2004. Feeling aggrieved the appellant- defendant filed a revision petition before this Court which was decided on the conceding statement of respondent-plaintiff and consequently decree dated 07.03.2000 was set aside whereafter the trial Court received the written statement of the appellant-defendant and framed the following issues:

2. Whether the plaintiff is entitled to get decree, recovery of Rs. 25,000/- on the basis of bank cheque dated 22.02.2000 for reasons mentioned in the plaint? OPP

3. Whether the plaintiff prior to this suit had filed recovery suit in which he has relinquished this claim of Rs. 25,000/-. Now he is barred to sue against the defendant U/O. II Rule 2, CPC? OPD

4. Whether this Court lacks territorial jurisdiction to hear the suit, if so what is its legal effects? OPD

5. Whether the plaintiff only to avoid Court fee have filed sixteen suit of the same nature, whereas he can claim all his relief by filing one recovery suit, if so what is its effects? OPD

6. Relief.

7. Issue No. 3 was treated as preliminary issue and after recording of evidence of the parties, it was decided in favour of respondent-plaintiff on 30.04.2004 in all the suits. The respondent- plaintiff besides examining himself as PW-2 examined Allah Bakhsh and Muhammad Hayat as PW-3 and PW-4 (in all the suits) who were the witnesses to the transaction of loan and to the issuance of cheques and Mr. Tariq Mehmood Qureshi Advocate as PW-1 who was allegedly the counsel of appellant-defendant in the earlier round of litigation between the parties. In addition thereto, the trial Court also recorded the evidence of the Court witness, Muhammad Aslam Javid, Officer Grade-II, National Bank of Pakistan, City branch, Liaqatpur as CW-1 (in all the suits). The appellant-defendant appeared in the witness box as DW-1 and also produced Muhammad Raza as DW-2(in all the suits). It may be stated here that the evidence of the witnesses in all suits is identical. All the sixteen cheques were marked as Exh.P-1 in the suits.

8. The issue wise findings are as under:

Issue No. 1:

1. The plaint of the suit consist of five paragraphs out of which only two paragraphs pertain to facts and are reproduced hereunder

It is clear that the plaint is woefully short in details and that the necessary and relevant facts were not pleaded therein. The factual matrix in which the cheque(s) was/were issued by the appellant-defendant and hand over to the respondent-plaintiff was never pleaded in the plaint. The claim raised in the suit was in respect of Cheque No. 030722 dated 22.02.2000 for Rs. 25,000/-.

1. The respondent-plaintiff himself appeared as PW-2 and stated in examination-in-chief that the appellant-defendant had taken a loan of Rs. 400,000/- from him in the presence of PW-3 and PW-4 on 22.08.2000 and delivered 16 cheques for Rs. 25,000/- each and that the transaction in respect of the loan was concluded at his residence and that the appellant-defendant signed and thumb marked the cheques before giving it to him. He admitted that the cheques in question were never presented for encashment with the bank. PW-3, who was the paternal cousin of the respondent-plaintiff, in his testimony stated that the appellant-defendant had signed thrice on each cheque. PW-4, who was the real son of the respondent-plaintiff, also corroborated the stance of his father in his evidence. The appellant-defendant himself appeared in evidence as DW-1 and categorically denied that he ever took loan from the respondent- plaintiff and gave cheques in question. He also denied his signatures on the cheques.

2. After going through the record, it becomes obvious that the testimony of the respondent-plaintiff traveled beyond the contents of the plaint. The fact that the appellant-defendant had taken a loan of Rs. 400,000/- from the respondent-plaintiff and delivered 16 cheques for Rs. 25,000/- each was never averred in the plaint. The only claim made in the plaint was with regard to the loan of Rs. 25,000/- secured through delivery of a cheque of the similar amount. It is well settled principle of law that evidence adduced beyond the pleadings would not be admissible nor any evidence can be permitted to be adduced which is at variance with the pleadings. Accordingly, the evidence led by the respondent-plaintiff which is inconsistent with the averments of the pleadings cannot be considered and has to be rejected.

3. The judgment of the trial Court shows that in finding in favour of the respondent-plaintiff, reliance was placed upon the statements of witnesses which according to the trial Court remained consistent. The trial Court also relied upon the statement of the learned counsel of the appellant-defendant (PW-1) made in the earlier round of litigation to decide Issue No. 1 in favour of the respondent-plaintiff. The trial Court ignored the material discrepancies in the oral evidence of the witnesses of the respondent-plaintiff and the documentary evidence in that it was stated by the respondent-plaintiff that the cheques were not only signed but were also thumb marked by the appellant-defendant but the cheques produced in evidence (Exh.P-1) did not show they were thumb marked. Similarly, the statement of PW-3 that each cheque was signed three times by the appellant-plaintiff also proved not to be correct as the cheques only contained one signature. The relationship of PW-3 (paternal cousin) and PW-4 (son) with the respondent-plaintiff also cannot be ignored as they were interested witnesses. The trial Court also erred in unnecessarily relying upon the testimony of PW-1, the previous counsel of the appellant-defendant, when the matter had been settled by this Court in Revision Petition No. 192 of 2004 and the decree previously passed was set aside by mutual consent of the parties.

4. In view of the discrepancies in the depositions of PW-2 and PW-3 regarding the number of signatures and thumb marking on the cheques, it cannot be said that the cheques were proved to have been issued by the appellant-defendant. In addition thereto, the appellant-defendant categorically denied having issued the cheques. The presumption of consideration under Section 118 of the Negotiable Instruments Act, 1881 (the Negotiable Instruments Act) was, therefore, not available to the respondent-plaintiff.

5. Another crucial fact that escaped the attention of the trial Court was the non-presentment of the sixteen cheques to the bank by the respondent-plaintiff for their encashment. It was admitted by the respondent-plaintiff in evidence that the cheques in question were never presented to the concerned branch of the bank. As such, the cheques were never dishonoured. For filing of a suit under Order XXXVII, CPC on the basis of a cheque, it is necessary for the plaintiff to present the cheque to the bank for its dishonour in order for cause of action to accrue to him against the drawer of the cheque. If a cheque is not presented to the bank for its payment, the procedure provided for in Order XXXVII, CPC shall not be available to a plaintiff and the suit so filed shall not be maintainable. The reason is not hard to fathom as in the absence of presentment of the cheque before the bank, it shall remain at best a piece of evidence corroborating the original loan transaction.

6. The above view is also supported by the provisions of Negotiable Instruments Act. Section 6 thereof defines “cheque” as a bill of exchange drawn on a specified banker and not expressed to be payable otherwise than on demand. Similarly, Section 5 defines “Bill of Exchange” as an instrument in writing containing an unconditional order, signed by the maker, directing a certain person to pay on demand or at a fixed or determinable future time a certain sum of money only to, or to the order of, a certain person or to the bearer of the instrument. For the purposes of adjudication of the issue involved in this case, Section 30 of the Negotiable Instruments Act is also relevant, which reads as under:

Liability of drawer.--(1) (a) The drawer of a bill of exchange by drawing it, engages that on due presentment it shall be accepted and paid according to its tenor, and that if it be dishonoured, he will compensate the holder or any endorser who is compelled to pay it, and

(b) the drawer of a cheque by drawing it, engages that in the case of dishonour by the drawee he will compensate the holder:

Provided that due notice of dishonour of the bill or cheque has been given to or received by the drawer as hereinafter provided.

(2) The drawee of a bill of exchange is not liable thereon until acceptance in the manner provided by this Act.

Chapter 5 of the Negotiable Instruments Act deals with presentment of negotiable instruments and lays down the consequences for failure in some instances. Sections 62, 64, 67, 68 and 69 deal with the presentment of promissory notes while Sections 61, 64, 68 and 69 deal with bills of exchange. Sections 6l, 68, 72 and 73, however, deal specifically with cheques and are relevant for the purpose of resolution of the issue involved in this case. Section 68 deals with all negotiable instruments (promissory note, bill of exchange and cheque) and stipulates that where these are made, drawn or accepted payable at a specified place and not elsewhere, they must, in order to charge any party thereto, be presented for payment at that place. It, therefore, follows that except for presentment in the manner provided for in Section 68, the party liable on the promissory note, bill of exchange and cheque shall not be so liable. Section 69 deals with a promissory note and a bill of exchange of a certain kind, namely payable at a specified place and lays down that if the rule is not complied with, the maker or the drawer, as the case may be, will be discharged. Section 72 deals specifically with the cheque and provides that a cheque must be presented at the bank upon which it is drawn within a certain time and further provides the consequence of non-presentment to be to discharge the drawer. Section 73 deals with the cheque and defines the time of presentment, and provides for the consequence, namely discharge of all the parties thereto except the drawer.

1. The various provisions of the Negotiable Instruments Act dealing with presentment clearly bring out the fact that unless a cheque is presented for payment, the drawer of the cheque will be absolved from liability. In other words, the presentment of a cheque is a condition precedent in order for a payee to charge the drawer/maker of a cheque. It is thus evident that for filing of a suit under Order XXXVII, CPC based on a cheque, it is necessary to present the said cheque to the bank. Admittedly, the 16 cheques allegedly given by the appellant-defendant were not presented for payment. The suits under Order XXXVII, CPC, therefore, were not maintainable before the Additional District Judge. It may again be emphasized that the tenor of the plaint showed that the respondent-plaintiff had relied solely upon the cheques to agitate his cause of action against the appellant-defendant.

2. The Additional District Judge also summoned the Manager of National Bank of Pakistan, Liaqatpur branch as a Court witness for bringing the record of the account but the summons wrongly mentioned the account number to be 2229 instead of 2292. As a result, the bank’s official did not bring the record of the case. In the circumstances, it was not proved in evidence whether the account of the appellant-defendant had sufficient funds for honouring the amounts of the16 cheques.

3. In view of what has been discussed above, Issue No. 1 is decided against the respondent-plaintiff.

Issues No. 2:

1. Before proceeding to decide this issue, it may be stated that the trial Court did not give any findings on Issue No. 2. This should, however, pose no problem as this Court has already come to the conclusion that the suits were incompetently filed by the respondent-plaintiff. It was stated by the respondent-plaintiff in evidence that he gave an amount of Rs. 400,000/- in lump sum to the appellant-defendant as loan and in turn received 16 cheques as security for repayment of the said loan. The learned counsel for the appellant-defendant contended that the respondent-plaintiff ought to have filed one suit seeking recovery of Rs. 400,000/- instead of filing 16 recovery suits and that the subsequent suits were hit by the provisions of Order II Rule 2, CPC. Order II Rule 2, CPC stipulates that if the cause of action is the same, the plaintiff has to prefer all the claims arising thereunder before the Court in one suit. It, therefore, prohibits splitting of claim and enjoins unity of all claims based on the same cause of action in one suit. The object appears to prevent further litigation between the same parties over the same cause of action and this object is very much apparent from the language of Rule 1 which states that “Every suit shall as far as practicable be framed so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them.” The term ‘cause of action’ in the context of Order II Rule 2, CPC has often been explained as the facts which give occasion to and form the foundation of the suit. The Privy Council in a judgment reported as Muhammad Khalil Khan and others v. Mahbub Ali Mian and others PLD 1948 PC 131 has defined “cause of action” as every fact which will be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment. In Ranbir Singh v. Dalbir Singh & Ors. decided on 18th of July, 2012 by the Delhi High Court, the rationale of Order II Rule 2, CPC was explained in the following terms:

A plain reading of Order II Rule 2 shows that mandate of law is that when a cause accrues, all actions which are required to be taken based on the said cause have to be included in one proceeding unless leave of the Court is sought, and obtained, under Order II Rule 2 of the Code of Civil Procedure. The policy of law behind this rule is that it is in the interest of the State and the citizens that litigation is brought to an end at the earliest and that no person is vexed twice for the same cause.

In the context of the definitions of ‘cause of action’ given above, it is necessary to see whether the suits filed by the respondent-plaintiff originated out of the same cause of action or whether separate cheques provided separate causes to the respondent-plaintiff. In this context, the Explanation to Order II Rule 2, CPC is quite relevant which reads as under

Explanation.--For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action.

The explanation to Order II Rule 2, CPC makes an obligation and a collateral security for its performance one cause of action for the purposes of the said rule. Similarly, the expression successive claims arising under the same obligation can be best understood with regard to the illustration provided in the said rule which shows that if rent has become due for the years 1905, 1906 and 1907, the landlord can bring only one suit for recovery of the arrears of the entire rent and not for a particular year and if he does so he shall subsequently be precluded from suing for the rent due under the other years.

1. In the facts of the present case, the alleged loan of Rs. 400,000/- was the original transaction which created the obligation on the part of the appellant-defendant for which he allegedly gave the collateral security in the shape of 16 cheques. There should thus remain no doubt that the obligation to repay the amount of Rs. 400,000/- and the collateral security of 16 cheques was but one cause of action in respect of which the respondent-plaintiff had to bring one suit.

2. The following observations of the Hon’ble Supreme Court in Abdul Hakim and 2 others v. Saadullah Khan and 2 others PLD 1970 SC 63 with reference to Order II Rule 2, CPC are quite apposite and relevant to the facts of the present case:

In order that the cause of action for the two suits may be the same, it is necessary not only that the facts which would entitle the plaintiff to the right claimed must be the same but also that the infringement of his right at the hands of the defendant complained against in the two suits, must have arisen in substance out the same transaction…… A rough test, although not a conclusive one is to see whether the same evidence will sustain both suits which would be the case if both the suits are founded on continuous and inseparable incidents in the same transaction. The question, however, is to be examined in substance and not merely on form as the cause of action in the two suits may be found to be the same, in spite of the facts alleged not being exactly identical in the two cases. It is not open to the plaintiff to split up the parts really constituting the same cause of action and file different suits in respect of them. In other words, a plaintiff must ask for all his reliefs which flow from the grievance caused to him by the infringement of his rights by the defendant in the course of the same transaction…..

The test propounded by the Hon’ble Supreme Court and principles laid down in the above judgment when applied to the facts of the present case clearly bring forth the fact that all the 16 cheques were part of the same transaction (the alleged loan of Rs. 400,000/-) and thus constituted one cause of action. As the plea of bar under Order II Rule 2, CPC defeats, what otherwise may be legitimate claim of a party, this Court has carefully gone through the contents of all the suits/plaints to ascertain the claims made by the respondent-plaintiff and found that there is complete identity of cause of action in all the suits as also the defence raised by the appellant-defendant. Similarly, the evidence led by the parties is identical in all respects as also the judgments passed in all the suits. Indeed it is difficult to discern even slightest of deviation in the claim made and defence raised by the parties in all the suits.

1. Order II Rule 2, CPC states that where a plaintiff omits to sue in respect of any portion of his claim, he shall not afterwards sue in respect of the portion so omitted. In the present case, all the sixteen suits were filed on the same day i.e. 26.02.2000. However, no difficulty should arise in view of the simultaneous filing of the suits as each suit is numbered and the ones which bear the later numbers will be taken to have been filed afterwards. In Mahadulal and another v. Chironji Lal and others AIR 1963 MP 51, it was held that:

Where two suits are instituted on the same day, in the absence of anything to prove otherwise, the numbers assigned to the suits must determine which is the previously instituted suit. The number of the present suit is 4 while that of the other is 5. In that view, the bar of splitting of claims could apply to the other suit, but not to the present one.

1. In view of the above, suits bearing numbers 9/1 to 23/1 of 2000 shall be deemed to have been filed after Suit No. 8/1 of 2000 and consequently shall be hit by the provisions of Order II Rule 2, CPC. Issue No. 2 is accordingly decided in favour of the appellant- defendant and it is held that Suits No. 9/1 to 23/1 are barred in terms of Order II Rule 2, CPC and the plaints in the said suits are accordingly rejected.

Issue No. 4

1. From the resume of facts given above, it is clear that the respondent-plaintiff filed sixteen suits in order to avoid payment of Court fee. This issue is accordingly decided in favour of the appellant-defendant.

Issue No. 3

1. This issue was treated as a preliminary issue by the trial Court and decided in favour of the respondent-plaintiff. The learned counsel for the appellant-defendant did not address any arguments on this issue which is accordingly decided in favour of the respondent-plaintiff.

Issue No. 5

1. In view of the findings on the issues, this appeal is allowed, judgment and decree dated 02.12.2005 is set-aside and suit (Suit No. 8/1 of 2000) is dismissed. It is further held that Suits No. 9/1 to 23/1 of 2000 were hit by Order II Rule 2, CPC and their plaints are accordingly rejected.

(R.A.) Appeal allowed

PLJ 2016 Lahore 142

Present: Shams Mehmood Mirza, J.

SAUDI PAK INDUSTRIAL AND AGRICULTURAL INVESTMENT COMPANY LIMITED--Plaintiff

versus

B.A. RAJPOOT STEEL AND RE-ROLLING MILLS (PVT.) LIMITED and others--Defendants

C.O.S. No. 58 of 2010, heard on 11.6.2015.

Financial Institutions (Recovery of Finances) Ordinance, 2001 (XLVI of 2001)--

----S. 9--Companies Ordinance, (XLVII of 1984), S. 40--Change of name companies--Effect on legal proceeding--Suit for recovery on account of long term and short term finance facilities--Repayment of amount--Company was converted into public limited company--Identity was not changed but only its nature--Alteration does not affect identity of company--Validity-- If change in name of a company does not affect its legal rights/obligations and legal proceedings qua third parties, there does not appear to be any good reason why a private limited company upon its conversion into a public limited company should loose its rights of enforcement over contracts executed by it with third parties. [P. 147] A

Articles of Association--

----Art. 78--Document--Non-affixing of seal did not in any meaningful way change efficacy of power of attorney--Validity--No rule of law applicable to companies in general, or to plaintiff in particular, has been shown to High Court requiring compulsory affixation of seal on power of attorney to be executed on behalf of plaintiff--If a document under seal is not necessary then a mere defect in manner of affixing seal will not render document invalid. [P. 148] B

Banker’s Book Evidence Act, 1891--

----S. 2(8)--Contract Act, 1872--S. 194--Long term finance facility and short term finance facility--Repayment of amount--Major defence--Appointment as substituted agent and not as sub-agent--Object on markup--Principal liability of finance facilities--Over due profit--Not deny availing finance facilities from plaintiff or amount due object regarding charging of mark up at excessive rate--Validity--Certificate at foot of statements of accounts did not comply with requirements of Section 2(8) of Bankers’ Books Evidence Act, 1891 in that it was not signed by principal accountant or manager of plaintiff--Now Section 2(8) of Act defines a certified copy to mean a copy of an entry in books of a bank together with a certificate written at foot of such copy that it is a true copy of such entry, that such entry is contained in one of ordinary books of bank made in usual and ordinary course of business and that such book is still in custody of bank, such certificate being dated and subscribed by principal accountant or manager of bank--As such rigors of Section 2(8) of Act will not apply to statements of accounts of plaintiff filed with plaint--Second, perusal of certificates at foot of statements of accounts shows that requirements of Section 2(8) of Act have substantially been complied with--Statements of accounts signed by Vice President (Finance) of plaintiff have been validly certified and are in compliance with provisions of Act. [P. 152] E

Financial Institutions (Recovery of Finances) Ordinance, 2001--

----Ss. 9 & 10--Account of long term and short term finance facilities--Validity--A financial institution has to plead in plaint amounts availed by defendant, amounts paid by defendant together with dates thereof and amounts of finance (with other amounts relating to finance) payable by defendant up to date of institution of suit--Information is necessarily to be gathered from statement of account which is required to be appended with suit--Entries of statement of account get pleaded in plaint and in response thereto, defendant is required to aver in its application for leave to defend amounts of finance availed, amounts repaid together with dates and amount which defendant disputes as payable to financial institution and facts in support thereof. [P. 152] F

Pleading--

----Scope of--Importance of pleadings can be gauged from settled position of law that in absence of facts stated in pleading, evidence, if any, produced by parties in respect to said fact cannot be considered and that no party can be permitted to travel beyond its pleading. [Pp. 152 & 153] G

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

----O. VIII, Rr. 3, 4 & 5--Financial Institutions (Recovery of Finances) Ordinance, (XLVI of 2001), S. 9--Qanun-e-Shahadat Order, (10 of 1984), Art. 113--Special requirement--Pleadings--Non-compliance--Not sufficient to deny generally grounds alleged--Allegation of fact--Validity--If it is alleged in plaint that defendant has received a certain sum of money, it shall not be sufficient for defendant to deny that he received that particular amount, but he must deny that he received that sum or any part thereof, or else set out how much he received, and that if an allegation is made with diverse circumstances, it shall not be sufficient to deny it along with those circumstances--Every allegation of fact in plaint, if not denied specifically or by necessary implication, or stated to be not admitted in pleading of defendant, shall be taken to be admitted against him--As no challenge was made to amounts due under finance facilities, which were pleaded in plaint, objection regarding form of statement of account will not constitute a substantial question of fact warranting an inquiry by High Court--Judgment can be passed on basis of admission of liability by defendants based on presumption arising out of absence of specific denial of liability in PLA--It is a settled position of law that admitted facts need not be proved in terms of Art. 113 of Qanun-e-Shahdat. [Pp. 153 & 155] H, I & J

Mr. M. Raza Qureshi, Advocate for Plaintiff.

Syed Waqar Hussain Naqvi,Advocate for Defendants No. 1 to 6.

Date of hearing: 11.6.2015.

Judgment

This is a suit filed under Section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (the Ordinance) seeking recovery of Rs. 65,217,511/- from the defendants on account of Long Term and Short Term finance facilities granted to Defendant No. 1 and default by it of its payment obligations.

1. According to the contents of the plaint, Defendant No. 1 availed a Long Term finance facility in the sum of Rs. 45 Million and a Short Term finance facility in the sum of Rs. 25 Million from the plaintiff through sanction letter dated 09.06.2006. Defendants No. 1 to 6 executed finance agreements and other documents including the personal guarantees which are mentioned in the plaint. Defendants No. 1 and 2 also mortgaged their properties in favour of the plaintiff as security for the repayment of amounts under the finance facilities. On account of the defaults committed by the defendants, the plaintiff was constrained to file the present suit.

2. In pursuance of the summons issued by this Court, Defendants No. 1 to 6 entered appearance and filed their joint application for leave to defend bearing PLA No. 114-B of 2010 (the PLA).

3. The learned counsel appearing on behalf of Defendants No. 1 to 6, in support of the PLA, raised the following contentions.

(i) The defendants are not the customers of the plaintiff (Saudi Pak Industrial & Agricultural Investment Company Limited), which is a public limited company, as the finance facilities in question were obtained from Saudi Pak Industrial & Agricultural Investment Company (Pvt.) Limited, which was a private limited company. Saudi Pak Industrial & Agricultural Investment Company Limited upon its conversion into a public limited company has become defunct and as such it cannot seek enforcement of contracts executed with third parties.

(ii) Saudi Pak Industrial & Agricultural Investment Company (Pvt.) Limited in terms of Section 3-A of the Banking Companies Ordinance, 1962 was not a financial institution at the time when the finance facilities were granted to the defendants.

(iii) The suit has not been instituted by a duly authorized person. It was stated that the general power of attorney available on the record authorized Muhammad Rasheed Zahir to institute suits on behalf of the plaintiff. It was further provided therein that the power of attorney will automatically stand revoked once Muhammad Rasheed Zahir ceases to hold the office of General Manager/Chief Executive. In regard to the power of attorney, it was stated that company’s seal was not affixed thereon and that the board resolution dated 12.02.1992 in pursuance whereof the said power of attorney was executed was not appended with the suit.

(iv) Muhammad Rasheed Zahir the attorney holder further delegated his authority to Arshad Ahmad Khan Senior, Vice President, vide Letter of Authority dated 15.03.2010. It was stated that the Letter of Authority did not come within the purview of Order III Rule 2 of the Code of Civil Procedure (the, CPC), therefore, the suit was not validly instituted.

(v) The mark up on the Long Term and Short Term finance facilities was charged at enhanced rates.

(vi) The certificate at the foot of the statement of account was not in inconformity with the provision of Section 2(8) of Banker’s Books Evidence Act, 1891.

1. This Court shall take up the defences in the order they have been argued by the learned counsel for Defendants No. 1 to 6. The major defence of the defendants in the PLA pertained to the fact that the finance facilities were obtained from the plaintiff when it was a private limited company. This point was, however, not elucidated in any meaningful way by quoting any law or authority as to how the contracts entered into by a private limited company upon its conversion into a public limited company cease to be enforceable. There is nothing in Companies Ordinance, 1984 to support the contention of the learned counsel for the defendants. There also does not appear to be any reason as to why a private limited company on its conversion should not be able to enforce the contracts executed by it with third parties particularly when the personality of the company does not undergo any change except for certain procedural changes that are brought about in terms of Sections 44 and 45 of the Companies Ordinance, 1984. There should be no doubt that when under Section 45 of the Companies Ordinance, 1984, a private Limited Company is converted into a public Limited Company, the Company's identity is not changed, but only its nature. A private Limited Company can be converted into a public Limited Company by altering a couple of Articles of the Articles of Association. The rest of the Articles of Association continue to be operative and accordingly such an alteration does not affect the identity of the company. The closest that any section comes to dealing with the issue is Section 40 of the Companies Ordinance, 1984 which pertains to the change of name of the companies and its effect on the legal proceedings instituted by and against the company. Section 40 reads as under:

Where a company changes its name, the registrar shall enter the new name on the register in place of the former name, and shall issue a certificate of incorporation altered to meet the circumstances of the case; and, on the issue of such a certificate, the change of name shall be complete.

(2) Where a company changes its name it shall, for a period of one year from the date of issue of a certificate by the registrar under sub-section (1), continue to mention its former name along with its new name on the outside of every office or place in which its business is carried on and in every document or notice referred to in clauses (a) and (c) of Section 143:

Provided that the addition or deletion, as the case may be, of the parenthesis and word “(Private)” from the name of a company consequent on the conversion in accordance with the provisions of this Ordinance of a public company into a private company or of a private company into a public company shall not be deemed to be a change of name for the purpose of this sub-section.

(3) The change of name shall not affect any rights or obligations of the company, or render defective any legal proceedings by or against the company; and any legal proceedings that might have been continued or commenced against the company by its former name may be continued by or commenced against the company by its new name.

If the change in name of a company does not affect its legal rights/obligations and legal proceedings qua the third parties, there does not appear to be any good reason why a private limited company upon its conversion into a public limited company should loose its rights of enforcement over the contracts executed by it with the third parties. The plaintiff has appended the certificate issued by the Joint Registrar of the Companies for conversion of the plaintiff from a private limited company to a public limited company. Upon the analogy of Section 40 of the Companies Ordinance, 1984, therefore, the contractual obligations the defendants had with the plaintiff did not alter or underwent any change on account of the plaintiff subsequently becoming a public limited company.

1. The learned counsel for the plaintiff also relied upon State Bank of Pakistan’s BPD Circular Letter No. 6 of 2003 which pertains to the list of scheduled bank/DFIs operating in Pakistan which included the name of Saudi Pak Industrial and Agricultural Pak (Pvt.) Limited at Sr. No. 46. Similarly the State Bank of Pakistan also issued PBD Circular Letter No. 33 of 2004 on account of change of ownership and name of Bank wherein the name of Saudi Pak Industrial and Agricultural Investment Company Limited was mentioned at Sr. No. 44. The aforementioned Circulars of the State Bank of Pakistan clearly establish the status of the plaintiff as a financial institution and as such there is no force in the argument of the learned counsel for the defendants.

2. The non-affixing of the seal of the plaintiff also did not in any meaningful way change the efficacy of the power of attorney relied upon by the plaintiff. Article 78 of the Articles of Association of the plaintiff deals with affixing the seal on the documents and reads as under:

The Company shall have a common seal and the directors shall provide for the safe custody of the seal and subject to the conditions hereinbefore contained, as for the signature to certificate of title to shares in the Company, the seal shall never be used except by the authority of the Directors previously given, and subject as afore-said. The Chairman or the Deputy Chairman or one Director at least shall sign every instrument to which the seal is affixed and every such instrument shall be countersigned by the Secretary.

No rule of law applicable to companies in general, or to the plaintiff in particular, has been shown to this Court requiring compulsory affixation of the seal on the power of attorney to be executed on behalf of the plaintiff. If a document under seal is not necessary then a mere defect in the manner of affixing the seal will not render the document invalid. This was the view taken by the Calcutta High Court in Prabodh Chandra Mitra v. Road Oils (India) Limited A.I.R. 1930 Cal. 782 wherein it was held that a mere defect in respect of the seal does not make the document for all purposes bad even if it was intended to be under seal. Even otherwise, Regulation 78 simply states that seal of the company shall not be affixed to any instrument except by the authority of the directors. In the present case, the power of attorney does not have the seal of the company affixed thereon which simply means that the directors did not approve of affixing the seal on the power of attorney.

1. As regards the letter of authority dated 15.03.2010 whereby Arshad Ahmad Khan, Senior Vice President was delegated the powers by Muhammad Rasheed Zahir, it was explained by the learned counsel for plaintiff that Arshad Ahmad Khan was appointed as a substituted agent and not as a sub-agent. In this regard he referred to the Section 194 of the Contract Act, 1872, which reads as under:

Where an agent, holding an express or implied authority to name another person to act for the principal in the business of the agency, has named another person accordingly, such person is not a sub-agent, but an agent of the principal for such part of the business of the agency as is entrusted to him.

For a better understanding of the issue involved, Clause 16 of the general power of attorney is reproduced here-under:

To appoint/nominate pleader, agent, trustee, attorney or any representative for the performance of any of the functions given by virtue of this GENERAL POWER OF ATTORNEY:

Similarly, the following clause of Letter of Authority reads as under:

Whereas clauses 16 and 17 of the Power of Attorney of the Company has enabled me, for the better doing performing and execution of the matters and things contained in “the Power” to appoint in my place and attorney to exercise for the Company any or all the powers and authorities conferred by the Power and to revoke any such appointment from time to time.

The combined reading of clause 16 of the General Power of Attorney together with the contents of Letter of Authority makes it clear that Arshad Ahmad Khan was the substituted agent for the plaintiff and as such would fall in the list of persons mentioned in Order III Rule 2, CPC who are authorized to file the suit.

1. From the record it is apparent that funds were disbursed by the plaintiff to Defendant No. 1 through Saudi Pak Commercial Bank Limited. The letters instructing Saudi Pak Commercial Bank Limited to transfer funds in the account of Defendant No. 1 under the finance facilities are available on the record. The learned counsel for the defendants did not impugn the principal liability of the finance facilities rather objection on the mark up levied was taken by stating that the plaintiff has charged the same at excessive rates. In the PLA, two charts were given showing the extra rate of mark up charged by the plaintiff. In terms of the said charts in the PLA, the plaintiff has charged an excess amount of Rs. 497,534/- under the Short Term facility and an amount of Rs. 159,207/- under the Long Term facility. The learned counsel for the plaintiff did not accept the stance of the defendants that the plaintiff had applied excess rate of mark up on the ground that variable rate of mark up was applicable in terms of the sanction letter and the finance agreements. He, however, stated he shall have no objection if the amounts of mark up as per the charts in the PLA are excluded from the claim in the suit. Notwithstanding the concession of the learned counsel for the plaintiff, it is noted that as per the terms of the finance agreement dated 21.06.2006 for the Short Term facility, the purchase price had a built-in component of Rs. 3,760,000/- as mark up. As per the statement of account, the defendants have paid a sum of Rs. 2,209,842/- on account of mark up. After deduction of this amount, the claim of mark up under the Short Term facility will be reduced to Rs. 1,550,158/-. Similarly, the plaintiff has also claimed an amount of Rs. 3,401,520/- under the Long Term facility under the head “overdue profit”. This amount is nothing but liquidated damages and as such cannot be granted at the leave stage. After deducting this amount as well as Rs. 159,207/- from the claim of the plaintiff, the total claim of the plaintiff under the Long Term facility comes to Rs. 35,771,902/-.

2. From the contents of the PLA and the submissions made in support thereof, it is clear that the defendants did not deny availing the finance facilities from the plaintiff or the amounts due there-under. The objection regarding charging of mark up at excessive rate only encompasses a meager amount. The only challenge made by Defendants No. 1 to 6 was with regard to the form of the statements of accounts. More particularly, it was stated that the certificate at the foot of the statements of accounts did not comply with the requirements of Section 2(8) of the Bankers’ Books Evidence Act, 1891 (the Act) in that it was not signed by the principal accountant or the manager of the plaintiff. Now Section 2(8) of the Act defines a certified copy to mean a copy of an entry in the books of a bank together with a certificate written at the foot of such copy that it is a true copy of such entry, that such entry is contained in one of the ordinary books of the bank made in the usual and ordinary course of business and that such book is still in the custody of the bank, such certificate being dated and subscribed by the principal accountant or manager of the bank. Section 4 of the Act clearly states that such certified copy shall, in all legal proceedings, be received as prima facie evidence of the existence of such entry and shall be admitted as evidence as the matters, transactions and accounts therein recorded in every case where and to the same extent as the original entry itself is now by law admissible. From the perusal of its various provisions, it is clear that the Act is a remedial legislation intended to remove the difficulty or, in some instances, impossibility of proving banking document/accounts by admitting certified copies thereof in evidence. Accordingly, the provisions of the Act have to be construed liberally and not strictly. In other words, its provisions should be interpreted in favour of banks/financial institutions for whose benefit the statute was enacted.

3. The objection of the learned counsel, however, fails on two grounds. Firstly, the plaintiff is not a commercial bank but is a Development Financial Institution and as such cannot directly disburse amounts to its customers. In the present case too, the amounts were disbursed by the plaintiff to Defendant No. 1 through Saudi Pak Commercial Bank Limited. The debit advices from the plaintiff to Saudi Pak Commercial bank Limited for disbursal of amount in the account of Defendant No. 1 are available on the record. As such the rigors of Section 2(8) of the Act will not apply to the statements of accounts of the plaintiff filed with the plaint. Second, the perusal of the certificates at the foot of the statements of accounts shows that the requirements of Section 2(8) of the Act have substantially been complied with. The certificates at the foot of the statements have been signed by Khawar Ishfaque, Vice President (Finance). It was argued that the requirement of the Act that the statement of account be verified by the principal accountant is not satisfied in the present case. This contention has no force. The nomenclatures of the posts in banking industry have undergone considerable changes since the promulgation of the Act and the designation “principal accountant”, and in some cases, even “Manager”, is no longer relevant in the case of the financial institutions. In a judgment reported as NIB Bank Limited v. Highnoon Textile Limited 2014 CLD 763, it was held as follow:

The title of the persons maintaining the books of accounts may vary from bank to bank and may also change over time. The intent is to ensure that a responsible officer whose work relates to accounts or management sign the certificate. Hence in this case the certification has been issued by the Senior Vice President, Accounts Department which is certification by the principal accountant and the signatures of the Senior Vice President and Assistant Vice-President of the bank is a certification by the manager of the bank. The certification through the responsible officer means the bank owns the SOA and certifies that the SOA represent the true and correct statement, maintained in its book of accounts. The certification enables the Court to consider the copies of the statement of accounts as admissible evidence in the suit. In this regard it has been held in the case title ‘Bartheis and Luders Gmbil v. M.V. Dominique’ (AIR 1988 Bombay 380) that the requirements of Section 2(8) of the Act of 1891 are not mandatory but directory and that sufficient compliance would depend upon the facts and circumstances of each case. The Court was of the view that where the accounts were duly signed by the agent of the bank, it implied that it was a true copy maintained by the bank in its ordinary course of business and that such book was in the custody of the bank. In the case titled ‘Barker v. Wilson’ 1980 (2 All ER 81) at page 83 it has been held that for the purposes of Banker’s Books Evidence Act, 1879, the Bankers’ Book would include a micro film. Lordship Bridge LJ held that ‘I agree that the Banker’s Books Evidence Act, 1879 was enacted with the practice of Bankers in 1879 in mind. It must be construed in 1980 in relation to the practice of Bankers as we now understand it. So construing practice of Bankers Books and the phrase an entry in the Bankers Books it seems to be that clearly both phrases are apt to include any form of permanent record kept by the Bank of transactions relating to Banker’s business made by any of the methods which modern technology makes available including in particulars micro film. (emphasis supplied)

Respectfully following the dictum laid down in the above judgment as also the apt observations of Lord Bridges, this Court holds that the statements of accounts signed by the Vice President (Finance) of the plaintiff have been validly certified and are in compliance with the provisions of the Act.

1. There is yet another aspect of the matter and that is to deal with the mandatory requirement the Ordinance places on both the plaintiff and the defendant to fulfill in their pleadings in terms of Sections 9 and 10(4) and (5) of the Ordinance. Under Section 9 of the Ordinance, a financial institution has to plead in the plaint the amounts availed by the defendant, the amounts paid by the defendant together with dates thereof and the amounts of finance (with other amounts relating to finance) payable by the defendant up to the date of institution of the suit. This information is necessarily to be gathered from the statement of account which is required to be appended with the suit. In this manner, the entries of the statement of account get pleaded in the plaint and in response thereto, the defendant is required to aver in its application for leave to defend the amounts of finance availed, the amounts repaid together with dates and the amount which the defendant disputes as payable to the financial institution and facts in support thereof. In a famous statement made in Thorp v. Holdsworth 1876 3 Ch. D. 637, the object of the pleadings was stated thus “The whole object of the pleadings is to bring the parties to an issue, and the meaning of the rules….was to prevent either party from knowing when the cause came on trial, what the real point to be discussed and decided was. In fact, the whole meaning of the system is to narrow the parties to definite issues and thereby to diminish expense and delay, especially as regards the amount of testimony required on either side of the hearing.” The pleadings are, therefore, meant to help the Court in narrowing the controversy involved and to inform the parties concerned to the question in issue so that the parties may adduce appropriate evidence on the said issue. In other words, the object and purpose of pleadings and issues is to ensure that the dispute between the parties is clearly defined so as to prevent the parties from shifting the grounds during the course of trial. The importance of the pleadings can be gauged from the settled position of law that in the absence of facts stated in the pleading, evidence, if any, produced by the parties in respect to the said fact cannot be considered and that no party can be permitted to travel beyond its pleading. Through Sections 9 and 10 of the Ordinance, the rules of pleadings have been changed only to the extent so as to make it mandatory for the plaintiff and the defendant to make precise allegations qua the amounts disbursed, amounts repaid with dates thereof and the amounts payable and the dispute in respect of amount payable. These averments in the plaint need to be supported and corroborated by the statement of account and other necessary documents relating to the finance. Similarly, Section 10 of the Ordinance commands that the averments in the PLA are to be substantiated by the necessary documents particularly the facts supporting the disputed amounts.

2. Notwithstanding the special requirements the Ordinance stipulates the plaintiff and the defendant need to fulfill in their pleadings, the general law on the subject is also not materially different. Order VIII Rules 3, 4 and 5, CPC deal with the manner in which allegations of fact in the plaint should be traversed in the written statement and also the legal consequences that flow from its non-compliance (see Badat & Co. v. East India Trading Co. 1964 AIR 1964 SC 538). It is clearly stipulated in the said Rules that it shall not be sufficient for a defendant to deny generally the grounds alleged by the plaintiff but he must be specific with each allegation of fact. When the defendant denies any fact stated in the plaint, Rule 4 stipulates that he must not evasively answer the point of substance. Similarly, if it is alleged in the plaint that the defendant has received a certain sum of money, it shall not be sufficient for the defendant to deny that he received that particular amount, but he must deny that he received that sum or any part thereof, or else set out how much he received, and that if an allegation is made with diverse circumstances, it shall not be sufficient to deny it along with those circumstances. It can thus be seen that Rule 4 lays down requirements that are not very different from those that are stipulated in Section 10(4) of the Ordinance. Rule 5 deals with specific denial and clearly lay down that every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted against him.

3. While objecting to the levy of mark up on higher rates, the defendants stated as under the particulars to be given in terms of Section 10 of the Ordinance.

a. Finance availed from plaintiff = Nil

b. Finance paid to plaintiff = Nil

c. Finance payable to plaintiff bank = Nil

Paradoxically, in answer to Paragraphs 9.5 and 12.5 of the plaint wherein amounts were stated to have been disbursed to Defendant No. 1, it was alleged in the PLA that “It is important to mention here that the funds were made available to the answering defendant by Saudi Pak Bank Limited and not by the plaintiff.” This Court has referred to the aforesaid rules of pleading only to highlight that in the PLA there was absolute evasive denial of liability even by the standards of ordinary pleadings. The issue with regard to the disbursement of funds by the plaintiff from Saudi Pak Commercial Bank Limited has already been dealt with in the earlier part of this judgment. Based on what has been held, the reply to Paragraphs 9.5 and 12.5 of the plaint amounts to admission of the disbursement of amounts under the finance facilities. Once it is held that the statements made in paragraphs 9.5 and 12.5 of the plaint have not been specifically denied or disputed in the PLA, the allegations made therein would be deemed to have been admitted and the judgment would follow. In Asha Kapoor v. Hari Om Sharda (2010) 171 DLT 743, the Delhi High Court explained the principle contained in Order VIII, CPC in the following terms:

1. The effect of Order VIII Rule 3 read along with Rr. 4 and 5 of the Code is that, defendant is bound to deal specifically with each allegation of fact not admitted by him; he must either deny or state definitely that the substance of each allegation is not admitted. The main allegations which form the foundation of the suit should be dealt with in that way and expressly denied. Facts not specifically dealt with will be taken to be admitted under Order VIII Rule 5 of the Code.

2. Order VIII Rule 5 of the Code is known as doctrine of non-traverse which means that where a material averment is passed over without specific denial, it is taken to be admitted. The rule says that any allegation of fact must either be denied specifically or by necessary implication or there should be a statement that the fact is not admitted. If the plea is not taken in that manner, then the allegation should taken to be admitted.

3. It is further clear that the PLA filed by the defendants failed to fulfill the requirements of Section 10 of the Ordinance. Such a failure results in rejection of the PLA in terms of Section 10 (6) of the Ordinance. The consequence of such rejection are also spelt out in Section 10 (11) of the Ordinance, which clearly states that on such rejection the banking Court shall forthwith pass judgment and decree in favour of the plaintiff.

4. It may be noted that Defendants No. 1 to 6 have not impugned any entry in the statement of account in their PLA. It is alleged that the plaintiff has charged enhanced rate of mark up that was never agreed to. No objection whatsoever has been taken by the defendants with regard to the principal amount under the finance facility. As no challenge was made to the amounts due under the finance facilities, which were pleaded in the plaint, the objection regarding the form of the statement of account will not constitute a substantial question of fact warranting an inquiry by this Court. A judgment can be passed on the basis of admission of liability by the defendants based on the presumption arising out of the absence of specific denial of liability in the PLA. It is a settled position of law that admitted facts need not be proved in terms of Article 113 of the Qanun-e-Shahdat, 1984. Article 113 reads as under:--

113. Facts admitted need not be proved. No fact need to be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings:

Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.

The defendants have not denied the availing of the finance facilities and the execution of the documents. They have also not disputed the amounts due under the finance facilities save for a meager amount on account of alleged charging of excessive mark up which the plaintiff’s counsel readily conceded can be deleted from the claim made in the suit. Defendants No. 1 to 6 have thus failed to make out any case for the grant of leave to defend the suit.

1. In the circumstances, the PLA filed by the Defendants No. 1 to 6 is hereby dismissed. The suit filed by the plaintiff is accordingly decreed in its favour and against Defendants No. 1 to 6, jointly and severely, for an amount of Rs. 57,322,060/- together with costs of funds as contemplated by Section 3 of the Ordinance. Costs of the suit are also granted.

(R.A.) PLA dismissed

PLJ 2016 Lahore 156

Present: Shams Mehmood Mirza, J.

NIB BANK LIMITED--Applicant

versus

MANZOOR TEXTILE MILLS--Respondents

Ex.A. No. 10-B and C.M. No. 390-B of 2015, decided on 3.9.2015.

Court Auction--

----Objection--Forced sale value of mortgaged property--Auction bidders--Validity--Objection regarding forced sale value of mortgaged property being on lower side has no valid basis--Auctions conducted by Courts are often termed as distressed sales and by their very nature it is accepted that price an asset will fetch in such sales shall be well below market price as purchaser(s)/ bidder(s) run risk of getting entangled in Court processes for considerable length of time--In a Court auction, where several bidders participate, reserve price of an asset is often base price from where bidding of property exposed to auction may start--In other words, reserve price means price with which public auction starts and auction-bidders are prohibited from giving bids below said price--Reserve price, however, must still reflect minimum price property may fetch at auction being conducted by Court--Forced sale value so determined is price that in opinion of evaluator property will fetch in a Court sale--Forced sale value is often maximum price that in estimation of evaluator a property might fetch in a Court sale whereas reserve price is price at which bidding begins. [Pp. 159, 160 & 161] A, C & D

Auction--

----Reserve price of property--Auction--Mortgaged property--Validity--Courts have alternated between showing concern for judgment debtor and to protect his interest against a decree holder who not unexpectedly desires to sell of mortgaged property only to recover decretal debt and need to ensure that decree is executed in a timely manner--If market price is set as criterion for fixing reserve price, there will hardly be any bidding at auction as bidders cannot go past maximum price. [P. 160] B & E

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

----O. XXI, R. 66(2)(c)--Fixation of reserve price--Value of property--Opinion of Court--Scope of--Proclamation of sale--Validity--Object is to relieve Court from burden of affirming accuracy of value of property shown in proclamation of sale and to enable prospective purchaser to form his own opinion relying upon estimates given by parties--Proclamation shall contain every other thing which Court considers material for a purchaser to know in order to judge nature and value of property--With availability and benefit of evaluation reports from PBA approved evaluators, Courts do fix reserve price of properties being put to auction based on basis on value placed therein. [P. 161] F & G

Evaluation Reports--

----Scope--Nature and value of property--Benefit of evaluation reports from approved evaluator--Fix reserve price of property--Auction based on value--Validity--Object and purpose of fixing reserve price in proclamation, as is to ensure that bidding in auction starts from reserve price--High Court would always give preference to evaluation report prepared under its orders rather than a report which is prepared at behest of judgment debtor--It is not uncommon for judgment debtors to prepare evaluation report showing exaggerated value of mortgaged properties in order to delay and frustrate auction process. [Pp. 161 & 162] H

Court Auction--

----Scope of--Reserve price--Value of--Reserve price of a property is always based on a tentative estimate, therefore, appears to be correct. [P. 162] I

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

----O. XXI, R. 83--Court auction--Scope of--Objection of--Judgment debtors are always meant to delay process of auction--Court sales can be postponed to enable a judgment debtor for raising money through private sale of property--A judgment debtor cannot be allowed to derail auction process by submitting evaluation report prepared at his instance instead of arranging a buyer for properties to be auctioned. [P. 162] J

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

----O. XXI, R. 66(2)--Description of property--Objection regarding constructed area--Accurately mentioned in auction schedule--Validity--Description of property should be fairly and accurately mentioned--Prospective purchasers are of course free to ascertain for themselves constructed area within boundary wall of property.

[P. 163] K

Auction Schedule--

----It is settled law that Court sales do not entail warranty of title and accordingly auction schedules normally contain clauses to that effect--Clause 6 of proposed auction schedule is no different and further brings into sharp focus issue. [P. 164] L

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

----O. XXI, R. 66--Auction schedule--Court auction--Question of--Whether some minor part of constructed area falling in mortgaged property has accurately been given or not--Validity--Auction schedule further invites prospective bidders to visit and inspect property to be auctioned--If is not requirement of Order XXI Rule 66, CPC that exact measurements of constructed area be given in auction schedule--Of course, assertion to this effect by judgment debtor company is strongly refuted by decree holder bank which contends that certain buildings have been demolished and as such report--Order XXI Rule 66, CPC which does not require auction schedule to contain details about superstructure or constructed area--Its chief executive had died prior to passing of decree has no valid basis in view of clear provisions of Order 22, CPC. [P. 164] M

Mr. M. Ali Malik, Advocate for Applicant.

Mr. Talib Hussain, Advocate for Decree holder bank.

M/s. Hafiz Chaudhry, Muhammad Tahir and Mian Subha Sadiq Watto, Advocate for Court auctioneers.

Date of hearing: 1.7.2015.

Order

C.M. No. 390-B of 2015

Through this application judgment Debtor No. 1 company has challenged the proclamation of sale (filed in Court on 20.04.2015 by the Court auctioneers) and in particular the forced sale value determined therein which is based on the evaluation report of Harvester Services (Pvt.) Limited.

1. Amongst others, it is asserted that the value of the property sought to be auctioned is much more than what has been assessed by the evaluator; that the evaluator has not correctly mentioned the covered area of the building and has also not mentioned the boundary wall; that judgment Debtor No. 1 company has got the mortgaged property evaluated from SAS International Corporation which has assessed the forced sale value thereof to be Rs. 280.818 Million; that the chief executive of judgment Debtor No. 1 company died prior to the passing of the decree but this fact was not brought to the knowledge of this Court by the decree holder.

2. The decree holder bank has filed its written reply to this application contesting all the allegations. It is stated that the report prepared by SAS International Corporation does not consider certain vital facts such as the demolition of the buildings inside the boundary wall and that certain land the ownership whereof is claimed by judgment Debtor No. 1 company falls outside the boundary wall. It is further stated that the forced sale value has correctly been determined by Harvester Services (Pvt.) Limited. Regarding the death of the chief executive of the judgment debtor company, it is stated that pre-decreetal matter cannot be raised in execution proceedings.

3. The respective contentions of the counsels have been heard and the record perused with their able assistance.

4. In this case, the Court auctioneers were appointed vide order dated 12.02.2015 and they were directed to get the mortgaged property evaluated from Harvester Services (Pvt.) Limited and to place the report thereof on the record as also the proposed proclamation of sale. The Court auctioneers placed the report of the evaluator and the proclamation of sale on the record on 20.04.2015 where-after the present objection application was filed by the judgment debtors.

5. The objection regarding the forced sale value of the mortgaged property being on the lower side has no valid basis. Auctions conducted by the Courts are often termed as distressed sales and by their very nature it is accepted that the price an asset will fetch in such sales shall be well below the market price as the purchaser(s)/bidder(s) run the risk of getting entangled in Court processes for considerable length of time. In a Court auction, where several bidders participate, the reserve price of an asset is often the base price from where bidding of the property exposed to auction may start. In other words, reserve price means the price with which the public auction starts and the auction-bidders are prohibited from giving bids below the said price. The reserve price, however, must still reflect the minimum price the property may fetch at the auction being conducted by the Court.

6. The Courts are often faced with the vexed question as to what should be the reserve price of a property sought to be put to auction. It will not be inappropriate to say that the law on the subject is not in a very satisfactory state. The judgments on the topic, and there are many, show that the Courts have alternated between showing concern for the judgment debtor and to protect his interest against a decree holder who not unexpectedly desires to sell off the mortgaged property concerned only to recover the decretal debt and the need to ensure that the decree is executed in a timely manner. It would also not be inappropriate to state that the Courts are not well equipped to place their own value upon properties which are of varied character and often times include plant and machinery, the estimate whereof can only be carried out by a professional evaluators. Pakistan Banker’s Association (PBA) has made a list of approved professional evaluators who, amongst others, assess the value of the assets that are subject matter of the auction. Such assessment includes the forced sale value and the market price of the assets. The forced sale value so determined is the price that in the opinion of the evaluator the property will fetch in a Court sale. It should, however, not be mistaken that the reserve price, which was historically fixed by the Courts, and the forced sale value determined by the evaluator are one and the same thing. Forced sale value is often the maximum price that in the estimation of the evaluator a property might fetch in a Court sale whereas the reserve price is the price at which the bidding begins. Regardless of the obvious difference, often times both the expressions are conflated in an auction proceedings. Another argument that is often introduced in the discourse by the judgment debtors is that market value of the property ought to be fixed as the reserve price, which argument has no logical basis. Market price is the maximum price that a property will carry in the market in a bi-lateral sale. If market price is set as the criterion for fixing the reserve price, there will hardly be any bidding at the auction as bidders cannot go past the maximum price. Historically, reserve price was fixed to protect the interest of a judgment debtor against a collusive and insufficiently competitive auction or where only one bidder participated. The object of the reserve price was to ensure that the property is sold at a price that has some semblance of and reflects the value closest to the price at which the property is expected to be sold off in a Court auction. In a sale by auction that is subject to a reserve price, the acceptance of every bid is conditional as the bidder is required to give the bid that is equal to or higher than the reserve. As such, the reserve price limits the authority of the auctioneer in that he cannot accept a price below the reserve price. It is, therefore, not unsurprising that the Courts do fix the reserve price of the property that is the subject matter of the auction and in order to allay the fears of the judgment debtors the forced sale value of the property is sometimes fixed as the reserve price.

7. In the context noted above regarding the fixation of the reserve price, it would be useful to mention the amendment brought about by Lahore High Court in Order XXI Rule 66, CPC, which added a proviso to sub-rule (2)(e). It reads as under:

Provided that it shall not be necessary for the Court itself to give its own estimate of the value of the property; but the proclamation shall include the estimate, if any, given by either or both of the parties.

Fixing the value of the property is a matter of opinion, and the Court cannot give its opinion on such a point. It appears that the object of the above proviso is to relieve the Court from the burden of affirming the accuracy of the value of the property shown in the proclamation of sale and to enable the prospective purchaser to form his own opinion relying upon the estimates given by the parties. After all, Order XXI Rule 66 (2) (e), CPC stipulates that the proclamation shall contain every other thing which the Court considers material for a purchaser to know in order to judge the nature and value of the property. Notwithstanding the afore-mentioned provision, with the availability and benefit of the evaluation reports from the PBA approved evaluators, the Courts do fix the reserve price of the properties being put to auction based on the basis on the value placed therein.

1. In the present case, the two evaluation reports show disparity in terms of the forced sale value of the mortgaged property with the evaluation report relied upon by judgment Debtor No. 1 company showing higher forced sale value. Judgment Debtor No. 1 company while relying upon its evaluation report has invited this Court to disregard the report prepared by Harvester Services (Pvt.) Limited. The contention so raised cannot be accepted. The fact that the evaluation report prepared under the instructions of the judgment debtors places higher price of the mortgaged property than the evaluation report which the Court auctioneers got prepared under the directions of this Court should not form basis for rejecting the latter report. In the first instance, the report prepared by Harvester Services (Pvt.) Limited clearly mentions that it is for “Court purposes” while the evaluation report placed on the record by the judgment debtors does not so indicate. This Court had directed the Court auctioneers to appoint Harvester Services (Pvt.) Limited to carry out the evaluation of the mortgaged assets in order to fix the reserve price for the said properties. The object and purpose of fixing the reserve price in the proclamation, as stated earlier, is to ensure that the bidding in the auction starts from the reserve price. This Court would always give preference to the evaluation report prepared under its orders rather than a report which is prepared at the behest of the judgment debtor. It is not uncommon for the judgment debtors to prepare the evaluation report showing exaggerated value of the mortgaged properties in order to delay and frustrate the auction process. It may again be emphasized that evaluation report by M/s. Harvester Services (Pvt.) Limited was prepared under the orders of this Court and, therefore, the selection is not between the evaluation reports of the contesting purchasers that the Court is merely accepting the value placed by one side as ipse dixit. It must also be kept in mid that determination of the value of any property is always subjective and opinions in this regard differ. The consistent view expressed by the Courts that the reserve price of a property is always based on a tentative estimate, therefore, appears to be correct. Notwithstanding the concern of the Courts to balance out the interests of both the judgment debtor as well as the decree holder, a transparent auction which is well advertised with competitors taking part in the bidding process is itself the biggest safeguard against collusion amongst the bidders and shall ensure that the final price received will largely be independent of the reserve price and reflect the best price that the property can obtain.

2. Objections of such nature by the judgment debtors are always meant to delay the process of auction. Nothing stops a judgment debtor to locate bring forward a buyer of his choice either in the auction or before the Court prior to the sale if the property is being sold for a price which in the estimation of the judgment debtor is on the lower side. For this very purpose Rule 83 Order XXI, CPC has been enacted under which Court sales can be postponed to enable a judgment debtor for raising money through private sale of the property. A judgment debtor cannot be allowed to derail the auction process by submitting evaluation report prepared at his instance instead of arranging a buyer for the properties to be auctioned. It may further be added that the condition of confirmation of sale by the Court also operates as a biggest safeguard against the property which has been sold at inadequate price irrespective of the fact whether any irregularity or fraud in the conduct of the sale has been committed or not.

3. The objections regarding the constructed area not being accurately mentioned in the auction schedule has also no valid basis in view of the language of Order XXI Rule 66 (2), CPC which insofar as it is relevant simply stipulates that the description of the property should be fairly and accurately mentioned. The prospective purchasers are of course free to ascertain for themselves the constructed area within the boundary wall of the property. In this regard, reference may be made to clause 9 of the Terms and Conditions of Auction contained in the auction schedule, which reads as under:

The property will be sold on “As is where basis”.

The expression “as is where is” came up for interpretation in United Bank Limited v. Al-Noor enterprises and others 2006 CLC 822 wherein it was described it in the following terms:

From preponderance of the meaning assigned to the phrase “as is, where is”; what is deducible is that phrase “as is, where is” could be divided in two parts, “as is” and where is”.

“As it is” as it stands means that, the property offered for sale in its present state, condition or form. It refers only to condition of the property sold no warranty, or assurance of any nature as to state or quality of the property is neither attached nor is to be presumed. It implies that the property is taken with whatever attributes good or bad known or inherent it may possess and that seller or lessor is released of any obligation or liability to reimburse purchaser or lessee for any defect that may be discovered later on. In other words it is generally understood to mean that, buyer is purchasing property with open eyes and consciously in whatever condition with whatever attributes it may possess. In a sale on ‘as is, where is’ basis implies that the purchaser has to depend on his own skill and ability to assess and evaluation the property as to its status, nature or quality and attributes.

Other part of the phrase “where is” implies and meant ‘at the place, location where the property happens to be or situated at the time of the examination, assessment, evaluation and making offer. It also implies the place where the transaction is to be effected, concluded materialized or the place where from the delivery of the property is to be taken by the intended purchaser.

Similarly, in Messrs Julandar (Pvt.) Limited v. Official Assignee and 2 others 2003 CLD 1336, while referring to the clause “as is where is” contained in the auction schedule, it was held that “…. at the same time it has its own meaning, significance and import in the field of commercial activity as it warns customers/buyers to be wary, prudent and to act at their own risk while giving their offer or entering into a transaction.”

It is settled law that Court sales do not entail warranty of title and accordingly auction schedules normally contain clauses to this effect. Clause 6 of the proposed auction schedule is no different and further brings into sharp focus the issue under discussion. It reads as under:

The particulars of the property are given as per best possible information and the Court will not be answerable for any error therein. The prospective bidders must satisfy themselves with regard to the title of the property and the status of the assets under auction prior to the auction. Neither this Court nor the decree holder hold any warrants with respect to the title of the property or any mortgage, charge, or other encumbrances thereon if any.

In view of clause 6 in the auction schedule and the interpretation of the phrase “as is where is” by the afore-mentioned judgments, it matters little whether some minor part of the constructed area falling in the mortgaged property has accurately been given or not. Besides, the auction schedule further invites the prospective bidders to visit and inspect the property to be auctioned. Be that as it may, it is not the requirement of Order XXI Rule 66, CPC that exact measurements of the constructed area be given in the auction schedule. Of course, the assertion to this effect by judgment Debtor No. 1 company is strongly refuted by the decree holder bank which contends that certain buildings have been demolished and as such the report of Harvester Services (Pvt.) Limited correctly mentions the constructed area. This aspect of the matter need not arrest the progress of the case in view of the clear language of Order XXI Rule 66, CPC which does not require the auction schedule to contain the details about the superstructure or the constructed area. The next contention of judgment Debtor No. 1 company that its chief executive had died prior to the passing of the decree has no valid basis in view of the clear provisions of Order XXII, CPC. This argument in any case has no bearing on the issue at hand it is, therefore, unnecessary to elaborate any further on the matter and the counsel's submission in this regard seem to be hardly well-conceived.

1. For the reasons stated above, this application being devoid of any merit is dismissed.

(R.A.) Application dismissed

PLJ 2016 Lahore 165

Present: Shujaat Ali Khan, J.

MUHAMMAD HAYAT--Petitioner

versus

D.G., LDA, etc.--Respondents

W.P. No. 13586 of 2009, decided on 14.9.2015.

Ex-parte Order--

----When ex-parte order was set aside, matter stood reopened in its entirety. [P. 169] A

Bidder--

----Vested right for issuance of allotment letter--Agreement was signed between parties--Validity--A bidder cannot claim award of contract or allotment on ground of highest/lowest bidder as same was subject to approval of competent authority. [P. 171] D

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

----S. 79 & O. I, R. 3--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Call deposit in bidding process was declared as highest bidder--Letter was not issued--Challenge to--Terms and conditions of auction--Power to accept or reject any bid--Maintainability of petition due to non-joinder of necessary party--Withdraw earnest money--No vested rights--No cause of action to file petition--Re-auction of plots--When law requires that a thing is to be done in particular way, any deviation can only be termed as illegal--Validity--It is well entrenched by now that proceedings of a writ petition are governed by provisions of CPC--As per Section 79 read with Order I Rule 3, CPC a lis can be filed against a legal or natural person and official designation howsoever high that is cannot fulfill said condition--Neither in writ petition nor during course of arguments, petitioner raised any allegation of mala fide on part of authority--When acts of LDA lead to conclusion that they were aimed to fetch maximum revenue to national exchequer, instead of deprecating such approach, same shall be lauded so that properties owned by government were not sold at throw-away price and national interest is jealously guarded--No person can be allowed to challenge an order to which he has already acquiesced due to his conduct--After withdrawal of earnest money he was not obliged to institute instant petition--Now taking up plea of petitioner that LDA were bound to convey petitioner about fate of bid offered by petitioner within 30 days of auction and rejection of bid of petitioner after 35 days was illegal--Competent authority would try to decide about acceptance or rejection of bid within thirty days of auction but same cannot be taken as mandatory especially visualized--According to own showing of petitioner he was conveyed about rejection of his bid just after 35 days of auction--Plea cannot be considered for acceptance of bid of petitioner--Withdrawal of preemption money after dismissal of suit and then its redeposit could not prejudice preemptor’s claim while, petitioner opted to withdraw earnest money even before filing instant petition--Question in said case was fate of an act of a person towards withdrawal of preemption money during pendency of stay order whereas in instant case, petitioner after having withdrawn earnest money was debarred to pray for acceptance of his bid--Petitioner had no vested right for acceptance of his bid and after withdrawal of earnest money he had no cheeks to file petition.

[Pp. 170, 172, 173 & 174] B, E, F, G, H, I, J, K & L

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Equity--It is well established by now that a person who seeks equity must do equity and a person who does not bear clean character cannot be given any equitable relief in exercise of powers vested in High Court under Art. 199 of Constitution. [P. 171] C

Mr. Arshad Malik Awan, Advocate for Petitioner.

M/s. Waqar A. Shaikh and Ahmad Ali Ranjha, Advocates for Respondents-LDA.

Date of hearing: 14.9.2015.

Order

Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has sought direction to the respondents for acceptance of his bid offered in auction, held on 15.04.2009.

1. Shorn-of unnecessary details, the Lahore Development Authority (hereinafter to be referred as “Authority”) got published proclamation for auction of commercial/residential plots in various schemes of Lahore. The petitioner, after deposit of Rs. 50,000/- as call deposit, participated in the bidding process and was declared as highest bidder against Plots No. 191 Block No. 3-B/I (measuring 4 Marlas 200 sq ft) and 415 Block 5-A/II (measuring 4 Marlas 180 sq ft) situated in Quaid-e-Azam Town Scheme, Lahore. Since despite having been declared as highest bidder and deposit of 20% earnest money, the allotment letter was not issued to the petitioner, he filed the instant petition which was allowed by this Court through ex-parte order dated 24.08.2010. When the Authority came to know about said order, it filed an application (No. 69/2013) under Section 12(2), CPC challenging the vires of order dated 24.08.2010. The said application was dismissed by this Court on 17.05.2013. Aggrieved by the said order, the Authority filed CPLA No. 1406-L of 2013 before Hon’ble Supreme Court of Pakistan which after conversion into appeal was allowed. As a result, order, dated 17.05.2013, was set-aside and application of the LDA (CM No. 69/2013) was accepted and matter was remanded to this Court for decision afresh.

2. Learned counsel for the petitioner, while opening his arguments, submits that the competent authority was bound to convey its order about acceptance of bid of the petitioner or otherwise within thirty days, whereas the bid of the petitioner was rejected after thirty five days which speaks volumes about mala-fide on the part of the respondents; that the competent authority is bound to advance reasons in support of any order regarding acceptance or rejection of bid but no tangible reasons have been given while rejecting bid of the petitioner; that the petitioner, being the highest bidder, is entitled for allotment of plots in question; that the order regarding rejection of the petitioner’s bid does not qualify the test of speaking order as contemplated under Section 24-A of the General Clauses Act, 1897; that the respondents despite knowing the fact that petitioner was entitled for allotment, did not present true facts before this Court. To fortify his contentions, learned counsel relies on Board of Intermediate and Secondary Education, Sargodha through its Secretary vs Abdul Rehman(1998 SCMR 1711), Mst. Musharraf Sultana vs. Fazal Hussain(1993 CLC 1) and Muhammad Ramzan vs. Muhammad Khan and another (1972 SCMR 442).

3. The legal prepositions canvassed by learned counsel representing Authority at the Bar, can be summed up in the words that according to Clauses 5 and 6 of the Terms and Conditions of Auction, the competent authority enjoyed power to accept or reject any bid; that instant petition is not maintainable due to non-joinder of necessary party inasmuch as LDA has not been impleaded as a party in the instant petition; that the petitioner has approached this Court while concealing material fact inasmuch as prior to filing the instant petition, the petitioner withdrew the earnest money, deposited by him, thus he cannot ask for acceptance of his bid; that neither any discrimination nor malafide on the part of the respondents has been alleged in the instant petition; that other bidders, who participated alongwith the petitioner, having not been arrayed in the instant petition, thus the same is not maintainable; that since no vested right of the petitioner has been infringed, he has no cause of action to file the instant petition; that 20% earnest money was not deposited by the petitioner within the stipulated time frame thus the petitioner is not entitled for equitable relief; that though the petitioner was well aware about rejection of his bid but the order issued in that regard having not been challenged by the petitioner, has attained finality; that as a matter of fact, the bid offered by the petitioner cannot be accepted for the reason that according to the rules in vogue, a plot cannot be auctioned below the price against which any plot of equal denomination in the same vicinity was auctioned; that LDA has no personal grudge against the petitioner rather just to fetch maximum revenue to the public exchequer, the competent authority has decided to re-auction the plots in question; that if the petitioner concurs, he can be accommodated by giving him first right of refusal, subject to the condition that the highest bid to be given by anyone else is accepted. In addition to his oral submissions, learned counsel has also relied upon Muhammad Maqsood Sabir Ansari vs. District Returning Officer, Kasur and others (PLD 2009 SC 28), and Nagina Bakery vs. Sui Southern Gas Limited and 3 others (2001 CLC 1559).

4. Learned counsel for the petitioner, while exercising his right of rebuttal, argues that Clauses 5 and 6 of the Terms and Conditions of Auction being relied upon by learned counsel for the respondents being in conflict with Section 24-A of the General Clauses Act, 1897 are ultra-vires; that withdrawal of the earnest money does not disentitle the petitioner to challenge the action of the respondents towards rejection of his bid; that the offer given by the petitioner being above the rates, notified by the District Collector for the said area, he cannot be deprived of his hard toiled fruits; that the entire case is not opened before this Court rather while remanding the case, the Hon’ble Supreme Court of Pakistan has earmarked the scope of adjudication by this Court during post remand proceedings thus this Court cannot go beyond the same; that the petitioner did not conceal anything from this Hon’ble Court thus the allegation of concealment is not borne out; that the Director General, LDA having been arrayed as respondent, the objection raised by learned counsel for the respondents regarding non-joinder of necessary parties is not sustainable and that in case the petitioner’s bid is not accepted, he is bound to suffer an irreparable loss.

5. I have heard leaned counsel for the parties and have also gone through the documents annexed with this petition, in particular the orders of the Apex Court of the Country in addition to the case-law cited at the Bar.

6. Before delving deep into the merits of the case, I would like to dilate upon the objection raised by the learned counsel for the petitioner that the entire case is not opened before this Court rather the points of adjudication have already been earmarked by the Apex Court of the Country while remanding case to this Court. In my humble opinion, to deal with the objection raised by learned counsel for the petitioner, a perusal of the decision of the august Supreme Court is inevitable, operative part whereof reads as under:-

“The respondent filed his concise statement wherein he had not denied that he had withdrawn his earnest money. He, however, contended before us today that he withdraw the same in accordance with the direction of the petitioner. The learned counsel submitted that the competent authority had clearly mentioned in the terms of auction advertised in the newspaper that the authority reserved the right to reject any bid without assigning any reason. This condition was not brought to the notice of the High Court. We would refrain from making any observation on the consequences of the withdrawal of the earnest money or the effects of the condition of the authority’s right to reject the highest bid. These factors may have relevance for the High Court which should have been taken into account while determining the respondent’s claim to the two plots. Since they were not brought to the notice of the High Court during hearing of the respondent’s writ petition the judgment of 17.05.2013 can therefore not be sustained in law. Consequently, this petition is converted into appeal and allowed. The impugned judgment dated 17.05.2013 dismissing the petitioner’s application is set aside. We, therefore, allow C.M.A No. 69 of 2013 filed by the petitioner under Section 12(2), CPC and set aside the judgment dated 24.08.2010 with the result that Writ Petition No. 13586 of 2009 filed by the respondent shall be deemed to be pending and to be disposed of after hearing the parties.” (emphasis provided).

A perusal of the afore-quoted order of Hon’ble Supreme Court of Pakistan shows that the application (CM No. 69 of 2013) was accepted and the order, dated 24.08.2010, passed by this Court, whereby the present petition was accepted in ex-parte manner, was set-aside. According to my humble opinion, when the order dated 24.08.2010 was set-aside, the matter stood reopened in its entirety. In this backdrop, I do not find myself in agreement with learned counsel for the petitioner thus the objection raised by him is accordingly spurned.

1. Now reverting to the merits of this case, I have observed that though this petition was filed in the year 2009, neither any move was made by the petitioner to implead the Authority nor any reason for its omission has been advanced. The stance of learned counsel for the petitioner is that as Director General, LDA has been arrayed as respondent, the said deficiency stands cured but according to my humble view when the law requires that a thing is to be done in a particular way, any deviation therefrom can only be termed as illegal. It is well entrenched by now that proceedings of a writ petition are governed by the provisions of Code of Civil Procedure 1908, CPC. As per Section 79 read with Order I Rule 3, CPC a lis can be filed against a legal or natural person and the official designation howsoever high that is cannot fulfill the said condition. The consequences of non-joining of a necessary party have been highlighted in the cases reported as Government of Balochistan, CWPP&H Department and others vs. Nawabzada Mir Tariq Hussain Khan Magsi and others (2010 SCMR 115), Ghulam Rasool and 3 others vs. Board of Revenue Sindh through Member and 6 others (2010 MLD 776), Bore Muhammad vs. Mst. Aziza Begum and others (2001 CLC 701) and Secretary, B&R Government of West Pakistan and 4 others vs. Fazal Ali Khan (PLD 1971 Karachi 625). In the case of Government of Balochistan, CWPP&H Department and others vs. Nawabzada Mir Tariq Hussain Khan Magsi (supra) it has inter alia been held as under:--

“\\\No suit can be filed against Provincial Government without impleading the Province as a party and the procedural precondition is mandatory in nature and no relief can be sought without its strict compliance and such suit would not be maintainable…….”

Further in the case of Bore Muhammad vs. Mst. Aziza Begum and others (supra) it has also been observed as under:

“\\\ The plaintiff has sued the officials by their designations. Such officials cannot be sued in their official name. If the plaintiff is offended by any act or action of such defendants in their personal capacity, they can be used in their personal name ……”

1. The petitioner has filed the instant petition with the following prayer:--

“that the price offered by the petitioner in the auction held on 15.04.2009 may be directed to be accepted by the Lahore Development Authority for the purpose of sale of aforesaid plots to the petitioner.”

A glance over the afore-quoted prayer clause shows that the petitioner has sought direction to the respondents for acceptance of his bid. On the other hand, documents submitted by the respondents alongwith report and parawise comments show that the petitioner was promptly conveyed about the rejection of his bid but he instead of challenging the same, filed the instant petition and succeeded to get ex-parte order in his favour. It is important to observe over here that after rejection of his bid, there was no question of its acceptance till the time the act of the respondents towards rejection of his bid was declared as illegal by any forum. This being the position, the prayer of the petitioner cannot be granted at this stage.

1. Learned counsel for the petitioner has failed to rebut the factum of withdrawal of earnest money by him prior to filing the instant petition. A perusal of the writ petition shows that the petitioner has not uttered even a single word about the said fact which amounts to concealment. Had the said fact been incorporated in the instant petition, the fate of the instant petition could have been entirely different even in pre-remand era. It is well established by now that a person who seeks equity must do equity and a person who does not bear clean character cannot be given any equitable relief in exercise of powers vested in this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. If any case law is required, reference can conveniently be made to the cases of Messrs Shahbaz Enterprises through Authorised Officer and another vs. Government of Sindh through Secretary, Local Govrnment Department, Karachi and others (2014 CLC 174), Muhammad Amir vs. Umer Hayat and 4 others (2010 CLC 1798), Kamran Hanif vs. Bilqees Bano and others (2010 YLR 1665) and Qaiser Ali Khan vs. Province of Sindh through Chief Secretary and another (2010 PLC (CS) 542).

2. The main stay of arguments of learned counsel for the petitioner is that the petitioner being the highest bidder has vested right for issuance of allotment letter. In this regard, I differ with learned counsel for the petitioner for the reason that till the time an agreement is signed between the parties, no vested right accrues in favour of the bidder, as till that time the rights and obligations of the parties remain undecided. Even otherwise, a bidder cannot claim award of contract or allotment on the ground of highest/lowest bidder as the same is subject to the approval of the competent authority. In this regard I stand guided by the verdicts in the matters reported as Mian Peer Muhammad vs. Hameer Saffar and others (2010 SCMR 1725) and Mumtaz Ahmad Chadhar vs. Rana Nasir Ali and 3 others(2005 SCMR 263). In the case of Mian Peer Muhammad (supra) the Apex Court of the country while dealing with the issue under discussion has laid law to the following effect:--

“……therefore, notwithstanding the deposit of lease money by Respondents Nos.1 and 2 for one year, in our view, no concluded contract could be construed in their favour. With respect, it may be stated that the observation of learned Division Bench of High Court, noted herein above, is, therefore misconceived. The contention of learned counsel that since in earlier auction the Respondents Nos.1 to 2 came to be highest bidders and they had deposited lease money, it created in them a vested right to be heard before ordering reauction of the disputed land, is also not tenable since there was no approval of their bids and no such an agreement of lease as per policy vide para 10 thereof was executed in their favour…..”

1. Now considering from another angle, if the allotment/ award of contract to the highest bidder is vested right then referring the matter to the competent authority for its acceptance is an exercise in futility. The legislature in his own wisdom has mandated that any auction process is subject to the approval of the competent authority seemingly for the reason that the said authority is in better position to watch the national interest. While dealing with the importance of consent of the competent authority in a bidding process, the august Supreme Court of Pakistan in the case of Afzal Maqsood Butt vs. Banking Court No. II Lahore and 8 others (PLD 2005 SC 470) has held as under:--

“The bid in an auction is only an offer and without the confirmation of sale, it does not create any right in the property in favour of the successful bidder, therefore, the confirmation of sale cannot be claimed as of right.”

1. It is admitted position that neither in the writ petition nor during the course of arguments, learned counsel for the petitioner has raised any allegation of mala fide on the part of the Authority. When the acts of the respondents lead to the conclusion that they are aimed to fetch maximum revenue to the national exchequer, instead of deprecating such approach, the same shall be lauded so that the properties owned by the government are not sold at throw-away price and national interest is jealously guarded.

2. Insofar as the contention of learned counsel for the petitioner that the bid offered by the petitioner being higher to the rate notified by the District Collector, Lahore for the said area, the respondents could not reject the same is concerned, suffice it to observe that the said fact can be relevant for fixation of the reserve price, however, the same cannot be used to compel the competent authority to accept a bid which otherwise is not justified in view of the fact that plots of similar denomination in the same vicinity were sold at much higher price.

3. It is very astonishing to note that on the one hand, the petitioner opted to withdraw the earnest money and on the other proceeded to file the instant petition. To me after withdrawal of earnest money by the petitioner, he acquiesced with the rejection of his bid thus could not ask for its acceptance. In this regard my view stands fortified by verdict of the Apex Court of the country in the case of Kay Bee International (Pvt.) Ltd, Islamabad vs. Secretary to the Government of Punjab, Industries and Mineral Development, Lahore (PLD 2002 SC 1074) wherein it has inter alia been held as under:--

“\\\Once the private respondent withdrew the earnest money, he was out of arena and could not be considered for the award of contract……”

1. Moreover, no person can be allowed to challenge an order to which he has already acquiesced due to his conduct. The said principle has elaborately been discussed in the cases reported as Sarosh Haider vs. Muhammad Javed Chundrigar and others (PLD 2014 SC 338) and Maqbool Elahi vs. Capital Development Authority, Islamabad (1998 SCMR 1074). In the case of Sarosh Haider (supra), the Apex Court of the Country has inter alia observed as under:--

“\\\When a person is acquiesced with even an illegal order he cannot assail the same at some subsequent stage……”.

If we adjudge the status of the petitioner on the touchstone of the afore-quoted judgments, the answer, in definite, is that after withdrawal of the earnest money he was not obliged to institute the instant petition.

1. Now taking up the plea of the petitioner that respondents were bound to convey the petitioner about the fate of the bid offered by the petitioner within 30 days of the auction and rejection of bid of the petitioner after 35 days is illegal, I am of the view that to deal with the said contention following lines from the advertisement are of paramount consideration:--

A perusal of the afore-quoted portion from the advertisement renders it crystal clear that though it was mentioned that the competent authority would try to decide about acceptance or rejection of bid within thirty days of auction but the same cannot be taken as mandatory especially visualized in the light of the language of the sentence quoted above. Even otherwise according to own showing of the petitioner he was conveyed about the rejection of his bid just after 35 days of the auction. In this backdrop, the plea under discussion cannot be considered for acceptance of the bid of the petitioner.

1. Now coming to the case law cited by learned counsel for the petitioner I am of the view that the same is not applicable to the facts and circumstances of the present case inasmuch as in the case of Board of Intermediate and Secondary Education, Sargodha (supra), the controversy in pith and substance, was regarding the Service Regulations thus the same has even not the remotest connectivity with the preposition involved in the present case whereas in the case of Mst. Musharraf Sultana (supra), it was decided that withdrawal of pre-emption money after dismissal of the suit and then its redeposit could not prejudice the preemptor’s claim while in the instant case, the petitioner opted to withdraw the earnest money even before filing the present petition thus the case relied upon by the petitioner is poles apart from the instant case. Now coming to the case of Muhammad Ramzan (supra), I am of the view that the question in the said case was the fate of an act of a person towards withdrawal of preemption money during pendency of stay order whereas in the instant case, the petitioner after having withdrawn the earnest money was debarred to pray for acceptance of his bid.

2. As a necessary corollary to the discussion in the preceding paragraphs, I have no hesitation to hold that petitioner has no vested right for acceptance of his bid and after withdrawal of the earnest money he had no cheeks to file the present petition. Consequently, the same stands dismissed leaving the parties to bear their respective costs. Before parting with the order, it is observed that petitioner shall be given first right of refusal as offered by the learned counsel for the respondents but subject to the conditions that a bid to be given by a prospective bidder in re-auction is accepted by the competent authority.

(R.A.) Petition dismissed

PLJ 2016 Lahore 174 [Rawalpindi Bench Rawalpindi]

Present: Mahmood Ahmad Bhatti, J.

HAROON ABBASI, etc.--Petitioners

versus

GOVERNMENT OF PUNJAB, etc.--Respondents

W.P. Nos. 2213, 2292, 2293, 2155, 2153, 2269 & 2272 of 2015, heard on 1.10.2015.

Punjab Local Government Act, 2013--

----S. 10-A--Delimination of Constitution Act, 1974, Ss. 6 & 9--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Election of local government--Abolition of union council--Finality of delimitation--Order of delimitation officer as well as delimitation authority--Division of union council into two union councils--Validity of order--Vested with powers and invested with jurisdiction to create or abolish a union council--Challenge to--It falls outside scope, range of powers and functions of election commission, a delimitation officer or a delimitation authority to create or abolish a union council--Exceeded their powers and jurisdiction, their actions impugned in these petitions are declared without lawful authority and of no legal effect--Process of delimitation resulting in creation or extinguishment of union councils is to be carried out afresh to bring it in accord with law--Election Commission shall announce fresh election schedule, after undertaking and completing proceedings of delimitation--Petitions were allowed.

[Pp. 186 & 187] A

Raja Shafqat Khan Abbasi, Advocate for Petitioners (in W.P. No. 2213-2015), Mr. Tanvir Iqbal, Advocate for Petitioners (in W.P. Nos. 2292 & 2293-2015), Mr. Munir Ahmad Kiyani, Advocate for Petitioners (in W.P. No. 2155-2015), Mr. S.A. Mehmood Khan Saddozai, Advocate for Petitioners (in W.P. No. 2153-2015), Raja Saulat Majeed Satti, Advocate for Petitioners (in W.P. No. 2269-2015) and Sardar Abdul Raziq Khan, Advocate for Petitioners (in W.P. No. 2272-2015).

M/s. Rashid Hafeez and Raja Shahid Mahmood Abbasi, Additional Advocate Generals along with Muhammad Arshad, ADG (Legal), Atta-ur-Rehman, J.S.(LGE) and Muhammad Nadeem Zubair, DEC, Rawalpindi in person for Respondents.

Date of hearing: 1.10.2015

Judgment

By this single judgment, I am disposed to dispose of W.P.Nos.2213, 2292, 2293, 2155, 2153, and 2272 of 2015 for the reason that common questions of facts and law are involved in all these petitions. They arise from the orders made by the Delimitation Officers and the Delimitation Authorities, who carried out delimitation of constituencies and dealt with appeals preferred by voters and candidates.

1. In W.P.No. 2213 of 2015, the petitioners assailed the validity of the order dated 25.7.2015 passed by the Delimitation Authority, Rawalpindi Division, whereby he dismissed the petitions of the petitioners throwing a challenge to the order of the Delimitation Officer, who had abolished Union Council Numbal and created a new Union Counsel, namely, Dhar Java.

In W.P. Nos.2292 and 2293 of 2015, the abolition of Union Council Sakoot, Tehsil Kallar Syedan, District Rawalpindi was called into question.

In W.P. Nos.2155 and 2153 of 2015, the petitioners felt aggrieved by the division of Union Council, Kotha Kalan, into two Union Councils, namely, Kotha Kalan-I (Union Council No. 80) and Union Council, Kotha Kalan-II (Union Council No. 81).

In W.P. No. 2269 of 2015, the petitioner challenged the validity of the order of the Delimitation Officer as well as that of Delimitation Authority, whereby the number of the Union Councils in Tehsil Kotli Sattian, District Rawalpindi was deceased from 09 to 06, meaning thereby that 03 Union Councils were abolished at one go by them.

In W.P. No. 2272 of 2015, the petitioners assailed the validity of the orders of the Delimitation Officer as well as Delimitation Authority, whereby the number of Union Councils was decreased from 13 to 06.

1. Aside from the specifics of each case, the precise question at issue in these petitions is whether the Election Commission, the Delimitation Officer or the Delimitation Authority is vested with the powers and invested with jurisdiction to create or abolish a Union Council, a legal entity, under the Punjab Local Government Act, 2013 (hereinafter to be called as Act, 2013) or the Delimitation of Constituencies Act, 1974.

2. In order to comprehend the controversial issue, all the provisions of Act, 2013 that could have a decisive bearing on the outcome of the controversy or were referred to during the arguments, are reproduced hereunder for ready reference:

“Section 2(v) “local government” means a Union Council, a Municipal Committee, a Municipal Corporation, the Metropolitan Corporation, a District Council or an Authority;

Section 2(ggg) “Union Council” means an area notified as a Union Council under this Act;

Section (3): Succession.–(1) The following local governments established under this Act shall succeed the rights, assets and liabilities of the local governments established under the Punjab Local Government Ordinance, 2001 (XIII of 2001) for the local area--

(a) the Metropolitan Corporation shall succeed the rights, assets and liabilities of the City District Government and Town Municipal Administrations;

(b) a District Council, Municipal Corporation or Municipal Committee shall succeed the rights, assets and liabilities of the City District Government, District Government and Town/Tehsil Municipal Administrations which fall within the area of the District Council, Municipal Corporation or Municipal Committee;

(c) a Municipal Committee shall succeed the rights, assets and liabilities of the City District Government, District Government, Town/Tehsil Municipal Administration and Union Administration which fall within the area of the Municipal Committee;

(d) a Union Council shall succeed the rights, assets and liabilities of the Union Administration which falls within the area of the Union Council; and

(e) an Authority shall succeed the rights, assets and liabilities of the City District Government or District Government respectively to the extent of health and education.

(2) The Government or an officer designated by the Government shall, within one hundred and eighty days of the commencement of this Act, divide rights, assets and liabilities of the local governments amongst the local governments and the Government, and the decision of the Government or of the designated officer shall be final.”

Section (6): “Local areas.--(1) The Government shall, by notification in the official Gazette, divide a District into urban area and rural area.

(2) For purposes of this Act, the Government shall, by notification, demarcate and declare a local area consisting of:--

(a) Lahore District as the Metropolitan Corporation;

(b) rural area in a District, other than Lahore District, as District Council;

(c) urban area in a District, other than the area of a Municipal Committee, as Municipal Corporation; and

(d) urban area in a District, other than the area of a Municipal Corporation, as Municipal Committee.

(3) The Government may, by notification in the official Gazette, after inviting public objections and suggestions, alter the limits Election Commission but the Government shall not alter the limits of a local area and declare that any area shall cease to be a District Council, Municipal Committee or Municipal Corporation.

(4) Subject to the Act, any two or more adjoining local governments within a District may, after inviting public objections through a resolution passed by two-third majority of the total membership of each of the local governments, make a proposal to the Government for a change in their respective boundaries.

(5) The Government may, with the concurrence of the Election Commission, alter the limits of a local area under this section after the initiation of proceedings of delimitation of constituencies by the Election Commission but the Government shall not alter the limits of a local area after the announcement of election schedule for election in the local area.

Section (7): Division and reconstitution of a local government.–(1) The Government may, by notification in the official Gazette, divide a local government into two or more local governments or reconstitute two or more local governments as one local government or alter the limits of a local government and may specify in the notification the consequences which shall follow the publication of such notification.

(2) When, as a result of such division or reconstitution, any new local government is constituted in accordance with the provisions of this Act in the manner specified in the notification–

(a) the existing members of any local government so divided or reconstituted shall become the members of such local government as the Government may, by notification, specify as if each such member had been elected to that local government; and

(b) Such local government shall, to the extent and in the manner specified in the notification, be the successor of the local government so divided or reconstituted.

(3) Nothing contained in this section shall apply to Union Councils and the Union Councils shall be reconstituted under Sections 6 and 9.

“Section (8): Local Government and Delimitation--(1) The Government shall, by notification in the official gazette, determine the number of Union Councils in the metropolitan Corporation, a Municipal Corporation and District Council and Wards for a Municipal Committee in accordance with the First Schedule.

(2) After the demarcation of the local governments under Section 6 and determination of the number of Union Councils and wards the Election Commission shall delimit the Union Councils and wards.

(3) The Election Commission shall delimit and notify the Union Councils and wards on the basis of the principals laid down in Sections 9 & 10, and as nearly as possible under the Delimitation of Constitutions Act, 1974 (XXXIV of 1974) or any other Act of the Majlis-e-Shoora (Parliament).

Section (9): Delimitation of Union Councils.--(1) a Union Council shall be an area consisting of one or more revenue estate or in the case of an area where revision of settlement under the law has not taken place, one or more census villages or, in the case of an urban area, a census block or blocks as determined for purposes of the last preceding census or a census block or blocks and a revenue estate or revenue estates, delimited and notified as such by the Election Commission.

(2) For purposes of delimitation of a Union Council:

(a) The area of a Union Council shall be a territorial unity;

(b) The boundaries of a Union Council shall not cross the limits of the Metropolitan Corporation, a Municipal Corporation or a District Council; and

(c) The population of Union Councils within a local government shall, as far as possible, be uniform.

(3) The Election Commission shall delimit a Union Council into six wards for the elections of members on general seats and into two wards. Consisting of three adjoining wards of the Union Councils. For the election of the two seats reserved for women.

(4) For purposes of delimitation of a ward of a Union Council:-

(a) A ward shall consists of a village, one or more adjoining villages or, in case of an urban area, a census block or adjoining census blocks;

(b) The boundaries of a ward shall not cross the limits of the Union Council; and

(c) The population of wards within a Union Council shall, as far as possible, be uniform.

Section (10): Delimitation of Wards in Municipal Committees:--(1) The Election Commission shall delimit a Municipal Committee into wards for election of members of the Municipal Committee on general seats.

(2) For purposes of delimitation of a Municipal Committee:

(a) A ward shall consist of a census block or adjoining census blocks;

(b) The boundaries of a ward shall not cross the limits of the Municipal Committee; and

(c) The population of wards within a Municipal Committee shall, as far as possible, be uniform.”

1. From a plain reading of the afore-quoted law, the pith and substance thereof comes down to the following:--

(i) A Union Council is as much a local Government as is a Metropolitan Corporation or a Municipal Corporation, or a Municipal Committee or a District Council {Section 2(v)}

(ii) A Union Council is an independent legal entity that enjoys the rights, holds assets and incurs liabilities of the Union Administration which falls within its territorial area. {Section 3(d)}

(iii) A Union Council shall consist of an area, which is notified as a Union Council under the Punjab Local Government Act, 2013. {Section 2(ggg)}

(iv) A Union Council to be established under the Punjab Local Government Act, 2013 shall be a successor of the Union Council that existed under the Punjab Local Government Ordinance, 2001 (XIII of 2001) for “the rights, assets and liabilities”. {Section 3(1)(d)}

(v) Prior to the insertion of sub-section (3) in Section 7 of the Punjab Local Government Act, 2013 vide the Punjab Local Government (Second Amendment) Act, 2014, Act XXIV of 2014 dated 10.11.2014), a power vested in the Punjab Government to divide a Union Council into two or amalgamate it into another Union Council to reconstitute it and/or to alter its limits by making a notification in the Official Gazette. At the same time, it was to spell out the ensuing consequences. In other words, this was to be a calculated and well thought out move and was not to be done in a slipshod, mechanical and flippant manner. Now, under the amended law, reconstitution of the Union Councils can be achieved only in the manner specified in Sections 6 and 9 of the Act, 2013.

(iv) Sub-section (4) of Section 6 is not in operation for the moment, and its provisions may come into play only after the holding of the local Government elections. Therefore, there is no need to dilate upon the same.

(vii) Only sub-section (5) of Section 6 appears to be somewhat relevant to the case under consideration. Once the delimitation of constituencies by the Election Commission gets under way, the Government may, with the concurrence of the Election Commission, alter the limits of a local Government but the power of the Government would be done away with, after the announcement of election schedule for the election in a local area. Be that as it may, the aforesaid provisions have nothing to do with the reconstitution of the Union Councils. They simply speak of altering the limits of a local area (Read a Union Council). The Government is enjoined upon to make consultations with the Election Commission so as to evolve/reach a consensus. When the Government and the Election Commission are one the same page regarding bringing about a change in the limits of a local area, this can be attained, subject to the rider that following the announcement of an election schedule for a particular local area, neither the Government nor the Election Commission can exercise this power, however much they desire so or feel expedient to do so.

(viii) The question arises whether the Government is empowered to make alterations in the existing limits of a Union Council before the initiation of proceedings of delimitation of constituencies. The conjoint reading of sub-sections (1) and (2) of Section 6 and sub-section (3) of Section 7 of the Act, 2013 lead to the conclusion that the Government may do so, after following the procedure laid down in sub-section (3) of Section 6.

(ix) There is another aspect of the case. Under sub-section (3) of Section 6, the powers of the Government with regard to the altering of limits of a local area are expressed with reference to a District Council, Municipal Committee or Municipal Corporation. This sub-section goes a step further and says that when objections to the proposed altering of the limits of a local area/local made by the public are attended to and counter-proposals/ suggestions are duly considered by the Government and it resolves upon making alterations in a particular manner, it would declare so by a notification, whereafter an area shall cease to be a District Council, Municipal Committee or Municipal Corporation. It needs to be underscored that the same results might be achieved by invoking the provisions of Section 7 of Act, 2013. But the Government has been debarred from following the provisions of Section 7 with respect to the reconstitution of the Union Councils.

(x) If the lawmakers so intended to confer powers upon the Government to make alterations in the limits of a Union Council, thereby creating or abolishing a Union Council, they could have simply said so by adding the word “Union Council”, after the word “Corporation” in sub-section (3) of Section 6. If the language of sub-section (3) of Section 6 is stretched to cover a Union Council, even then before creation or abolition of a Union Council, it would be obligatory for the Government to invite public objections. The public may also offer suggestions of their own, including the counter-proposals. Unless this massive exercise is done and that too in a genuine and transparent manner and the objections are rejected or upheld by a well-considered order, there would be a question mark over the notification so issued by the Government, and a voter/candidate may question its validity through appropriate proceedings. When other avenues are closed to him, he may file a writ petition to impugn the validity of a notification issued under sub-section (3) of Section 6 of the Act, 2013. In the instant cases, there is nothing on the record that the Government even went through the motions, not to speak of its adherence to the law in letter and spirit.

(xi) Now, turning to Section 9 of the Act, 2013, its provisions do not even remotely suggest that they empower the Election Commission, a Delimitation Officer or a Delimitation Authority to create or abolish a Union Council. If the provision of clause (c) of sub-section (2) of Section 9 is closely looked at, it would become obvious that it relates to Union Councils within a local Government. Here the reference is to the constitution of Urban Union Councils within a Municipal Corporation or a Metropolitan Corporation or to Rural Union Councils within a District Council. The use of plural for ‘Union Councils’ is a key to understanding the scheme of law. This provision proceeds on the premises that there do exist Union Councils. What the Election Commission or a Delimitation Officer is to keep in view, while carrying out delimitation, is that population of one Union Council might not be larger/greater than the other or the rest of the Union Councils and an effort is to be made to achieve uniformity in delimiting Union Councils within a local Government.

(xii) It seems that the provisions of Section 8 of the Act, 2013 have created confusion in the minds of the Delimitation Officers and the Delimitation Authorities. They remained fixated on the number of Union Councils determined by the Government. They attempted to redraw the boundaries and alter the limits of Union Councils by contracting or expanding them to bring them in conformity with the number fixed by the Government. Little did they realize that the provisions of Section 8 come on the heels of those of Sections 6 and 7. It is for the Government to make a decision about the increase or decrease of the Union Councils within a Metropolitan Corporation or a Municipal Corporation or a District Council by following the provisions of Section 6 in a manner adumbrated hereinabove. The Election Commission, a Delimitation Officer or a Delimitation Authority is not to take this complex and daunting task upon themselves. There are no implied powers conferred upon them to fill the unbridgeable gaps. The functions and duties of both the Government and Election Commission are delimited. They are not to be arrogated by one or the other at the cost of the other. Sub-section (2) of Section 8 makes the intention of the lawmakers manifest. This lays down that the Election Commission shall come in the picture and start delimiting the Union Councils only after the demarcation of the local areas is carried out under Section 6 and the number of the Union Councils is settled/determined by the Government by a notification in the official Gazette in terms of sub-section (1) of Section 8. If this process is reversed or skewed, it would turn the scheme of local Governments on its head.

(xiii) At the cost of repetition, it is stated that the birth and death of a legal entity such as a Union Council is to be attended by and overseen by observing certain specified legal formalities. Asphyxiation or annihilation of a legal entity in the name of delimitation and that too at the hands of the Election Commission or its functionaries is completely unheard of and hard to digest.

1. At this stage, it is worthwhile to mention that the learned Law Officer invited the attention of the Court to Section 10-A of Act, 2013 to urge that after the notification of the election schedule, this Court stands denuded of the powers of a judicial review and is precluded from correcting any delimitation. It would be advantageous to reproduced Section 10-A hereunder:

“[10A. Finality of delimitation.–A Court, officer or authority shall not review or correct any delimitation of a Union Council or ward after the notification of the election schedule.]”

(xv) I have had the occasion to deal with this objection in the case of “Sheikh Attiq-ur-Rehman v. Syed Ali Murtaza” (2014 YLR 1215), wherein it was observed that:

“As regards the contention of the learned Additional Advocate-General that finality is attached to the delimitation process in the wake of insertion of Section 10-A of the Local Governments Act, 2013, suffice it to say that it prohibited a Court, officer or authority not to review or correct any delimitation of a union council after the notification of the election schedule. But in so far this Court is concerned, its right of judicial review under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 cannot be abridged or curtailed through a sub-Constitutional measure. And if an order is questioned before it on the ground that it has been passed either without lawful authority or in excess of jurisdiction or the concerned authority declined to exercise its jurisdiction or the order was passed in violation of Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973 or the same is mala fide, the same shall be struck down, in spite of the insertion of Section 10-A in the Local Government Act, 2013.”

1. A Full Bench of this Court in the case of “Arshad Mehmood v. Commissioner/Delimitation Authority, Gujranwala” (PLD 2014 Lahore 221) held as under:

“17. In conclusion, the ouster clause under Section 10A of the Act does not, in the slightest, abridge or curtail the constitutional jurisdiction of this Court to judicially review the orders, notifications and the acts of the executive i.e., the Delimitation Authority and Delimitation Officer in this case. It also matters little if the ouster clause is considered to be a time specific clause, as argued by some of the respondents. Courts usually give due weightage to any administrative urgency of the Executive but this does not mean that the doors leading to Courts can be shut down as this would result in curtailing and abridging the judicial power. This is opposed to independence of judiciary and the constitutional framework of separation of powers.

Ouster clause and the Election Commission of Pakistan.

1. Section 10A of the Act also does not permit any “authority” to review or correct delimitation after the announcement of the election schedule. This purportedly ousts the constitutional jurisdiction of the Election Commission of Pakistan from performing its constitutional role under Articles 140A(2), 218(3) and 219(d) of the Constitution, which is neither conceivable nor permissible. Election Commission of Pakistan, under the Constitution, can hold elections i.e., to organize, to conduct and make such arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law. Article 222, provides that no electoral law shall have the effect of taking away or abridging any of the powers of the Election Commission provided in Part VIII of the Constitution.

2. Section 10A of the Act not only attempts to completely curtail judicial power of the Constitutional Court, it also puts fetters on the exercise of the constitutional authority of the Election Commission of Pakistan. Instead of touching the constitutionality of Section 10A of the Act, the said provision can be read down. “The theory of reading down is a rule of interpretation resorted to by the Courts where a provision, read literally, seems to offend a fundamental right, or falls outside the competence of the particular legislature. In interpreting the provision of a statute the Courts will presume that the legislation was intended to be inter vires and also reasonable. The rule followed is that the enactment is interpreted consistent with the presumption which imputes to the legislature an intention of limiting the direct operation of its enactment to the extent that is permissible. Legislature is presumed to be aware of its limitations and is also attributed an intention not to over-step its limits. To keep the act within the limit of its scope and not to disturb the existing law beyond what the object requires, it is construed as operative between certain persons, or in certain circumstances, or for certain purposes only, even though the language expresses no such circumstances of the field of operation. To sustain law by interpretation is the rule. The reading down of a provision of a statute puts into operation the principle that so far is reasonably possible to do so, the legislation should be construed as being within its power. It has the principal effect that where an Act is expressed in language of a generality which makes it capable, if read literally, of applying to matters beyond the relevant legislative power, the Court will construe it in a more limited sense so as to keep it within power. If certain provision of law construed in one way would make them consistent with the Constitution and another interpretation would render them unconstitutional the Court would lean in favour of the former construction.

“18. Reliance is placed on: Messrs Chenone Stores Ltd. through Executive Director (Finance Accounts) v. Federal Board of Revenue through Chairman and 2 others (2012 PTD 1815) and Messrs Elahi Cotton Mills Ltd. and others v. Federation of Pakistan through Secretary M/o Finance, Islamabad and 6 others (PLD 1997 SC 582). We, therefore, read down Section 10A of the Act and declare that the ouster clause does not in any manner curtail or abridge the jurisdiction of the Constitutional Court or the Election Commission of Pakistan.”

In view of the above, I need not discuss this objection any further, leaving it at that.

1. Having analyzed the relevant provisions of the Local Government Act, 2013, I have no doubt in my mind that it falls outside the scope, range of the powers and functions of the Election Commission, a Delimitation Officer or a Delimitation Authority to create or abolish a Union Council. As they have exceeded their powers and jurisdiction, their actions impugned in these petitions are declared without lawful authority and of no legal effect. Consequently, the process of delimitation resulting in the creation or extinguishment of the Union Councils is to be carried out afresh to bring it in accord with

the law. The Election Commission shall announce fresh election schedule, after undertaking and completing the proceedings of delimitation.

1. These petitions are allowed in the above terms.

(R.A.) Petitions allowed

PLJ 2016 Lahore 187

Present: Shahid Karim, J.

MUHAMMAD ILYAS--Petitioner

versus

RETURNING OFFICER & others--Respondents

W.P. No. 28694 of 2015, decided on 8.10.2015.

Punjab Local Government Act, 2013--

----S. 10--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Delimitation of wards in municipal committee--Constitutency for purpose of elections--Power to effect delimitation and notify union councils and wards--Validity--There can be no cavil with fact that delimitation of wards is conducted by election commission and thus said ward would be a constituency for purposes of elections. [P. 193] A

Punjab Local Government (Conduct of Elections) Rules, 2013--

----R. 14(10)--Nomination papers for contesting election as member of ward--Proposers and seconders or either were not voters of constitutency from which candidate filed nomination papers--Power of R.O. to remedy defect of nature--Validity--If proposer and seconder are not registered voters of same constituency then can returning officer, by using his discretion, permit substitution thereof, so as to remedy defect. [P. 194] B

Punjab Local Government (Conduct of Elections) Rules, 2013--

----R. 12(2)--Voter of constituency--Election of a member--Proposer and seconders--Not voters of constituency from which candidate had filed nomination papers--Validity--Voter who proposes or seconds name of a duly qualified person to be a candidate for an election of a member must necessarily belong to that very constituency and none other--Returning Officer receives nomination papers duly subscribed by proposer and seconder--They shall be signed by proposer and seconder (and shall also be on solemn affirmation made and signed by candidate). [P. 194] C & D

Punjab Local Government (Conduct of Elections) Rules, 2013--

----R. 14(10)--Constitution of Pakistan, 1973--Art. 199--Constitutional petitions--Nomination papers for election as member of ward, rejected--Proposers and seconders or either of them were not voters of constituency from which candidate had filed nomination papers--Process of scrutiny--Participation--Candidates election agents, proposers and seconders or persons who made objections to nomination papers--Constitutes defect of substantial nature--Scope of--Defect was flagged at time of scrutiny of nomination papers--Validity--Provisions were mandatory in nature and defect was of a substantial nature which could not be left to discretion of returning officer to remedy--Returning Officer cannot proceed to remedy defect in purported exercise of powers under Rule 14(7) of Rules, 2013--Candidate may choose to remedy defect by filing fresh nomination papers by any mode provided by law.

[P. 201 & 203] E & F

Ch. Zulfiqar Ali, Mr. Ishtiaq Chaudhry, Mr. Fiaz Ahmad Mehr, Mr. Nadeem Abbas Sandhu, Mr. Fida Hussain Matta, Ch. Muhammad Idrees, Mr. Amjad Hussain, Mian Khadim Hussain, Mr. M.R. Awan Malik, Mr. Muhammad Saeed Ansari, Mr. Naseer Ahmad Jaura, Mr. Muhammad Ramzan Rana, Mr. Muhammad Afzal Lone, Mr. Irfan Umar Khokhar, Ch. Abrar Hussain, Mian Shehbaz Ahmad, Rana Farhat Abbas, Rana Ghulam Sarwar, Malik Sajjad Hussain, Mr. Muhammad Shahid Iqbal Babra, Mr. M. Ahsan Farooq, Mr. M. Nauman Khan, Mr. Zohaib Imran Sheikh, Malik Noor Muhammad Awan, Ch. M. Ashraf Jalal, Sardar Muhammad Ramzan, Mr. Ijaz Ahmad Ch., Mr. Iftikhar Ahmad Mian, Mr. Asghar Ali Gill, Mr. Naveed Ahmad Khawaja, Syed Ali Imran, Mr. Muhammad Ghazanfar Ali Bhatti, Sh. Sakhawat Ali, Mr. Amir Yaqoob Bhatti, Malik Amjad Pervaiz, Mr. Allah Bukhsh Leghari, Ch. Abdul Waheed, Mr. Muhammad Shafiq Malik, Rai Nasir Ali Kharal, Ch. Shah Nawaz Dhillun, Malik M. Awais, Pir Khaliq Nawaz Shah, Mian Maqsood Ahmad, Mr. Muhammad Faisal Awan, Ch. Babar Waheed, Ch. Abdul Razzaq Chadhar, Mr. Numan Khan Lodhi, Rana Sana Ullah Khan, Mr. Mubeen Uddin Qazi, Ch. M. Anwar Khan, Mr. M. Asif Ismail, Mr. Fakhar-uz-Zaman Akhtar and Mr. Anjum Munir Kashif, Advocates for Petitioners.

Mian Irfan Akram Deputy Attorney General alongwith Hafiz Adeel, Law Officer for Respondents.

Dates of hearing: 2, 5, 6, 7.10.2015.

Judgment

This single order shall decide the instant petition (W.P No. 28694 of 2015) as well as the connected petitions whose Numbers and titles have been given in Annexure ‘A’ to this petition. It is not relevant to refer to the individual facts of each Constitutional petition. Suffice to say that these petitions lay a challenge to different orders passed by the Appellate Authority while deciding appeals under Rule 14(10) of Punjab Local Government (Conduct of Elections) Rules, 2013 (Rules, 2013) and appointed for the said purpose by the Election Commission of Pakistan.

1. Two common strands run through these petitions. One, the petitioners are candidates and they filed their nomination papers for election as a member of Ward. Second, the nomination papers of the petitioners have been rejected by either the Returning Officer or the Appellate Authority on the ground that the proposers and seconders or either of them are not voters of the Constituency from which the candidate has filed his nomination papers to be elected as a member.

ISSUE

The issue at the heart of these petitions relates to the true construction of the Rules 12(2) and 14(7) of the Rules, 2013.

Petitioners’ submissions:

1. The submissions made on behalf of the petitioners may be summarized as follows:

I. That the qualifications and disqualifications have been delineated in Section 27 of Punjab Local Government Act, 2013 (Act, 2013) and Returning Officers or the Appellate Authorities, as the case may be, cannot travel beyond the qualifications and disqualifications enumerated in Section 27 of the Act, 2013.

II. That the rejection of the nomination papers on the ground that the proposer and seconder are not voters from the Constituency of the petitioners/ candidates, is tantamount to adding to the qualifications and disqualifications given in Section 27 of the Act, 2013 and the impugned orders are, therefore, ultra vires.

III. That, notwithstanding the above and in the alternative, Rule 14(7) of the Rules, 2013 gives wide powers to the Returning Officer to consider the bona fide mistake and to provide an opportunity to the petitioners to rectify by substituting a proposer and seconder from the same constituency.

IV. That some of the learned counsels argued that in a municipal committee, a ward is an independent constituency but so far as a Union Council is concerned, the whole of the Union Council is to be deemed as a constituency.

DETERMINATION

1. The provision which is at the centre of the controversy involved in these petitions and which has triggered the present controversy is Rule 12(2) of the Rules, 2013, which reads as follows:

“12. Nomination of elections. --- (1) …………..

(2) Any voter of a constituency may propose or second the name of any duly qualified person to be a candidate for an election of a member or, as the case may be, the Chairman and the Vice-Chairman of that constituency.

(3) ……………………

(i) the Chairman and the Vice-Chairman of a Union Council as joint candidates in Form-II(A);

(ii) general seats of a Ward of a Union Council or a Municipal committee in Form-II(B).”

1. According to the impugned orders, it is an obligation cast by law in terms of sub-rule (2) of Rule 12 of Rules, 2013, reproduced above, that the proposer and seconder should be included in Electoral Rolls as voters from the same constituency from which the candidate has filed his nomination papers to be elected as a member. The resolution of the controversy, therefore, depends upon a proper objective analysis and construction of the term ‘Constituency’. The Rules, 2013 define the term as follows:

“2(f) “constituency” means a constituency delimited under the Act:”

1. Thus, by virtue of the definition, a constituency would mean a constituency delimited under the Act. The Act has been defined to mean the Act, 2013. The relevant provision with regard to the delimitation and as found in the Act, 2013 is Section 8(3), which, for our purposes, reads as follows:

“8. Local Governments and delimitation.–(1)………

(2) …………

(3) The Election Commission shall delimit and notify the Union Councils and wards on the basis of the principles laid down in Sections 9 and 10 and, as nearly as possible, under the Delimitation of Constituencies Act, 1974 (XXXIV of 1974) or any other Act of the Majlis-e-Shoora (Parliament).”

1. It is clear from a reading of Section 8(3) of the Act, 2013 that the power to effect delimitation and notify the Union Councils and wards has come to vest in the Election Commission of Pakistan by an amendment brought about vide the Punjab Local Government Act (Amended Act), 2015 dated 12.1.2015. In that provision, which has been reproduced above viz. Section 8(3) of the Act, 2013, it is clear that the Election Commission of Pakistan shall delimit and notify the Union Councils as well as wards. It indubitably follows that the Election Commission of Pakistan shall conduct the delimitation of wards as well as the Union Councils. This leaves it in no manner of doubt that the wards are also to be delimited for the purpose of elections to the local government. When this provision is read with the definition of constituency given in Rule 2(f) of the Rules, 2013 and reproduced above, the combined effect is that a ward is, in fact, a constituency which is delimited by the Election Commission of Pakistan.

2. A query was put to the learned counsel for the petitioners as to whether the ward from which the petitioners intended to contest the elections, was a constituency for the purposes of their election or not? The learned counsel for the petitioners, to their credit, were forthright in replying that the ward from which the petitioners have filed their nomination papers was their constituency for the purposes of elections. This should put to rest the controversy as to whether a ward is or is not a constituency for the purposes of Rules 12(2) of the Rules, 2013. This concession, however, is not the only determining factor in the conclusion which inevitably follows from a reading of the various provisions of the Act, 2013 and Rules, 2013 that a word is a constituency delimited by the Election Commission of Pakistan. A ward is the smallest unit in the entire delimitation process and is an important building block in the constituencies so delimited.

3. The learned counsel for the petitioners in some of the petitions argued that the qualifications and disqualifications have been enumerated in Section 27 of the Act, 2013 and the rejection of the nomination papers on the basis of Rule 12(2) of Rules, 2013, would offend against the mandate of Section 27 of the Act, 2013 and is, therefore, irrational and without lawful authority. This submission of the learned counsel for the petitioners should receive a short shrift. Firstly, the said contention loses sight of the distinction which has to be drawn between the qualifications and disqualifications of a candidate as spelt out in Section 27 of the Act, 2013 and the filing and the scrutiny of the nomination papers which is a distinct and a separate act. One cannot be confused with the other. The two processes are distinct and must be dealt with separately. Secondly, there is no challenge on the ground that the Rules, 2013 have not been validly enacted or that they travel beyond the statute. It is not the case of the petitioners that the said Rules are ultra vires the main enactment of Act, 2013. Therefore, the said contention can only be taken into account if a challenge is thrown to the vires of the Rules which unless set aside are valid and must be relied upon in law.

4. A few of the learned counsels raise the plea that a ward is an independent constituency if considered in the context of a municipal committee but is part of the whole of the Union Councils considered in the context of a Union Council and in that context the entire Union Council must be considered as a constituency. This is a nuanced view put forth by the learned counsels for the petitioners and no basis for this view has been cited nor have the learned counsels referred to any law in support thereof. Neither the Act, 2013 nor the Rules, 2013 make a distinction which has sought to be established by the learned counsels on the touchstone of municipal committee being distinct from a Union Council. Suffice to say that both the municipal committee as well as the Union Council is local Government for the purposes of the Act, 2013 and if the intention of the legislature was such as is sought to be canvassed by the learned counsels, a distinction should have been clearly spelt out in the terms of the law. For the purposes of the controversy in hand, Section 10 of the Act, 2013 also sheds light on the issue and may be referred to in this connection:

“10. Delimitation of wards in Municipal Committees.–

(1) The Election Commission shall delimit a Municipal Committee into wards for election of members of the Municipal Committee on general seats.

(2) For purposes of delimitation of a Municipal Committee:

(a) a ward shall consist of a census block or adjoining census blocks;

(b) the boundaries of a ward shall not cross the limits of the Municipal Committee; and

(c) the population of wards within a Municipal Committee shall, as far as possible, be uniform.”

1. A reading of Section 10 of the Act, 2013 bolsters the submissions made by the learned Deputy Attorney General that there can be no cavil with the fact that the delimitation of the wards is conducted by the Election Commission of Pakistan and thus the said ward would be a constituency for the purposes of elections. A reference to Rule 12(3)(ii) of the Rules, 2013 would also lend support to the submissions made by the learned Deputy Attorney General. It reads thus: -

“Rules 12(3)(ii)

(3) ……………………

(i) the Chairman and the Vice-Chairman of a Union Council as joint candidates in Form-II(A);

(ii) general seats of a Ward of a Union Council or Municipal committee in Form-II(B).”

1. Once again a perusal of the provisions which has been reproduced above would show that every nomination papers shall be made by separate nomination papers by both the proposer and seconder in the case of general seats of a Ward of a Union Council or a municipal committee in Form-II(B). Once again the inescapable inference is that a ward constitutes and comprises a constituency unto itself and thus, must be treated as such.

Rule 14(7)

1. The learned counsel for the petitioners as an alternative argument and being confronted with the inescapable conclusion that a ward is a constituency in itself invoked to their aid Rule 14(7) of the Rules, 2013. This rule, for facility of purpose, is reproduced as under:--

“The Returning officer shall not reject a nomination paper on the ground of any defect which is not of a substantial nature and may allow such defect to be remedied forthwith, including an error with regard to the name, serial number in the electoral roll or other particulars of the candidate or his proposer of seconder so as to bring them in conformity with the corresponding entries in the electoral rolls.”

1. This provision may be termed as remedial in nature and intended to cure errors or defects which are not of a substantial nature. It gives the power in the hands of the Returning Officer to remedy the defect forthwith. At first blush, what strikes the reader upon a reading of this rule is the wide amplitude to which this can be put to use if placed in the hands of the Returning Officers unstructured and without laying down parameters. However, we are not here concerned with the exact scope of this rule. We are merely concerned with the application of this rule vis-à-vis the power of the Returning Officer to remedy the defect of the nature which is involved in these petitions i.e. if the proposer and the seconder are not registered voters of the same constituency then can the Returning Officer, by using his discretion, permit the substitution thereof, so as to remedy the defect? The question which is more pertinent for our purposes is whether this is a defect of substantial nature or not.

2. As a prefatory, it must be stated that the words “any voter of a constituency” in Rule 12(2) of the Rules, 2013 must be read in conjunction with the words “for an election of a member or, as the case may be, the Chairman and the Vice-Chairman of that constituency”. These words, when read together and in tandem, telescope the true intent of the rule. It lends meaning to it and leaves little to imagination. The ineluctable inference is that the voter who proposes or seconds the name of a duly qualified person to be a candidate for an election of a member must necessarily belong to that very constituency and none other.

3. Let us, for a moment, dwell on the raison d‘eter and importance of the proposer and seconder and its true institutional basis. A combined reading of Rules 12, 13 and 14 would bring forth that a person is ‘nominated for elections’. This nomination is made by the proposer and seconded by the seconder. A Returning Officer receives the nomination papers duly subscribed by the proposer and seconder. They shall be signed by both the proposer and seconder (and shall also be on solemn affirmation made and signed by the candidate). Thus the Returning Officer shall “invite nominations” and set down a date, time and place at which nomination papers shall be received. That nomination shall be made by separate nomination papers. It is not that a candidate ‘files’ his nomination papers and merely mentions the names of a proposer and seconder as a sham formality. It is not a painting to be looked at. It is of the essence of the process, the bedrock of the whole process. This then is the true place of the proposer and seconder in the scheme of the Rules, 2013. The nomination, thus, is made by the proposer of a candidate and it is only then that the nomination papers are received by the Returning Officer. Two inferences can be culled out at once: one, the proposer/ seconder have to be from same constituency and two, any defect in respect thereof is not a substantial error.

4. By Rule 14, scrutiny of the nomination papers is to be conducted by the Returning Officer. The process of scrutiny may be participated by the candidates, the election agents, proposers and seconders or the persons who made objections to the nomination papers. By Rule 3: Returning Officer has been empowered to reject a nomination papers if he is satisfied that the grounds enumerated in the said sub-rule do not exist. Out of the four grounds on which the nomination papers may be rejected, three of the grounds relate to the proposers and seconders in different forms. The nomination papers may be rejected if the proposer or the seconder is not qualified to subscribe to the nomination papers; any provision of Rule 12 or 13 has not been complied with; or the signatures or thumb impressions of the proposer or the seconder is not genuine. This has been brought forth in order to demonstrate the seriousness which the law attaches to the person of proposer and seconder and the meticulousness with which candidates have to be nominated for elections. This is not a mere technicality which can be remedied or removed as a defect. As brought forth above, it goes to the heart of the matter and relates to the nomination of a candidate for elections.

5. Further, upon closer reading of sub-rule (7), which has been invoked by the learned counsel for the petitioners, would show that as an illustration, the kind of errors that may be removed have been delineated in the said sub-rule. They have been mentioned as an error with regard to the name, serial number in the Electoral Rolls or other particulars of the candidates or his proposer or seconder so as to bring that in conformity with the corresponding entries in the Electoral Rolls. Though the principle of ejusdem generis is not attracted strictly as in this case as the general words do not follow nomination of two or more things and thus it is difficult to show that they apply to the same general kind or class. However, the Latin phrase noscitur a sociis could be made use of in the interpretation of the said sub-rule. In Reading Law: The Interpretation of Legal Texts by Antonin Scalia and Bryan A. Garner, the phrase has been elaborated upon in the following manner:

“The Latin phrase noscitur a sociis means--“it is known by its associates”--a classical version, applied to textual explanation, of the observed phenomenon that birds of a feather flock together. The associated- words canon could refer to the basic principle that words are given meaning by their context and some authorities use this canon at that broad level of generality. But we mean something more specific. When several nouns or verbs or adjectives or adverbs--any words--are associated in a context suggesting that the words have something in common, they should be assigned a permissible meaning that makes them similar. The canon especially holds that “words grouped in a list should be given related meanings.”

1. What is sought to be derived from the said phrase here is that the defect which the Returning Officer has been empowered to remedy has to conform to the defects which have been relied and referred to above in the same sub-rule. The power cannot be expanded to include the defect of the nature which is the subject matter of this petition. For, this defect, in my opinion, constitutes a defect of a substantial nature. The defect is of the kind where the nomination of a candidate would be rendered defective and unworthy of consideration by the Returning Officer. Moreover, if the said defect was not of a substantial nature there was no point for the legislature to lay so much emphasis on the matter of proposer and seconder and would not have made it a ground for rejection of the nomination papers under Rule 14(3) of the Rules, 2013. It will be tantamount to putting a premium on the misdeeds of the erring candidates. This will also involve a subjective assessment of the mental state of a candidate in order to gauge his true intent. Was the mistake made in good faith and clerical in nature or was it actuated by some mischievous design and a contraption? This subjective analysis cannot be left to the discretion of the Returning Officer.

2. There is yet another aspect of the issue. To allow the proposer and seconder to be substituted would mean a fresh nomination to be made. This would, in turn, mean an extension in the date of receiving of nomination papers and a change in the rest of the schedule too. Would this not impinge upon the rights of other candidates? Can the election schedule be changed for facilitating one candidate, merely? Obviously this would be making a mockery of the entire electoral process and its solemn and serious nature. I cannot imagine that this can be countenanced to be done. I shall pause here to refer to some of the dictionary meanings of the term ‘substantial’. These are as follows:

“2. Cambridge Advanced Learner’s Dictionary – 4th Edition:

substantial/adjective (LARGE) B2 large in size, value, or importance:

relating to the main or most important things being considered: The committee were in substantial agreement (= agreed about most of the things discussed)

1. Merriam Webster’s Unabridged Dictionary:

1 a: consisting of, relating to, sharing the nature of, or constituting substance: existing as or in substance: MATERIAL \substantial life\ \the substantial realities\ \most ponderous and substantial things--Shakespeare\ b: not seeming or imaginary: not illusive: REAL, TRUE \the substantial world\ \a mere dream neither substantial nor practical\ c: being of moment: IMPORTANT, ESSENTIAL

1. The Chambers Dictionary 12th Edition A to Z Chambers Harrap Publishers Ltd 2011 At Page 1552

Substantial: of or having substance; being a substance; essential; actually existing; real; corporeal, material; solid; stable; solidly based; durable; enduring; firm, stout, strong; considerable in amount; bulky; well-to- do, wealthy, influential; of firm, solid or sound value.”

1. The question which begs determination in the instant petition came up for determination before the Supreme Court of Pakistan in the context of the Representation of the People Act, 1976 (Act, 1976). The provisions of the Act, 1976 which are in pari materia with the provisions under consideration were dilated upon and a finding was rendered by the Supreme Court of Pakistan in the precedent reported as Rana Muhammad Tajammal Hussain v. Rana Shaukat Mahmood (PLD 2007 Supreme Court 277) (relied upon by Ch. Zulfiqar Ali, Advocate). For facility, the corresponding provisions, which came for consideration before the Supreme Court of Pakistan are reproduced as under:

“12. Nomination for election--[(1) Any elector of a constituency may propose or second the name of any duly qualified person to be a member for that constituency.]

[(2) Every nomination shall be made by a separate nomination paper in the prescribed form which shall be signed both by the proposer and the seconder and shall, on solemn affirmation made and signed by the candidate, accompany

(a) a declaration that he has consented to the nomination and that he fulfils the qualifications specified in Article 62 and is not subject to any of the disqualifications specified in Article 63 or any other law for the time being in force for being elected as a member;

(b) 8[\\] Omitted.

(c) a declaration that no loan for an amount of two million rupees or more, obtained from any bank, financial institution, cooperative society or corporate body in his own name or in the name of his spouse or any of his dependents, or any business concern mainly owned by him or the aforesaid, stands unpaid for more than one year from the due date, or has got such loan written off;

(d) a declaration that he, his spouse or any of his dependents or a business concern mainly owned by him or the aforesaid, is not in default in payment of government dues or utility charges, including telephone, electricity, gas and water charges of an amount in excess of ten thousand rupees, for over six months, at the time of filing of nomination papers;

(e) a statement specifying his educational qualifications, occupation, National Identity Card number and National Tax Number, if any, alongwith attested copies thereof; and

(f) a statement of his assets and liabilities and those of his spouse and dependents on the prescribed form as on the preceding thirtieth day of June;

1. Scrutiny.--(1) The candidates, their election agents, [the proposers and seconders and one other person authorized in this behalf by each 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.]

(2)…

(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 (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:

Provided that:

(i) the rejection of a nomination paper shall not invalidate the nomination of a candidate by any other valid nomination paper;

[(la) the Returning Officer may, for the purpose of scrutiny, require any agency or authority to produce any document or record;]

(ii) the Returning Officer shall not reject a nomination paper on the ground of any defect which is not of a substantial nature and may allow any such defect to be remedied forthwith, including an error in regard to the name, serial number in the electoral roll or other particulars of the candidate or his proposer or seconder so as to bring them in conformity with the corresponding entries in the electoral roll; and

(iii) the Returning Officer shall not enquire into the correctness or validity of any entry in the electoral roll.”

1. Before we proceed to reproduce the ratio decidendi of the cited case, a word regarding the true nature of statutes in pari materia. In Reading Law (cited above), the term has been elaborated upon as follows:

“Any word or phrase that comes before a Court for interpretation is part of a whole statute, and its meaning is therefore affected by other provisions of the same statute. It is also, however, part of an entire corpus juris. So, if possible, it should no more be interpreted to clash with the rest of that corpus than it should be interpreted to clash with other provisions of the same law. Hence laws dealing with the same subject--being in pari materia,(translated as “in a like matter”)--should if possible be interpreted harmoniously. As James Kent explained in 1826: “Several acts in pari materia, and relating to the same subject, are to be taken together, and compared in the construction of them, because they are considered as having one object in view, and as acting upon one system.”

“Statutes,” Justice Frankfurter once wrote, “cannot be read intelligently if the eye is closed to considerations evidenced in affiliated statutes. “Part” of the statute‘s context is the corpus juris of which it forms a part, and this corpus can be dauntingly substantial. What is required, according to a British judge, is a “conspectus of the entire relevant body of the law for the same purpose.” (Pages 252, 253)

1. In Rana Muhammad Tajammal Hussain case (supra) it was held by the Supreme Court of Pakistan as under:

“…Learned counsel however, contended that the compliance of such provision of law i.e. Section 12(1)(2) of the Act, 1976 is not mandatory but directory and due to its non-compliance the election of a candidate cannot be declared void and such defect can be cured by allowing substitution of qualified proposers and seconders in exercise of powers under Section 14(3) proviso (ii) of the Act, 1976. In this behalf he has referred the judgment in the case of Ishaq Dar v. The Election Tribunal Punjab KLR 1998 Civil Cases 374 (Lahore).

“…Moreover, in our considered opinion, with reference to a duty cast upon a qualified elector to propose or second a candidate to represent the members of the constituency in an elected house is mandatory and not directory.

1. It has been pointed out hereinabove that the object of Section 12(1) of the Act, 1976 is that elector of the constituency may propose or second the name of any duly qualified person as a candidate for election as a member for the constituency, clearly spells out the intention of the legislature. Therefore, keeping in view that intention of the legislature the word ‘may’ ‘used in Section 12(1) has to be read as ‘shall’ and on having held that the word ‘may’ can be interchanged with the word ‘shall’ to enhance the intention of the legislature, the candidate is bound and under mandatory obligation to ensure filling of nomination papers from the constituency duly proposed and seconded by the electors therefrom. There is no cavil with the proposition that once it is found out that the provision of the law is mandatory by its implication, the same is bound to be strictly following as has been held in Dalchand v. Municipal Corporation Bhopal AIR 1983 SC 303.

2. Thus it is held that the plea of the learned counsel for appellant that permission be accorded to him to substitute the names of the proposer and seconder, at this stage, seems to be not acceptable. Therefore, opinion expressed in the case of Ishaq Dar v. Election Tribunal (KLR 1998 Civil Cases 373) is not approved for the reason maintained hereinabove because of the fact that this provision of law is mandatory in its nature and would have substantial effect on the election for which a schedule is to be announced and any nomination paper found invalid cannot be allowed to be validated afterwards, even in exercise of powers either by the Returning Officer on the election Tribunal on for that matter High Court or this Court, in terms of Section 14(1)(2) of the Act, 1976. A perusal of this provision also indicates that the powers of the Returning Officer have been controlled for not rejecting the nomination papers on any defect which is not of substantial nature, whereas defect in any submitted nomination papers, duly proposed and seconded by a candidate, is of a substantial nature and provisions of Sections 12 and 14 of the Act, 1976 are mandatory in nature as held in Muhammad Abbas v. Returning Officer 1993 MLD 2509, Qaisir Iqbal v. Ch. Asad Raza 2002 YLR 2401, Asif Khan v. Returning Officer 2003 MLD 230 and Mudassar Qayyum Nahra v. Election Tribunal 2003 MLD 1089. Thus on having approved the principle discussed in these judgments, the earlier judgment in the case of Ishaq Dar (ibid) on the point is not approved. (Pages 281, 285, 286).

3. It is evident from a reading of the judgment reproduced above and cited by the learned counsel for the respondents that the said judgment encapsulates the controversy which has been raised in these petitions and conclusively determines the said controversy by holding that the provisions are mandatory in nature and the defect is of a substantial nature which could not be left to the discretion of the Returning Officer to remedy. It can be seen from a reproduction of the relevant provisions of the Act, 1976 that these are an exact reproduction of the provisions under consideration in the context of Rules, 2013 and the findings rendered by the Supreme Court of Pakistan are applicable on all fours in the case in hand as well. It can also be seen that the Supreme Court of Pakistan relied upon and firmed the view taken in a number of cases which shows that this has been the consistent view of a superior Court over a period of time. The basis of this judgment will find support from the dicta of the prior cases. These cases all relate to the Act, 1976 but the provisions of Sections 12(1), 13, 14(3)(b)(d) of proviso, fell for determination. These provisions, as explicated, are in pari materia to the provisions under consideration. In Mudassar Qayyum Nahra v. Election Tribunal, Punjab, Lahore (2003 MLD 1089), a full bench of this Court had this to hold:

“8. Section 12(1) of the Representation of the People Act, 1976, provides that any elector of a constituency may propose or second the name of any duly qualified person to be a member of that constituency. Similarly, para. 39 of the Manual Of Instructions for the Guidance of the Returning Officers, issued by the Election Commission of Pakistan provides that it is necessary that the person proposing or seconding the nomination of a duly qualified person to be a member from a constituency must belong to that constituency and should be registered as elector in the electoral roll of any one of the electoral areas comprised in the constituency. Furthermore, law has taken into consideration the commission of such a mistake. Section 14(4) of the abovesaid Act provides that a person may be nominated in the same constituency by five nomination papers. Similarly, Para. 40 of the abovesaid Manual of Instructions provides that a candidate may file five nomination papers from a constituency. Section 14(3)(b) of the Representation of the People Act, 1976 provides that the Returning Officer may reject the nomination papers if he is satisfied that the proposer or the seconder is not qualified to subscribe to the nomination papers. Similarly, Section 14(3)(c) provides for the rejection of the nomination papers, if any provision of Section 12 or Section 13 has not been complied with.

1. The above mentioned shows that a person not belonging to the concerned constituency cannot be a proposer or a seconder and the nomination papers of a candidate are liable to be rejected if the proposers or the seconder are not qualified to subscribe to the nomination papers. Second proviso to Section 14(3)(d) of the Representation of the People Act, 1976, provides that the Returning Officer can allow the removal of only those defects which are not of substantial nature. The unqualified proposer or seconder leads to the rejection of nomination papers as provided in Section 14(3)(b) and, therefore, such a defect cannot be held to be not of substantial nature because such a defect can be removed only by the substitution of a nomination paper and the law does not provide for the substitution of the proposers or the seconders and the safety value has been provided to the candidates by permitting them by filing up to five nomination papers…”

In Hafiz Muhammad Abbas v. Returning Officer and 16 others (1993 MLD 2509), once again a full bench observed as under:

“The argument that the provisions of Representation of People Act, 1976 are not mandatory but of directory nature have to be seen and interpreted in the light of the facts of each case. In the case in hand a celar provision of Representation of People Act, 1976 has been violated, in that the seconder with whose signatures the nomination papers were filed was found to be not belonging to the constituency for which the candidate had filed nomination papers. Such a violation could not have been left unnoticed nor could the same be remedied.”

Lastly, in Asif Khan v. Returning Officer (2003 MLD 230), a Division bench of this Court concluded that:

“The constituency stands defined in Section 2 of the Act and admittedly the proposer did not belong to the constituency from which the appellant wanted to contest Section 14(3)(c) of the afore-referred Act mandates that the Returning Officer may of his own motion or upon the objection raised by any person, reject the Nomination Papers inter alia on the ground:

“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);”

1. Admittedly, the proposer is not enrolled in PP-34 in which the appellant had filed his Nomination Papers. The expression “may” appearing in Section 14(3)(c) of the Act is mandatory otherwise it would frustrate the very purpose of Section 12 and other related sections. In the afore-referred circumstances, we do not find any illegality in the impugned order to warrant interference. This appeal having no merits is dismissed in limine.”

2. The cluster of precedents are all unanimous in concluding the mandatory nature of the provisions, the defect being substantial and thus not covered by the remedial provision of Rule 14(7) of the Rules, 2013.

3. Before I part with this judgment, a word regarding the distinction to be drawn in cases where the defect is flagged at the time of scrutiny of nomination papers and the cases where it becomes known to the candidate before the date of the receipt of nomination papers has come to pass. In the former cases, as held in the preceding paragraphs, the Returning Officer cannot proceed to remedy the defect in the purported exercise of powers under Rule 14(7) of the Rules, 2013. However, in the latter case, the candidate may choose to remedy the defect by filing fresh nomination papers by any mode provided by law. This will not entail the exercise of discretion by the Returning Officer and thus the provisions of Rule 14(7) are not engaged.

4. For the reasons adumbrated, these petitions are without merit and are dismissed. However, the petitions W.P No. 29344 of 2015, W.P 29345 of 2015, W.P No. 29346 of 2015, W.P No. 29347 of 2015, W.P No. 29348 of 2015, W.P No. 29393 of 2015 and W.P No. 29343 of 2015 are accepted as these challenge the orders of the Appellate Authorities permitting the substitution of the proposers and seconders in contravention of the mandate of law.

Sd/- Judge

(ANNEXURE ‘A’)

| | | | | --- | --- | --- | | Sr. No. | W.P. Nos. | TITLE | | 1. | 29214 of 2015 | Ghulam Ali vs. A.D.J, etc | | 2. | 29389 of 2015 | Mushtaq Ahmad vs. Election Tribunal, etc | | 3. | 29388 of 2015 | Rafaqat Ali vs. Regional Election Commissioner, etc | | 4. | 29374 of 2015 | Mushtaq Ahmad vs. Returning Officer, etc | | 5. | 29010 of 2015 | Liaqat Ali vs. Chief Election Commission, etc | | 6. | 29008 of 2015 | Usman Ghani vs. Chief Election Commission etc | | 7. | 29093 of 2015 | Sardar Mahmood Ali vs. Chief Election Commission, etc | | 8. | 28971 of 2015 | Faqir Hussain vs. Chief Election Commissioner etc | | 9. | 28970 of 2015 | Muhammad Usman vs. Chief Election Commissioner, etc | | 10. | 28972 of 2015 | Muhammad Adnan vs. Chief Election Commissioner, etc | | 11. | 28973 of 2015 | Rana Muhammad Saeed vs. Chief Election Commissioner, etc | | 12. | 29033 of 2015 | Imran Ali vs. District Returning Officer | | 13. | 28694 of 2015 | Muhammad Ilyas vs. Election Tribunal, etc | | 14. | 29185 of 2015 | Muhammad Idrees vs. Election Tribunal, etc. | | 15. | 29095 of 2015 | Muhammad Aslam vs. Election Commission, etc | | 16. | 28890 of 2015 | Naseem Abbas vs. Election Tribunal, etc | | 17. | 28921 of 2015 | Muhammad Saeed etc vs. Appellate Authority etc | | 18. | 29031 of 2015 | Muhammad Younas vs. District Returning Officer, | | 19. | 29177 of 2015 | Javed Iqbal vs. A.S.J, etc | | 20. | 29127 of 2015 | Safdar Ali vs. Returning Officer, etc | | 21. | 28857 of 2015 | Javid Iqbal Khan vs. A.D.J, etc | | 22. | 28968 of 2015 | M.Afsar Awan vs. Chief Election Commissioner, etc | | 23. | 29209 of 2015 | Shamshad Akhtar vs. Chief Election Commissioner, etc | | 24. | 29125 of 2015 | Ghulam Mustafa vs. A.S.J, etc | | 25. | 29123 of 2015 | Naeem Razzaq vs. A.S.J, etc | | 26. | 29086 of 2015 | Shaukat Imran vs. Returning Officer, etc | | 27. | 29077 of 2015 | Muhammad Sohail vs. Chief Election Commissioner etc | | 28. | 28894 of 2015 | Muhammad Altaf Hussain vs. Returning Officer, etc | | 29. | 28912 of 2015 | Maqsood Ahmad vs. Chief Election Commission etc | | 30. | 29176 of 2015 | Muhammad Jamil vs. A.S.J, etc | | 31. | 29188 of 2015 | Muhammad Abbas vs. Appellate Tribunal Election Commission etc. | | 32. | 29297 of 2015 | Muhammad Abid Iqbal vs. District Election Commissioner, etc | | 33. | 29296 of 2015 | Khalid Bashir vs. District Election Commissioner, etc | | 34. | 29132 of 2015 | M. Munir Ahmad Tanvir vs. Asif Saeed etc | | 35. | 29258 of 2015 | Muhammad Latif vs. Election Authority, etc | | 36. | 29257 of 2015 | Jamil Hussain vs. Election Authority, etc | | 37. | 29045 of 2015 | Muhammad Ali vs. District Election Commissioner, etc | | 38. | 29076 of 2015 | Ejaz Ahmad vs. Chief Election Commissioner etc | | 39. | 29338 of 2015 | Khushi Muhammad vs. Returning Officer etc | | 40. | 29337 of 2015 | Muhammad Latif vs. Returning Officer, Etc | | 41. | 29336 of 2015 | Zia Ullah vs. Local Government, etc | | 42. | 29322 of 2015 | Mohsin Ali vs. Chief Election Commission etc | | 43. | 29323 of 2015 | Ghulam Nabi vs. Chief Election Commission etc | | 44. | 29200 of 2015 | Sohail Abid vs. Appellate Election Tribunal etc | | 45. | 29318 of 2015 | Muhammad Afzal vs. Chief Election Commission etc | | 46. | 29317 of 2015 | Mubashar Hussain vs. District Returning Officer, etc | | 47. | 29312 of 2015 | Muhammad Akhtar Ali vs. District Returning Officer, etc | | 48. | 29305 of 2015 | Khurram Shahzad vs. District Returning Officer, etc | | 49. | 29283 of 2015 | Sabir Hussain vs. Returning Officer, etc | | 50. | 29279 of 2015 | Malik Haider Ali vs. Returning Officer, Etc | | 51. | 29278 of 2015 | Shahid Javeed vs. District Returning Officer, etc | | 52. | 29261 of 2015 | Sajjad Ali vs. Election Authority, etc | | 53. | 29620 of 2015 | Ansar Ali vs. Returning Officer, etc | | 54. | 29623 of 2015 | Muhammad Zahid vs. Election Commission Punjab etc | | 55. | 29502 of 2015 | Mehboob Alam vs. A.S.J, etc | | 56. | 29444 of 2015 | Imran Ali Malik vs. Learned Election Appellate Authority, etc | | 57. | 29457 of 2015 | Muhammad Hanif vs. Election Commissioner etc | | 58. | 29426 of 2015 | Muhammad Javaid Khan vs. Returning Officer, etc | | 59. | 29479 of 2015 | Saeed Ahmad vs. Returning Officer, etc | | 60. | 28249 of 2015 | Ghulam Rasool vs. Chief Election Commissioner, etc | | 61. | 28794 of 2015 | Muhammad Awais Ahmad Khan vs. Ijaz Hassan Awan etc | | 62. | 29798 of 2015 | Muhammad Musthaq vs. District Returning Officer, etc | | 63. | 29793 of 2015 | Muhammad Shafi vs. Additional Sessions Judge, etc | | 64. | 29760 of 2015 | Muhammad Arshad Adeel vs. Chief Election Commissioner, etc | | 65. | 29752 of 2015 | Muhammad Arshad vs. Returning Officer etc | | 66. | 29747 of 2015 | Saif Ali vs. Returning Officer, etc | | 67. | 29729 of 2015 | Raja Muhammad Riaz vs. Chief Election Commissioner, etc | | 68. | 29681 of 2015 | Shahamand vs. Returning Officer, etc | | 69. | 28928 of 2015 | Muhammad Iqbal vs. Chief Election Commissioner, etc | | 70. | 30035 of 2015 | Muhammad Akram vs. Returning Officer, etc | | 71. | 29977 of 2015 | Abdul Rashid vs. the Learned A.D.J, etc | | 72. | 29955 of 2015 | Irshad Ali vs. Appellate Authority, etc | | 73. | 29907 of 2015 | Noor-ul-Amin vs. Returning Officer, etc | | 74. | 29988 of 2015 | Muhammad Zohaib Butt vs. Election Commissioner Punjab. | | 75. | 29343 of 2015 | Mahmood Ahmad vs. Election Tribunal, etc | | 76. | 29344 of 2015 | Muhammad Mohsin vs. Election Tribunal, etc | | 77. | 29345 of 2015 | Safdar Ali vs. Election Tribunal etc | | 78. | 29346 of 2015 | Safdar Ali vs. Election Tribunal, etc | | 79. | 29347 of 2015 | Mahmood Ahmad vs. Election Tribunal, etc | | 80. | 29348 of 2015 | Muhammad Mansha vs. Election Tribunal, etc | | 81. | 29393 of 2015 | Muhammad Aslam vs. Election Tribunal,etc |

(R.A.) Petition dismissed

PLJ 2016 Lahore 208 (DB)

Present: Rauf Ahmad Sheikh and Abdul Waheed Khan, JJ.

MUHAMMAD SARWAR BHATTI--Appellant

versus

M/s. DAEWOO CORPORATION through its General Manager,Section-I, Sheikhupura and 2 others--Respondents

R.F.A. No. 626 of 2006, heard on 21.12.2011.

Res-judicata--

----Scope--Any remark passed against the successful party does not operate as res judicata. [P. 214] A

Octroi Tax--

----Suit for recovery of octroi tax or in alternative damages--No specific amount was claimed--Maintainability--Octroi tax was leviable from outside within limits of town committee--Exempted--Jurisdiction of Civil Court--Recovery so agent cannot effect--Validity--At time of execution of contract, appellant was aware of concession given due to importance of project but in spite of it, he voluntarily agreed to its terms--An agent/lessee has to act under instructions, directions and supervision of the principal/lessor--Respondent never claimed the payment of the octroi fee from Daewoo Company--Appellant being its agent, therefore, could have not lawfully made the demand--Findings of trial Court are, therefore, unexceptionable and do not for any interference--Appellant was not entitled to recover a sum from Daewoo then a decree for recovery of that amount as damages be passed against Daewoo--Appellant can claim damages by invoking arbitration clause from respondent--Finding was not set aside by High Court. [Pp. 214 & 215] B, C, D, E & F

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

----O. VII, R. 2--Octroi tax--Suit for recovery of octroi tax or in alternative damages--No specific amount was claimed--Entitlement of--Validity--Appellant/plaintiff had not claimed any specific amount allegedly due from M/s. Daewoo to him or damages caused to him for non-payment of octroi fee--Order VII Rule 2, CPC provides that where plaintiff seeks recovery of money, plaint shall state precise amount claimed--Appellant/plaintiff had himself voluntarily entered into contract--He had agreed that he would have same rights, which vest in Town Committee--Town Committee, does not claim payment from company so appellant/plaintiff is also estopped by his conduct from raising demand. [P. 215 & 216] G & H

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

----O. I, R. 9--Non joinder and mis-joinder--No specific amount was claimed as octroi tax--Appellant/plaintiff has not claimed any relief against Government of Pb. or Federal Government--No doubt motorway is a project of national highway, but octroi fee was claimed from respondent and not Government and damages were claimed from respondent so presence of Federal Government or Government of Pb. was not necessary for adjudication of disputed matter--No suit was bad for non-joinder and misjoinder of parties and Court should as far as possible resolve dispute between parties, before it. [P. 216] I & J

Mr. Muhammad Hanif Niazi, Advocate for Appellant.

Barrister Armughan Ashfaq, Advocate for Respondents.

Date of hearing: 21.12.2011.

Judgment

Rauf Ahmad Sheikh, J.--The appellant has assailed the vires of the judgment and decree dated 16.10.2006 passed by the learned Civil Judge 1st Class, Ferozewala, whereby his suit for recovery of octroi tax from Respondent No. 1 or in the alternative damages from Respondents Nos. 2 and 3 was dismissed.

1. The plaintiff/appellant had contended that he was granted lease to collect octroi tax on behalf of Defendant/Respondent No. 3 for the sum of Rs. 1,95,20,000/- through contract dated 09.10.1995 being the highest bidder in the open auction. It was stated that a strip measuring three Kilometers of Islamabad Lahore Motorway Project constructed by Defendant/Respondent No. 1 falls within the limits of Defendant/Respondent No. 3 and the building material comprising of earth, sand, steel & cement, etc., was regularly brought from outside within the limits of Respondent No. 3. It was stored, used and consumed in the said area. The plaintiff/appellant under the Rules was entitled to recover the octroi tax on this material and made an attempt to effect the recovery from Defendant/Respondent No. 1 but Respondent No. 1 always tried to avoid the payment and did not discharge the liability by exerting undue pressure on the local, Provincial and Federal Governments. Many meetings were held and finally on 08.11.1995, it was resolved that M/s. Daewoo Corporation was bound to pay the octroi tax unless a notification was issued by the Government of the Punjab allowing exemption but in spite of the said decision, the Respondent No. 1 did not make payment of the tax due from it and manoeuvered issuance of letter dated 07.02.1996 from the office of Additional Secretary-II, Local Government & Rural Development Department, Government of the Punjab, Lahore, whereby the exemption was granted to Respondent No. 1 in respect of the material brought by it for construction of the Motorway. The appellant assailed the said letter through W.P.No. 3858 of 1996 before this Court and it was held vide judgment dated 27.06.1996 that the impugned directive dated 07.02.1996 issued by the Government is without legal force and that the appellant/lessee can claim compensation/damages from the lessor for the financial losses incurred to it due to acceptance of the impugned exemption. It was further contended that the appellant thereafter filed ICA No. 270 of 1996 and this Court passed the following order on 22-07-1996:

"The grievance voiced by the learned counsel for the appellant is that observation of the learned Single Judge as to the existence of a dispute between the appellant and its lessors is likely to adversely effect the remedy to be availed against Respondent No. 5. This apprehension of the learned counsel is not well founded. The learned Single Judge while disposing of the constitutional petition has himself observed that the appellant should resort to the other remedy available under the law, like arbitration or civil suit. There is nothing in the judgment of the learned Single Judge which debars the appellant from proceedings against Respondent No. 5, if he so desires."

The plaintiff/appellant further contended that in view of the above findings of this Court, the appellant is entitled to recover the amount to be determined by the trial Court on account of octroi tax and in case it was held that the same is not recoverable by the appellant, then the defendants/Respondents Nos. 2 and 3 be directed to pay damages to him.

1. Respondent No. 1 contested the suit on factual and legal grounds. It was contended that no specific amount was claimed and the relief sought was uncertain so the suit was not maintainable; that the plaintiff/appellant has no cause of action; that the octroi tax was leviable only on the items brought from outside within the limits of the Town Committee and consumed there but no material was brought or consumed within the limits of Respondent No. 3 as the Lahore Islamabad Motorway is excluded from the limits of the said Committee and as such was exempted from the payment of the tax under the Octroi Rules, 1964; that the Project is owned by the Federal Government and as such under Article 165 of the Constitution of the Islamic Republic of Pakistan, 1973, no tax by the Provincial or the local Governments could be levied on it; that the suit is barred under the Punjab Local Government Ordinance, 1979 and the Punjab Local Councils (Appeal) Rules, 1980 so the Civil Court has no jurisdiction to hear the suit; that the matter has been decided by the Deputy Commissioner, who was the only competent authority to take cognizance of the same; that the application for re-calling of the order of the Deputy Commissioner was already pending so the suit was premature; that the suit was barred by the principle of res judicata; that the Octroi Post was set up by the plaintiff/appellant in violation of the Punjab Municipal Committees Octroi Rules, 1964; that the plaintiff adopted the rough tactics and have caused delay in completion of the Motorway Project due to which the Defendant/Respondent No. 1 suffered huge loss to the tune of Rs. 15.95 million so it reserves the right to claim the same from the plaintiff/appellant; that in view of the importance of the Project, the Government of Pakistan had granted exemption and had given an understanding that no taxes would be levied on this Project and in furtherance of the said understanding Letter No. SOVI/(LG)7-9/92 dated 07.02.1996 was issued by the concerned Department; that the suit was bad for non-joinder of necessary parties; that under Clause 20 of the octroi agreement dated 09.10.1995, the appellant was bound to grant exemption in terms of the decision of the Government; that the suit is not properly valued for the purposes of Court fee and jurisdiction; that the Defendant/Respondent No. 1 was not obliged to pay the octroi tax; that the suit is barred by time; that Lahore Islamabad Motorway does not fall within the limits of Respondents Nos. 2 and 3 so no tax could be levied in respect of the material used for its construction; that the plaintiff/appellant resorted to illegal and rowdy behaviour so the Government of the Punjab, LG & RD issued the exemption letter and as such the same is binding on all concerned and that no building material was brought within the limits of the Town Committee, Kot Abdul Malik and as such the claim was without any justification. Accordingly the learned trial Court framed the following issues:--

2. Whether the plaintiff has got no locus standi and cause of action against the Defendant No. 1? OPD-1

3. Whether the claim of the plaintiff is barred under the Iaw?OPD-1

4. Whether this Court has got no jurisdiction to entertain the matter?OPD-1

5. Whether the suit is not maintainable in its present form?OPD-1

6. Whether the suit is barred by res-judicata?OPD-1

7. Whether the plaintiff has not come to the Court with clean hands?OPD-1

8. Whether the plaintiff was estopped by his words and conduct to file the present suit?OPD-1

9. Whether the suit is bad by non-joinder of necessary parties?OPD-1

10. Whether the suit is not properly valued for the purpose of Court fee and jurisdiction, if so, its effect?OPD-1

11. Whether the suit is barred by limitation?OPD-1

12. Whether the suit is false and baseless, hence liable to be dismissed?OPD-1

13. Whether the plaintiff is entitled to the recovery of octroi tax from Defendant No. 1 or in the alternative damages/compensation from Defendant No. 2 as alleged in the plaint? OPP

14. If the above issue is answered in affirmative, whether the plaintiff is entitled to the decree as prayed for? OPP

15. Relief

16. Muhammad Aslam Khan, attorney of the appellant/plaintiff appeared as PW-1 and stated that the appellant/plaintiff was contractor for collection of the octori fee of Municipal Committee, Kot Abdul Malik from 01.07.1995 to 30.06.1996, whereas Defendant/ Respondent No. 1 was contractor for construction of the Motorway. A strip of three Kilometers of the Motorway falls within the limits of the Municipal Committee. Respondent No. 1 had been bringing and using the construction material on which the octroi fee was payable but it did not pay the same so a complaint was lodged with the Administrator and finally it was decided that the exemption was not available so the appellant made an attempt to effect the recovery but a false case was registered, which was quashed under the orders of this Court. It was further stated that the exemption was issued by the Provincial Government but the same was declared illegal by this Court. Thereafter the appellant filed an ICA. He has produced the photostat copy of the statement regarding payable octroi fee (Ex.P.1), copy of the contract (Ex.P.2), copy of the judgment of the learned Single Judge in Chamber (Ex.P.3) and copy of the order passed by the learned Division Bench (Ex.P.4). It is stated that a sum of Rs. 1,59,58,674/- is payable by Respondent No. 1, which has not been paid.

17. On the other hand, Tariq Wazir Ali, Administration Manager of Respondent No. 1 stated that the Daewoo Corporation constructed Motorway from 1992 to 1997 and cleared all payable taxes but same were not paid, where exemption was available. The Government of the Punjab has granted exemption on octroi fee so the fee was not paid to the Town Committee, Kot Abdul Malik. The writ petition filed by the appellant was decided in favour of the respondents by holding that the Town Committee admitted the exemption so the contractor was bound by the same. It is further stated that no representative of the Corporation was associated at the time of preparation of Ex.P.1. The copy of letter of the Government of Punjab regarding grant of exemption (Mark-A) and copy of the judgment of the High Court in W.P.No. 3858/96 (Ex.D.1) were produced in support of the contentions raised.

18. After recording the evidence and hearing the arguments, the learned trial Court proceeded on to dismiss the suit. Issues Nos. 1 to 4, 6 to 8, 11 to 13 were decided in favour of Respondent No. 1 and against the appellant/plaintiff, whereas Issues Nos. 5 and 10 were decided in favour of the appellant/plaintiff and against Respondent No. 1. The deficiency in Court fee was made up so Issue No. 9 did not require further findings.

19. Learned counsel for the appellant has contended that the learned trial Court has committed material illegality by holding that exemption was available to Respondent No. 1 although this Court vide judgment dated 27.06.1996 passed in W.P.No. 3858/96 and order dated 22.07.1996 passed in ICA No. 270/96 had categorically held that the exemption could not have been granted as there is no provision under the Punjab Local Government Ordinance, 1979, empowering the Government to grant the same and as such the letter issued by the Local Government and Rural Development Department had no legal backing. In support of the contentions raised, he has placed reliance on Mukhtar Ahmed Shaikh v. Government of Sindh and 2 others (PLD 1991 Karachi 372), National Fertilizer Marketing Ltd. v. Secretary Local Government and Rural Development Department and 2 others (1992 MLD 1203) and an unreported judgment of the August Supreme Court of Pakistan in Civil Appeal No. 39-K of 1984. It is urged that if for the sake of arguments, it is accepted that the appellant is not entitled to recover octroi fee from Respondent No. 1 then he is entitled to get damages from Respondents Nos. 2 and 3 equal to unpaid octroi fee alongwith penalty due from M/s. Daewoo Corporation.

20. Controverting these arguments learned counsel for Respondent No. 1 has vehemently contended that after declaring the exemption without lawful force, the learned Single Judge in Chamber had further held that in view of the terms of the contract, the contractor was not entitled to recover the octroi fee from Respondent No. 1 and should claim damages from the lessor by invoking the arbitration clause. It is urged that even the learned Division Bench, while dismissing the ICA in limine had not held that Respondent No. 1 is liable to pay the octroi fee. It is urged that Respondent No. 3 and the appellant had voluntarily entered into the agreement and are bound by its terms.

21. The terms of the contract dated 09.10.1995 executed by the appellant and Administrator, Town Committee, Kot Abdul Malik, are not disputed. Terms Nos. 19, 20 and 26 as reproduced in the judgment dated 27.06.1996 passed in W.P.No. 3858/96 were brought under consideration and it was categorically held that the contractor being an agent has the same rights, which vest in the principal i.e. Town Committee. It was held that as the Town Committee does not dispute the contention of Respondent No. 1 and does not press the recovery so the agent cannot effect the same. This observation was not set aside by the learned Division Bench while deciding I.C.A. No. 270/96 as the same was dismissed in limine. Any remark passed against the successful party does not operate as res judicata. There is another important aspect of the matter. The exemption was granted from octroi and exit tax for the first time by the Government of the Punjab through letter dated 12.11.1992 to M/s. Daewoo Corporation in respect of the material brought within Municipal limits for construction of Motorway and it was so repeated vide letter dated 09.10.1995 by the Government of Pakistan, Ministry of Communications, National Highway Authority. At the time of the execution of the contract, the appellant was aware of this concession given due to importance of the Project but in spite of it, he voluntarily agreed to its Terms Nos. 19, 20 and 26 as reproduced in the judgment dated 27.06.1996 (Ex.P.3). Learned counsel for the appellant could not deny that from Lahore to Islamabad no Local Government except the present contractor had raised this demand from Respondent No. 1. There is no cavil to the proposition that an agent/lessee has to act under the instructions, directions and supervision of the principal/lessor. Respondent No. 3 never claimed the payment of the octroi fee from Respondent No. 1 rather accepted the contention of Respondent No. 1. The appellant being its agent, therefore, could have not lawfully made the demand. The findings of the learned trial Court on Issues Nos. 12 and 13 are, therefore, unexceptionable and do not for any interference. The same are upheld and confirmed.

22. The contention of the appellant that in case it is held that he is not entitled to recover a sum of Rs. 1,59,58,674/- from Respondent No. 1 then a decree for recovery of this amount as damages be passed against Respondents Nos. 2 and 3. The statement (Ex.P.1) is not proved in accordance with law. It is merely a photostat copy and its author alongwith original document has not been produced in the witness box. This statement, inter alia, shows that a sum of Rs. 15,06,725/-, due from Respondent No. 1, could not be recovered. No tangible proof is available to show that, in fact this amount was due as this statement is firstly not proved and secondly the contention that it was prepared in presence of the representative of Respondent No. 1 is also incorrect. This amount was not mentioned in the plaint. Its first page shows that it was presented in the trial Court on 22.07.2004, whereas the remaining pages appear to have been produced on 22.07.199. These facts prove that this is a self-tailored and concocted statement. If, in fact, the appellant/plaintiff suffered any loss due to this non-recovery and a dispute had arisen between him and the lessor, he should have invoked the arbitration clause of the contract. The contention that a decree for recovery of Rs. 1,59,58,674/- be passed in favour of the appellant and against Respondents Nos. 2 & 3 is, therefore, without force.

23. This Court has already held in judgment dated 27.06.1996 passed in W.P.No. 3858/96 that the appellant can claim damages by invoking arbitration clause from Respondent No. 3.This finding was not set aside by the learned Division Bench. The factual position is exactly the same as the principal does not make the demand so the agent also cannot raise it. The appellant has no cause of action or locus standito file the suit. The findings of the learned trial Court on Issue No. 1 are, therefore, upheld and confirmed. Learned counsel for Respondent No. 1 could not substantiate this contention that the Civil Court lacked the jurisdiction to hear the suit and the same is barred by law. The suit for recovery of the money due or damages falls within the exclusive jurisdiction of the Civil Court. The findings of the learned trial Court on Issues Nos. 2 and 3 are, therefore, not sustainable and are reversed.

24. The appellant/plaintiff had not claimed any specific amount allegedly due from Respondent No. 1 to him or the damages caused to him for non-payment of the octroi fee. Order VII Rule 2, CPC provides that where the plaintiff seeks recovery of the money, the plaint shall state the precise amount claimed. According to the appellant, the amount payable was determined as per Ex.P.1 but he did not mention the same in the plaint. This was not a suit for rendition of accounts so the lapse on part of the appellant/plaintiff reveals that the plaint was defective. No attempt was made to rectify the defect at any subsequent stage. The findings of the learned trial Court on Issue No. 4 also do not call for any interference. Admittedly, the appellant/plaintiff was a contractor and the octroi fee was not paid to him. According to him, he is entitled to the same, whereas Respondent No. 1 had contended that he is not under obligation to pay the same in view of the decisions of the Federal and Provincial Governments. In view of this aspect of the matter, it cannot be said that the appellant has approached the Court with unclean hands. Whether he fails or succeeds is a different question of merits. The findings of the learned trial Court on Issue No. 6 are, therefore, not sustainable and reversed. The appellant/plaintiff had himself voluntarily entered into the contract. He had agreed that he would have the same rights, which vest in the Town Committee. The Town Committee, Kot Abdul Malik, does not claim the payment from Respondent No. 1 so the appellant/plaintiff is also estopped by his conduct from raising the demand. The findings of the learned trial Court on Issue No. 7 are also upheld. The contention that the Motorway does not fall in the area of Respondent No. 3 is without force and against the record. The contention that the Motorway Project is owned by the Federal Government so no tax of the Provincial or the Local Governments can be levied as provided under Article 165 of the Constitution of the Islamic Republic of Pakistan, 1973 is also without force as the octroi fee was being claimed due to import of building material within the limits of the Town Committee by Respondent No. 1. Even the Government of Pakistan in its letter dated 09.10.1995 had made it clear that all local taxes would be payable except octroi duty and export tax, which is sufficient to show that the provisions of Article 165 of the Constitution are not attracted.

25. The appellant/plaintiff has not claimed any relief against the Government of the Punjab or the Federal Government. No doubt the Motorway is a Project of the National Highway, Ministry of Communications, Government of Pakistan but the octroi fee was claimed from Respondent No. 1 and not the Government and the damages were claimed from Respondent No. 3 so the presence of the Federal Government or the Government of the Punjab was not necessary for adjudication of the disputed matter. Even otherwise under Order I Rule 9, CPC, no suit is bad for non-joinder and misjoinder of the parties and the Court should as far as possible resolve the dispute between the parties, before it. The findings of the learned trial Court on Issue No. 8 are also reversed.

26. For the reasons supra, the appeal is without merits and the same is hereby dismissed with costs.

(R.A.)

PLJ 2016 Lahore 217

Present: Ibad-ur-Rehman Lodhi, J.

M/s. DAWLANCE UNITED REFRIGERATION INDUSTRIES PRIVATE LIMITED--Appellant

versus

MUHAMMAD ASIM CHAUDHRY--Respondent

F.A.O.No. 120 of 2009, heard on 14.9.2015.

Punjab Consumer Protection Act, 2005 (II of 2005)--

----S. 28(4)--Date of purchase of washing machine--Warranty card--No date of expiry of warranty--Claim was beyond limitation--Claim was decreed--Jurisdiction to allow claim to be filed after thirty days--Sufficient cause for not filing complaint within specified period--Validity--Neither such jurisdiction was asked to be exercised by Consumer Court nor naturally Consumer Court passed any order permitting complainant to file a delayed claim by showing sufficient cause for its non-filing within specified period--Such extension shall not be allowed beyond a period of sixty days from expiry of warranty specified by manufacturer or provider and if no period is specified, then one year from date of purchase of products or providing of services would be considered as a period of limitation provided for filing claim before D.C.C.--In absence of any such warranty period, maximum time, which could have been granted to claimant even after giving an extension in filing complaint, must not be exceeded to one year from date of purchase of product or providing of service--Claim, at most was clearly barred by time, and Consumer Court entertaining such claim, has never given any extension to claimant to file such delayed claim.

[Pp. 218 & 219] A, B, C & D

Punjab Consumer Protection Act, 2005 (II of 2005)--

----S. 2(c)(1)--Dowry and Bridal Gifts (Restriction) Act, 1976, S. 5--Consumer--Definition of--Washing machine was originally purchased by his wife and it was part of dowry and after marriage, it was wife of claimant--Defect in washing machine--Husband filed claim, decreed--Challenge to--Validity--Admittedly purchased by wife of claimant, it was wife, who should have been a complainant or claimant in matter--Husband, who even never used such machine, is not a “consumer”--Even otherwise, in view of Section 5 of Dowry and Bridal Gifts (Restriction) Act, 1976, it is bride, who is to be considered as an absolute owner of items of dowry and other bridal gifts--Appeal was allowed. [P. 219] E & F

Mr. Kashif Ali Chaudhry, Advocate for Appellant.

Rana Muhammad Anwar, Advocate for Respondent.

Date of hearing: 14.9.2015.

Judgment

The claim, which was granted to the respondent by the learned Presiding Officer/District Consumer Court, Lahore, on 27.03.2009, has been called-in-question by the appellant mainly on the plea that in view of the provisions of Section 28 of The Punjab Consumer Protection Act, 2005 (hereinafter to be referred as ‘the Act’), the claim, as was raised by the present respondent was beyond limitation and, as such, did not deserve to be adjudicated upon merits.

1. Elaborating such contentions, learned counsel for the appellant has contended that the date of purchase of the disputed Washing Machine was 26.03.2007 with a one year warranty period, whereas, the legal notice was issued on 16.09.2008. The memo. of complaint, as was filed by the respondent, did not contain any particular date as to when, according to the complainant, cause of action in his favour arose.

2. In view of Section 28(4) of the Act, a claim by the consumer or the Authority shall be filed within thirty days of the arising of the cause of action.

The Consumer Court, however, has been provided a jurisdiction to allow a claim to be filed after thirty days within such time as it may allow if it is satisfied that there was sufficient cause for not filing the complaint within the specified period.

In the present case, neither such jurisdiction was asked to be exercised by the learned Consumer Court nor naturally the Consumer Court passed any order permitting the complainant to file a delayed claim by showing sufficient cause for its non-filing within specified period.

1. By virtue of second proviso to Section 28(4) of the Act, it is further provided that such extension shall not be allowed beyond a period of sixty days from the expiry of warranty specified by the manufacturer or provider and if no period is specified, then one year from the date of purchase of the products or providing of services would be considered as a period of limitation provided for filing claim before the Presiding Officer of District Consumer Court.

Since according to the stated consumer, the warranty card, issued by the appellant at the time of purchase of Washing Machine, did not contain any date of expiry of warranty, as such, in absence of any such warranty period, the maximum time, which could have been granted to the claimant by the learned Consumer Court even after giving an extension in filing the complaint, must not be exceeded to one year from the date of purchase of the product or providing of service.

1. Keeping in view the date of purchase i.e. 26.03.2007, the claim, at the most, can be filed by or before 25.03.2008 and, as such, same was filed on 30.10.2008, which is clearly barred by time, and the learned Consumer Court entertaining such claim, has never given any extension to the claimant to file such delayed claim.

2. Another aspect, which is noted by this Court is that as per showing of the respondent-claimant himself, Washing Machine was originally purchased by his wife and it was a part of her dowry and after marriage, it was the wife of the claimant, who started use of said Machine.

3. The term “Consumer” is defined in Section 2(c)(1) of the Act in the following manner:--

“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”.

Keeping in view the above definition of ‘Consumer’, the husband of the wife, who brought her dowry articles, including Washing Machine in question, could not be treated as a ‘Consumer’. If, at all, any complaint was to be lodged as to any defect in the Washing Machine, which admittedly purchased by the wife of the claimant, it was the wife, who should have been a complainant or claimant in the matter. The husband, who even never used such Machine, is not a “consumer”.

1. Even otherwise, in view of Section 5 of The Dowry and Bridal Gifts (Restriction) Act, 1976, it is the bride, who is to be considered as an absolute owner of the items of dowry and other bridal gifts also.

2. For what has been discussed above, the order passed by the learned Presiding Officer, District Consumer Court, Lahore, on 27.03.2009, suffers from illegalities and law has been misapplied by the learned Presiding Officer. The same is not sustainable, thus, it is set- aside. The claim/complaint, filed by the respondent before the Consumer Court stands dismissed.

This appeal is allowed.

(R.A.) Appeal allowed

PLJ 2016 Lahore 220

Present: Ibad-ur-Rehman Lodhi, J.

JAVED ASIF--Petitioner

versus

RANA ALMAS LIAQAT & 2 others--Respondents

W.P. No. 29791 of 2015, decided on 9.10.2015.

Punjab Local Government (Conduct of Elections) Rules, 2013--

----R. 14(1)--Punjab Local Government Act, 2013, S. 27(1)(b)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Objection as to candidature for general member in ward--Date of birth--Less than 25 years of age--Process of scrutiny--Nomination paper was accepted--Challenge to--Educational testimonials--Oral with regard to age--Maticulation certificate would be considered as unimpeachable evidence--Validity--It is fundamental right of every citizen to contest election, but ignored that every fundamental right is subject to law and law does not favour a person having less than age of 25 years to claim his being valid candidate irrespective of his age limit, as his fundamental right--By holding such, appellate authority, again erred in law, as law, no doubt, is a technical subject and if technicalities are not observed, then it would lead to allow a foul play everywhere, which is not intention of law--Respondent was not qualified on date of nomination, to be considered as a valid candidate to contest elections of a local government and, thus, his nomination papers were illegally allowed and appeal filed against such acceptance was erroneously dismissed--Objections, filed by petitioner, were allowed. [P. 223] A, B & C

Ch. Muhammad Amin Javaid, Advocate for Petitioner.

Rana Intezar, Advocate for Respondent No. 1.

Mr. Khawar Ikram Bhatti, Additional Advocate-General Punjab for Respondent.

Date of hearing: 9.10.2015.

Order

The present petitioner raised objections as to the candidature of Respondent No. 1-Rana Almas Liaqat for General Member in Ward No. 7, Asif Colony, Pattoki, on the ground that in view of his date of birth i.e. 14.09.1994, which has been noted in his matriculation certificate, issued by the Board of Intermediate & Secondary Education, Lahore, he was not qualified to be a valid candidate on account of his being less than 25 years of age on the day of nomination.

1. The said objection although was received by the Returning Officer on 15.09.2015, but when on the next day i.e. 16.09.2015, the process of scrutiny was carried out, the Returning Officer has not commented upon such objection and simply “accepted” the nomination papers of Respondent No. 1.

2. The appeal, filed by the petitioner, was dismissed by the learned appellate authority on 28.09.2015, by holding that it is the fundamental right of every citizen to contest the election and that nomination papers of any candidate cannot be rejected on technical grounds.

3. The learned counsel for Respondent No. 1, on appearance, at the very outset, has objected to the locus-standi of the petitioner, as in his view, the petitioner was neither a contesting candidate nor proposer, seconder or voter of the concerned Union Council; therefore, he was not competent to raise objection or to file an appeal against acceptance of nomination papers of Respondent No. 1.

4. Answering to such query, the learned counsel for the petitioner has referred Rule 14(1) of Punjab Local Government (Conduct of Elections) Rules, 2013, which provides that the scrutiny of nomination papers shall be open to the candidates, their election agents, proposers and seconders, or the persons who made objections against the nomination papers and any voter of the constituency with the permission of the Returning Officer, before the commencement of the scrutiny and the Returning Officer shall give all those present reasonable opportunity for examining all nomination papers delivered to him under Rule 12, and according to the learned counsel for the petitioner, a class of “persons, who made objections against the nomination papers” indicates to an independent and separate class of persons, who were competent to challenge the nomination of any candidate for local bodies. Further contends that, in view of Rule 14(2), the Returning Officer shall, in the presence of the persons attending the scrutiny under sub-rule (1), examine the nomination papers and decide an objection raised by any such person to a nomination. The learned counsel for the petitioner contends that, the word “such” used in Rule 14(2) denotes the persons present at the scrutiny mentioned in sub-rule (1), which includes the person, who made objections.

5. Regarding the right to file an appeal, the learned counsel for the petitioner, with reference to sub-rule (10) of Rule 14, has submitted that an appeal against the decision of the Returning Officer rejecting or accepting the nomination papers of the candidate, may be preferred by any person present at the time of scrutiny under sub-rule (1) to the concerned District Judge.

6. The learned counsel for Respondent No. 1, after having gone through such provisions of Rules, impliedly withdrew his objection as to the locus-standi of the petitioner in either filing objection against nomination papers of Respondent No. 1 or filing appeal against the acceptance of nomination papers of said respondent.

7. On merits, it is the position that the date of birth, noted in matriculation certificate of Respondent No. 1 is ‘14.09.1994’ and, therefore, Respondent No. 1, at the time of nomination, was not of the age of 25 years, which is the minimum age for a person to qualify to be elected as a Member or to hold an elected office of a local government in view of Section 27(1)(b) of the Punjab Local Government Act, 2013, and such age limit is to be considered on the last day, fixed for filing the nomination papers.

8. Respondent No. 1 was aware of his such disqualification and in order to overcome such difficult situation, he, with the help of his date of birth, which he got entered in the record maintained by NADRA as 14.02.1990, moved the Educational Board only one day prior to the process of scrutiny for correction of his date of birth.

9. Although in order to keep a mystery, no date has been noted on such application for correction of date of birth of Respondent No. 1 moved before the Board, but the fee deposited in the Bank, receipt of which is available at page-19 of the present file, reveals that the same was deposited in the Bank on 10.09.2015 and naturally, after deposit of such fee, Respondent No. 1 moved the concerned Board his request regarding change of his date of birth.

10. The learned counsel for the petitioner has rightly pointed out that, although some entry in NADRA has been produced by Respondent No. 1, but Form-B, which is meant for the detailed particulars of whole of the family, has been withheld. The petitioner has placed on record, copies of CNIC of Muhammad Waqas and Gulnaz Liaqat, real brother and sister of Respondent No. 1, which carries dates of birth of said two persons as 10.01.1990 and 10.12.1990, respectively. Respondent No. 1 has not denied the authenticity of such document placed as Annexure-F (pages 27 and 28 of the present file).

11. If the date of birth now attempted to be got entered by Respondent No. 1 as `14.02.1990’, then it would be clear that there was only a gap of one month in the birth of Respondent No. 1 and his real brother-Muhammad Waqas.

12. Twins may get birth at one time, but this gap cannot be lingered on for one month period and this is not the case of Respondent No. 1 that he was a twin brother of Muhammad Waqar (his real brother). Even such request made by Respondent No. 1 before the Educational Board has not been decided, in any manner, whatsoever.

13. This Court in case of Maik Muhammad Faisal and another vs. State Life Insurance Corporation through Chairman, Karachi and 2 others (PLD 2007 Lahore 453) has held that the National Identity Card of the person concerned containing a date of birth other than that of noted in the record of Secondary School/Educational Board, then the date of birth, as noted in the educational testimonials, is to be given preference to that of noted in the National Identity Card, by holding further that the correct and true date of birth of the relevant person would be the one as recorded in the Board of Education record, being earlier in time.

14. The Hon’ble Supreme Court of Pakistan in case Sher Baz Khan and others vs. Mst. Malkni Sahibzadi Tiwana and others (PLD 2003 Supreme Court 849) has authoritatively held that in preference to the oral or other version with regard to the age, the one recorded in matriculation certificate would be considered as unimpeachable evidence.

15. The Returning Officer has not, at all, considered the objections, whereas, the learned appellate authority has proceeded on wrong directions by holding that, it is the fundamental right of every citizen to contest the election, but ignored that every fundamental right is subject to law and law does not favour a person having less than the age of 25 years to claim his being valid candidate irrespective of his age limit, as his fundamental right. The appellate authority has further held that, technical objections must be avoided. By holding such, the appellate authority, again erred in law, as the law, no doubt, is a technical subject and if technicalities are not observed, then it would lead to allow a foul play everywhere, which is not the intention of law.

16. The result of above discussion is that, Respondent No. 1-Rana Almas Liaqat, was not qualified on the date of nomination, to be considered as a valid candidate to contest the elections of a local government and, thus, his nomination papers were illegally allowed and appeal filed against such acceptance was erroneously dismissed. The objections, filed by the petitioner, are allowed and resultantly nomination papers, filed by Respondent No. 1, for General Member, Ward No. 7, Asif Colony, Pattoki, District Kasur, stand rejected by setting aside the order/judgment passed by the authorities below on 16.09.2015 and 28.09.2015, respectively.

17. This Constitutional petition is allowed in the above lines.

(R.A.) Petition allowed

PLJ 2016 Lahore 224 [Multan Bench, Multan]

Present: Mushtaq Ahmad Tarar, J.

SHAMEEM HAIDER, etc.--Petitioners

versus

MEHR ALI--Respondent

C.R. No. 417-D of 2008, decided on 13.10.2015.

Agreement to Sell--

----Suit for specific performance of agreement to sell, decreed--Challenge to--Special oath of Holy Quran--No permission to effect compromise was granted--Scriber of agreement to sell--Statement--Validity--Petitioner being father and next friend of co-petitioners made offer through statement before Court that if scriber of agreement to sell takes oath on Holy Quran that he himself had drafted agreement to sell, same was correct, witnesses signed agreement to sell in his presence and parties admitted receipt of amount of in his presence, then suit be decreed otherwise, suit of respondent be dismissed--Parties and witnesses put their signatures and thumb impressions in his presence and petitioner/ defendant admitted receipt of amount before him--Thumb-impression was not affixed on agreement and receipt in his absence--No substance for petitioner that scriber did not make statement according to terms of offer made by him--Suit on basis of statement was decreed. [Pp. 227 & 228] A, B & C

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

----O. XXXII, R. 3--Agreement to sell--Appointment of guardian ad-litem--Effect--Proceedings--Neither grounds of appeal nor revision petition had alleged that real father of petitioners had any adverse interest--Validity--When suit property was transferred by petitioner in favour of other petitioners his sons, it cannot be observed by any stretch of imagination that petitioner had any adverse interest against other petitioners regarding suit property--Non-fulfillment of formal requirement of appointment of guardian ad-litem of petitioners under Order XXXII, Rule 3, C.P.C. could not affect proceedings in suit and decree passed by Civil Judge. [P. 230] D & E

Mian Habib-ur-Rehman Ansari,Advocate for Petitioners.

Mehr Muhammad Arif Khan Sial, Advocate for Respondent.

Date of hearing: 6.10.2015.

Judgment

This civil revision is directed against the judgment and decree dated 27.09.2008 passed by the learned Addl. District Judge, Mailsi, whereby he dismissed appeal of the petitioners filed against the judgment and decree dated 17.06.2008 passed by the learned Civil Judge, Mailsi, while decreeing the suit of respondent for specific performance of contract.

1. Precisely, stated facts of the case are that respondent filed suit for specific performance of agreement to sell dated 24.07.2006 against the petitioners regarding land measuring 04-kanals bearing Khewat No. 40/40, Khatoni No. 106 Khasra No. 3/25, alleging that the Petitioner No. 1 being owner of suit land executed agreement to sell dated 24.07.2006 in favour of the respondent of suit land for consideration of Rs. 2,00,000/-, out of which amount of Rs. 1,00,000/- was paid as earnest money in the presence of the witnesses, whereas the amount of Rs. 50,000/- was paid on 05.08.2006 in the presence of the witnesses and in this respect agreement to sell and receipt were executed; that as the land of the Petitioner No. 1 was pledged with the bank, the Petitioner No. 1 promised to execute the sale-deed on 24.08.2006 after getting redeemed his land from the bank; that on the target date Petitioner No. 1 did not come for execution of sale-deed; that later on, out of greed, the Petitioner No. 1 transferred his land in favour of his sons, Petitioners No. 2 to 4 vide tamleek Mutation No. 1208 dated 24.08.2007; that the petitioners were approached time and again and were asked to receive the remaining amount Rs. 50,000/- and to execute the sale-deed in his favour, but they have refused. In the suit, the respondent prayed for the decree for specific performance of contract and for the cancellation of Mutation No. 1208. The petitioners contested the suit by filing written statement, in which they denied from agreement to sell in favour of the respondent and prayed for dismissal of suit. The learned trial Court videorder dated 01.03.2008 framed the following issues:--

2. Whether the plaintiff purchased the subject mattervide agreement dated 24.07.2006? OPP

3. Whether the plaintiff paid earnest money Rs. 150,000/-? OPP

4. Whether the plaintiff is in possession over the subject matter on the basis of agreement to sell dated 24.07.2006? OPP

5. Whether the plaintiff has got no cause of action to file this suit? OPD

6. Whether the defendants are entitled to receive special costs u/S. 35-A, CPC? OPD

7. Relief.

8. On 17.06.2008, when the case was fixed for evidence of the respondent, the Petitioner No. 1, the father and guardian of other petitioners made offer for decision of the case on the basis of Special Oath on Holy Quran by Sh. Muhammad Iqbal, the scriber of the agreement to sell and resultantly the statements of the parties were recorded. On the same day Sh. Muhammad Iqbal on Special Oath of Holy Quran made statement in response to the offer of petitioners and consequently, the learned trial Court decreed the suit of respondent in his favour against the petitioners vide order dated 17.06.2008. The petitioners preferred civil appeal against the order and decree of the learned trial Court before the learned Addl. District Judge, Mailsi, which was dismissed vide impugned judgment dated 27.09.2008, hence, this revision.

9. The learned counsel for the petitioners contended that Sh. Muhammad Iqbal did not make the statement on special oath as per terms of offer made by Petitioner No. 1 and the learned trial Court illegally decreed the suit of respondent on the basis of such statement of Sh. Muhammad Iqbal; that Petitioners No. 2 to 4 were minor at that time and Petitioner No. 1 was not appointed as their guardian ad litem by the Court, hence the decree of trial Court is nullity in the eyes of law; that the respondent has filed the suit regarding the land measuring 4-kanal, whereas the learned trial Court has cancelled the Mutation No. 1208 of whole land measuring 36-kanal while committing material illegality and irregularity; that the learned trial Court did not consider the interest of minors while passing the impugned order and decree dated 17.06.2008 as no permission to effect the compromise was granted by trial Court; that the learned appellate Court without appraisal of record and without considering the law on the subject passed the impugned judgment dated 27.09.2008 in mechanical way. The learned counsel for the petitioners has placed reliance upon “Muhammad Sabeel Khan v. Muhammad Riaz Khan and 2 others” (PLD 1983 SC. (AJ&K) 13), “Muhammad Ali v. Naziran Bibi and 3 others” (1983 CLC 298), “Smt. Vidayabai and others v. Moorajmal” (1980 SCMR 267), “Yar Muhammad v. Mst. Amnat and others” (1988 CLC 1355) & “Taj Din and another v. Mst. Mehr Mai and 7 others” (1997 SCMR 134).

10. Conversely, the learned counsel for the respondent argued that Petitioners No. 2 to 4 were sued in the suit through Petitioner No. 1 their real father and natural guardian, having no adverse interest against the minors and Para-1 of the plaint regarding guardianship was admitted correct by the petitioners in written statement; that the suit property was transferred by Petitioner No. 1 in favour of Petitioners No. 2 to 4, his real sons through impugned Mutation No. 1208 dated 24.08.2007 with mala fide intention in order to defeat the claim of the respondent; that Sh. Muhammad Iqbal scriber made statement on oath of Holy Quran according to the offer made by petitioners and the learned trial Court has rightly decreed the suit; that concurrent findings by both the learned Courts below have been passed in favour of the respondent and the revision petition is not maintainable. He placed reliance upon “Tanveer Mahboob and another v. Haroon and others” (2003 SCMR 480) & Obaid Asghar v. Farhat Shaheen” (1995 SCMR 865).

11. Arguments heard. Record perused.

12. The perusal of the record reveals that on the basis of statement of Sheikh Muhammad Iqbal scriber of disputed agreement to sell and receipt made by him on special oath of Holy Quran in response to the offer made by Petitioner No. 1 on his behalf and on behalf of Petitioners No. 2 to 4, the learned trial Court decreed the suit of respondent for specific performance of agreement to sell dated 24.07.2006 against the petitioners and the appeal filed by the petitioners was dismissed and decree of learned trial Court was upheld by the learned Appellate Court. The first contention of learned counsel for the petitioners is that Sheikh Muhammad Iqbal did not make statement on special oath of Holy Quran according to terms of offer made by the petitioners. I have scanned the record which shows that on 17.06.2008, when the case was fixed for evidence of the respondent, the Petitioner No. 1 Shameem Haider being father and next friend of Petitioners No. 2 to 4 made offer through statement before the Court that if Sheikh Muhammad Iqbal scriber of agreement to sell takes oath on Holy Quran that he himself has drafted agreement to sell, the same is correct, the witnesses signed the agreement to sell in his presence and the parties admitted the receipt of amount of Rs. 1,50,000/- in his presence, then the suit be decreed otherwise, the suit of respondent be dismissed. As per record said offer was accepted by respondent Mehr Ali who made statement that Sheikh Muhammad Iqbal scriber of agreement to sell present in Court is ready to take oath on Holy Quran according to offer of petitioners. Resultantly, Sheikh Muhammad Iqbal after taking oath on Holy Quran made statement before the learned trial Court narrating therein that the agreement mark-A alongwith receipt are in his handwriting and bear his signatures and the same are correct and genuine. He further stated that the parties and the witnesses put their signatures and thumb impression in his presence, however, thumb impression of Mehr Ali son of Ghulam Muhammad witness was obtained while going to his house as parties were close relative. He further stated that the defendant/petitioner admitted the receipt of sale consideration in his presence. It is clear from the record that Sheikh Muhammad Iqbal after taking oath on Holy Quran has categorically stated that he drafted the disputed agreement to sell and receipt which bear his signatures and the same are correct and genuine. He has also clearly stated that parties and witnesses put their signatures and thumb impressions in his presence and the petitioner/defendant admitted the receipt of amount before him. He has not stated anywhere that the thumb impression of Mehr Ali son of Ghulam Muhammad was not affixed on the agreement and receipt in his absence. In these circumstances, there is no substance in the argument of the learned counsel for the petitioner that Sheikh Muhammad Iqbal did not make statement according to the terms of offer made by him. The learned trial Court rightly decreed the suit on the basis of statement of Sheikh Muhammad Iqbal.

13. The second contention was raised that no guardian ad-litem of Petitioners No. 2 to 4 in the suit as necessitated under the provisions of Order XXXII, Rule 3, C.P.C. was appointed by the learned trial Court So far as, this contention is concerned, it is matter of record that the respondent filed instant suit against Petitioners No. 1 to 4 and in the plaint the Petitioners No. 2 to 4 were sued through Petitioner No. 1 their real father as next friend and being real father and natural guardian the Petitioner No. 1 had no adverse interest against Petitioners No. 2 to 4.

14. The learned counsel for the respondent has placed reliance upon “Tanveer Mahboob and another v. Haroon and others” (2003 SCMR 480), wherein, the Hon’ble Supreme Court has been pleased to observe as under:--

“13. xxxxxxxxxxxxxxx

We having considered the arguments canvassed by the learned counsel for the petitioners that the trial Court was not competent to proceed with the suit and pass the decree without appointing guardian ad-litem of Hassan Mahboob a minor defendant in the suit and petitioner in Civil Petition No. 117 of 2002 find no substance in it. Learned Single Judge and also the learned Judges of the Division Bench have extensively diluted upon this question with reference to the law laid down by the superior Courts on the subject in the sub-continent and we while affirming their view hold that no exception can be taken to the law laid down on the subject. We may add that in a case in which a minor defendant in the suit was represented by his father or brother or sister as co-defendant without any conflict of interest and such co-defendant sincerely and effectively defended the rights and interest of the minor in the property, it would be deemed that the rights were sufficiently safeguarded and mere fact that minor was not sued through guardian ad-litem would not make the decree invalid and the same would be binding on the minor. Reliance may be placed on Anandram v. Madholal (AIR 1960 Rajastan 1879) and Kameen Khan v. Ghazi Marjan(1990 MLD 1865). In the present case, minor defendant Hasan Mahboob was sufttctently represented as observed by the learned Judges of the High Court, therefore, no prejudice was caused to him as his interest was throughout being watched properly by his co-defendants and a formal defect of not appointing guardian ad-litem of the said minor defendant would not effect the decree. It was held in Syed Ahmed v. Prafulla Kumar De (PLD 1961 Dacca 698) “that the non-recording of a formal order by the Court appointing the person as the guardian of the minor was at best an irregularity and the same was curable under Section 99 of the Civil Procedure Code, 1908”.

In Darshan Singh v. Kr. Maheshur Dayal(AIR 1935 Oudh 183) it was observed “that the minor was properly represented and omission of a formal order appointing the guardian was not fatal to the suit”.

The non-fulfillment of formal requirement of appointment of guardian ad-litem of a minor defendant under Order XXXII, Rule 3, C.P.C. would not affect the proceedings in the suit and the decree if ultimately passed, unless it is shown that due to omission of appointment of guardian ad-litem of a minor, who was being represented by his natural guardian, the minor was caused prejudice and the objection would be only of technical importance.

1. In the instant case neither in the grounds of appeal nor in this revision petition the petitioners have alleged that Petitioner No. 1 real father of Petitioners No. 2 to 4 had any adverse interest against Petitioners No. 2 to 4. It is established from the record that original owner of suit property was Petitioner No. 1 who transferred the land measuring 36 kanal including suit land in favour of Petitioners No. 2 to 4 his real sons through Mutation of Tamleek No. 1208 dated 24.08.2007. Therefore, when suit property was transferred by Petitioner No. 1 in favour of Petitioners No. 2 to 4 his sons, it cannot be observed by any stretch of imagination that Petitioner No. 1 had any adverse interest against Petitioners No. 2 to 4 regarding the suit property. Hence in view of law laid down by the Hon’ble Supreme Court of Pakistan in the judgment supra, non-fulfillment of formal requirement of appointment of guardian ad-litem of Petitioners No. 2 to 4 under Order XXXII, Rule 3, C.P.C. could not affect the proceedings in the suit and the decree dated 17.06.2008 passed by the learned Civil Judge, Mailsi.

2. The learned counsel for the petitioners while placing reliance upon “Muhammad Sabeel Khan v. Muhammad Riaz Khan and 2 others” (PLD 1983 SC. (AJ&K) 13), contended that no sanction/leave of the Court as contemplated by Order XXXII, Rule 7, C.P.C. was granted to effect compromise between the petitioners and respondent and in this way the interest of minors was not watched by the learned trial Court which was condition precedent before effecting compromise. On the other hand, learned counsel for the respondent has placed reliance upon the judgment of august Supreme Court of Pakistan reported as “Obaid Asghar v. Farhat Shaheen” (1995 SCMR 865), whereby the Hon’ble Supreme Court has been pleased to observe that offer of oath made by next friend was only a special method of proof adopted by the next friend and was not in the nature of an agreement or compromise and, therefore, did not require sanction/leave of the Court as contemplated by Order XXXII, Rule 7, C.P.C. I would like to refer the Paras No. 5 and 6 of this judgment as under:--

“5. We have heard the learned counsel appearing in support of this petition. He has contended that as the next friend of the petitioner made the offer to have the case decided on the special oath of the father of the defendant who was an interested person, it was incumbent upon the former to have sought leave of the Court under Order XXXII, Rule 7, C.P.C. before making such an offer. We find no merit in this contention. Law by now is fairly well-settled that the offer of oath as was made by the next friend of the petitioner in the instant case is only a special method of proof adopted by the next friend and is not in the nature of an agreement or compromise and, therefore, it does not require the sanction/leave of the Court contemplated by Order XXXII Rule 7, C.P.C. Refer “Muhammad Mahmud Chaudhry and others v. Behary Lal Saha and others,” (AIR 1930 Calcutta 463) wherein it was held “The offer of the guardian of a minor defendant on behalf of the minor to abide by the deposition to be given by a plaintiff on a special oath stands on a very different ground from an agreement or compromise contemplated by Order XXXII, Rule 7, and in such a case the minor is bound by the consent of his guardian although given without the leave of the Court provided there is no fraud or gross negligence on the part of the guardian.” Again in the case reported as AIR 836 Lahore 235 Sultan Muhammad and others v. Mehr Khan and others, the view taken was that “when the next friend of a minor expressed willingness to be bound by the oath of a certain witness, it was not in, the nature of a compromise.” “it was a method of proof which the next friend had adopted. There was nothing illegal at all in that method. This view was followed in a Peshawar case reported in PLD 1966 Peshawar 137 wherein it was held that the offer of next friend of the minor to abide by the oath of the opposite-party on the crucial question involved in the suit was not in the nature of compromise but was method of proof, adopted by the next friend and no illegality was attached to that matter. The view expressed in these cases was approved by this Court in the case of Jaffer Abbas (supra) and it was held therein that the role of an outside to whom reference is made requiring him to make disclosure on oath on the matter in dispute is in the nature of a referee and his statement is an “evidentiary admission and form of proof and that the agreement of the parties for decision of the suit on the footing of the statement of the referee is not an “agreement or compromise” of such a character as would require leave of the Court under Order XXXII, Rule 7, C.P.C.

1. In the aforesaid view of the matter, we, are satisfied that Order XXXII, Rule 7, C.P.C. in terms had no application to the facts of the present case as no agreement or compromise had been effected between the parties. The statement of Raham Ali on special oath offered by the next friend of the minor was binding on the minor particularly when there was no allegation of negligence or collusion against the next friend. We have noted that the minor filed the appeal before the District Judge and the petition for leave to appeal in this Court through the same next friend who also represented him in the High Court.”

2. In this case the statement was made by Sheikh Muhammad Iqbal on special oath of Holy Quran in response of the offer made by Petitioner No. 1 the natural guardian and next friend of Petitioners No. 2 to 4. Hence, in view of the principle laid down by the Hon’ble Supreme Court in the judgment referred supra the said statement made by Sheikh Muhammad Iqbal on special oath offered by Petitioner No. 1, the natural guardian and next friend of Petitioners No. 2 to 4 was binding on Petitioners No. 2 to 4 as there is no allegation of negligence or collusion on behalf of Petitioners No. 2 to 4 against the Petitioner No. 1. Resultantly, this contention is also repelled.

3. The learned counsel for the petitioners has raised contention that agreement to sell alleged by respondent was to the extent of 4 kanal land, whereas, the learned trial Court while decreeing the suit of respondent has illegally cancelled Mutation No. 1208 dated 24.08.2007 regarding 36 kanals land transferred in favour of the Petitioners No. 2 to 4 through said mutation. This contention has some weight in it. The respondent in the plaint has alleged that Petitioner No. 1 entered into an agreement to sell dated 24.07.2006 with him regarding land measuring 04 kanals bearing Khewat No. 40/40, Khatooni No. 106, Khasra No. 3/25, according to Register Haqdara zameen 2003-04. He further alleged that later on with mala fide intention Petitioner No. 1 got transferred his land in favour of Petitioners No. 2 to 4 through Tamleek Mutation No. 128 dated 24.8.2007. The petitioners have placed on record copy of register Haqdaran Zameen for the year 2003-04, which shows that through mutation of Tamleek No. 1208 dated 24.08.2007, the Petitioner No. 1 transferred his land measuring 36 kanals in favour of Petitioners No. 2 to 4 in equal share. As the suit was filed by the respondent only to the extent of 4 kanal land, the learned trial Court should have cancelled the Mutation No. 1208 dated 24.08.2007 only to the extent of suit land measuring 4 kanal. The findings of the learned trial Court for cancellation of Mutation No. 1208 dated 24.08.2007 regarding the land measuring 36 kanals as a whole are not sustainable under the law. The learned Appellate Court also did not notice this aspect of the case while dismissing the appeal of petitioner. Resultantly, I modify the findings of both the Courts below in this respect and it is held that the tamleek Mutation No. 1208 dated 24.08.2007 only to the extent of suit property measuring 4 kanals bearing Khewat No. 40/40, Khatooni No. 106, Khasra No. 3/25 is cancelled, whereas, said mutation to the extent of remaining land transferred in favour of Petitioners No. 2 to 4 will remain intact.

4. For the foregoing reasons, I partially accept this civil revision and resultantly the decree of the learned trial Court dated 17.06.2008 is modified in the terms that Tamleek Mutation No. 1208 dated 24.08.2007 only to the extent of suit property measuring 4 kanals bearing Khewat No. 40/40, Khatooni No. 106, Khasra No. 3/25 is cancelled, whereas, said mutation to the extent of remaining land transferred in favour of Petitioners No. 2 to 4 will remain intact. The parties to bear their own expenses.

(R.A.) Petition accepted

PLJ 2016 Lahore 233

Present: Shujaat Ali Khan, J.

Dr. MASOOD UR RAUF--Petitioner

versus

UNIVERSITY OF PUNJAB, etc.--Respondents

W.P. No. 6901 of 2010, decided on 2.10.2015.

Constitution of Pakistan, 1973--

----Art. 199--University of Punjab Act, 1973, S. 15(3)--Constitutional petition--Appointment as senior medical officer by vice chancellor--Dispensed with services on account of unsatisfactory performance--Termination of services--Terms and conditions of service were non-statutory in nature--Question of--Maintainability of petition--Alternate remedy of appeal before Syndicate--Validity--Where nature of Rules, governing terms and conditions of services of an employee are non- statutory, writ petition against an order of authority involving terms & conditions of service of employee was barred--Rules/Regulations governing terms and conditions of services of employees of university, including petitioner, are non-statutory thus plea of petitioner that same are statutory in nature is not tenable--There is no cavil with preposition that that count can determine legality of an order passed by a Government functionary or an administrative tribunal irrespective of fact as to whether Rules governing terms & conditions of employee are statutory or non-statutory but condition precedent for exercise of such power is that order impugned was patently illegal--Though petitioner has challenged order regarding extension of his probation in instant petition but respondents has rightly pointed out that same being hit by principle of laches cannot be entertained by High Court--It is well established by now that an authority which has power to appoint anybody enjoys power to proceed against an appointee under relevant provisions of law--Case of petitioner falls within category where no show-cause notice is required to be issued prior to proceedings against him, thus no exception can be taken against impugned orders--Even otherwise if clog is imposed upon by competent authority to follow procedure of regular inquiry against a probationer even, purpose to place a person on probation would become redundant simply for reason that a government employee acquires certain rights only after successful completion of his probation period--Writ petition is only maintainable in cases where no alternate remedy is provided to aggrieved person but in instant case, petitioner having been equipped with remedy of review, revision and appeal under provisions, instant petition was not maintainable--Even if remedy of appeal, review or revision is available to petitioner, he can knock doors of High Court on premises that remedy provided under any law is not efficacious--When remedy of appeal review or revision has been provided under relevant statutes no one can be allowed to by-pass same simply for reason that in his view same is not efficacious for redressal of his grievance--Appointment of petitioner was undertaken by VC while exercising powers vested under Section 15(3) of University of Punjab Act, 1973--Terms and conditions of employees of university are to be governed according to Statute and Regulations--When petitioner’s services have been dispensed with while pressing into service terms and conditions mentioned in his appointment letter, petitioner has no cheeks to claim that his case was to be proceeded under PEEDA 2006--Remedies provided before departmental hierarchy cannot be equated with constitutional jurisdiction of High Court thus said remedies pointed out by respondent cannot be considered efficacious while abridging jurisdiction of High Court vested under Art. 199 of Constitution that if such a view is taken, same would amount to nullify clear cut provision of an enactment which being in violation of established principles of interpretation of statutes cannot be approved. [Pp. 237, 239, 240, 241, 242 & 243] A, B, C, F, G, I, J, M, N, O, P, Q, R & S

University of Punjab Act, 1973--

----S. 15(3)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Appointment as senior medical officer by vice chancellor of university--Dispensed with services on account of unsatisfactory performance--Services were terminated--V.C. was not competent authority--Validity--V.C has been empowered to exercise his powers only in case of emergency--Petitioner has not argued that powers conferred upon V.C under provision are contrary to any other provision, action taken by V.C while pressing into service said provision cannot be considered as arbitrary, capricious or fanciful warranting interference by High Court in exercise of its constitutional jurisdiction--He was warned by competent authority to improve his performance and when he gave deaf ear to said warning, impugned termination order was passed against him--When services of any probationer are terminated on basis of poor performance, he is not entitled for any show cause notice.

[Pp. 239 & 240] D, E & H

University of Punjab Act, 1973--

----S. 43--Constitution of Pakistan, 1973--Art. 199--Dispensation of service by V.C.--Power of--Remedy of appeal--Validity--University of Punjab Act 1973, an employee against whom an order has been passed by competent authority has been bestowed with remedy of appeal--Not only remedy of appeal or review has been provided to an aggrieved employee of university against an order passed by competent authority rather remedy of revision has also been catered for an aggrieved person. [Pp. 241 & 242] K & L

Ch. Abdul Sattar, Advocate for Petitioner.

Malik Muhammad Awais Khalid, Advocate for Respondents.

Date of hearing: 2.10.2015

Order

Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has assailed orders dated 16.09.2008 and 23.09.2010 passed by the Vice Chancellor, University of the Punjab, Lahore (hereinafter to be referred as “V.C”).

1. Shorn-of unnecessary details, the petitioner was appointed as Senior Medical Officer (Dental) in BS-18 by the V.C vide Office Order No. 18540-51/Est.II dated 01.09.2006 issued by the Registrar. Initially, he was on probation for two years. Later on, vide Office Order No. 32316-22/Est.II dated 16.09.2008, his probation period was extended for further two years w.e.f 11.09.2008 as his performance was not up to the mark and finally the competent Authority viz. Chancellor through order dated 29.03.2010 dispensed with services of the petitioner on account of unsatisfactory performance. Aggrieved of the orders regarding extension of his period of probation as well as termination of services, the petitioner has filed the instant petition.

2. Learned counsel for the petitioner, while opening his arguments, submits that since the V.C was not the competent Authority in the matter of the petitioner as he was serving in BS-18, the orders impugned in this petition are coram-non-judice; that as a matter of fact, the competent Authority in the matter of the petitioner was Syndicate and without any recommendation by it, no adverse order could be passed against the petitioner; that the impugned orders being violative of universally acknowledged principle of audi-alteram-partem is not sustainable; that since the petitioner’s services were dispensed with on account of allegation of poor performance, the same could not be done without following the procedure of regular inquiry; that the malafide on the part of the respondents is manifest from the fact that just after a day of termination of the petitioner, somebody else was inducted as Senior Medical Officer (Dental) in place of the petitioner. In support of his oral submissions learned counsel for the petitioner has referred to the cases of Anwar Hussain vs. Agricultural Development Bank of Pakistan and others (PLD 1984 Supreme Court 194), Dr. Ghulam Mustafa Chaudhary vs. Dr. Muhammad Ashiq Khan Durrani, Vice Chancellor, B.Z University Multan and 2 others (2000 PLC (CS) 385), Islamia University, Bahawalpur through Vice Chancellor vs. Dr. Muhammad Khan Malik (PLD 1993 Lahore 141), judgment dated 14.09.2015 rendered in Kamran Ahmad vs. WAPDA etc. (ICA No. 1061 of 2013) and order dated 06.05.2015 passed in Nadeem Asghar Nadeem etc vs. Province of the Punjab etc. (Writ Petition No. 26696 of 2014).

3. Conversely, learned counsel representing the respondents states that as the Rules governing the terms and conditions of service of the petitioner are non-statutory in nature, the instant petition is not maintainable; that if the plea of the petitioner that V.C was not the competent Authority in his matter is taken as correct then order of his initial appointment as Senior Medical Officer (Dental) would not be tenable as he was appointed by the same Authority; that during service an inquiry was conducted against the petitioner and on conclusion thereof he was found at fault, as a result, warning was issued to him on more than one occasion regarding his poor performance but instead of any improvement, the petitioner continued with his uncalled for behavior which compelled the V.C to terminate his services and that the petitioner being equipped with alternate remedy of appeal before the Syndicate, the instant petition is not maintainable. To fortify his contentions learned counsel for the respondents has relied upon order dated 16.09.2015 passed in Anwar Ahmad Siddique (deceased) through M. Omer Elahi etc. vs. University of the Punjab etc. (Writ Petition No. 2521 of 2009).

4. Learned counsel for the petitioner, while exercising his right of rebuttal, submits that as the orders impugned in this petition are coram-non-judice the same is maintainable; that when an act of the public functionary offends against clear cut provision of an enactment, the same can be challenged in writ jurisdiction as per law laid down in the case reported as Pakistan Defence Officers’ Housing Authority and others vs. Col Syed Jawaid Ahmad (2013 SCMR 1707) irrespective of the fact as to whether Rules are statutory or non-statutory; that as University of the Punjab Act, 1973 is applicable to the petitioner, the proceedings initiated against him are not tenable; that according to judgment of the learned Divisional Bench of this Court in the case reported as Islamia University, Bahawalpur through Vice Chancellor vs. Dr. Muhammad Khan Malik (PLD 1993 Lahore 141) this petition is maintainable against the university Authorities and that the petitioner’s performance remained up to the mark but the respondents with a view to accommodate their blue eyed person passed the impugned orders against him. To conclude his arguments, learned counsel has adopted the plea that since Punjab Employees Efficiency & Discipline Accountability Act, 2006 (PEEDA, 2006) was applicable, the petitioner could not be penalized under any other law.

5. Learned counsel representing respondents in furtherance of his above oral submissions states that as the petitioner did not challenge the order regarding extension of his probation period at the appropriate time, he was debarred to file the instant petition in view of principle of acquiescence; that order dated 16.09.2008 could not be challenged in the instant petition as the same was hit by the principle of laches.

6. I have heard learned counsel for the parties and have also gone through the documents annexed with this petition in addition to those forming part of report and parawise comments in addition to the case-law cited at the Bar.

7. Firstly, taking up the question regarding maintainability of this petition, I am of the view that where the nature of the Rules, governing the terms and conditions of services of an employee are non- statutory, writ petition against an order of the Authority involving terms & conditions of service of the said employee is barred. If any case-law is required, reference can be made to the cases reported as Masood Ahmed Bhatti and others vs. Federation of Pakistan through Secretary M/O Information Technology and Telecommunication and others (2012 SCMR 152) Riaz Hanif Rahi vs. Saeed uz Zaman Siddiqui and 4 others (2011 SCMR 948), Executive Council, Allama Iqbal Open University, Islamabad through Chairman and another vs. M. Tufail Hashmi (2010 SCMR 1484), Ijaz Hussain Suleri vs. The Registrar and another (1999 SCMR 2381) and University of the Punjab Lahore and 2 others vs. Ch. Sardar Ali (1992 SCMR 1093). The nature of the Rules/Regulations relating to the terms and conditions of employees of University of the Punjab came under discussion in the case of University of the Punjab Lahore and 2 others Ali (supra) wherein the said question has been responded to by the Apex Court of the Country in the following words:--

“By invoking this sub-section (8) of Section 11 of the Act, the contention of the respondent is that the appointment of the teachers and the control under the Efficiency and Discipline Rules of the Chancellor becomes that of the Governor and hence statutory. This contention suffers from three defects.

Firstly, the scheme of the Act otherwise does not show that the Rules of Efficiency and Discipline or the conditions of service of the respondent are governed by the statutory rules. In the absence of it, sub-section (8) of Section 11 which relates to the manner in which the Chancellor shall act in the discharge of his duties, does not make the conditions of service of the employees statutory. All that sub-section (8) of Section 11 provides is that the Governor shall be bound by the advice of the Chief Minister as he is bound in discharge of his functions under Article 105 of the Constitution of the Islamic Republic of Pakistan.

Secondly, such an incorporation by reference on the strength of a statutory provision of a constitutional provision does not raise the status of the statutory provision to that of a constitutional provision. It has been so held by this Court in Zainul Abidin v. Multan Central Cooperative Bank Limited, Multan PLD 1966 SC 445 and the Lahore Central Cooperative Bank Ltd. v. Pir Saifullah Shah PLD 1959 SC 210.

Thirdly, the difference between the position of the Governor as the Chief Executive of the Province and as the Chancellor of a University has been well brought out in an Indian decision in Dr. S.C. Barat and another v. Hari Vinayak Pataskar and others AIR 1962 Madhya Pradesh 73 in the following words:

“When an Act confers powers on the Governor not qua Governor but in a different capacity held by him by virtue of his office as Governor, the powers and duties so conferred are not the powers and duties of the office of the Governor. They are the powers and duties of a different office which the Governor holds by virtue of his office as Governor. It is altogether erroneous to say that as the other office is held by the person who is the Governor of the State by virtue of his office as Governor, therefore the powers and duties he exercises or performs of that other office under the relevant Act are the powers and duties of his office as Governor .... Thus the powers and duties that the Chancellor exercises or performs under the Act are not any powers or duties conferred on the Governor qua Governor or of a capacity which he occupies by virtue of his office as Governor. They are the powers and duties of a public capacity held by the personage who is also the Governor. The Chancellor's powers under the Jabalpur University Act are thus not the powers and duties of the office of the Governor and consequently the protection provided by Article 361(1) cannot be invoked by the Chancellor in respect of the exercise and performance of the powers and duties of his office as Chancellor under the Jabalpur University Act.” (emphasis provided).

The afore-quoted paragraph of the judgment passed by the Apex Court of the Country leaves no ambiguity that the Rules/Regulations governing the terms and conditions of services of the employees of the University, including the petitioner, are non-statutory thus the plea of the petitioner that the same are statutory in nature is not tenable.

1. Now coming to the petitioner’s contention that in view of law laid down by Apex Court of the country in the case of Pakistan Defence Officers’ Housing Authority and others (supra) this Court can take care of orders passed by the Administrative Tribunals or Special Court or authorities working in local bodies while exercising jurisdiction vested under Article 199 of the Constitution of Islamic Republic of Pakistan 1973 with all humbleness at my command and due reverence to the verdict of the Apex Court of the Country it is observed that there is no cavil with the preposition that this count can determine the legality of an order passed by a Government functionary or an administrative Tribunal irrespective of the fact as to whether the Rules governing terms & conditions of employee are statutory or non-statutory but the condition precedent for exercise of such power is that the order impugned is patently illegal. Insofar as the case in hand is concerned, learned counsel for the petitioner has referred to Section 15(3) of the University of Punjab Act, 1973 to show that the V.C has been empowered to exercise his powers only in case of emergency. Perhaps learned counsel for the petitioner has raised said plea in oblivion of the fact that the appointment of the petitioner was undertaken by the VC while exercising the powers under the same provision. If it is presumed that said provision could only be exercised in case of emergency, in my humble view no emergency having been established on record, certain queries surface on the scene against the initial appointment of the petitioner. Learned counsel for the petitioner has not argued that the powers conferred upon the V.C under the aforesaid provision are contrary to any other provision, the action taken by the V.C while pressing into service the said provision cannot be considered as arbitrary, capricious or fanciful warranting interference by this Court in exercise of its constitutional jurisdiction. If the petitioner was of the view that the competent Authority was Syndicate, why he kept mum at the time of his appointment; at the time of order of inquiry and lastly when his period of probation was extended for further two years. Though the petitioner has challenged order regarding extension of his probation in the instant petition but the learned counsel for the respondents has rightly pointed out that the same being hit by principle of laches cannot be entertained by this Court. It is very ironical that on the one hand the petitioner is claiming setting aside of impugned orders on the ground that he having been appointed by the competent Authority served the institution to the entire satisfaction of his superiors but on the other has adopted the plea that V.C was not competent to pass any order against him. It is well established by now that an authority which has the power to appoint anybody enjoys the power to proceed against an appointee under the relevant provisions of law.

2. Now taking up the question regarding non- affording of opportunity of personal hearing to the petitioner, I am of the view that the same is not sustainable for the reason that after pouring in of certain complaints, an inquiry was conducted against the petitioner whereby he was found guilty. However while taking lenient view, he was warned by the competent Authority to improve his performance and when he gave deaf ear to the said warning, the impugned termination order was passed against him. Even otherwise, when the services of any probationer are terminated on the basis of poor performance, he is not entitled for any show cause notice. In this regard, I stand guided by the cases reported as Muhammad Siddique Javaid Chaudhary vs. Govt. of West Pakistan (1974 PLC 243), Engineer Majeed Ahmed Memon vs. Liaqat University of Medical and Health Sciences Jamshoro through principal Executive and 3 others (2010 PLC (C.S) 856), Muhammad Iqbal Khan Niazi vs. Lahore High Court, Lahore through Registrar (2003 PLC (CS) 285), Miss Saima Gardezi vs. President, First Women Bank Ltd and 2 others (2007 PLC (CS) 1033), Ch. Muhammad Hussain Naqshbandi vs. Government of the Punjab and others (2004 SCMR 44), Rehan Saeed Khan and others vs. Federation of Pakistan and others (2001 PLC (CS) 1275), Ch. Muhammad Hussain Naqshbandi vs. Government of the Punjab and others(2003 PLC (CS) 1421) and Mrs. Abida Perveen Channar vs. High Court of Sindh (2011 PLC (CS) 836). The Hon’ble Supreme Court of Pakistan in the case of Muhammad Siddique Javed (supra) has categorized the cases where the show cause notice is required to be issued while dispensing with services of a probationer and where the competent Authority can straightway terminate the services of such person relevant portion of the said judgment reads as under:--

“\\\In my opinion, if the service of a probationer is terminated on the ground of unsatisfactory work that will not amount to dismissal or removal from service, such termination will be in terms of the contract or the rules made by the government but if the service of a probationer is terminated on the ground of misconduct that will amount to removal or dismissal. It will be a stigma in his favour. In the last mentioned case, the probationer will be protected by the provisions of Article 177 of the Constitution of 1962 and will be entitled to a show-cause notice and a proper enquiry against him must be made. ….”

If the case of the petitioner is adjudged on the basis of aforequoted judgment of the august Supreme Court, I am of the view that the case of the petitioner falls within the category where no show cause notice is required to be issued prior to proceedings against him, thus no exception can be taken against the impugned orders on the ground under discussion.

1. Even otherwise if the clog is imposed upon by the competent authority to follow procedure of regular inquiry against a probationer even, the purpose to place a person on probation would become redundant simply for the reason that a government employee acquires certain rights only after successful completion of his probation period. In the case of Mrs. Abida Parveen Channar (supra) the apex Court of the Country while clinching the issue, under discussion, has inter alia held as under:--

“\\\that appointment of a probationer can only acquire a sure footing if he successfully completes the period of probation and the appointing authority is fully satisfied with his conduct and performance of duties……”

1. It is important to observe over here that under Section 43 of the University of the Punjab Act, 1973, an employee against whom an order has been passed by the competent Authority has been bestowed with remedy of appeal. A conjunctive reading of Section 43 ibid with Sections 12, 15 and 17 of the Punjab University Employees (Efficiency and Discipline) Statutes, 1975 (hereinafter to be referred as “statutes 1975”) makes it crystal clear that not only remedy of appeal or review has been provided to an aggrieved employee of the University against an order passed by the competent Authority rather remedy of revision has also been catered for an aggrieved person. According to the opening lines of the Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 a writ petition is only maintainable in the cases where no alternate remedy is provided to the aggrieved person but in the instant case, the petitioner having been equipped with remedy of review, revision and appeal under the aforementioned provisions, the instant petition is not maintainable. Though learned counsel for the petitioner has tried to get wriggle out of the said embargo with the plea that even if the remedy of appeal, review or revision is available to the petitioner, he can knock the doors of this Court on the premises that the remedy provided under any law is not efficacious. In this regard, I am of the view that when remedy of appeal review or revision has been provided under the relevant statutes no one can be allowed to by-pass the same simply for the reason that in his view the same is not efficacious for redressal of his grievance. The apex Court of the country while dealing with somewhat similar situation in the case reported as Syed Match Company Ltd. Through Managing Director vs. Authority under Payment of Wages Act and others (2003 SCMR 1493) has laid law to the following effect:--

“\\\ It is not the discretion of a party to ignore the provisions of appeal and file Constitutional petition instead. Even, if it is assumed for the sake of arguments that the claim of the respondents was on higher side, yet , for this reason alone it could not be asserted that the Respondent No. 1 had no jurisdiction in the matter. In various cases, this Court has discouraged the tendency to bypass the remedy provided under the relevant statute and to press into service Constitutional jurisdiction of High Court ……..” (emphasis provided)

1. Learned counsel for the petitioner has repeatedly argued that as the Punjab Employees Efficiency, Discipline and Accountability Act, 2006 was in vogue at the time of termination of the petitioner, his services could not be terminated except through the procedure as provided under the PEEDA Act, 2006. In this regard, I do not find myself in agreement with learned counsel for the petitioner firstly for the reason that the appointment of the petitioner was undertaken by the VC while exercising powers vested under Section 15(3) of the University of the Punjab Act, 1973. Further, the terms and conditions of the employees of University of the Punjab are to be governed according to the said statute and the Regulations made thereunder. It is not case of the petitioner that the University of the Punjab Employees (E&D) Statutes, 1975 have been repealed. Secondly, when the petitioner’s services have been dispensed with while pressing into

service the terms and conditions mentioned in his appointment letter, the petitioner has no cheeks to claim that his case was to be proceeded under PEEDA, 2006.

1. As far as contention of the learned counsel for the petitioner that remedies provided before departmental hierarchy cannot be equated with constitutional jurisdiction of this Court thus said remedies pointed out by learned counsel for the respondent cannot be considered efficacious while abridging jurisdiction of this Court vested under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is concerned, suffice it to note that if such a view is taken, the same would amount to nullify clear cut provision of an enactment which being in violation of the established principles of interpretation of statutes cannot be approved.

2. For what has been discussed above, I see no force in this petition which is dismissed leaving the parties to bear their respective costs.

(R.A.) Petition dismissed

PLJ 2016 Lahore 243 [Bahawalpur Bench Bahawalpur]

Present: Shehram Sarwar Ch. J.

MUHAMMAD SHAFIQ, etc.--Petitioners

versus

ASJ/J.O.P, etc.--Respondents

W.P. No. 4903 of 2015/BWP, heard on 26.8.2015.

Constitution of Pakistan, 1973--

----Art. 199--Criminal Procedure Code, (V of 1898), Ss. 22-A & 22-B & 254--Constitutional petition--Registration of criminal case--Illegally possession was taken--Report of police--Value of--Ex-Officio Justice of Peace, although has sought report from police but despite its availability on record, has ignored it and failed to give any reason for not believing same--An Ex-Officio Justice of Peace was not bound to seek report from police at every cost and he was fully competent to decide application and pass an order even without any report by police but when a report was called, to know truth and real facts, then it would not be ignored--If Ex-Officio Justice of Peace does not agree with report, then should give reasons--Seeking and obtaining a police report but ignoring and passing an order, contrary to it, without assigning any reason could not be appreciated--Special care to that situation is required--Petition was accepted. [Pp. 245 & 246] A & B

PLD 2005 Lah. 470 & PLD 2010 SC 691, ref.

Mr. Zafar Iqbal Awan, Advocate for Petitioners.

Mr. Saeed Ahmad Chaudhary, AAG for Respondents.

Date of hearing: 26.8.2015

Judgment

This writ petition is directed against the order dated 11.06.2015, passed by the learned Ex-Officio Justice of Peace/ Respondent No. 1 whereby a direction has been given to the SHO to record the statement of Respondent No. 3 and interrogate the matter in issue and if a cognizable offence is made out then he shall proceed further as required under Section 154, Cr.P.C.

1. Briefly the facts of the case are that the petitioners armed with fire-arms entered in the house of Respondent No. 3 with the intention to illegally take possession but on intervention when failed committed the offence of theft. Respondent No. 3 moved a petition under Sections 22-A & 22-B, Cr.P.C. before Respondent No. 1 for registration of criminal case against the petitioners. Report was requisitioned from Respondent No. 2/ SHO Police Station Liaquatpur, District Rahimyar Khan, who filed the same on 25.5.2015, wherein he has specifically mentioned that a thorough inquiry was held by him and according to that inquiry no such occurrence took place. The learned Ex-Officio Justice of Peace without taking into consideration the report submitted by the police decided the application on 11.6.2015, hence this petition.

2. I have heard the learned counsel for the petitioner, learned A.A.G. and have also gone through the record annexed with this petition. It has been found that the learned Ex-Officio Justice of Peace called for a report from the SHO/ Respondent No. 2 which was submitted but without giving any weight to the abovementioned report, made by the police, or even discuss it preferred to pass the impugned order.

3. The purpose of the report/comments from the police has been described in detail in the case titled Khizar Hayat and others vs. Inspector General of Police (Punjab) Lahore and others”, reported as (P.L.D. 2005 Lahore 470) in the following terms:--

“It is prudent and advisable for an Ex-Officio Justice of the Peace to call for comments of the officer incharge of the relevant Police Station in respect of complaints of this nature before taking any decision of his own in that regard so that he may be apprised of the reasons why the local police has not registered a criminal case in respect of the complainant's allegations. It may well be that the complainant has been economizing with the truth and the comments of the local police may help in completing the picture and making the situation clearer for the Ex-Officio Justice of the Peace facilitating him in issuing a just and correct direction, if any.”

“The officer incharge of the relevant Police Station may be under a statutoiy obligation to register an F.I.R. whenever information disclosing commission of a cognizable offence is provided to him but the provisions of Section 22-A(6), Cr.P.C. do not make it obligatory for an Ex-Officio Justice of the Peace to necessarily or blindfoldedly issue a direction regarding registration of a criminal case whenever a complaint is filed before him in that regard. An Ex-Officio Justice of the Peace should exercise caution and restraint in this regard and he may call for comments of the officer incharge of the relevant Police Station in respect of complaints of this nature before taking any decision of his own in that regard so that he may be apprised of the reasons why the local police have not registered a criminal case in respect of the complainant's allegations. If the comments furnished by the office incharge of the relevant Police Station disclose no justifiable reason for not registering a criminal case on the basis of the information supplied by the complaining person then an Ex-Officio Justice of the Peace would be justified in issuing a direction that a criminal case be registered and investigated.”

1. The above mentioned dictum clearly indicates importance of the report of the police, so that real facts, should come on the record, but in the matter in hand, as stated above, the learned Ex-Officio Justice of Peace, although has sought report from the police but despite its availability on the record, has ignored it and failed to give any reason for not believing the same.

2. An Ex-Officio Justice of Peace is not bound to seek report from the police at every cost and he is fully competent to decide the application and pass an order even without any report by the police but when a report is called, to know the truth and real facts, as per the above mentioned dictum, then it should not be ignored. If Ex-Officio Justice of Peace does not agree with the report, then should give the reasons. Seeking and obtaining a police report but ignoring and

passing an order, contrary to it, without assigning any reason could not be appreciated. Special care to this situation is required.

1. Resultantly, the instant writ petition is accepted, the impugned order dated 11.6.2015, passed by Respondent No. 1 is set aside and the application for registration of case is dismissed.

2. Despite the abovementioned, Respondent No. 3, if so advised, shall have the remedy of filing a private complaint according to the dictum laid down in the cases reported as Khizer Hayat and others vs. Inspector General of Police (Punjab) Lahore and others (PLD 2005 Lahore 470) and Rai Ashraf and others vs. Muhammad Saleem Bhatti and others (PLD 2010 SC 691).

(R.A.) Petition accepted

PLJ 2016 Lahore 246

Present: Atir Mahmood, J.

MUHAMMAD KHAN--Petitioner

versus

MONDA, etc.--Respondents

C.R. No. 2831 of 2011, heard on 10.9.2015.

Pleading--

---Scope of--Evidence--Assertion made in plaint was not proved through any oral or documentary evidence and whatever was asserted in evidence was beyond pleadings. [P. 249] A

Sepcific Relief Act, 1877 (I of 1877)--

----S. 42--Civil Procedure Code, (V of 1908), S. 115--Civil revision--Suit claiming his title on basis of entry made in jamabandi--Register of Record of Right--Land was transferred on basis of decree of Court--No such decree was ever produced before Courts below--Concurrent findings--Validity--No such decree or proceeding have ever been brought on record even though same were denied by other side in categorical term--Contention of petitioner lacks force which is accordingly repelled--When claim of possession, had not been made whereas petitioner himself admitted that he was not in possession of property--Further, patwari halqa admitted in clear words that plaintiff was not in possession of disputed property--Then remains no doubt that suit filed by petitioner was defective from it very inception. [Pp. 249 & 250] B & C

1996 SCMR 1217, rel.

Malik Noor Muhammad Awan, Advocate for Petitioner.

Ch. Muhammad Naeem & Mr. Muhammad Ibrahim Khalil,Advocate for Respondents No. 6 to 8.

Proceeded against ex parte vide order dated 19.3.2015. for Respondents No. 1 to 5.

Date of hearing: 10.9.2015.

Judgment

This civil revision is directed against judgment and decree dated 4.05.2011 passed by learned District Judge, Sargodha who dismissed appeal of the petitioner and upheld judgment and decree dated 4.10.1999 passed by learned trial Court whereby suit of the petitioner was dismissed.

1. Brief facts of the case are that petitioner filed a suit for declaration regarding land measuring 18 kanals and 7 marlas bearing Khewat No. 13 situated in village Bhiki Khurd Tehsil Bhalwal, District Sargodha challenging Mutation Nos. 922, 928, 960, 1006, 1088 and 1096 sanctioned in favour of the respondents. The petitioner asserted that Monda and legal heirs of Maulu transferred the suit land in favour of plaintiff/petitioner and also delivered possession thereof in view of judgment and decree dated 26.09.1973. The plaintiff also asserted that the Mutation No. 898 was also entered on 24.09.1974 in pursuance of said decree but could not be sanctioned due to violation of Martial Law Regulation rather the said mutation was cancelled. The petitioner assailed the said order in appeal which was allowed and Mutation No. 930 dated 12.11.1985 was sanctioned in favour of the petitioner but prior to sanctioning of the said mutation, Maulu and LRs as well as Munda transferred the land in dispute through various mutations in favour of Hayat, Sultan Ahmad and Muhammad Nawaz illegally and unlawfully.

2. The suit was contested by the respondents by filing written statement. Issues were framed. Evidence led by the parties was recorded. Thereafter, learned trial Court after hearing both sides dismissed the suitvidejudgment and decree dated 04.10.1999. Feeling aggrieved, the petitioner preferred appeal which was dismissed by learned District Judge, Sargodha vide judgment and decree dated 04.05.2011. Hence this civil revision.

3. Learned counsel for the petitioner inter alia contends that Mutation No. 930 was attested in view of decree dated 26.09.1973 which decree still holds, the field, therefore, Mutation No. 930 could not be set aside; that since the sanction of mutations in favour of defendants are illegal, therefore, other mutations sanctioned on the basis of sale-deeds are ineffective upon the rights of the petitioner but this fact of altogether ignored by learned Courts below; that the statement made by PW-1 Ghulam Hussain Patwari supports version of the petitioner that Mutation No. 898 was incorporated in revenue record on 24.09.1974 but it could not be sanctioned due to MLR No. 115; that the impugned judgments and decrees are based on misreading and non-reading of evidence; that learned Courts below have committed serious illegalities while passing the impugned judgments and decrees which has caused serious prejudice to the rights of the petitioner, therefore, this civil revision, learned counsel prays, be allowed, the impugned judgments and decrees be set aside and the suit of the petitioner be decreed as prayed for. He has relied upon the law laid down in cased titled Khalid Mahmood v. Anees Bibi and 2 others (PLD 2007 Lahore 626), Muhammad Ismail and others v. Roshan Ara Begum and, others (PLD 2001 Lahore 28), Mst. Tabassum Shaheen v. Mst. Uzma Rahat and others (2012 SCMR 983), Abdul Ahad and others v. Roshan Din and 36 others (PLD 1979 SC 890) and Ahmad Din v. Muhammad Shafi and others (PLD 1971 SC 762).

4. On the other hand, learned counsel for Respondents No. 6 to 8 have fully supported impugned judgments and decrees while controverting this civil revision. He contends that the suit filed by the petitioner was barred under Section 42 of the Specific Relief Act; that the decree relied upon by the petitioner had never been part of the record as it was never produced in the evidence; that the respondents were not made party to the proceedings in the appeal filed by the petitioner before the revenue authorities; that the judgments of learned Courts below are concurrent in nature which cannot be upset in revisional jurisdiction as there is no misreading or non-reading of evidence. He has relied upon the dictums laid down in case reported as Sheikh Muhammad Ashraf v. Mst. Bilqees Akhtar and 4 others (2000 YLR 408 Lahore); Muhammad Yar v. Mst. Iffat Sultana (2000 MLD 531 Lahore), Muhammad Sher and others v. Mst. Taj Meena and others (PLD 1996 Peshawar 6), Muhammad Saeed and others v. Muhammad Asif and others (2001 MLD 1861 Karachi), Mst. Perveen Akhtar and others v. Muhammad Hussain and others (2000 SCMR 1881) and Messrs Javed and Co. v. Messrs Daewoo Pakistan Motorway Services Ltd. through Chief Executive (2000 CLC 1611 Lahore).

5. Arguments heard. Record perused.

6. Admittedly, the petitioner filed a suit claiming his title in the suit property on the basis of an entry made in jamabandi for the year 1969-70. He, however, averred that respondent-Defendant No. 1 and predecessor of respondents-Defendants No. 2 to 5 transferred the suit property in his name through a decree of the Court dated 26.09.1973. According to Exh.P3, which is a copy of the Register of Record of Rights for the year 1973-74, the suit land was transferred in the name of the petitioner on the basis of decree of the Court mentioned hereinabove but no such decree was ever produced before the Courts below. Even, there are no proceedings of any Court of law, on record, which could be said to have culminated into the decree. It is surprising that the petitioner claimed himself owner of the property on the basis of jamabandi for the year 1969-70 and at the same time, he asserted that the land was transferred to him through decree of the Court in the year 1973. While appearing in the witness box as PW.2. the petitioner is silent as to how he became owner of the property in the year 1969-70. It is not his prayer in the suit that he be declared owner of the suit property on the basis of the decree dated 26.09.1973 passed in his favour (implemented through Mutation No. 898). Relevant portion of headnote of the plaint as well as prayer clause are reproduced below:

Headnote:

دعوی استقرار حق بدیں قرار داد کہ من مدعی اراضی موازی 18¾کنال مندرجہ کھیوٹ نمبر 13رقبہ تعدادی 112¾کنال کا 273/1650واقع موضع بھکھی خورد تحصیل بھلوال کا مالک قابض بروئے۔ جمعبندی 1969-70 کا ہے اور کہ مدعا علیہم کا اراضی متدعویہ سے کوئی تعلق واسطہ نہ ہے۔

Prayer:

بحالات بالا استدعا ہے کہ دعوئ استقرار حق حسب صراحت عنوان عرضیدعوی بحق من مدعی بر خلاف مدعا علیہم ڈگری فرمایا جاوے۔ واجبا عرض ہے۔

1. It is noticed that the assertion made in the plaint was not proved through any oral or documentary evidence and whatever was asserted in the evidence was beyond the pleadings. It is now settled proposition of law that anything said in the evidence beyond the pleadings cannot be taken into consideration. The main thrust of learned counsel for the petitioner was that the suit property was transferred in his name through decree of the Court dated 26.09.1973 which is still intact and never challenged by anyone. I am afraid that as noted above, no such decree or proceeding have ever been brought on record even though the same were denied by the other side in categorical term. The contention of learned counsel for the petitioner lacks force which is accordingly repelled.

2. There is another aspect of the case that the suit as framed was not maintainable under Section 42 of the Specific Relief Act and Order II Rule 2, CPC when claim of possession, has not been made whereas the petitioner himself admitted that he is not in possession of the property. Further, PW.1 Ghulam Husssain Patwari Halqa admitted in clear words that the plaintiff is not in possession of the disputed property. In the said circumstances, then remains no doubt that the suit filed by the petitioner was defective from it very inception. Reliance is placed upon the law laid down by the Hon’ble Supreme Court in case Hazrat Khan v. Amanullah Khan and other (1996 SCMR 1217).

3. Both the learned Courts below have concurrently decided against the petitioner, particularly the appellate Court has delivered a comprehensive and detailed judgment touching the entire evidence led by the parties. No misreading or non-reading of evidence is spelt out from the record. As such, there is no occasion to interfere with the impugned judgments and decrees of learned Courts below in revisional jurisdiction. This civil revision is without any substance, which is accordingly dismissed.

(R.A.) Petition dismissed

PLJ 2016 Lahore 250 [Bahawalpur Bench Bahawalpur]

Present: Zafarullah Khan Khakwani, J.

MUHAMMAD HANIF and another--Petitioners

versus

ADDITIONAL DISTRICT & SESSIONS JUDGE, APPELLATE AUTHROITY CHISHTIAN SHARIF, DISTRICT BAHAWALNAGAR and 4 others--Respondents

W.P. No. 7729 of 2015, decided on 15.10.2015.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Nomination papers to contest election on seat of chairman and vice chairman, acceptance of--Challenge to--Defaulter of MEPCO--Requisite fee was deposited in bank after last date of receiving nomination papers--Not qualified to contest election--Joint candidature--Validity of order--Requisite fee was deposited in cash by all members on same day, receipts were also issued to them and total fee was deposited by R.O. in NBP through challan--Requisite fee was deposited within time and receipts were also issued to candidates, so, delay in depositing fee in government treasury by respondent cannot be attributed to respondents--It was matter between R.O. and E.C.P. and according to record respondents submitted their nomination papers within prescribed time along with requisite fee--Petitioners also failed to place on record any evidence regarding other allegations levelled against respondents. [P. 251] A & B

Syed Saleem ud Din Aftab, Advocate for Petitioners.

Ch. Abdul Jabbar, Standing Counsel for Federation of Pakistan with Muhammad Nasrullah Zahid, A.R.O.

Mr. Muhammad Saleem Faiz, Advocate for Respondents No. 4 & 5.

Date of hearing: 15.10.2015.

Order

Through this petition, the petitioners have assailed the legality and validity of order dated 11.09.2015 whereby nomination papers of Respondents No. 3 & 4 to contest election against the seat of Chairman and Vice Chairman of Union Council No. 86 Tehsil Chishtian, District Council Bahawalnagar were accepted and order dated 29.09.2015 whereby appeal filed by the petitioners against the order dated 11.09.2015 was dismissed.

1. Brief facts of the case are that the petitioners and Respondents No. 3 & 4 submitted their nomination papers to contest election on the seat of Chairman and Vice Chairman of Union Council No. 86 Tehsil Chishtian District Council Bahawalnagar. The nomination papers of the said respondents were accepted. The petitioners filed an appeal against said acceptance of nomination papers of said respondents with the contention that concerned Returning Officer did not perform his duties in accordance with law and received nomination papers of respondents ante dated which is proved from the receipt of treasury branch according to which requisite fee was deposited in the bank on 18.09.2015, after the last date of receiving nomination papers. It is maintained that Respondent No. 3 being Chairman of Water Supply Scheme is defaulter of MEPCO, therefore, he was not qualified to contest election and his nomination papers was wrongly accepted.

2. Conversely, learned Law Officer assisted by learned counsel for respondents vehemently opposed this contention of learned counsel for the petitioners and supported the impugned orders.

3. Arguments heard and record perused.

4. Perusal of the record suggests that Respondents No. 3 & 4 filed nomination papers as joint candidature against the seat of Chairman and Vice Chairman of Union Council No. 86 Tehsil Chishtian on 11.09.2015 along with requisite fee in cash with the Returning Officer. Learned Law Officer and learned counsel for private respondents relying on the report and parawise comments submitted by Returning Officer of Union Council Nos. 83 to 90 submit that Respondents No. 3 & 4 submitted their nomination papers within the stipulated time i.e. on 11.09.2015 along with nine other candidates for general members. The requisite fee was deposited in cash by all the members on the same day, receipts were also issued to them and total fee of Rs. 23,000/- was deposited by the Returning Officer in National Bank of Pakistan Chishtian Branch on 18.09.2015 through challan No. 39.

5. This fact establishes that the requisite fee was deposited within time and receipts were also issued to the candidates, so, the delay in depositing fee in government treasury by Respondent No. 2 cannot be attributed to Respondents No. 3 & 4. It was the matter between Returning Officer and Election Commission of Pakistan and according to record Respondents No. 3 & 4 submitted their nomination papers within the prescribed time along with requisite fee. As per record the petitioners also failed to place on record any evidence regarding other allegations levelled against Respondents No. 3 & 4.

6. In view of the above, I do not find any illegally, irregularity in the orders passed by the respondents. Resultantly, this petition being meritless is dismissed.

(R.A.) Petition dismissed

PLJ 2016 Lahore 252 [Multan Bench Multan]

Present: Mirza Viqas rauf, J.

ALI MAJEED and others--Petitioners

versus

WATER AND POWER DEVELOPMENT AUTHORITY (WAPDA) through it Chairman WAPDA House, Lahore and 4 others--Respondents

W.P. Nos. 10706 & 11666 of 2015, heard on 2.9.2015.

Constitution of Pakistan, 1973--

----Art. 199--Constitution petition--Appointment on contract basis--Process of appointment--Termination from service--Challenge to--Process of appointment as well as termination letters of petitioners were issued on same date and at time of filing petitions, challenging termination letters, petitioners were well conversant with fact of new appointments--Petitioners however did not challenge process of appointments and now after dismissal of their civil petition by way of judgment they have thrown a fresh challenge to recruitment process in order to achieve their goal which they failed in their first attempt. [P. 258] A

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

----O. 11, R. 2--Constitution of Pakistan, 1973, Art. 199--Constitutional proceedings--Termination orders were challenged--There is no cavil that provisions of CPC are applicable to constitutional proceedings and in that way, principles enshrined in CPC are fully attracted--Nature of proceedings does not necessarily depend on nature of jurisdiction of Court invoked--Constitutional petition has been filed under Art. 199 of Constitution wherein some assertions for enforcement of civil rights have been made, therefore, same would be civil proceedings--Since petitioners while challenging their termination orders relinquished claim to extent of second limb i.e. recruitment process so they are now precluded to agitate their claim to that extent in terms of Order II Rule 2 of CPC. [P. 258] B

Equity--

----Principle--Process of recruitment--Malafide and favoritism--Petitioners had invoked Constitutional jurisdiction of High Court which was always discretionary and based on principles of equity--It was manifest from available material that petitioners, after being unsuccessful in their first attempt were now trying to dislodge whole process of recruitment on plea that it was tainted with malafide and favoritism. [P. 260] C

Principle of Laches--

----Though principles of laches cannot be treated as absolute hurdle in each and every case in exercise of constitutional jurisdiction but when delay in approaching Court is contemptuous and is coupled with other circumstances and there is no plausible reasoning for petitioners to wait for a considerable time in approaching Court, question of laches attains importance. [P. 260] D

Mr. Muhammad Ghias-ul-Haq Sheikh, Advocate for Petitioners.

Ch. Saleem Akhtar Warraich, Advocate/Legal Advisor for Respondents No. 2 to 5.

Date of hearing: 2.9.2015.

Judgment

This single judgment shall decide the instant petition as well as Writ Petition No. 11666 of 2015, as in both these petitions similar questions of facts and law are involved.

1. Precisely the facts necessary for adjudication of instant petition are that the respondents have issued a publication in Daily “Nawa-i-Waqt” with the heading “ “JOB OPPORTUNITY” for different categories mentioned therein including ALM. The petitioners considering themselves to be qualified for the respective post applied in terms of the publication, however they could not qualified for the said post whereas some other 737 candidates were appointed by way of order dated 5th of July, 2013 as ALM on contract basis. The petitioners now have assailed the said appointment process on the ground that it was tainted with malafide and nepotism.

2. The respondents in order to resist the petition filed report and parawise comments, whereby certain preliminary objections were raised with regard to the maintainability of the petition.

3. Mr. Muhammad Ghias-ul-Haq Sheikh, Advocate representing the petitioners in Writ Petition No. 10706 of 2015 contended that the respondents while conducting the appointments in terms of the publication adopted the method of pick and chose. He added that in the said process, certain irregular appointments were made. Learned counsel submitted that the recruitments were made beyond the scope of the advertisement and respondents did not adopt the transparent procedure for the said purpose. Learned counsel contended that the petitioners were purposely deprived of the right of appointment and instead certain other persons were appointed, while ignoring the recruitment policy.

4. Mr. Houmayoun Syed Rasool, Advocate for the petitioners in Writ Petition No. 11666 of 2015 adopted the arguments advanced by the learned counsel for the petitioners in Writ Petition No. 10706 of 2015.

5. Conversely, learned Legal Advisor appearing on behalf of respondents defended the process of recruitment. He submitted that the process was completed strictly in terms of the judgment dated 17th of June, 2010 passed by this Court and the petitioners in the first round already challenged their termination orders upto the Honourable Supreme Court of Pakistan but without any success.

6. I have heard the learned counsel for both the sides at quite some length and also perused the record with their assistance.

7. It is an admitted position that the petitioners were initially recruited for the post in question, however in the meanwhile some affectees filed Writ Petition Nos. 701, 703, 705 of 2010 challenging the process of appointment and ultimately the petitions were allowed by way of judgment dated 17th of June, 2010 on the following terms:--

“32. For what has been discussed above, I allow these writ petitions in the following terms:--

(I) All appointments made amongst the candidates from outside the MEPCO territorial jurisdiction, pursuant to the advertisement of the respondents, subject matter of these writ petitions, are declared to be malafide and ultra vires of the Constitution of Islamic Republic of Pakistan void ab-initio, and are set-aside accordingly;

(II) The persons appointed against respective posts having domicile of within the MEPCO territorial jurisdiction shall provisionally continue as such. The appointments are being provisionally protected on two grounds, as:--

(a) These appointees otherwise, prima facie fulfill the basic criteria of being the residents of the same MEPCO territorial jurisdiction, as advertised; and

(b) By their immediate expulsion from service, there may occurr unnecessary vacuum in MEPCO which may even result in adding to the miseries of general public in these days of scorching heat, searching for electricity.

(III) The respondents authorities are directed to short list the applications received from the candidates from within the MEPCO territory by making a transparent and fair criteria and then arrange for written test where after, at least five candidates shall be called for interview for each post. In case of less number candidates apply/qualify/ pass for any post, this condition shall not apply;

(IV) The interview marks, as discussed above, shall not be more than 25%; and

(V) For women quota as notified by the Federal Government shall strictly be observed considering the suitability of such posts keeping in view the dignity of the women, but this classification should not be based on arbitrariness.”

Though the department assailed the said judgment by filing Intra Court Appeal No. 168 of 2010, however the same was dismissed as withdrawn and ultimately judgment dated 17th of June, 2010 attained finality. The respondents thereafter re-started the process of recruitment in the light of observations made by this Court in the said judgment, as a result thereof, the services of the petitioners were terminated vide office order dated 5th of July, 2013 whereas by the office Order No. 76/IC/3830-46/CE/MEPCO/IC of the same date, new incumbents were recruited. The petitioners in the first instance challenged the order of their termination by way of various writ petitions. The said petitions were allowed vide judgment dated 20th of December, 2013. The respondents, feeling aggrieved from the said judgments filed Intra Court Appeals. All the appeals of the respondents were consolidated and decided by way of judgment dated 23rd of June, 2014 by the learned Division Bench of this Court in Intra Court Appeal No. 04 of 2014. For the purpose of convenience, the relevant extract from the said judgment is re-produced below:--

“11. We are of the considered view that impugned judgment dated 04.12.2013 announced on 20.12.2013 is based upon earlier judgment passed by learned single judge-in-Chamber dated 17.06.2010 and direction passed by learned Division Bench, at Lahore in ICA No. 168/2010. So far as portion of the said judgment which has been prayed to be set-aside to the extent that office order dated 05.07.2013 pertaining to general termination of employees of MEPCO has been set-aside and authorities are directed to proceed further in accordance with Section 3(e) of the Removal from Service (Special Powers) Ordinance, 2000 after issuing show cause notice to petitioners is concerned it is held that since provisions of RSO, 2000 were already repealed so same could not have been pressed into service.

1. The case laws relied upon by the appellant/employees are distinguishable and are not applicable to the case of present appellants/employees.

2. By this way of the matter, we have reached a conclusion that the learned Single Judge in chamber has fallen in error by setting aside impugned order of general termination dated 05.07.2013 passed by the Appellant/MEPCO with a direction to the authorities (MEPCO) to proceed further in accordance with Section 3(c) of the RSO, 2000 after issuing show cause notices to the petitioners.

3. Resultantly, the Intra Court Appeal filed by the Appellant/MEPCO is allowed and the impugned judgment dated 04.12.2013 announced on 20.12.2013 passed by the learned Single Judge is hereby set-aside. It is declared that the general termination order passed by the appellant-MEPCO dated 05.07.2013 stands revived and same hold the field. Further that the Intra Court Appeals filed by the appellants/employees are allowed only to the extent that observations made by learned Single Judge-in-Chamber in Para Nos. 8, 10 and 11 of the impugned judgment are hereby expunged and shall have no bearing on the appellants/employees.”

The petitioners, feeling aggrieved from the said judgment filed a Civil Petition No. 2415 of 2014 before the Honourable Supreme Court of Pakistan, however the same was dismissed vide judgment dated 25th of May, 2015. For the purpose of appreciating the contentions of both the sides, it is expedient to re-produce the relevant portion of the said judgment which reads as under:--

“4. Heard. That the earlier round of litigation culminated in the decision in I.C.A. No. 168/2010 to the extent of the petitioners vide judgment dated 29.05.2014 wherein it was held that the order of the learned Single Judge in Chamber giving them protection was not for an indefinite period, as such the relief granted by the learned Single Judge in Chamber appears to be till the Competent Authority had completed fresh process for appointments. In such circumstances, fresh process for appointments had been completed and the petitioner duly participated in it but they failed to qualify and accordingly they were dropped. In the given facts and circumstances, challenging their termination order through subsequently filed writ petitions was an afterthought, morcso when they did not challenge judgment dated 29.05.2014 to their extent passed in I.C.A. No. 168/2010 by the Division Bench of the High Court, the same having attained finality to their extent. In view of the same, the High Court has rightly reached its conclusion in the shape of allowing the I.C.A. filed by MEPCO while upholding the general termination order dated 05.07.2013 issued by the MEPCO, and judgment dated 20.12.2013 was rightly set aside by holding that the learned Single Judge in Chamber fell in error by setting aside the general termination order dated 05.07.2013 and by giving a direction to the authorities to proceed further in accordance with Section 3(c) of the Removal from Service (Special Powers) Ordinance, 2000, after issuance of show cause notices to the petitioners.

1. In the above perspective, no explain can be taken to the well-reasoned judgment of the High Court. The same does not suffer from any illegality or infirmity, which could convince us to exercise our jurisdiction under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973. Consequently, leave to appeal is refused. Petition is dismissed being without merits.”

It is evident from the above referred portion of judgment that at the time of pronouncement, the fresh process for appointments which is now under challenge in the instant petition also got attention of the Honourable Apex Court. Record clearly reflects that the process of appointment as well as the termination letters of the petitioners were issued on the same date i.e. 5th of July, 2013 and at the time of filing the petitions, challenging the termination letters, the petitioners were well conversant with the fact of new appointments. The petitioners however did not challenge the said process of appointments and now after dismissal of their civil petition by way of judgment dated 25th of May, 2015 they have thrown a fresh challenge to the recruitment process in order to achieve their goal which they failed in their first attempt.

1. There is no cavil that the provisions of The Code of Civil Procedure (V of 1908) are applicable to the Constitutional proceedings and in this way, the principles enshrined in the said Code are fully attracted. The Civil Procedure Code (V of 1908) regulates civil proceedings. The nature of the proceedings does not necessarily depend on the nature of the jurisdiction of the Court invoked. Admittedly the Constitution petition has been filed under Article 199 of The Constitution of The Islamic Republic of Pakistan, 1973 wherein some assertions for enforcement of civil rights have been made therefore same would be civil proceedings. Since the petitioners while challenging their termination orders relinquished the claim to the extent of second limb i.e. recruitment process so they are now precluded to agitate their claim to that extent in terms of Order II Rule 2 of The Code of Civil Procedure (V of 1908). In this regard guidance can be sought from the judgment in the case of “Ardeshir Cowasjee and others versus Karachi Building Control Authority and others”(PLD 2004 Supreme Court 70). The relevant extract from the judgment supra is reproduced below:

“5. We do not find merit in the contention that provisions of Civil Procedure Code would regulate proceedings and would not necessarily depend on the nature of jurisdiction of the Court. Admittedly the Constitution petition has been filed under Article 199 wherein some assertions for enforcement of civil rights have been made therefore same would be civil proceedings hence provision of C.P.C. would be applicable other than specifically barred as such the said provision would apply in the exercise of High Court's jurisdiction in civil matter whatever may be nature of that jurisdiction. Reference may be made to leading judgment of this Court in (I) Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others (PLD 1970 SC 1) wherein their lordships observed:

“The Civil Procedure Code regulates civil proceedings. The nature of the proceedings does not necessarily depend on the nature of the jurisdiction of the Court invoked. In order to determine whether a proceeding is a civil proceedings or not, it is necessary to see what are the questions raised and decided in the proceedings involves the assertion or enforcement of a civil right, it is a civil proceedings. As regards application of the provisions of the Code in proceedings before a High Court, their lordship of the Privy Council in Sabitri Thakurari v. Savi (AIR 1921 PC 80) observed:

“The Code is framed on the scheme of providing generally for the mode in which the High Court is to exercise its jurisdiction whatever it may be, while specifically excepting the powers relating to the exercise of original civil jurisdiction, to which the Code is not to apply.”

1. Federation of Pakistan and others v. Aftab Ahmad Khan Sherpao and others (PLD 1992 SC 723) wherein this Court held as under:

“A civil proceeding in a Court of civil jurisdiction is governed by the Code of Civil Procedure. By virtue of Section 117 of the Code a civil proceeding in a High Court is also governed by the provisions of the Code other than the provisions which are specifically excepted. A proceeding under Article 98 of the Constitution concerning a civil matter being a civil proceeding relating to the High Court's original civil jurisdiction and Section 114 of the Code conferring power to review not having been made inapplicable to the High Court in the exercise of its original civil jurisdiction, the power to review an order made by the High Court in its writ jurisdiction will be available to it under said Section 114 if that section is otherwise applicable.”

(3) Shabir Ahmad and another v. Akhtar Alam and others (PLD 1994 SC 598), (4) Ch. Pervez Ellahi v. Province of Punjab (PLD 1993 Lahore 595), (5) Malik Khanan v. Malik Baz Muhammad Khan and others (PLD 1983 Quetta 30) and (6) Muhammad Nawaz and another v. Abdul Ghafoor and others (PLD 1981 Kar. 469). It is regrettable that High Court did not take notice of above three cases decided by this Court keeping in view also the provision of Article 189 of the Constitution of the Islamic Republic of Pakistan, 1973.”

The same view was reiterated by the Honourable Apex Court in “Muhammad Riaz Bhatti versus Federation of Pakistan and another” (2004 SCMR 1120) and “Javaid Iqbal Abbasi & Company versus Province of Punjab and 6 others” (1996 SCMR 1433). The same principle was adopted by this Court in case of “Nisar-ul-Haq versus Tehsil Municipal Administrator City through Nazim and 2 others” (PLD 2002 Lahore 359).

1. There is yet another important aspect that the petitioners have invoked the Constitutional jurisdiction of this Court which is always discretionary and based on principles of equity. It is manifest from the available material that the petitioners, after being unsuccessful in their first attempt are now trying to dislodge the whole process of recruitment on the plea that it is tainted with malafide and favoritism. The recruitment was made by way of office order dated 5th of July, 2013 and the petitioners did not challenge the same in the first phase and now after the lapse of about two years, they have filed the instant petitions which are clearly hit by the principles of laches. Though principles of laches cannot be treated as absolute hurdle in each and every case in exercise of Constitutional jurisdiction but when the delay in approaching the Court is contemptuous and is coupled with other circumstances and there is no plausible reasoning for the petitioners to wait for a considerable time in approaching the Court, the question of laches attains importance. Guidance in this respect can be sought from “Pakistan International Airline Corporation and others versus Tanweer-ur-Rehman and others” (PLD 2010 Supreme Court 676) and Muhammad Din versus Abdul Ghani and another” (2012 SCMR 1004).

2. For the foregoing reasons, I am not inclined to exercise writ jurisdiction in favour of the petitioners who are indolent and even did not approach the Court with clean hands, consequently the instant petitions, being without any merits are dismissed with no order as to costs.

(R.A.) Petition dismissed

PLJ 2016 Lahore 261 (DB) [Multan Bench Multan]

Present: Shahid Bilal Hassan and Shahid Mubeen, JJ.

MUSHTAQ AHMAD--Appellant

versus

PRINCIPAL REGIONAL TRAINING INSTITUTE WELFARE & POPULATION, MULTAN and 2 others--Respondents

Intra-Court Appeal No. 267 and W.P. No. 4906 of of 2015, decided on 8.10.2015.

Law Reform Ordinance, 1972 (XII of 1972)--

----S. 3--Constitution of Pakistan, 1973, Art. 199--Intra Court Appeal--Parental jurisdiction of High Court--Appellant failed to submit all required documents including certificate of five years experience as a driver, as pointed out by representative of department and observed by High Court; therefore, he could not be appointed as driver--It was prime duty of appellant to submit application, complete in all ways, as required by respondent through advertisement, but when he had failed to do needful, he had rightly been refused to induct in service--Therefore, impugned order passed was well reasoned and self-explanatory, calling for no interference through I.C.A., which had no force and stands dismissed. [P. ] A

Malik Imtiaz Haider Maitla, Advocate for Appellant.

Sh. Irfan Ali and Mr. Muhammad Amjad Malik, Advocate for Private Respondent

Mr. Aziz-ur-Rehman Khan, Mehr Nazar Abbas Chawan, AAG with Bilal Ahmad, Admin Officer for Respondents.

Date of hearing: 8.10.2015.

Order

Calls into question the vires of the order dated 21.04.2015, passed by the learned Single Judge in Chambers of this Court, whereby W.P. No. 4906 of 2015 filed by the appellant was dismissed.

1. Facts in brief, collected from the file, are as such the appellant applied for the post of Driver (BPS-4) in the Welfare and Population Department at Regional Training Institute, Multan pursuant to an advertisement; Respondent No. 1 did not accept the application of the petitioner, which constrained him to invoke the

parental jurisdiction of this Court by filing writ petition ibid, but the learned Single Judge in Chambers vide impugned order dismissed the same.

1. We have heard the learned counsel for the parties and perused the file.

2. Admittedly, the appellant failed to submit all the required documents including the certificate of five years experience as a driver, as pointed out by the representative of the department and observed by the learned Single Judge in Chamber; therefore, he could not be appointed as Driver. It was prime duty of the appellant to submit application, complete in all ways, as required by the Respondent No. 1 through advertisement, but when he has failed to do the needful, he has rightly been refused to induct in service. Therefore, the impugned order passed by the learned Single Judge in Chambers is well reasoned and self-explanatory, calling for no interference through this intra Court appeal, which has no force and stands dismissed.

(R.A.) I.C.A. dismissed

PLJ 2016 Lahore 262 [Bahawalpur Bench Bahawalpur]

Present: Zafarullah Khan Khakwani, J.

RIAZ AHMAD and another--Petitioners

versus

ADDITIONAL SESSIONS JUDGE, BAHAWALPUR and 2 others--Respondents

W.P. No. 7666 of 2015, decided 15.10.2015.

Punjab Local Government Act, 2013--

----S. 27(1)(d)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Joint candidature--Nomination papers were rejected on ground that as per computerized NIC age was less than 25 years--Not eligible to contest election--Challenge to--Date of birth mentioned in CNIC had been revived--Validity--It is established from NIC that he was born 26.9.1991 and admittedly his age was less than 25 years at time of filing of nomination papers--Birth certificate issued by Secretary U.C. clearly suggests that same was issued on basis of manual entry and perusal of birth register shows that entry has been left blank which creates doubts in authenticity of documents and possibility of ante-dated entries cannot be ruled out in the register--Filing of civil suit for purpose of correction of date of birth was itself admission on part of petitioner that his date of birth as mentioned in CNIC was less than 25 years--If date of birth was wrongly why he did not earlier move to authorities for its correction and kept on sleeping in slumber for more than four years and when his nomination papers were rejected, he started his effort to get changed his date of birth--It is by now settled proposition of law that entires in CNIC was admitted to be correct unless proved to contrary by cogent and convincing evidence--Petitioner was less than 25 years of age at time of filing his nomination papers and was not qualified to be candidate or to be elected as member or to hold an elected office of local government--Petition was dismissed.

[Pp. 264 & 265] A, B, C & D

2008 SCMR 456, ref.

Syed Saleem ud Din Aftab, Advocate for Petitioners.

Ch. Abdul Jabbar, Standing Counsel for Federation of Pakistan with Muhammad Nasrullah Zahid, A.R.O.

Mr. Muhammad Saleem Faiz, Advocate for Rival Candidates.

Date of hearing: 15.10.2015.

Order

The petitioners submitted their nomination papers as a joint candidature for the seat of Chairman and Vice Chairman of Union Council No. 86, District Council Bahawalnagar. During scrutiny on 17.09.2015, nomination papers of the petitioners were rejected by Respondent No. 2 on the ground that as per computerized identity card age of Petitioner No. 2 was less than 25 years. The petitioners approached appellate authority and filed appeal which was also dismissedvide order dated 29.09.2015.

1. Learned counsel for the petitioners submits that Petitioner No. 2 is not less than 25 years of age; that in fact the said petitioner and his sister were born in Union Council 178 as their father went abroad and sent his wife to the house of her parents in Union Council 178 Madina Town, Faisalabad; that Respondent No. 2 while passing impugned orders did not consider the documents produced by the petitioners; that date of birth of Petitioner No. 2 was wrongly entered in Union Council 46 because father of Petitioner No. 2 was not available in Pakistan and that on the application moved, by the petitioners to Administrator Union Council concerned an order for deletion of name of Petitioner No. 2 from Sr.120 Chak No. 45/F was passed on 03.10.2015, so, wrong entry has been rectified. Learned counsel further submits that Petitioner No. 2 also filed a suit for perpetual injunction for grant of decree for correction of his date of birth before learned Civil Judge at Chistian who passed an order dated 05.10.2015 for constitution of District Standing Medical Board and said Board declared age of Petitioner No. 2 between 25 to 26 years, hence, petitioners are eligible to contest elections.

2. Conversely, learned Law Officer assisted by learned counsel for rival candidates vehemently opposed this petition by placing on record CNIC of Petitioner No. 2 according to which his age is less than 25 years and submits that petitioners are not eligible to contest elections and their nomination papers were rightly rejected by the respondents.

3. Arguments heard and record perused.

4. It is established from Computerized National Identity Card of Petitioner No. 2 that he was born on 26.09.1991 and admittedly his age was less than 25-years at the time of filing of nomination papers. The birth certificate of Petitioner No. 2 issued by Secretary Union Council No. 178 Chak No. 202/RB Madina Town, Faisalabad clearly suggests that the same was issued on the basis of manual entry at Sr.No. 232 and perusal of birth register shows that entry at Sr.No. 229 has been left blank which creates doubts in authenticity of said documents and possibility of ante dated entries cannot be ruled out in the said register. Filing of civil suit for the purpose of correction of date of birth is itself admission on the part of Petitioner No. 2 that at present his date of birth as mentioned in CNIC is less than 25 years. Report of Administrator Union Council No. 46 shows that order of cancellation of birth certificate of Petitioner No. 2 was withdrawn on 07.10.2015 w.e.f. 3.10.2015 meaning thereby that date of birth mentioned in CNIC has been revived. The order for cancellation of birth entry was withdrawn on the basis of application filed by Muhammad Ashraf, rival candidate. This circumstance forces me to think that if the date of birth mentioned in CNIC of the petitioner was wrong why he did not earlier move to concerned authorities for its correction and kept on sleeping in slumber for more than four years and when his nomination papers were rejected, he started his efforts to get changed his date of birth.

5. It is by now settled proposition of law that the entries in CNIC is admitted to be correct unless proved to the contrary by cogent and convincing evidence. Reliance in this regard can be placed on the case of “Malik Muhammad Faisal and another v. State Life Insurance Corporation through Chairman and 2 others” (2008 SCMR 456).

7-A. For what has been discussed above this Court is of firm view that Petitioner No. 2 was less than 25 years of age at the time of filing his nomination papers and was not qualified to be a candidate or to be elected as member or to hold an elected office of a Local Government under Section 27(1)(d) of Punjab Local Government Act, 2013. I find no illegality, irregularity or even perversity in the impugned orders dated 29.09.2015 and 17.09.2015 passed by Respondents No. 1 & 2 respectively. Resultantly, this petition being meritless is dismissed.

(R.A.) Petition dismissed

PLJ 2016 Lahore 265 [Multan Bench Multan]

Present: Amin-ud-Din Khan, J.

Mst. ZAHOOR MAI--Petitioner

versus

ALLAH BAKHSH and another--Respondents

C.R. No. 637-D of 2007, heard on 19.5.2015.

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

----S. 115--Civil revision--Sale mutation--Onus to prove valid transaction of sale as well as attestation of mutation shifted upon vendee being beneficiary--Failed to prove--Validity--When oral mutation of sale in favour of defendants i.e. real brothers of plaintiff was challenged, it was their duty to plead specifically event of struck of bargain of sale, payment of consideration, transfer of possession under sale in their written statement and then to prove not only attestation of mutation in accordance with law by solid and convincing evidence but also struck of bargain, payment of consideration and transfer of possession independent of attestation of mutation--No specific pleading in written statement with regard to events of struck of bargain, witnesses before whom bargain struck, payment of consideration, delivery of possession under sale nor same have been proved through evidence by defendants and even these important facts have not been put to plaintiff when she appeared as PW, nor one of defendants when appeared as DW stated said facts in Court--Civil revision was allowed.

[Pp. 267 & 268] A, B & D

Oral Sale--

----Documentary evidence--Mutation--Order of revenue officer--Consideration was received before khewatdaran and revenue officer--Not proved--Even patwari who entered and got attested mutation appeared as DW, he in his statement in chief did not state that money was paid in his presence but in cross-examination stated that in his presence plaintiff received consideration amount but his statement was not supported by documentary evidence--Petition was allowed. [P. 268] C

Mr. Muhammad Ramzan Khalid Joiya, Advocate for Petitioner.

Malik Javed Akhtar Wains, Advocate for Respondents.

Date of hearing: 19.5.2015.

Judgment

Through this civil revision petitioner has challenged the judgment & decree dated 14.6.2007 passed by learned Additional District Judge, Lodhran whereby appeal filed by the petitioner was dismissed and the judgment & decree dated 09.01.2007 passed by learned Civil Judge 1st Class, Lodhran whereby suit filed by the petitioner was dismissed.

1. Brief facts of the case are that plaintiff-petitioner on 12.2.2002 filed a suit for declaration wherein she challenged the sale Mutation No. 1836 attested on 10.2.2001 in favour of defendants who are her real brothers. The case of the petitioner that under the mutation of Inheritance No. 1827 attested on 10.2.2001 of her father she received 11 kanals 11 marlas of land which is suit land and defendants on the same day through the impugned Mutation No. 1836 got the said land transferred in their favour, therefore, she challenged the same through suit. Written statement was filed, suit was contested. Learned trial Court framed the issues, invited the parties to produce their evidence. Both the parties produced their respective oral as well as documentary evidence. Learned trial Courtvide judgment & decree dated 9.1.2007 dismissed the suit. Appeal was preferred, which also met the same fate. Hence, this civil revision.

2. Learned counsel for the petitioner argues that when plaintiff-petitioner appeared in the witness-box and made a statement on oath, before the Court, the onus to prove the valid transaction of sale as well as attestation of mutation shifted upon the vendees-defendants being beneficiaries. States that they miserably failed to prove the event of sale as well as valid attestation of mutation, therefore, findings recorded by both the Courts below are not sustainable under the law. Prays for acceptance of the civil revision and setting aside the impugned judgments & decrees.

3. On the other hand, learned counsel for the respondents argues that a valid sale was made in favour of the defendants-respondents and there are concurrent findings of fact recorded by the two Courts below, therefore, states that it is not a case for interference by this Court while exercising jurisdiction under Section 115 of the, CPC. Prays that this civil revision be dismissed.

4. I have heard learned counsel for the parties at length and gone through the record as well as findings recorded by both the Courts below.

5. As in the narration of facts it is noted that petitioner-plaintiff received the suit property from her father through mutation of Inheritance No. 1827 attested on 10.2.2001, which has been produced as Exh.P.1 and on the same day through the impugned mutation, which is Mutation No. 1836, whole of the property received by the plaintiff-petitioner in inheritance i.e. 11 kanals 11 marlas has been shown to have been transferred in favour of defendants, who are real brothers of the plaintiff. Admittedly, plaintiff lady is married one having five sons and a daughter and no reason is mentioned why she has sold the suit property received through inheritance. When the suit was to challenge oral mutation of sale in favour of defendants i.e. real brothers of the plaintiff, it was their duty to plead specifically the event of struck of bargain of sale, payment of consideration, transfer of possession under the sale in their written statement and then to prove not only attestation of mutation in accordance with law by solid and convincing evidence but also the struck of bargain, payment of consideration and transfer of possession independent of attestation of mutation. Even at the time of cross-examination plaintiff when she appeared as PW-1 no question about the events of struck of bargain, presence of witnesses, payment of money and delivery of possession under the sale has been put to the plaintiff. There is no mention that what was the need for sale of the property to the plaintiff-petitioner and after receiving the consideration amount where she has used the same. It is not on the record that why she was selling the property when her husband and children are available. Further no independent advice was available to the petitioner-plaintiff who is admittedly an illiterate household lady. As defendants were the purchasers of the suit land, therefore, at least her husband or the major child, if any, should have been available at the time of alleged sale for giving her independent advice. As I have noted supra there is no specific pleading in the written statement with regard to the events of struck of bargain, witnesses before whom the bargain struck, payment of consideration, delivery of possession under the sale nor the same have been proved through the evidence by the defendants and even these important facts

have not been put to the plaintiff when she appeared as PW-1, nor one of the defendants Muhammad Nawaz when appeared as DW-1 stated the said facts in the Court. In the documentary evidence, which is the basic document relied by the defendants, the Rapt No. 284 (Exh.D1) on the basis of which impugned mutation has been entered. This Rapt does not show payment of Rs. 1,00,000/- (Rupees one hundred thousand only) to the plaintiff at the time of entrance of this Rapt. Even the order of the revenue officer dated 10.2.2001 whereby the mutation has been attested, does not show payment of consideration before the revenue officer. In the pleading it is stated by the defendants that the consideration was received by the plaintiff before the “Khewatdaran” and revenue officer whereas it is not proved through the documentary evidence. Even the Patwari who entered and got attested the mutation appeared as DW-5, he in his statement in chief did not state that the money was paid in his presence but in the cross-examination stated that in his presence plaintiff received the consideration amount but his statement is not supported by the documentary evidence Exh.D.1.

1. In this view of the matter, the findings recorded by both the Courts below are against the evidence available on the file as well as settled principles of law on the subject, same are not sustainable, therefore, I set aside the same. Resultantly, this civil revision is allowed, judgments & decrees passed by both the Courts below are set aside and suit filed by the plaintiff-petitioner stands decreed with costs through out.

(R.A.) Petition allowed

PLJ 2016 Lahore 268 (DB) [Multan Bench Multan]

Present: Muhammad Qasim Khan and Aslam Javed Minhas, JJ.

MirzaMUHAMMAD YOUNAS BAIG--Petitioner

versus

N.A.B., etc.--Respondents

W.P. No. 12503 of 2014, decided on 12.8.2015.

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

----S. 498--Pakistan Penal Code, (XLV of 1860), Ss. 415 & 489-F--National Accountability Ordinance, 1999, S. 9(a)(ix)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Bail before arrest, confirmed--Post dated cheques were dishonoured--Defrauded and cheated public-at-large and misappropriated huge amount--Deals in business of sale and purchase of commodities--Held: Whether provisions of Section 9(a)(ix) of N.A.O., attracts is a matter of further inquiry which will be seen during trial--Under Section 9(a)(ix) of N.A.B. had no jurisdiction to take cognizance of an offence of cheating under Section 415, PPC unless accused had dishonestly induced members of public-at-large to deliver any property including money or valuable security to any person and not in an individual case--Petition was allowed. [P. 270] A

Mr. Tariq Zulfiqar Ahmad Chaudhary, Advocate for Petitioner.

Mr. Faiz Rasool, ADPGA NAB alongwith Ali Arslan Haider, Law Officer/I.O. for Respondents.

Date of hearing: 12.8.2015.

Order

Through this petition, Mirza Muhammad Younas Baig, petitioner seeks his pre-arrest bail in A. C. Reference No. 3-M of 2014 titled The State vs. Mirza Muhammad Younas Baig.

1. Briefly, the facts of the case are that the petitioner deals in business of sale and purchase of commodities and according to the allegations, he used to collect food grains e.g. wheat and corn etc. from different commission agents running their business at Malka Hans and Arifwala. The petitioner made partial payments to some of the claimants and against balance amounts, he issued them post dated cheques which were later on dishonoured, thus, he defrauded and cheated the public-at-large and misappropriated huge amount. It is pertinent to mention here that firstly, the petitioner on the same allegations was booked in case F.I.R No. 443/2011, dated 02.11.2011, under Section 489-F, PPC, Police Station Malka Hans, District Pakpattan got registered by Abbas Ali proprietor of Waris Shah Traders. The petitioner was also booked in case F.I.R No. 353/2011, dated 04.08.2011, under Section 489-F, PPC, Police Station Malka Hans got registered by one Shafique Hussain. Thereafter, on the basis of said FIRs the present reference has been prepared against the petitioner, in which, the N.A.B Authorities has issued warrant of arrest of the petitioner dated 06.06.2014.

2. Learned counsel for the petitioner contended that the petitioner had made full payments to the claimants but they did not return the cheques issued to them by the petitioner; that the petitioner is previously not involved in any such type of case; that this is a money dispute of civil nature and the complainants of the FIRs have also filed civil suits which are pending before Civil Courts; that the petitioner has not committed any offence which comes within the ambit of N.A.B Ordinance, therefore, the petitioner is entitled for bail.

3. On the other hand the learned Prosecutor General N.A.B vehemently opposed the petition and contended that the petitioner has committed fraud and cheated the public-at-large.

4. We have heard the learned counsel for the parties and perused the record with their assistance.

5. Admittedly, on the same allegations the petitioner was booked in the cases bearing F.I.R. No. 443/2011, dated 2.11.2011, under Section 489-F, PPC and F.I.R. No. 353/2011, dated 04.08.2011, under Section 489-F, PPC, both registered at Police Station Malka Hans, in which he has been admitted to post arrest bail by this Court through Crl. Misc. No. 9068-B/2012 and Crl. Misc. No. 9074-B/2012 respectively and trial of both the cases is pending adjudication before the learned Allaqa Magistrate and he remained in jail for about one year in the said cases. The record also shows that civil suits have also been filed by the complainants of both the cases which are pending adjudication. Admittedly, the petitioner was dealing with some commission agents and he did not defrauded or cheated the public-at-large directly, therefore, whether the provisions of Section 9(a)(ix) of the National Accountability Ordinance, 1999 attracts in this case is a matter of further inquiry which will be seen during the trial. Under Section 9(a)(ix) of the National Accountability Ordinance, the N.A.B had no jurisdiction to take cognizance of an offence of cheating under Section 415, PPC unless the accused had dishonestly induced members of the public-at-large to deliver any property including money or valuable security to any person and not in an individual case. Reference in this regard may be made to the case of Naseem Abdul Sattar & 6 others vs. Federation of Pakistan & 4 others (PLD 2013 Sindh 357). Apparently, it is a business transaction between the petitioner and commission agents. The trial is almost completed and there left only the cross-examination of the Investigating Officer, therefore, at this stage if the petitioner is sent behind the bars it will prejudice his case. In view of the foregoing reasons, this petition is allowed and the ad interim pre-arrest bail already granted to Mirza Muhammad Younas Baig, petitioner is hereby confirmed subject to his furnishing surety bonds equivalent to defrauded amount i.e. Rs. 7.9 Millions to the satisfaction of the learned trial Court.

6. It is, however, clarified that the observations made hereinabove are just tentative in nature and strictly confined to the disposal of this bail petition.

(R.A.) Petition allowed

PLJ 2016 Lahore 271 [Multan Bench Multan]

Present: Ch. Muhammad Masood Jahangir, J.

Haji MUHAMMAD--Petitioner

versus

BASHIR AHMAD--Respondent

C.R. No. 168 of 2010, heard on 5.10.2015.

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

----O. XXXVII, Rr. 1 & 2--Suit for recovery on basis of pronote--Summary suit--Applications for resummoning of plaintiff witness and for presentation of receipt cash memos, dismissal of--Challenge to--Held: It is also settled principle of law that a party to lis cannot be allowed to fill up lacunas, which he had left during course of recording of evidence and law favours vigilant and not indolent.

[P. 272] A

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

----O. XXXVII, Rr. 1 & 2--Suit for recovery on basis of pronote--Required witnesses resummoned for cross-examination--Validity--If such documents were duly entered in list of reliance, then petitioner could bring on record said receipts through modes provided in statutory provisions of law by producing author or signatory of said receipts--However without examination of said persons, private document could not be received on file by Court.

[Pp. 272 & 273] B

Mr. Faisal Bashir Ch., Advocate for Petitioner.

Mr. Sagheer Ahmad Bhatti, Advocate for Respondent.

Date of hearing: 5.10.2015.

Judgment

The precise facts leading for disposal of the instant civil revision are that Bashir Ahmad respondent instituted a suit under Order XXXVII Rules 1 & 2 of the Code of Civil Procedure, 1908 for the recovery of an amount of Rs. 2,00,000/- on the basis of pronote dated 18.08.2004 against the petitioner/defendant before the learned trial Court on 11.04.2005. The petitioner/defendant was granted leave to contest the suit vide order dated 23.05.2005 and in due course of the proceedings, the written statement was also filed by the petitioner/defendant. The learned trial Court captured the disputed area of facts by framing certain issues on 16.06.2005 and invited the plaintiff/respondent to lead his evidence. Then in compliance of direction of the Court, the respondent/plaintiff got recorded statements of Ashiq Hussain PW/1, Ijaz Hussain PW/2 and he himself appeared as PW/3 on 29.11.2005. Then the petitioner got recorded his part examination-in-chief as DW/1 on 13.01.2010 and on the same day the petitioner/defendant moved an application for re-summoning of plaintiff/respondent (PW/3) for further cross-examination. Another application for presentation of receipts/cash memos. was also moved by the petitioner/defendant on the same day. Both the said applications were dismissed by the learned trial Court vide impugned order dated 09.02.2010, hence the instant civil revision.

1. Arguments heard and record perused.

2. The respondent/plaintiff instituted a summary suit before the learned trial Court under Order XXXVII Rules 1 & 2 of the Civil Procedure Code, 1908 on 11.04.2005 and PW/1 to PW/3 were examined by the learned trial Court on 29.11.2005, who were duly cross-examined by the learned counsel for the petitioner/defendant. The perusal of statement of plaintiff/PW/3 reveals that learned counsel for the petitioner/defendant cross-examined the said PW at length, which was reduced into writing over three pages. This matter remained pending for another four years and two months, when only part examination-in-chief of Haji Muhammad DW/1 was got recorded by the petitioner/defendant on 13.01.2010 and on the same date the above referred two applications were moved by the petitioner/defendant. The perusal of first application for re-summoning of the respondent/PW-3 reveals that no plausible ground was pleaded therein by the petitioner/defendant to re-cross-examine the said witness. Even, today again learned counsel for the petitioner/defendant feels himself handicapped to respond that on what count PW/3 is required to be re-summoned for cross-examination. It is also settled principle of law that a party to the lis cannot be allowed to fill up lacunas, which he had left during the course of recording of evidence and the law favours the vigilant and not the indolent. The learned trial Court rightly dismissed the said application while assigning eminent reasons. However, as far as the other application for bringing on record the receipts/cash memos. is concerned, suffice it to say that no plausible ground has been urged by the petitioner/defendant in the said application that as to why these receipts/cash memos. could not be appended by the petitioner/defendant along with his written statement or entered in the list of reliance. If such documents were duly entered in the list of reliance, then the petitioner could bring on record the said receipts through the modes provided in statutory provisions of law by

producing author or signatory of the said receipts. However without the examination of said persons, the private documents could not be received on file by the Court. The filing of both the applications before the learned trial Court at a later stage in a suit of summary nature was nothing, but to prolong the suit pending before the learned trial Court for the last about 10-years and 06 months and the learned trial Court could not finalize its proceeding, despite the fact that the same were required to be finalized by the trial Court in a summary manner. The learned counsel for the petitioner has failed to point out any illegality or perversity in the impugned order rendered by the learned trial Court calling for any interference by this Court in the exercise of revisional jurisdiction, the scope whereof is narrower and restricted only to the extent of correcting errors of law and facts, if are found to have been committed by the subordinate Courts.

1. Resultantly, the instant civil revision being devoid of any merit is dismissed with costs of Rs. 10,000/-

(R.A.) Revision dismissed

PLJ 2016 Lahore 273 (DB)

Present: Sadaqat Ali Khan and Mrs. Erum Sajad Gull, JJ.

GHULAM RASOOL--Petitioner

versus

NASIR IQBAL and 4 others--Respondents

W.P. No. 8744 of 2012, decided on 24.11.2015.

Constitution of Pakistan, 1973--

----Art. 199--Anti-Terrorism Act, 1997, Ss. 6 & 7--Pakistan Penal Code, (XLV of 1860), Ss. 506, 365, 382, 147, 148, 337-A(i) & 337-L(ii), 353 & 186--Constitutional petition--Jurisdiction--Constable, driver of DSP--Occurrence was taken place on road and was on his official duty--Court of special judge--Validity--It could not be said that it was a case of petty quarrel between parties as officials while on their official duties dressed in uniforms were severely beaten, tortured and locked up--Uniforms were torn and that had to be rescued with help of police--Torn uniforms of police officials were taken into custody by local police and recovery memo. was prepared which was on police file--Ingredients of Section 6 of Act, 1997 were attracted when officials on duty were beaten up publically as that weakens writ of state--Petition was allowed. [Pp. 275] A & B

Ch. Azhar Siddique Cheema, Advocate for Petitioner.

Mr. Khurram Khan, D.P.G. for Respondents.

Date of hearing: 24.11.2015.

Order

Instant writ petition has been filed by the petitioner/ complainant against order dated 3.4.2012 passed by learned Special Judge, Anti-Terrorism Court-I, Faisalabad according to which Section 7 of the Anti-Terrorism Act, 1997 is not attracted in the instant case and accused were directed to produce before the Court of ordinary jurisdiction (Judicial Magistrate) in case FIR No. 251/2012 dated 29.3.2012, under Sections 506/365/382/147/148 PPC (Sections 337-A(i), 337-L(ii) 353, 186, PPC and 7 of Anti-Terrorism Act, 1997 were added later on) registered at Police Station City Chiniot.

1. We have heard the learned counsel for the petitioner as well as Deputy Prosecutor General and perused the record whereas no one is present from accused's side.

2. Ghulam Rasool Constable the then driver of DSP/HQ, Chiniot is complainant of this case who stated in case FIR No. 251/2012 dated 29.3.2013 as under:

بیان ازاں غلام رسول ڈرائیور کنسٹیبل DSP/HQ 605/C چنیوٹ بیان کیا کہ میں عرصہ تین ماہ سے DSP/HQ کی گاڑی نمبری 7663/JGAچلاتا ہوں۔ آج قریب 3/50 بجیدن میں معہ گن میں احمد شیر DSP/HQ 897/C کو انکی رہائش گاہ پر چھوڑ کر پولیس لائن واپس آ رہے تھے کہ جب مندر بازار گلی اللہ دیا والی کے پاس پہنچے تو ایک رکشہ ڈرائیور گاڑی کے سامنے رکشہ لے آیا جس کو میں نے سائیڈ پر کرنے کو کہا کہ اتنے میں ایک موٹر سائیکل سوار جس کا بعد میں نام و پتہ ذوالفقار جٹ معلوم ہوا نے کہا کہ آپ پولیس والے بدمعاشی کر رہے ہیں میں نے اس کو کہا کہ رستہ مانگ رہے ہیں آپ سے کوئی بات نہ کی ہے اتنے میں وہ اشتعال میں آگیا گاڑی کا دروازہ کھولا اور میرے گریبان سے پکڑ کر نیچے کھینچ لیا تھپڑ اور مکے مارنے شروع کر دیئے گن مین نے چھڑانے کی کوشش کی تو اتنے میں ذوالفقار کے علاوہ ذوالفقار لاٹو والا۔ جاوید جٹ، شاہد شاہ بھکا چوک شہری ولد جاوید قمر لاہوری گیٹ و 15/16اشخاص نا معلوم جن کو سامنے آنے پر شناخت کر سکتے ہیں، مجھے اور گن مین کو مارتے مارتے اٹھا کر لے گئے۔ میری وردی کی قمیض اور گن مین کی قمیض پھاڑ دی اور ایک خفیہ دوکان میں جا کر بند کر دیا اور قتل دینے کی دھمکیاں دیتے رہے۔ ذوالفقار وغیرہ نے مجھے اور گن مین کو مضروب کیا۔ میری جیب سے رقم مبلغ 3800/- روپے اور گن مین کا موبائل فون Q قسم مالیتی 4300/- روپے نقدی 3300/- روپے زبردستی چھین لئے اور گاڑی کی چابی بھی چھین کر لے گئے۔ مقامی پولیس محافظان فوری

طور پر موقعہ پر پہنچ گئے اور کافی دیر کے بعد ذوالفقار وغیرہ کے چنگل سے چھڑوایا اگر پولیس و دیگر لوگ بر وقت نہ پہنچتے تو ذوالفقار وغیرہ مجھے اور گن مین کو قتل کر دیتے۔ مجھے اور گن مین کو حبس بے جا رکھ کر زیادتی کی ہے۔

1. Admittedly, the occurrence had taken place on the road and the petitioner was on his official duty. It could not be said that it was a case of petty quarrel between the parties as officials while on their official duties, dressed in their uniforms were severely beaten, tortured and locked up. Their uniforms were torn and they had to be rescued with the help of the police. The torn uniforms of the police officials were taken into custody by the local police and a recovery memo. was prepared which is on the police file. The Investigating Officer also visited the place of occurrence and recorded the statements confirming that the occurrence had taken place. We are of the view that the ingredients of Section 6 of Anti-terrorism Act, 1997 are attracted to the case in hand and it cannot be taken lightly when officials on duty are beaten up publically as this weakens the writ of the State.

2. In view of the above, this writ petition is hereby allowed and the impugned order dated 03.04.2012 is set aside. At this stage, learned Deputy Prosecutor General points out that case is pending in the Court of Judicial Magistrate, Chiniot who is directed to transmit the case forthwith to the Court of Special Judge, Anti-Terrorism Court-I, Faisalabad for trial in accordance with law.

(R.A.) Petition allowed

PLJ 2016 Lahore 275 [Bahawalpur Bench Bahawalpur]

Present: Zafarullah Khan Khakwani, J.

MUHAMMAD ALI--Petitioner

versus

APPELLATE AUTHORITY, DISTRICT RAHIM YAR KHAN and 2 others--Respondents

W.P. No. 8379 of 2015, decided on 24.11.2015.

Punjab Local Government Act, 2013--

----S. 27(2)(7)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Concealment of property--Nomination paper to contest election for seat of general member, accepted--Disqualified from being elected, if he was under existing contract for work to be done or goods to be supplied to local government--Existing contract with local government--Pecuniary interest--Validity--It would not be out of place to mention here that concealment/non-disclosure of assets and liabilities is one thing and incomplete disclosure of assets and liabilities is another--First one entails penal consequences but second one can be considered to be an irregularity--Respondent does not suffer from disqualification enumerated in Section 27(2)(f) of Punjab Local Government Act, 2013 or concealment of assets or liabilities--Petition was dismissed. [P. 277] A & B

Mr. Muhammad Nasir Joyia, Advocate for Petitioner.

Ch. Abdul Jabbar, Standing Counsel for Federation with Muhammad Afzal, District Election Commissioner, Rahim Yar Khan for Respondents.

Mr. Zargham Ullah, Advocate for Respondent No. 3.

Date of hearing: 24.11.2015.

Order

Through this Constitutional petition the petitioner has assailed the orders dated 10.10.2015 passed by Respondent No. 2 whereby he accepted nomination paper of Respondent No. 3 to contest election for the seat of General Member Ward No. 7 of Municipal Committee Kot Samaba Distt. Rahim Yar Khan and the order dated 31.10.2015 passed by Respondent No. 1 whereby appeal filed by the petitioner was dismissed.

1. Learned counsel for the petitioner contends that wife of Respondent No. 3 was owner of certain land in Mouza Mud Kora and Mouza Wahi Jumman Shah and also owner of certain shops in Mouza Kot Samaba; that Respondent No. 3 is running his business under the name and style of Al-Saeed Contractor and that the said respondent is defaulter of loan obtained from Muslim Commercial Bank. but he did not disclose all the above assets and liability in his Declaration of Assets and Liabilities form and as such he was disqualified from contesting election but Respondents No. 1 and 2 have not paid any heed to the objections and illegally accepted the nomination paper.

2. On the other hand learned Standing Counsel assisted by learned counsel for Respondent No. 3 has defended the impugned orders. Learned counsel for Respondent No. 3 submits that the said respondent has clearly mentioned 20 acres landed property which includes land of his wife. Likewise he has mentioned the said shops in his Declaration of Assets along with other details as such the objections raised by the petitioner are not sustainable. With regard to ownership of firm, namely, Al-Sayed Contractors, learned counsel submits that the said firm was got registered on 3.9.2004 for one year and thereafter the same was not got renewed as such presently the same being not operative, the respondent did not mention the same.

3. Arguments heard and record perused.

4. As per Section 27(2)(f) of the Punjab Local Government Act, 2013 a person is liable to be disqualified from being elected as member of a local government, if he is under an existing contract for work to be done or goods to be supplied to a local government or has otherwise any direct pecuniary interest in its affairs. Since it has not been established by learned counsel for the petitioner that Respondent No. 3 is under any existing contract with the local government or has any other pecuniary interests, as such this objection of the petitioner is not well founded.

5. So far as allegation of concealment of property of the spouse is concerned, I have gone through the copies of record of rights of the agricultural land of Respondent No. 3 and his wife placed on record. It transpires that after calculating both pieces of land of the spouses the same would come to 20 acres which has already been mentioned by the said respondent in his nomination form. Likewise he has also mentioned ownership of 10 shops. Therefore, the objection of concealment raised by learned counsel for the petitioner has no force. It would not be out of place to mention here that concealment/non-disclosure of assets and liabilities is one thing and incomplete disclosure of assets and liabilities is another. In my opinion the first one entails penal consequences but the second one can be considered to be an irregularity.

6. In this view of the matter, I am of the affirm view that case of Respondent No. 3 does not suffer from the disqualification enumerated in Section 27(2)(f) of the Punjab Local Government Act, 2013 or concealment of Assets or Liabilities.

7. Resultantly, I do not find any force in this petition which is accordingly dismissed.

8. It may, however, be mentioned that this petition has been decided on the basis of tentative assessment permitted by law. If Respondent No. 3 is declared returned candidate and petitioner, still feels aggrieved, he would be at liberty to avail his remedy before the Election Tribunal where he would have full opportunity to substantiate his stance by producing evidence.

(R.A.) Petition dismissed

PLJ 2016 Lahore 278 [Multan Bench Multan]

Present: M. Sohail Iqbal Bhatti, J.

ALLAH DEWAYA (Deceased) through Legal heirs, etc.--Petitioners

versus

KORAY KHAN (Deceased) through Legal Heirs, etc.--Respondents

W.P. No. 3010 of 2007, heard on 22.6.2015.

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

----S. 115(2)--Constitution of Pakistan, 1973--Art. 199--Revisional jurisdiction--Petition is not maintainable against order passed in revisional jurisdiction--Question of--Whether ASJ had jurisdiction to pass order--Validity--Distt. Court may exercise power conferred on High Court in respect of any case decided by Court sub-ordinate to Distt. Court in which no appeal lies--High Court could only disturb an order passed in revisional jurisdiction, if order is based upon gross misreading or non-reading of evidence as well as record and reasons given were absolutely perverse not supported by law, evidence or material available on record--Such order passed in revisional jurisdiction cannot be merely termed as having been passed without lawful authority. [P. 281] A & B

Constitution of Pakistan, 1973--

----Art. 199--Civil Procedure Code, (V of 1908), Ss. 12(2) & 115(2), O. VII, R. 11--Constitutional petition--Jurisdictional defect--Remanded order after framing of additional issues--Maintainability--Remand order or framing of additional issues did not prejudice case of petitioners in any manner before trial Court where they can produce evidence to prove issues in their favour, but rejection of application under Section 12(2), CPC out rightly under provisions of Order VII Rule 11, CPC amounts to non suit applicants in their application--Law favours adjudication on merits rather on technicalities--It is another questionable issue as to whether application under Section 12(2), CPC can be termed as a plaint within meaning of Order VII Rule 11, CPC so as to be rejected under Order VII Rule 11, CPC. [Pp. 281 & 282] C

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

----S. 12(2), 115(2) & O. IX, R. 13--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--Appeal against dismissal of application for setting aside ex-parte decree, dismissed--Order of rejection of application was set aside and case was remanded to trial Court for recording of evidence after framing of additional issues regarding maintainability of suit for possession and fact of non-depositing of zar-e-panjum and its effect--Validity--Provisions of Order IX Rule 13, CPC regarding setting aside of ex-parte decree relates only to service of summons and sufficient cause for non appearance in response of summons; while provisions of Section 12(2), CPC provides that a decree (whether contested or exparte) can be challenged on grounds of fraud, mis-representation and want of jurisdiction and thus both these provisions are based on different pedestals; and, therefore on basis of dismissal of an application filed under Order IX Rule 13, CPC, application filed under Section 12(2), CPC could not be dismissed by trial Court and therefore, such an application should be decided on its own merits.

[P. 282] D

Mr. Muhammad Ramzan Khalid Joiya, Advocate for Petitioners.

Mr. Tahir Mahmood, Advocate for Respondents Nos. 1 to 8

Date of hearing: 22.6.2015.

Judgment

That though this writ petition is not yet admitted for regular hearing and still at motion stage but both the parties have advanced their arguments at full length, therefore this writ petition is being decided as Pacca case.

1. Facts of the case are that the Allah Diwaya (predecessor-in-interest of writ petitioners) filed a suit for possession through pre-emption against Fazal Hussain and Kora/respondents (predecessor-in-interest of Respondents No. 1 to 15) on 04.09.1975 which was decreed ex-parte videjudgment and decree dated 26.04.1976 passed by learned Civil Judge, Kot Addu. On 21.01.1984, some of the respondents filed an application for setting aside ex-parte decree, which after framing of issues and recording of evidence was dismissed on merits, vide order dated 6.11.1989 passed by learned Civil Judge, Kot Addu. Present respondents preferred an appeal against dismissal of their application for setting aside ex-parte decree. The appeal was also dismissed vide order dated 14.06.1990 passed by learned Additional District Judge, Muzaffargarh. The Respondents No. 1 to 15 filed another application on 19.06.2004 under Section 12(2) read with Section 151, CPC for recalling of ex-parte judgment and decree, dated 26.04.1976 on the ground that the plaintiff (predecessor-in-interest of the petitioners) did not deposit the Zar-e-Panjum which was a mandatory requirement for suit for possession through pre-emption and the same suit was liable to be dismissed for non depositing of Zar-e-Panjum under Section 22 of Punjab Pre-emption Act, 1913. Present writ petitioners being respondents in application under Section 12(2) of CPC filed contesting written reply and thereafter filed an application under Order VII Rule 11 of CPC for rejection of application under Section 12(2), CPC. Application under Order VII Rule 11, CPC was accepted by learned Civil Judge, Kot Addu vide its order dated 24.11.2005 and application under Section 12(2) was rejected. Present Respondents No. 1 to 15 filed revision petition against the rejection of their application under Section 12(2), CPC. The revision petition was accepted vide order dated 24.02.2007 passed by learned Additional District Judge, Kot Addu. Consequently, order of rejection of application under Order VII Rule 11, CPC was set aside and case was remanded to trial Court for recording of evidence after framing of additional issues regarding the maintainability of the suit for possession through pre-emption and fact of non-depositing of zar-e-Panjum and its effect. The present petitioners, through this writ petition, have assailed the remand order, dated 24.02.2007 passed in revisional jurisdiction by Additional District Judge, Kot Addu.

2. Learned counsel for the petitioners argued that there was no occasion for the Respondents No. 1 to 15 to file application under Section 12(2), CPC after dismissal of their application for setting aside ex-parte judgment and decree. Learned counsel for the petitioners further argued that act of framing of issues would result into legal complications and after passing the judgment and decree, present petitioners through their predecessor-in-interest had deposited the decretal amount and a credit certificate had also been issued in their favour by the Treasury Office, Kot Addu; it was further argued that the revisional Court has passed the impugned order dated 24.02.2007 in excess of its revisional jurisdiction under Section 115 of CPC and thus impugned order is liable to be set aside.

3. On the contrary, learned counsel for Respondents No. 1 to 8 argued that the learned trial Court/Civil Judge while accepting the application under Order VII Rule 11, CPC has exercised the jurisdiction not vested in it as application under Section 12(2), CPC could not be rejected under Order VII Rule 11, CPC in accordance with the dictum laid down in a judgment reported as Salah-ud-Din v. Mst. Zia Farhat (1996 SCMR 1528). Learned counsel for the respondents further argued that revisional Court remanded the matter after framing of additional issues and thus properly exercised the jurisdiction so vested in it and writ petition is not maintainable against a order passed in revisional jurisdiction.

4. I have heard the arguments advanced by learned counsel for the parties at length and gone through the record carefully.

5. The question which would require resolution by this Court in its extra ordinary constitutional jurisdiction would be as to whether Additional District Judge had the jurisdiction to pass the impugned order and secondly as to whether the present writ petition is maintainable against the order passed by a revisional Court.

6. The revisional jurisdiction is regulated under Section 115 of CPC and main ingredients to invoke the revisional jurisdiction under Section 115 of CPC are enumerated as under:--

7. The sub ordinate Court has exercised the jurisdiction not vested in it by law, or

8. To have failed to exercise a jurisdiction so vested, or

9. Has acted in exercise of its jurisdiction illegally or with material irregularity.

Under sub-section (2) of Section 115, CPC the District Court may exercise the power conferred on the High Court in respect of any case decided by a Court sub-ordinate to such District Court in which no appeal lies.

1. In the present case, the learned trial Court which accepted the application under Order VII Rule 11, CPC and rejected the application under Section 12(2), CPC is sub-ordinate to the District Court and while rejecting the application decided the whole case. In this way, order of learned trial Court can be scrutinized upon the aforesaid legal principle under the relevant provisions of Section 115, CPC. This Court could only disturb an order passed in revisional jurisdiction, if the order is based upon gross misreading or non-reading of evidence as well as record and reasons given are absolutely perverse, not supported by law, evidence or material available on record. Such order passed in revisional jurisdiction cannot be merely termed as having been passed without lawful authority. This Court, in dispensation of justice has no authority to decide rights of parties according to their whims, caprice or imagination.

2. Learned counsel for the petitioners has failed to point out any jurisdictional defect in impugned order dated 24.02.2007 passed by learned Additional District Judge, Kot Addu which otherwise do not decide the case rather the case has been remanded for decision afresh on merits after framing of additional issues. A remand order or framing of additional issues did not prejudice the case of petitioners in any manner before the trial Court where they can produce the evidence to prove the issues in their favour, but rejection of application under Section 12(2), CPC out rightly under provisions of Order VII Rule 11, CPC amounts to non suit the applicants in their application. Needless to add that law favours adjudication on merits rather on technicalities. It is another questionable issue as to whether application under Section 12(2), CPC can be termed as a plaint within the meaning of Order VII Rule 11, CPC so as to be rejected under Order VII Rule 11, CPC.

3. I am of the view that provisions of Order IX Rule 13, CPC regarding setting aside of ex-parte decree relates only to service of summons and sufficient cause for non appearance in response of summons; while provisions of Section 12(2), CPC provides that a decree (whether contested or exparte) can be challenged on the grounds of fraud, mis-representation and want of jurisdiction and thus both these provisions are based on different pedestals; and therefore on the basis of dismissal of an application filed under Order IX Rule 13, CPC, the application filed under Section 12(2), CPC could not be dismissed by the learned trial Court and therefore such an application should be decided on its own merits.

4. It goes without saying that provisions of Section 22 of Punjab Pre-emption Act, 1913 were mandatory in nature; therefore, proposed additional issues were rightly framed by the learned Additional District Judge, Kot Addu.

5. At this stage, it would be useful to refer to the observation made by the Honourable Supreme Court of Pakistan in a judgment reported as Noor Muhammad v. Sarwar Khan and 2 others (PLD 1985 SC 131) wherein the August Supreme Court regarding the filing of constitutional petition has observed as under:--

“Before parting with the case we may observe that there is an increasing tendency to file constitutional petition even when the Courts whose orders are challenged had the jurisdiction to pass those orders, notwithstanding the fact that it has been held time and again that where a Court in contradistinction to a persona designate, has jurisdiction to decide a matter, it can do so rightly or wrongly and the mere fact that a decision on a question of fact or law is not correct does not necessarily render it 'without lawful authority' and certainly not illegal. Refer Badar-ul-Haq Khan v. The Election Tribunal, Dakka and others (1), Muhammad Hussain Munir and others v. Sikandar and others (2) and Abdul Rehman Bajwa v. Sultan and 9 others (3).

We are of the view that tendency to file such constitutional petitions tends to clog the superior Courts with frivolous litigation and causes un-necessary delays in disposal of other cases and this tendency should therefore, be curbed with a strong hand”.

1. for what has been discussed above, this writ petition being devoid of any merits, is dismissed.

(R.A.) Petition dismissed

PLJ 2016 Lahore 283

Present: Amin-ud-Din Khan, J.

QAMAR-UZ-ZAMAN--Petitioner

versus

MANSOOR KHAN--Respondent

C.R. No. 460 of 2010, heard on 3.11.2015.

Talb-e-Muwathibat--

----Scope--Specific place of making talb-e-muwathibat was not mentioned--Validity--Plaintiff has not announced superior right of pre-emption--Talb-e-muwathibat has not been proved in accordance with law—Post-man has not/produced to prove service of notice of talb-e-ishhad or refusal from receiving same by vendee--Plaintiff/respondent miserably failed to prove all talabs in accordance with law. [P. 284] A

Mr. Sajjad Bashir, Advocate for Petitioner.

Nemo for Respondent.

Date of hearing: 3.11.2015.

Judgment

Through this civil revision the petitioner/defendant has challenged the ex-parte judgment and decree dated 04.10.2006 passed by the learned Additional District Judge, Gujranwala, whereby the appeal filed by the respondent/plaintiff was accepted, by way of which, the ex-parte judgment and decree dated 18.04.2006 passed by the learned Civil Judge, Gujranwala dismissing the suit for pre-emption filed by the respondent/plaintiff, were set aside.

1. Briefly, the facts of this case are that on 20.04.1998 the respondent/plaintiff filed a suit for pre-emption to pre-empt the sale of land in favour of vendee-defendant through registered sale-deed dated 14.01.1998. The defendant was proceeded against ex-parte. The plaintiff produced oral as well as documentary evidence in support of his versions. After the completion of trial vide ex-parte judgment & decree dated 18.04.2006 suit was dismissed by the learned trial Court. Feeling aggrieved thereby an appeal was preferred by the respondent/plaintiff before the learned first appellate Court, which was accepted vide ex-parte judgment and decree dated 04.10.2006 and suit was decreed ex-parte. Hence, this civil revision by the petitioner/ defendant.

2. Learned counsel for the petitioner/defendant argues that the findings of learned trial Court are in accordance with law as well as the evidence available on the file, as the plaintiff miserably failed to prove all the Talbs in accordance with law but the learned first appellate Court without any justifiable reasons erred in law while decreeing the suit filed by the respondent/plaintiff, therefore, prays for acceptance of this civil revision.

3. The respondent/plaintiff has been proceeded against ex-parte vide order dated 29.09.2015.

4. I have considered the arguments advanced by the learned counsel for the petitioner-defendant and also gone through the evidence minutely with his able assistance.

5. I have noticed that in Para 4 of the plaint specific place of making Talb-e-Muwathibat has not been mentioned. The plaintiff when appeared as his own witness as PW-1 has also not stated the specific place of performance of Talb-e-Muwathibat. Same is the position of PW-2. Khalil-ur-Rehman, who is the informer, appeased as PW-3, stated that on 06.04.1998 at about 4:00 a.m. he went to the plaintiff in his house where Tariq Mehmood was present, he informed the plaintiff about the impugned sale of land, then we all the three went to the defendant and asked him to hand over the suit property after receiving the money and the defendant denied to hand over the suit property. From the statement of PW-3 it is crystal clear that the plaintiff has not announced the superior right of pre-emption. Therefore, Talb-e-Muwathibat has not been proved in accordance with law. Furthermore, the postman has not been produced to prove the service of notice of Talb-e-Ishhad or refusal from receiving the same by the vendee-defendant. In this view of the matter, the plaintiff/ respondent miserably failed to prove all the Talabs in accordance with law laid down in the judgments of august Supreme Court of Pakistan reported as “PLD 2007 Supreme Court 302 Mian Pir Muhammad and another vs. Faqir Muhammad through L.Rs and others) 2011 SCMR

762 (Bashir Ahmad vs. Ghulam Rasool, 2007 SCMR 1105) (Muhammad Bashir and others vs. Abbas Ali Shah and 2013 SCMR 866 (Allah Ditta through L.Rs. and others vs. Muhammad Anar)”.

1. In view of the above, the findings recorded by learned first appellate Court are not sustainable under the law. Therefore, this civil revision is allowed and the impugned ex-parte judgment & decree dated 04.10.2006 passed by the learned first appellate Court are set aside. The result is that the suit for pre-emption filed by the plaintiff/respondent shall stand dismissed.

(R.A.) Revision allowed

PLJ 2016 Lahore 285 [Multan Bench Multan]

Present: Mushtaq Ahmad Tarar, J.

ZAFAR HUSSAIN--Petitioner

versus

APPELLATE AUTHORITY OF LOCAL BODIES ELECTION, 2015 MUZAFFARGARH and 2 others--Respondents

W.P. No. 16213 of 2015, decided on 16.11.2015.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Rejection of nomination papers--Election of general councilor--Seconder was not enlisted as voter of ward--Validity--Defect in nomination papers is of substantial nature and same cannot be remedied and respondent cannot be allowed to contest election as his seconder is not voter of Ward--Judgment relied upon by appellate authority has been over-ruled by Full Bench of High Court--Order was not sustainable under law--Petition was accepted. [Pp. 286 & 287] A

Mr. Muhammad Bashir Khan Sikhani, Advocate for Petitioner.

Mr. Abdul Rehman Khan Laskani, Advocate for Respondent No. 3.

Mr. Shaukat Bilal Khan Bangash, Standing Counsel for Respondents.

Date of hearing: 16.11.2015.

Order

The petitioner has directed this writ petition against the order dated 26.10.2015 passed by the Respondent No. 1/Appellate Authority, whereby Respondent No. 1 accepted the appeal of Respondent No. 3 against the order dated 10.10.2015 passed by the Returning Officer Respondent No. 2 for rejection of nomination papers of Respondent No. 3.

1. Learned counsel for the petitioner contended that the Respondent No. 3 submitted nomination papers for the seat of General Councilor from Ward No. 2 of Union Council No. 56 Manak Pur Tehsil Muzaffargarh, whereas the seconder of petitioner namely Mian Ahmed son of Muhammad Akhtar was voter of Ward No. 3, resultantly the Returning Officer rejected the nomination papers of Respondent No. 3; that in appeal filed by Respondent No. 3 the Appellate Authority illegally accepted the appeal of Respondent No. 3 and allowed him to contest the election. He has referred the Full Bench Judgment of this Court dated 28.10.2015 passed in W.P. No. 31556 of 2015 titled “Barkhurdar vs. Appellate Authority”.

2. The standing counsel also supported the contention of writ petitioner and argued that the Appellate Authority has illegally accepted the appeal of Respondent No. 3.

3. Learned counsel for Respondent No. 3 contested the appeal, however, he conceded that the seconder of Respondent No. 3 is not the voter of Ward No. 2 from where the Respondent No. 3 submitted nomination papers.

4. The record reveals that the Respondent No. 3 submitted nomination papers to contest the election of General Councilor Ward No. 2 Union Council No. 56 Manak Pur, wherein Mian Ahmed son of Muhammad Akhtar was his seconder. As his seconder was not enlisted as voter of Ward No. 2 the nomination papers of Respondent No. 3 were rejected by the Returning Officer on 10.10.2015. In appeal the Appellate Authority accepted the appeal of Respondent No. 3 in view of the judgment of this Court dated 7.10.2015 passed in W.P.No. 29531 of 2015 titled “Shaukat Ali vs. Election Commissioner District Kasur and 03 others.” Admittedly the seconder of Respondent No. 3 is the voter of another ward and is not enlisted as voter in Ward No. 2 from where Respondent No. 3 has submitted nomination papers. Therefore, in view of the principle laid down by the Full Bench of this Court in judgment dated 28.10.2015 passed in Writ Petition No. 31556 of 2015) titled “Barkhurdar vs. Appellate Authority” the defect in nomination papers of Respondent No. 3 is of substantial nature and the same cannot be remedied and the Respondent No. 3 cannot be allowed to contest the election of General Councilor Ward No. 2 as his seconder is not the voter of the said Ward. The judgment relied upon by the

Appellate Authority has been over-ruled by the Full Bench of this Court vide Judgment dated 28.10.2015 referred Supra. Hence, the impugned order dated 26.10.2015 is not sustainable under the law.

1. For the foregoing reasons, I accept this writ petition, set aside the order dated 26.10.2015 passed by the Appellate Authority/ Respondent No. 1 and as a sequel the order of Returning Officer/ Respondent No. 2 dated 10.10.2015 is upheld and the nomination papers of Respondent No. 3 are rejected.

(R.A.) Petition accepted

PLJ 2016 Lahore 287 [Multan Bench Multan]

Present: Ch. Muhammad Masood Jahangir, J.

QAZI NOOR MUHAMMAD and 3 others--Petitioners

versus

KH. ABDUL HAMID ALI and 2 others--Respondents

C.Rs. Nos. 776-D & 775-D of 2002, heard on 21.5.2015.

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

----Art. 129(g)--Presumtion of truth--Adverse inference--Attestation of mutation--Executed on behalf of minor, illegal--Validity--Transactions had taken place at prior point of time could not be proved--Petitioners being beneficiary had failed to prove original transaction as well as valid attestation of mutations--Petitioners had failed to sustain their ownership in suit property and Courts below had rightly non-suited to extent of suit property--Courts below after appreciating evidence decreed the suit filed by respondent and dismissed suit filed by petitioners after assigning eminent reasons--Revisions were dismissed. [P. 289] A

Revisional Jurisdiction--

----Scope--Jurisdictional defect--Whereof is narrower and restricted to extent of correcting errors of law and facts, if were found to had been committed by sub-ordinate Courts in discharge of judicial functions--Revisions were dismissed. [P. 289] B

M/s. Syed Tajamal Hussain Bukhari, & Muhammad Faisal Bashir Ch., Advocates for Petitioners.

Mr. Tariq Muhammad Iqbal Ch., Advocate for Respondents.

Date of hearing: 21.5.2015.

Judgment

Through this single judgment, I intend to dispose of Civil Revisions No. 776 and 775 of 2002 jointly as common questions of law and facts are involved.

1. The precise facts of the case are that Khawaja Abdul Hamid Ali, Respondent No. 1 brought a suit for Declaration No. 230 on 15.12.1994 before the learned trial Court regarding property measuring 10-kanals with the assertion that Qazi Noor Muhammad present petitioner in connivance with the revenue officials got attested Mutations No. 248, 258, 259, 303, 348 & 349 by practicing fraud at the time when the petitioner was a 'minor'. The said suit was contested by the petitioners/defendants. Qazi Noor Muhammad and Mst.Zahida Bibi/petitioners also brought a suit for declaration along with possession through partition No. 31/95, which was contested by the respondents with the assertion that the alleged executant was minor at the time of attestation of above referred mutations. Both the suits were tried independently and after full fledged trial tried Suit No. 230 filed by Kh. Abdul Hamid Ali, Respondent No. 1 was decreed while Suit No. 31 filed by the present petitioners Qazi Noor Muhammad etc. was dismissed vide independent judgments and decrees dated 31.03.2001. The present petitioners by filing two Civil Appeals Nos. 62/2001 and 63/2001 challenged the said judgments and decrees passed by the learned trial Court, which were dismissed vide independent judgments and decrees dated 11.06.2002 passed by the learned lower appellate Court. Being aggrieved, the instant civil revisions were filed by the petitioners.

2. Arguments heard and record perused.

3. Kh. Abdul Hamid Ali, Respondent No. 1 brought a suit before the learned trial Court with the clear cut assertion that at the time of attestation of disputed mutations, he was minor and any alleged transaction executed on behalf of minor was illegal. The copy of guardianship certificate (duly exhibited in both the suit files) issued by the Guardian Judge on 15.06.1994 reveals that application for the appointment of guardian of said plaintiff and other minors was filed and the age of majority of the said plaintiff was reflected as 14.7.1997, whereas the disputed Mutations No. 248, 258, 259, 303, 348 and 349 were got attested in the year 1994. The said judicial record attains strong presumption of truth and the present petitioners failed to rebut the same by producing any tangible evidence. Kh. Abdul Hamid Ali fully proved his stance by producing copy of guardianship certificate. Even perusal of files of both the cases reveals that Qazi Noor Muhammad Petitioner No. 1 only got recorded his solitary statement in the suit for declaration filed by him whereas in other suit filed by Kh. Abdul Hamid Ali, Respondent No. 1 the petitioners produced Ghulam Fareed DW/1 and he himself appeared as DW/2. No other witness including the attesting witnesses of the disputed mutations, Patwari and Revenue Officer, who allegedly sanctioned the disputed mutations were produced to prove the stance of petitioners. The said best evidence was available to the petitioners but the same was with held for the reasons best known to them and both the Courts below rightly drew an adverse inference against the petitioners under Article 129(g) of the Qanoon-e-Shahadat Order, 1984. The alleged transactions embodied in the mutations, which might have taken place at some prior point of time also could not be proved by the petitioners by producing any iota of evidence. The petitioners being beneficiary failed to prove the alleged original transactions as well as valid attestation of mutations. Moreover the same were result of fraud and misrepresentation, which were got sanctioned on behalf of the minor, which have been rightly cancelled by the learned Courts below and I concur with the same. Since, the petitioners failed to sustain their ownership in the suit property and both the Courts below have rightly non-suited them to the extent of the suit property. Both the Courts below after appreciating the evidence available on file concurrently decreed the suit filed by the Respondent No. 1 and dismissed the suit filed by the petitioners after assigning eminent reasons.

4. The learned counsel for the petitioners has failed to point out any illegality, perversity or jurisdictional defect in the impugned judgments and decrees, which are also not tainted with any misreading or non-reading of the evidence available on the record calling for any interference by this Court in the exercise of revisional jurisdiction, the scope whereof is narrower and restricted only to the extent of correcting errors of law and facts, if are found to have been committed by the subordinate Courts in the discharge of their judicial functions. Resultantly, both the civil revisions being devoid of any merit are dismissed with costs throughout.

(R.A.) Revision dismissed

PLJ 2016 Lahore 290 [Multan Bench Multan]

Present: Ch. Muhammad Masood Jahangir, J.

TAJ MUHAMMAD etc.--Petitioners

versus

GOVERNMENT OF THE PUNJAB, etc.--Respondents

W.P. No. 3018 of 2015, decided on 16.10.2015.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Non-payment of salaries--Salary of an employee--Fundamental rights--Validity--While holding an inquiry wherein all concerned will also be joined and if petitioners were found to be still in service, their emoluments will be released without loss of any further time--Petition was disposed of. [P. 291] A

Mr. Muhammad Faisal Bashir, Advocate for Petitioners.

Mr. Mubashir Lateef Gill, AAG for Respondents.

Date of hearing: 16.10.2015.

Order

By filing the instant Constitutional petition, the petitioners have prayed as under:

“In the light of the above submission it is most respectfully prayed that the writ petition may kindly be accepted and a writ of mandamus be issued in favour of the petitioners against the respondents directing for payment of the salaries for the work done.”

1. It is contended by the learned counsel for the petitioners that the petitioners are still working against their jobs, but their salary is not being disbursed by the respondents-department, which is against their fundamental rights.

2. On the other hand, the learned Law Officer appearing on behalf of the respondents is unable to rebut the argument of the learned counsel for the petitioners or satisfy this Court that how the salary of an employee during the continuation of his job can be stopped and even an employee is entitled to draw his salary during the period of his suspension.

3. Heard and record perused.

4. Keeping in view the afore-said facts and circumstances of the case, it is felt appropriate to direct the office that a copy of this writ petition along with all the annexures be transmitted to Respondent No. 1, who will look into the grievance urged by the petitioners in the writ petition while holding an inquiry wherein all the concerned will also be joined and if the petitioners are found to be still in service, their emoluments will be released without loss of any further time. This drill work will be completed within four months positively.

5. The instant writ petition stands disposed of accordingly.

(R.A.) Petition disposed of.

PLJ 2016 Lahore 291

Present: Ibad-ur-Rehman Lodhi, J.

Dr. MUHAMMAD AFZAL HUSSAIN--Petitioner

versus

ADDITIONAL DISTRICT JUDGE, LAHORE and others--Respondents

W.P. Nos. 6861 of 2015, heard on 2.6.2015.

PunjabUndesirable Cooperative Societies (Dissolution) Act, 1992--

----Preamble--Civil Procedure Code, (V of 1908), S. 12(2)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Decree against liquidation board claiming lawful owner--Benami transaction--When corporation refused to hand over original sale-deed, forced to file civil suit against for liquidation--Ejectment petitions were challenged--Validity--Civil suit before Civil Court was, thus, a nullity in eye of law, as all issues relating to property, assets and liabilities of UCS, which even were pending before any Court or authority stood abated on appointment of liquidator and further that all fresh proceedings against such society were only to be instituted before Co-operative Judge within 60 days of such abatement--Unless ejectment petitioners establish their title qua suit property, beyond any doubt, they would not be competent to ask for eviction of persons occupying premises in their own independent right--A person claims himself to be owner or landlord of premises seeking eviction of respondent in ejectment petition, must be equipped with a tenancy deed registered with rent registrar, and in view of provisions of Section 5(5) of Act, it is exclusive proof to establish relationship of landlord and tenant in between parties to such ejectment petition--Ejectment petitions, filed before Tribunal were not competent and, thus, were not entertainable--Petitions were allowed.

[Pp. 294, 295 & 296] A, B, C & D

Mr. Tariq Masood, Advocate for Petitioner (in Writ Petition No. 6861 of 2015).

M/s. Shahzada Muhammad Zeeshan Mirza and Muhammad Sajjad Chaudhry, Advocates for Petitioner (in Writ Petitions Nos. 6024, 6027, 6040, 6041, 6042, 6249, 6252, 6281, 6338, 6341, 6342, 6344 of 2015).

Mr. Waqar Hassan Mir, Advocate for Respondents No. 3 to 6.

Date of hearing: 2.6.2015.

Judgment

Through this common judgment, I intend to dispose of this writ petition as also Writ Petitions No. 6024 6027 6040 6041 6042 6049 6252 6281 6338 6341 6342 and 6344 of 2015, as all the ejectment petitions from which these petitions arose, were filed with regard to the same property, and common questions of law and facts are involved therein, and the order and judgment dated 23.05.2014 and 17.12.2014, passed by the learned Special Judge (Rent) and the learned Additional District Judge, respectively, have been called-in-question.

1. The ejectment petitioners preferred their ejectment petitions against the present petitioners seeking their ejectment from respective portions in possession of the petitioners in Property No. 1000/C, Jinaah Market, Chowk Surjan Singh, Pani Wala Talab, Rang Mahal, Lahore, which building consists of a number of shops and flats over a total area of 2½ kanals.

2. The background, which is relevant for the disposal of present Constitutional petitions is that, it is an admitted position that the property was originally owned by Roop Lal Mehta, who continued to be in the ownership of the same till his death i.e. the year 1986. The LRs of deceased Roop Lal Mehta alienated the said property in favour of National Industrial Cooperative Finance Corporation Limited (hereinafter to be referred as “NICFCL”). On promulgation of Punjab Undesirable Cooperative Societies (Dissolution) Ordinance, 1992, on 16.05.1992, the Corporation, noted herein-above, stood dissolved and the matters relating to such Undesirable Cooperative Societies were further to be dealt with by the Punjab Cooperative Board for Liquidation.

3. On 12.12.1992, one Ch. Manzoor Elahi, filed a civil suit titled (Ch. Manzoor Elahi vs. Punjab Cooperative Board of Liquidation), seeking a decree against the Liquidation Board, claiming him as a lawful owner of the suit property on the plea that, the LRs of late Roop Lal Mehta through their general attorney, alienated the entire property to the plaintiff for a consideration of Rs. 7,00,000/- (rupees seven lac only), who (plaintiff) got executed the registered sale-deed directly in favour of NICFCL, only as a be-nami transaction.

4. According to the plaint, the arrangement was settled as a security against a loan of Rs. 7,00,000/- (rupees seven lac only), extended in favour of Ch. Manzoor Elahi, and after making the payment of loan amount with an interest at the rate of 20% to the Finance Corporation, the plaintiff of the suit required the Corporation to hand over the titled documents to the plaintiff, but when the Corporation refused to hand over the original sale-deed and other requisite documents to the plaintiff, it forced Ch. Manzoor Elahi to file a civil suit against the Punjab Cooperative Board for Liquidation.

5. On the basis of a conceding statement, shown to have been made on behalf of the Board of Liquidation, the suit stood decreed on 8th day of its filing i.e. 20.12.1992, and on the strength of such decree, the plaintiff/decree-holder started claiming himself to be the exclusive owner of the property, in question, and treating the occupants of the property as 'his tenants'.

6. After the death of Ch. Manzoor Elahi, the above-mentioned decree-holder, his LRs. were stated to have transferred whole property through general attorney Bilal Ahmad Mir, in favour of the eviction petitioners/real sons of the said attorney.

7. The ejectment petitioners thereafter without giving particular description of the property filed the ejectment petitions.

8. On the other side, the decree, as was granted on 20.12.1992, was challenged by the writ petitioner in Writ Petition No. 6861 of 2015. Dr. Mohammad Afzal Hussain and the Liquidation Board also called in question the decree dated 20.12.1992, by means of separate applications under Section 12(2), CPC, who in the civil suit, were shown to have conceded the plaint, and the learned trial Court on entertaining such applications under Section 12(2), CPC, passed an order to maintain status-quo on 16.06.2011.

9. By means of another separate civil suit, the deed of general power-of-attorney shown to have been executed by Ch. Manzoor Elahi (deceased)-plaintiff of the civil suit, which stood decreed on 20.12.1992 in favour of the plaintiff and sale-deeds got executed by the stated attorney in favour of the ejectment petitioners were challenged by Dr. Mohammad Afzal Hussain, noted herein-above, which is still pending.

10. The learned Rent Tribunal, on 23.05.2014, proceeded to refuse to grant leave to contest to the present petitioners and held them as defaulters in payment of rent and ordered their eviction.

11. In appeals, findings of the learned Rent Tribunal were maintainedvide judgment dated 17.12.2014.

12. After hearing the learned counsel for the parties and going through the record, what emerges is that presently, the ejectment petitioners enjoy no perfect title in their favour qua the property, in question.

13. Nobody is denying the fact that, at the time of promulgation of Punjab Undesirable Co-operative Societies (Dissolution) Act, 1992 the property vested in NICFCL. Section 16 of the Ordinance, which subsequently converted into Act of 1993, reads as under:--

“16. Abatement of all suits, proceedings, etc.--(1) All suits or proceedings pending before any Court or authority against an Undesirable Co-operative Society in respect of its assets and liabilities shall stand abated on the appointment of the Liquidator:

Provided that fresh proceedings against such a society may be initiated before the Co-operatives Judge within 60 days of such abatement.

(2) All decrees, judgments and orders passed by any Court, except the Supreme Court, against an Undesirable Co-operative Society or against properties and assets thereof on or after the first day of July, 1990 shall be unexceptionable and of no legal effect, unless such judgment, decree or order is confirmed by the Co-operatives Judge after hearing the concerned parties.

(3) Any person who relies on such decrees judgments or orders, may within 60 days of the appointment of the Liquidator, apply to the Co-operatives Judge for its confirmation”.

In the light of above promulgation, the civil suit instituted on 12.12.1992 before the Civil Court was, thus, a nullity in the eye of law, as all the issues relating to the property, assets and liabilities of Undesirable Cooperative Society, which even were pending before any Court or authority stood abated on the appointment of the Liquidator and further that all fresh proceedings against such Society were only to be instituted before the Co-operative Judge within 60 days of such abatement. Further that all the decrees etc. passed by any Court, except the Hon’ble Supreme Court of Pakistan against the properties and assets of any Undesirable Cooperative Society or after the first day of July, 1990, were to become unexcutable and of no legal effect, unless such judgment and decree etc. is confirmed by the Cooperatives Judge, after hearing the concerned parties and any person, who relies on such decrees, judgments etc., was competent to approach the Cooperative Judge for its confirmation within 60 days of the appointment of the Liquidator.

1. For the reason that, still applications under Section 12(2), CPC calling in question the decree dated 20.12.1992, are pending adjudication before the learned trial Court, no further comments as to the validity of the decree dated 20.12.1992 are being made, lest it may prejudice the case of anybody before the learned trial Court hearing such applications under Section 12(2), CPC. However, for the time being, suffice it to say that, on the strength of a decree, effect of which has already been suspended by the same Court, which earlier granted the same, while hearing application under Section 12(2), CPC, has at least no force to be executed or to be asked to be taken into consideration as a decree in full force. The view expressed by the Hon’ble Supreme Court of Pakistan in case of Rehmatullah vs. Ali Muhammad and another (1983 SCMR 1064), relevant portion thereof is reproduced as under:

“Landlord failing to establish relationship of “landlord and tenant” beyond reasonable doubt cannot be allowed benefit of affirmative finding on issue. Rent Controller need not go into disputed “question of title”. Leading of evidence by parties before Rent Controller on issue of “title” not desired. Proper course for Rent Controller, in circumstances would be to decide issue against landlord and advise landlord to get his “title” established from a Court of general jurisdiction before seeking ejectment. Such findings to be specifically recorded by Rent Controller in his order. Decision by Rent Controller and Appellate Court, High Court or Supreme Court not to operate as bar to suit to be filed by landlord in order to establish his title. Landlord can re-agitate matter before Rent Controller again and decision of Rent Controller taken earlier would not constitute res judicata or preclude him from re-agitating matter before him once again”.

is fully applicable in full force on the facts and circumstances of the present cases, and unless the ejectment petitioners establish their title qua the suit property, beyond any doubt, they would not be competent

to ask for eviction of the persons occupying the premises in their own independent right.

1. The Courts below have conveniently closed their eyes from such aspect of the matter and have refused to grant leave to the present petitioners on erroneous considerations. Even to invoke the jurisdiction of a Rent Tribunal under The Punjab Rented Premises Act, 2009, a person claims himself to be the owner or landlord of the premises seeking eviction of the respondent in the ejectment petition, must be equipped with a tenancy deed registered with the Rent Registrar, and in view of the provisions of Section 5(5) of the Act, it is the exclusive proof to establish the relationship of landlord and tenant in between the parties to such ejectment petition.

2. Admittedly, the ejectment petitioners are not equipped with any such rent deed and this fact has candidly been conceded by the learned counsel appearing for Respondents No. 3 to 6. The ejectment petitions, filed by the respondents before the Rent Tribunal were not competent and, thus, were not entertainable. The Rent Tribunal was having no jurisdiction to entertain such incompetent petitions. The proceedings conducted before the Rent Tribunal and also the appellate Court were having no legal sanction.

3. For what has been discussed above, present petitions are allowed by declaring that the ejectment petitions filed before the Rent Tribunal by the respondents were not competent in the eye of law and as a consequence thereof, order and judgment dated 23.05.2014 and 17.12.2014, passed by the Courts below are set-aside.

(R.A.) Petitions allowed

PLJ 2016 Lahore 296

Present: Mrs. Erum Sajad Gull, J.

USMAN FARID CHISHTI--Petitioner

versus

INSPECTOR ANTI-CORRUPTION ESTABLISHMENT etc.--Respondents

W.P. No. 20362 of 2015, decided on 13.8.2015.

Police Rules, 1934--

----R. 247--Criminal Procedure Code, (V of 1898), S. 551--Constitution of Pakistan, 1973, Art. 199--Cancellation of case--Higher police authorities vested powers--Police has powers for cancellation of case, if during investigation, it is made out that a false case has been registered and cancellation report so prepared by police is placed before magistrate for procuring cancelation order of FIR.

[P. 298] A

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

----S. 63--Investigation--Power to discharge--Once investigation is completed, and I.O. submitted case before magistrate, then former has power to discharge a person under Section 63, Cr.P.C., if he is found innocent--Magistrate found that no case was made out, he would refuse to take cognizance of matter. [Pp. 298 & 299] B

Mr. Abid Hussain Khichi, Advocate for Petitioner.

Mr. Shahbaz Tatla, AAG for Respondents.

Date of hearing: 13.8.2015.

Order

Petitioner (Usman Farid Chishti) has filed the afore titled writ petition to quash the FIR No. 24 dated 3.7.2014 registered at Police Station ACE Pakpattan Sharif under Section 5(2)47, PCA read with Sections 420/468/471, PPC.

1. Precise accusation against the petitioner is that in 2006 he fraudulently procured his initial appointment as SESE in the Government Primary School 62/EB Tehsil Arifwala by producing bogus BA's result card. Subsequently in 2012 he was also promoted on the basis of Master's degree which in the course of inquiry too was found to be fraudulent and bogus.

2. It is the case of the learned counsel for the petitioner that registration of criminal case is tainted with mala fides with a view to blackmail and intimidate him. Adds that the very inception of the FIR against the statutory provisions of law as the complainant is not legally authorized to lodge an FIR against the petitioner who was a Government employee. Learned counsel adds that even otherwise there are no allegations of corruption or corrupt practices against the petitioner. And in the garb of the present criminal case he is being humiliated, maligned and harassed by means of vindictive and malicious proceedings.

3. Heard the learned counsel for the petitioner as well as the learned Assistant Advocate General and perused the record available before this Court.

4. It has been time and again held by the Honorable Supreme Court of Pakistan that the High Courts should refrain from quashing the FIR at the first instance while exercising the powers under Article 199 of the Constitution or under Section 561-A, Cr.P.C., and only in very rare and exceptional cases the High Court should use its extraordinary jurisdictional powers to quash the FIR. It was held in 2006 CLD 625 (Supreme Court of Pakistan) Industrial Development Bank of Pakistan and others vs. Mian Asim Fareed and others that the High Court should not quash an FIR on the ground that it was registered in violation to a provision of law, if actually an offence was committed, and there were no findings that the FIR was false or maliciously lodged. It was further held “that the registration of an FIR and taking of cognizance of cases were two distinct and independent concepts under the criminal law, that if the intention of the law maker was to put any clog on the registration of an FIR, then the Legislature would have said so specifically and that if the law put a condition only on the taking of cognizance then it can never be read to imply prohibition on registration of FIRs”.

5. In the case at hand report and parawise comments were filed by the Circle Officer, Anti-Corruption Establishment Pakpattan, wherein it was submitted that after a complaint was filed against the petitioner regarding his bogus degrees, an investigation was conducted pursuant to the order of the Anti-Corruption Establishment authority. And during the investigation, the degrees of the petitioner were found to be fake and the petitioner was declared guilty. Where after, FIR was registered against the petitioner. He faced departmental inquiry and eventually resigned from his post.

6. The Honorable Supreme Court of Pakistan in the case reported as 2006 SCMR 276 Col Shah Sadiq vs. Muhammad Ashiq and others has laid down that the High Court should not directly quash the FIR, and the person seeking to quash the FIR, must in the first instance, avail the alternate remedies. The foremost remedy was to appear before the Investigating Officer to plead and prove his innocence. Another was to approach the higher police authorities vested with powers under Section 551, Cr.P.C. And under Rule 24.7 of the Police Rules, 1934, the police has the powers for cancellation of case, if during the investigation, it is made out that a false case has been registered and the cancellation report so prepared by the police is placed before the Magistrate for procuring the cancelation order of the FIR. Once the investigation is completed, and the Investigating Officer submits the case before the Magistrate, then the former has the power to discharge a person under Section 63, Cr.P.C., if he is found

innocent. And in case the Magistrate finds that no case is made out, he would refuse to take cognizance of the matter.

1. In view of the deliberation made above and keeping in sight the judgments of the Honorable Supreme Court of Pakistan, no case is made for this Court to exercise its extraordinary jurisdiction to quash the FIR, as the alternate remedies have not been availed by the petitioner. Therefore, this petition being misconceived and devoid of any merit is accordingly dismissed.

(R.A.) Petition dismissed

PLJ 2016 Lahore 299

Present: Mrs. Erum Sajad Gull, J.

SABIR ALI--Petitioner

versus

INSPECTOR GENERAL OF POLICE, PUNJAB etc.--Respondents

W.P. No. 9983 of 2015, decided on 9.9.2015.

Police Order, 2002 (10 of 2002)--

----Art. 18-A(3)--Pakistan Penal Code, (XLV of 1860), Ss. 302 & 34--Change of investigation--Challan was in Court--No legal justification to file an application for further change of investigation--Validity--Changing investigation or ordering further investigation in matter was an exercise unsustainable in law.

[P. 301] A

Mr. Muhammad Shahbaz Rana, Advocate for Petitioner.

Ch. Muhammad Saeed Gujjar, Advocate for Respondent No. 3.

Mr. Naveed Saeed Khan, Addl. AG Pb. for Respondents.

Date of hearing: 9.9.2015.

Order

Petitioner (Sabir Ali) complainant in the murder case of his brother, is aggrieved of the impugned order dated 2.4.2015, whereby, the Respondent No. 1/ the Inspector General of Police Punjab, Lahore by accepting the application moved on behalf of accused/Respondents No. 3 and 4 in terms of Article 18-A (3) of the Police Order 2002 approved the change of investigation in case FIR No. 702 dated 31.12.2013 registered at Police Station Thikriwala Faisalabad for the commission of offences under Section 302/34, PPC at the time when the trial had already commenced.

1. The learned counsel for the petitioner has argued that while the trial was in progress, the accused Respondents No. 3 and 4 did not have any legal justification to file an application for further change of investigation. The learned counsel for the petitioner/complainant has argued that the Honorable Supreme Court of Pakistan has lately observed that once the challan is in the Court, no application can be entertained by the police for the change of police investigation. And to substantiate his contentions, learned counsel relied upon (PLD 2007 SC 31) Muhammad Nasir Cheema vs. Mazhar Javed and others as well as on 2014 SCMR (SC) 1499 Qari Muhammad Rafiq vs. The Additional Inspector General of Police (Inv) Punjab and others.

2. Whereas, learned counsel for the respondents/accused while controverting the assertions of the learned counsel for the petitioner strenuously contends that there is no express restriction and specific embargo on the time and number of investigation. To supplement his arguments, learned counsel relied upon the judgment of the Honorable Supreme Court of Pakistan reported as (1972 SCMR 335) Muhammad Akbar vs. the State and another and (2014 SCMR 474) Raja Khurshid Ahmed vs. Muhammad Bilal and others. Besides, on the strength of the relevant provisions of Article 18-A(3) of the Police Order, 2002, learned counsel argued that investigation can be carried out at any stage of the proceedings. In this regard, he confronted the learned counsel for the petitioner that on 26.11.2014 when the trial was also very much in progress, change of investigation was effectuated on behalf of the complainant, hence, he stands precluded from raising any objection to the same steps being resorted to by the accused/respondents. He further contends that first and third investigation purportedly conducted by the police officers of the rank of Inspectors being junior to DSP was totally unwarranted and inconsequential. While the findings of innocence in the second investigation arrived at by the DSP being senior and superior police officer would prevail and be given precedence over the concurrent guilty findings given by the Inspectors in view of the explicit provisions of Articles 18-A(2) of the Police Order 2002 which envisages and mandates that subsequent investigation must necessarily be conducted by the superior police officer.

3. I have heard the learned counsels for the parties; have gone through the facts of the case and have also minutely examined the case law being referred to by the learned counsels in support of their respective contentions.

4. Currently the latest law and the authoritative verdict of the Honorable Supreme Court of Pakistan in point of time is the case reported as 2014 SCMR (SC) 1499 Qari Muhammad Rafiq vs. The

Additional Inspector General of Police (Inv) Punjab and others. In this case three Honorable Judges of the Honorable Supreme Court upheld the earlier view already expressed by the Honorable Apex Court in the case reported as (PLD 2007 SC 31) Muhammad Nasir Cheema vs. Mazhar Javed and others holding that when the challan in question was already submitted in Court, the case is out of the domain of the concerned Station House Officer. Therefore, changing the investigation or ordering further investigation in the matter was an exercise unsustainable in law. It is also a settled principle and further fortified in (2006 SCMR 1637) Ata Ullah Khan and others vs. Mst. Surraya Parveen that judgment passed by the larger Bench of the Honorable Supreme Court was binding on the smaller Bench of the Honorable Supreme Court and all Courts of Pakistan.

1. Being guided and enlightened by the authoritative dictum of the Honorable Apex Court for resolution of the controversy subject matter of the captioned petition, this Court is left with no other option but to allow this petition with the consequence that the impugned order dated 2.4.2015 passed by the Inspector General of Police Punjab is hereby set aside being illegal and in violation of the dictum laid down by the Honorable Supreme Court of Pakistan. The Court seized of the trial is directed to proceed with the trial expeditiously and strictly in accordance with law.

(R.A.) Petition allowed

PLJ 2016 Lahore 301

Present: Mrs. Erum Sajad Gull, J.

ABDUL QAYYUM--Petitioner

versus

D.P.O. etc.--Respondents

W.P. No. 3631 of 2014, decided on 9.7.2015.

Punjab Police Order, 2002 (Punjab Amendment Act, 2013) (XXI of 2013)--

----S. 18-A--Law for transfer of police investigation--Recommendation of D.S.B--Investigation was changed--No legal authority to bequeath investigation--Validity--For first change of investigation, an application has to be submitted to D.P.O.--It is then discretion of D.P.O. to entertain said application--If he accepts that application, then within seven working days he has to place it before D.S.B.--Board will then give its opinion in writing mentioning reasons to allow or disallow change/transfer of investigation from investigation officer or team of investigation officers to another, having same rank or higher rank than previous investigation officers--After decision has been passed on one application for transfer of investigation by D.S.B., head of a Distt. Police entertain another application for transfer of investigation. [P. 304] A

Punjab Police Order, 2002 (Punjab Amendment Act, 2013) (XXI of 2013)--

----S. 18-A--Subsequent application for change of investigation--Request for second change of investigation--Application has to be submitted before R.P.O. then it's discretion of R.S.B. to forward application to R.S.B. within seven days or not to entertain application--But once Regional Standing Board decides application, matter goes out of domain of R.P.O. [P. 304] B

Police Order, 2002 (10 of 2002)--

----Art. 11--Law for transfer of investigation--Third application for change of investigation submitted before police officer--Discretion--It is discretion of P.P.O. to entertain application or disallow it--If application is entertained by P.P.O. then he has to put said application before S.R.B.--District Standing Board, Regional Standing Board and Standing Review Board are all defined in Section 18-A of Punjab Police Order 2002 (Punjab (Amendment) Act, XXI of 2013). [P. 305] C

Ch. Shaukat Ali, Advocate for Petitioner.

Malik Waseem Mumtaz, Addl.A.G. for Respondents.

Date of hearing: 9.7.2015.

Order

Through this writ petition the petitioner Abdul Qayyum has repudiated the order dated 02.01.2014 passed by the Respondent No. 1/District Police Officer Okara. Grievance of the Petitioner is that the District Police Officer had no authority to transfer the investigation a second time, in case FIR No. 1153/13 dated 12.10.2013 u/S. 489-/F, PPC, Police Station A-Division Okara. In this Writ Petition, the complainant is, Respondent No. 8, Sheikh Ehsan and the accused is the petitioner, Abdul Qayyum.

1. Learned counsel for the petitioner has argued that after the recommendation of the District Standing Board Okara, the investigation was changed vide order dated: 17.12.2013 and assigned to the Respondent No. 3 Naseer Ahmad, Inspector and Respondent No. 4. Incharge Investigation Police Station B-Division Okara. The Respondent No. 1/District Police Officer, had, no legal authority to bequeath the investigation to the Respondents No. 5 Ahmad Raza Inspector and Respondent 6/Muhammad Sabir ASI vide order dated: 02.01.2014. Hence, the impugned order dated 2.01.2014 be set aside, as the same being illegal and passed in violation to Section 18-A of the Punjab Police Order, 2002 (The Punjab (Amendment) Act, XXI of 2013).

2. Learned Additional Advocate General, while supporting the impugned order, has argued that it was not a change of investigation but was just an entrustment of investigation, which is not the same. And as the investigation was merely entrusted to the other team of Investigating Officers hence it does not fall within the ambit of transfer of investigation therefore the impugned order dated 02.01.2014 is a legal order and has not been passed in violation to Section 18-A of the Punjab Police Order, 2002 (The Punjab (Amendment) Act, XXI of 2013).

3. Arguments have been heard and record has been perused with the assistance of the learned counsels. The relevant law, Section 18-A of the Punjab Police Order, 2002 (The Punjab (Amendment) Act, XXI of 2013) has been read as well and pondered upon.

4. The first change of investigation was requested by the petitioner Abdul Qayyum, who submitted an application, which was accepted by the Respondent No. 1 District Police Officer Okara. After which the matter was referred to the District Standing Board Okara. And vide order dated 17.12.13 of the District Standing Board Okara the said case was entrusted for investigation to Respondent No. 3 Naseer Ahmad, Inspector and Respondent No. 4/Incharge Investigation Police Station B-Division Okara. The Respondent No. 8 Sheikh Ehsan after the first change of investigation presented another application to Respondent No. 1 District Police Officer, stating that Respondent No. 3 Naseer Ahmad Inspector has already investigated the said case so the case be transferred to another police officer or a team of police officers. The Respondent No. 1 District Police Officer Okara accepted the application of the Respondent No. 8 Sheikh Ehsan and acquisitioned the investigation from the Respondent No. 3 Naseer Ahmad, Inspector and Respondent No. 4/Incharge Investigation Police Station B-Division Okara and entrusted the investigation to Respondent No. 5 Ahmad Raza Inspector and Respondent No. 6. Muhammad Sabir ASI vide order dated: 02.01.2014.

5. The Respondent No. 1 District Police Officer submitted a report, before this Court to explain as to why he has over stepped his authority. The stance taken by the said respondent is that he did not transfer the case but in fact entrusted it to other police officers and hence there has been no violation of Section 18-A of the Punjab Police Order, 2002 (The Punjab (Amendment) Act, XXI of 2013)

6. The explanation submitted by the Respondent No. 1 District Police Officer and the argument furnished by the learned Additional Advocate General that the case for investigation was 'entrusted' and not 'transferred', has no force as the law, laid down in Section 18-A of the Punjab Police Order, 2002 (The Punjab (Amendment) Act, XXI of 2013) is very clear. The purpose for inserting Section 18-A through an amendment was to ensure impartial and transparent investigation. Under the amended law the authority to transfer an investigation from one Police Officer or team of Police Officers, to another is possible only by an order passed by the relevant Board and no Senior Police Officer, however senior he may be, has the authority to transfer an investigation at his whim. The word entrustment and transfer mean one and the same thing. The Respondent No. 1 District Police Officer Okara had no authority to interpret the law; his duty is to act in accordance with the law laid down.

7. The law for transfer of Police investigation is very clearly laid down in Section 18-A of the Punjab Police Order, 2002 (The Punjab (Amendment) Act, XXI of 2013) without any ambiguity. For the first change of investigation, an application has to be submitted to the Head of the District Police. It is then the discretion of the District Police Officer to entertain the said application. If he accepts the said application, then within seven working days he has to place it before the District Standing Board. The said Board will then give its opinion in writing mentioning reasons to allow or disallow the change/transfer of investigation from the Investigation Officer or team of investigation officers to another, having the same rank or higher rank than the previous Investigation Officers. After the decision has been passed on one application for the transfer of investigation by the District Standing Board, the head of a District Police cannot entertain another application for transfer of investigation. And the subsequent application for change of investigation will be termed as a request for a second change of investigation. For this an application has to be submitted before the Regional Police Officer then it's the discretion of the Regional Police Officer to forward the application to the Regional Standing Board within seven days or not to entertain the application. But once the Regional Standing Board decides the application, the matter goes out of the domain of the Regional Police Officer. Then a third application for change of investigation has to be submitted before

the Provincial Police Officer. The Provincial Police Officer is the Inspector General of Police, appointed under Article 11 of the Police Order, 2002. It is the discretion of the Provincial Police Officer to entertain the application or disallow it. If the application is entertained by the Provincial Police Officer then he has to put the said application before the Standing Review Board. The District Standing Board, The Regional Standing Board and the Standing Review Board are all defined in Section 18-A of the Punjab Police Order, 2002 (The Punjab (Amendment) Act, XXI of 2013).

1. For reasons as afore mentioned this writ petition is accepted and the impugned order dated 02-01-2014 passed by the Respondent No. 1 /District Police Officer Okara is declared to have been passed without lawful authority and in violation to Section 18-A of the Punjab Police Order, 2002 (The Punjab (Amendment) Act, XXI of 2013), is therefore set aside.

(R.A.) Petition accepted

PLJ 2016 Lahore 305 [Multan Bench Multan]

Present: Mirza Viqas Rauf, J.

MUHAMMAD KHALID NAWAZ SHAH--Petitioner

versus

DELIMITATION AUTHORITY, MULTAN and 6 others--Respondents

W.P. No. 11913 of 2015, heard on 26.8.2015.

Constitution of Pakistan, 1973--

----Art. 199--Punjab Local Government Act, 2013, Ss. 8 & 9--Constitutional petition--Delimitation of union councils and wards in municipal committees--Order of delimitation authority--Process objections were dismissed--Challenge to--Non speaking order--Validity--Any person who was listed as a voter in union council or ward was entitled to prefer an objection or make a representation within fifteen days from expiry of publication period before concerned D.A. relating to delimitation of union council and ward concerned either personally or through duly authorized agent--Delimitation authority did not advert at all to these basic requirements, while deciding objection petition/representation--Order passed by Delimitation Authority seems to be in oblivion of mandatory provisions of law--Impugned order even lacks any lawful reasoning for acceptance or rejection of objections--Authority vested in delimitation authority has a mandate of law which oozes from constitutional mandate and it is expected that any order passed by authority in exercise of such powers would carry reasoning and must be speaking one--Delimitation authority did not adhere to these principles while deciding objections.

[Pp. 308 & 309] A, B, C & D

Rana Asif Saeed, Advocate for Petitioner.

Mr. Muhammad Naveed Rana, Standing Counsel for Respondents alongwith IkhlaqAhmad Data Entry Operator District Election Commission, Lodhran for Respondents.

Date of hearing: 26.8.2015.

Judgment

The petitioner through instant petition has called in question the vires of order dated 10th of July, 2015 passed by the Delimitation Authority, Multan, whereby the objections filed by the petitioner were dismissed.

1. Precisely the facts necessary for adjudication of instant petition are that the Delimitation Officer/District Election Commissioner, Lodhran after conducting delimitation process issued preliminary' list of the Union Council-41 felling within the limits of District Lodhran. Feeling dissatisfied from the process, objections were preferred by the petitioner before the Delimitation Authority however the same were dismissed by way of order impugned herein.

2. Learned counsel representing the petitioner is mainly aggrieved from the impugned order dated 10th of July, 2015 on account of the fact that the Delimitation Authority, while adjudicating the objections filed before it has completely ignored its mandate and passed the impugned order in a mechanical manner. Learned counsel in support of his contentions also referred the instructions for the delimitation of union councils and wards issued by the Election Commission of Pakistan under The Delimitation of Constituencies Act, 1974. A great emphasis has been laid down by the learned counsel for the petitioner that the order of the Delimitation Authority, lacks any reasoning and the same is non-speaking order which is not tenable under the law.

3. The official respondents were directed to file report and parawise comments which have been accordingly submitted. Learned Standing Counsel on the strength comments submitted by the official respondents endeavored to defend the impugned order with hilt.

4. I have heard both the sides and also perused the record with their assistance.

5. In order to properly appreciate the controversy involved in the instant petition, it would be advantageous to first have a recourse to the relevant and guiding provisions of law governing the subject. Part VIII of Chapter 1 of The Constitution of The Islamic Republic of Pakistan, 1973 (hereinafter referred as “The Constitution”) provides the establishment of office of Chief Election Commissioner and Election Commission. Article 218 of “The Constitution” bestows a duty upon the Election Commission to organize election for both Houses of Majlis-e-Shoora (Parliament), Provincial Assemblies and for election to such other public officers as may be specified by law. Whereas Article 219 of “The Constitution” casts certain duties upon the Commissioner, enumerated therein. Chapter 2 of Part VIII of “The Constitution” relates to electoral laws and conduct of election whereas Article-222 gives a mandate to the Majlis-e-Shoora (Parliament) to make election laws for the matters mentioned therein. The same is reproduced below:--

“222. Election Laws: Subject to the Constitution, [Majlis-e-Shoora (Parliament)] may by law provide for--

(a) the allocation of seats in the National Assembly as required by clauses (3) and (4) of Article 51;

(b) the delimitation of constituencies by the Election Commission;

(c) the preparation of electoral rolls, the requirements as to residence in a constituency, the determination of objections pertaining to and the commencement of electoral rolls;

(d) the conduct of elections and election petitions; the decision of doubts and disputes arising in connection with elections:

(e) matters relating to corrupt practices and other offences in connection with elections; and

(f) all other matters necessary for the due constitution of the two Houses and the Provincial Assemblies;

but no such law shall have the effect of taking away or abridging any of the powers of the Commissioner or an Election Commission under this Part.”

The Parliament in furtherance of Article 222 of “The Constitution” in order to provide for the delimitation of the constituencies for elections to the National Assembly and the Provincial Assemblies and for matters connected therewith or ancillary thereto promulgated The Delimitation of Constituencies Act (XXXIV of 1974) which was later on amended by The Delimitation of Constituencies (Amendment) Act, 2012. For the purpose of holding election of the Local Governments, the legislature by way of Chapter II of The Punjab Local Goverment Act, 2013 provided a mechanism and Section 8 of the said Act deals with the issue of delimitation of union councils whereas Section 9 of the Act ibid deals with the delimitation of wards and municipal committees. Since at present, the issue involved in the instant petitions relates to the delimitation of the union councils and the wards in the municipal committees, so for the said purpose both the above referred Sections are relevant. It is however noteworthy that neither Section 8 nor Section 9 of The Punjab Local Government Act, 2013 covers all the eventualities ensuing from the delimitation process. The said Sections neither provided any forum for the resolution of disputes arising from the said process nor these give a guideline for the resolution of issues arising there-from.

1. The Election Commission of Pakistan in order to fill the gap issued instructions for delimitation of union councils and wards in terms of The Delimitation of Constituencies Act, 1974, the rules made thereunder and The. Punjab Local Government Act, 2013. Part 2 of Chapter II of the said instructions lays down the principles of delimitation of constituencies with regard to union councils and wards which are to be observed by the Delimitation Officer at the time of delimitation of the constituencies. For the matter in hand Part III Chapter I of the said instructions is of great import which deals with the filing of objections/representations. In terms of Item No. 27, any person who is listed as a voter in the union council or ward is entitled to prefer an objection or make a representation within fifteen days from the expiry of the publication period before he concerned Delimitation Authority relating to the delimitation of union council and ward concerned either personally or through duly authorized agent. Chapter II of Part 3 prescribes responsibilities of the Delimitation Authorities. Item No. 37 casts a duty upon the Delimitation Authority to hold an inquiry, summon witnesses and record evidence for the purpose of deciding the objections preferred before it. When the impugned order is seen in this context it becomes evident that the Delimitation Authority did not advert at all to these basic requirements, while deciding the objection petition/ representation. The order passed by the Delimitation Authority seems to be in oblivion of the mandatory provisions of law. It is also observed with concern that the impugned order even lacks any lawful reasoning for the acceptance or rejection of the objections. The Authority vested in the Delimitation Authority has a mandate of law which oozes from the Constitutional mandate and it is expected that any order passed by the Authority in exercise of such powers would carry reasoning and must be speaking one. Section 24-A, of The General Act, 1897 bound down even the executive to assign reasoning and pass a speaking order, while determining the rights of the parties. Guidance in this respect can be sought from “Government of Pakistan through Director-General, Ministry of Interior, Islamabad and others versus Farheen Rashid” (2011 SCMR 1), “Messers United Wollen Mills Ltd. Workers' Union versus Messers United Wollen Mills Ltd.” (2010 SCMR 1475) and “Fasih-ud-Din Khan and others versus Government of Punjab and others” (2010 SCMR 1778). While keeping in mind the principles laid down in the judgments supra there can be no second opinion that the Delimitation Authority did not adhere to these principles while deciding the objections. The impugned order even offend the provisions contained in Article 10-A of “The Constitution”.

2. For the foregoing reasons, I am persuaded to allow instant petition while declaring the impugned order dated 10th of July, 2015 passed by the Delimitation Authority as illegal and unlawful, being violative of the law. As a consequence thereof, the objections filed by the petitioner resulted into filing of this petition shall be deemed to be pending before the Delimitation Authority, who shall re-adjudicate the same in the light of above observations by providing opportunity of hearing to all the concerned, strictly in accordance with law by way of speaking order. The petitioner is directed to appear before the District Election Commissioner, Lodhran on 1st of September 2015 who shall take all necessary steps for further proceedings in the matter in accordance with law.

(R.A.) Petition allowed

PLJ 2016 Lahore 310[Multan Bench, Multan]

Present: Shehram Sarwar Ch. J.

MUHAMMAD MANSHA--Petitioner

versus

JUSTICE OF PEACE/ADDITIONAL SESSIONS JUDGE, MAILSI,DISTRICT VEHARI and 4 others--Respondents

W.P. No. 13197 of 2015, decided on 26.10.2015.

Constitution of Pakistan, 1973--

----Art. 199--Criminal Procedure Code, (V of 1898), Ss. 22-A & 22-B & 154--Constitutional petition--Ex-Officio Justice of Peace--Registration of criminal case--Dismissal of petition--Prepared forged and fictitious agreement to sell--Ingredients of Section 154, Cr.P.C.--Validity--Occurrence to extent of altercation and misbehavior took place between parties and so far as constitution of cognizable offence, story was doubtful--Order passed by Ex-Officio justice of peace did not call for interference by High Court--Petition was dismissed. [P. 311] A & B

Sardar Ashfaq Ahmed Khan Baloch, Advocate for Petitioner.

Mr. Javed Saeed Pirzada, AAG for State.

Mr. Faisal Bashir Chaudhry, Advocate for Respondent No. 3.

Date of hearing: 26.10.2015.

Order

Through this writ petition the petitioner has assailed the order dated 15.8.2015, passed by the learned Ex-Officio Justice of Peace/Respondent No. 1 whereby he dismissed the petition under Section 22-A, 22-B, Cr.P.C., filed by the petitioner.

1. Briefly the facts of the case are that petitioner Muhammad Mansha moved a petition under Section 22-A & 22-B, Cr.P.C. before Respondent No. 1/learned Justice of Peace for registration of criminal case against the Respondents No. 3 to 5 alleging therein that on 14.5.2012, Respondent No. 3 inclusion with Respondents No. 4 and 5 to prepare a forged and fictitious agreement to sell. A report was requisitioned from Respondent No. 2/ SHO Police Station Mitru, Tehsil Mailsi, District Vehari who filed the same on 21.6.2015, and the learned Ex-Officio Justice of Peace after taking into consideration the said report dismissed the petition moved by the petitioner through impugned order dated 15.8.2015, hence this petition.

2. Learned counsel for the petitioner submits that the impugned order dated 15.8.2015 is against law and facts of the petitioner's case; that Respondent No. 3-Allah Ditta filed a suit for specific performance of contract against the petitioner-Muhammad Mansha on the basis of forged agreement to sell dated 14.5.2012 and that no doubt civil and criminal proceedings can proceed side by side but ultimately matter is to be decided by the Civil Court and till that time the criminal proceedings are required to be stayed. Whether any forgery was committed or not in respect of the execution in which the civil suit is pending. He further submits that from bare reading of the said application cognizable offence is made out, therefore, keeping in view the ingredients of Section 154, Cr.P.C. an F.I.R. be ordered to be registered against Respondents No. 3 to 5.

3. On the other hand, learned A.A.G. supported the order passed by the learned Ex-Officio Justice of Peace and submitted that no infirmity or perversity is pointed out in the said order.

4. Heard. Record perused.

5. I have heard the learned counsel for the petitioner, learned A.A.G. and have also gone through the record annexed with this petition. In the report submitted by the SHO PS Mitru, Tehsil Mailsi, District Vehari, it has been specifically pointed out by him that occurrence to the extent of altercation and misbehavior took place between the parties and so far as the constitution of cognizable office is concerned, the story of the petitioner is doubtful to the extent of said respondents. Therefore, I am of the view that learned Ex-Officio Justice of Peace/Respondent No. 1 has rightly exercised the jurisdiction vested in him through judicial mind and no illegality or irregularity has been committed by him while passing the impugned order. Hence, the impugned order passed by learned Ex-Officio Justice of Peace does not call for any interference by this Court, therefore, this petition is hereby dismissed being devoid of any force however, the petitioner may file private complaint against the said respondents under Section 200 of the of Criminal Procedure, 1898, if so advised, in the light of case titled as “Roy Ashraf and others” versus Muhammad Saleem Bhatti and others” (PLD 2010 Supreme Court 691).

(R.A.) Petition dismissed.

PLJ 2016 Lahore 312 [Multan Bench Multan]

Present: Ch. Muhammad Masood Jahangir, J.

MUHAMMAD ALI (deceased) through is Legal Heirs, etc.--Petitioners

versus

JAN MUHAMMAD, etc.--Respondents

C.R. No. 29-D of 1996, heard on 9.6.2015.

Colonization of Government Land (Punjab) Act, 1912 (V of 1912)--

----S. 19-A--Muslim Personal Law (Shariat) Application Act, 1948, S. 2—Co-operative Farming Society--Scope--Succession to tenancy--By laws of Society--Inheritance--Subsequence mutation and transfer of land by revenue hierarch or farming society--Fraud and misrepresentation--Validity--Inheritance of allottee of a Co-operative Farming Society is governed by Shariat Laws and not through bye laws--Bye-laws of C.F.S. could not supersede law of shariat and all legal heirs were entitled to get their share in legacy of allottee of C.F.S.--Succession to tenancy of a Muslim tenant shall devolve on his heirs in accordance with Muslim Personal Law (Shariat)--Application Act, 1948--Questions regarding succession rule of decision shall be Muslim Personal Law (Shariat) in case parties are Muslims--Bye-laws of a society or a practice or custom or usage cannot override express provisions of law--No such gift is either claimed or alleged to have been made in favour of petitioner--Nomination by a member of Co-operative Society does not operate either as a gift or as a will and, thus, could not deprive other heirs, who might be entitled thereto, under law of succession applicable to deceased--Being nominee of his father was entitled for transfer of disputed property and at that stage, a new version cannot be introduced--High Court does not normally interfere in concurrent conclusion arrived at by Courts below unless same was found to be illegal, perverse or suffered from any jurisdictional defect or tainted with any mis-reading and non-reading of evidence.

[Pp. 315, 316 & 317] A, B, C, D, E, F, G & H

2007 SCMR 236, 2007 SCMR 368, 926, 2010 SCMR 984 & 2011 SCMR 762, rel.

Mr. Muhammad Ramzan Khalid Joiya, Advocate for Petitioners.

Mian Habib-ur-Rehman Ansari, Advocate for Respondents.

Date of hearing: 9.6.2015.

Judgment

Precisely, the facts of the case are that a suit for declaration was filed by Jan Muhammad (now deceased) Respondent No. 1 and Mst. Amina Bibi (now deceased) Respondent No. 3 with the assertions that they along with defendants/petitioners being heirs were entitled to get their legal share out of the property left by Nathu (deceased), predecessor of the parties; that Nathu was in possession of the lot in dispute owned by Government of the Punjab as a tenant through Co-operative Farming Society and Mutation No. 12 dated 28.8.1979, sale-deed No. 339 dated 14.5.1985 and Mutation No. 58 dated 13.11.1985 for grant of proprietary rights allegedly attested in favour of Muhammad Ali Defendant No. 1/the predecessor of present petitioners were liable to be cancelled. The said suit was resisted by the Petitioner/ Defendant No. 1 by filing written statement. Respondents/Defendants No. 2 and 3 also contested the said suit by filing joint written statement. The learned trial Court conducted full-fledged trial and ultimately after appreciating evidence available on file decreed the suit vide judgment and decree dated 26.3.1995. The same remained intact when the appeal filed by Petitioner/Defendant No. 1 was dismissed by the learned lower appellate Court vide judgment and decree dated 2.1.1996. Being aggrieved, the instant civil revision was filed by the petitioners in the year 1996.

1. It is argued by the learned counsel for the petitioners that the impugned judgments and decrees are hit by the mandatory provisions of Order XX of the Civil Procedure Code, 1908; that the Courts below did not properly appreciate the entire evidence available on the file; that during the meeting of the General House, membership of the Petitioner/Defendant No. 1 was approved without objections from either side and since the Petitioner/Defendant No. 1 was the contributory of membership fee as well as other revenues of the Society pertaining to the lot in dispute, hence, the mutation was sanctioned in his name in his own right as well the nominee of Nathu (deceased); that the Petitioner/Defendant No. 1 deposited the required amount for the conferment of proprietary rights, but even then nobody objected to the conferment of the proprietary rights and the sanctioning of mutation and that the Courts below did not consider the said fact while deciding the lis. He has lastly prayed for acceptance of instant civil revision and setting aside of the impugned judgments and decrees.

2. Conversely, learned counsel for the respondents has submitted that Nathu was allottee of the disputed land, who was member of the society and as soon as he died, the inheritance was to open in favour of all the legal heirs of deceased Nathu within the meaning of Section 19-A of the Colonization of Government Land (Punjab) Act, 1912; that subsequent mutation and transfer of land by the revenue hierarchy or the Farming Society in favour of single heir/Petitioner/Defendant No. 1 attested/sanctioned being result of fraud and misrepresentation was rightly annulled by both the Courts below. He has lastly prayed for dismissal of the instant civil revision.

3. Arguments heard and record perused.

4. The perusal of pleadings of the parties reveals that relationship of respondents was never denied by the Petitioner/ Defendant No. 1 and it is also admitted fact that predecessor-in-interest of the parties, namely, Nathu was tenant under the Co-operative Farming Society, whose membership remained intact till his death. His tenancy over the suit land has also not been denied by the Petitioner/Defendant No. 1. As per law at the time of death of a tenant of the suit property owned by the Government, his inheritance was to be opened and the revenue hierarchy was bound to sanction his inheritance mutation in favour of all his legal heirs, but surprisingly this exercise was not conducted by the revenue officials. However, Mutation No. 12 was sanctioned only in favour of the Petitioner/ Defendant No. 1 while treating him a full member. Thereafter, on the strength of said mutation, its implementation in the revenue record by attesting sale-deed and other mutation was carried out by the revenue hierarchy without keeping in mind the mandate of Section 19-A of the Colonization of Government Land (Punjab) Act, 1912. For ready reference, the said provision is reproduced hereunder:--

[19-A.Succession to the tenancy.

When after the coming into force of the Colonization of Government Lands (Punjab) (Amendment) Act, 1951, any Muslim tenant dies, succession to the tenancy shall devolve on his heirs in accordance with the Muslim Personal Law (Shariat), and nothing contained in Sections 20 to 23 of this Act shall be applicable to his case:

Provided that when the tenancy rights are held by a female as a limited owner under this Act, succession shall open out on the termination of her limited interest to all persons who would have been entitled to inherit the property at the time of the death of the last full owner had the Muslim Personal Law (Shariat) been applicable at the time of such death, and in the event of the death of any of such persons before the termination of the limited interest mentioned above, succession shall devolve on his heirs and successors existing at the time of the termination of the limited interest of the female as if the aforesaid such person had died at the termination of the limited interest of the female and had been governed by the Muslim Personal Law (Shariat):

Provided further that the share, which the female limited owner would have inherited had the Muslim Personal Law (Shariat) been applicable at the time of the death of the last full owner shall devolve on her if she loses her limited interest in the property on account of her marriage or remarriage and on her heirs under the Muslim Personal Law (Shariat) if her limited interest terminates because of her death], 6. The inheritance of allottee of a Co-operative Farming Society is governed by Shariat Laws and not through the bye-laws. An identical question has already been clinched by the apex revenue hierarchy in a case reported as Muhammad Tufail vs. Yaqub, etc. (NLR 1985 Revenue 97 (1), wherein, it was observed that the bye-laws of Co-operative Farming Society could not supersede the law of Shariat and all the legal heirs were entitled to get their share in the legacy of allottee of Co-operative Farming Society. The bare reading of Section 19-A of the Colonization of Government Lands (Punjab) Act, 1912 (added in 1951) provides that the succession to the tenancy of a Muslim tenant shall devolve on his heirs in accordance with the Muslim Personal Law (Shariat). Section 2 of the Muslim Personal Law (Shariat) application Act, 1948 lays down that in all questions regarding succession rule of decision shall be the Muslim Personal Law (Shariat) in case the parties are Muslims. These provisions of the law are very clear and there is no ambiguity about it. Any order which contravenes the provisions of this law cannot be sustained. It has, inter alia, been held by the Supreme Court of Pakistan in Civil Appeal No. 139 of 1987, titled as Mst. Aisha, etc. v. Member (Colonies), Board of Revenue, Punjab and others decided on 21.11.1990 that the statue i.e. Section 19-A of the Colonization of Government Lands Act has to prevail over any bye-law of a Society. It was similarly held in PLD 1974 SC 185 that:

“Unless a nomination can amount to a valid gift inter vivos, it cannot pass title to the nominee in respect of immovable property, nor can the making of a nomination give the right to the nominator at his own choice to change the law of succession, which would otherwise be applicable in the case of his death. Obviously, the nomination cannot operate as a valid gift under the Muhammadan Law, because, such a gift in order to confer title on the donee, must be accompanied by delivery of possession of the property gifted.”

There is, thus, no doubt that the bye-laws of a Society or a practice or custom or usage cannot override the express provisions of the law. No such gift is either claimed or alleged to have been made in favour of Petitioner/Defendant No. 1. It has also been held in the judgment reported as Fazal Shah vs. Muhammad Din and others (1990 SCMR 868) that nomination by a member of Co-operative Society does not operate either as a gift or as a will and, thus, could not deprive the other heirs, who might be entitled thereto, under the law of succession applicable to deceased. This view has also been laid down in the judgment reported as Mst. Amtul Habib and others vs. Mst. Musarrat Parveen and others (PLD 1974 Supreme Court 185), wherein while interpreting Section 27 of the Co-operative Societies Act, 1915, it was observed as under:

“We are of the opinion, however, that the correct view has been taken in the cases referred to earlier, namely, 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 their heirs of the nominator who may be entitled thereto under the law of succession applicable to the deceased. The nominee thus collects as a trustee for the benefit of all persons entitled to inherit from the decease employee. It is not without significance that Section 5 of the Provident Funds Act neither vests the amount in the nominee nor declares hi to be the owner thereof. It merely gives him the exclusive right to receive the amount and nothing more. In any event the position under Section 27 of the Bombay Co-operative Societies Act is different because the wording of this section is materially different. There is no analogy between the two.

1. So when it was admitted by the Petitioner/Defendant No. 1 that the disputed property had been originally allotted to Nathu, predecessor-in-interest of the parties, the same was to be devolved upon his all the legal heirs. For ready reference, Para-1 on merit of the written statement filed by Petitioner/Defendant No. 1 in verbatim is reproduced infra:

یہ کہ فقرہ نمبر 1 اس حد تک درست ہے کہ اراضی متدعویہ والد کو شروع میں تحت کو آپریٹوفارمنگ سکیم الاٹ ہوئی تھی۔ لیکن اس نے بوقت ممبر شپ خود مدعا علیہ نمبر 1 کو اپنا نامزد وارث مقرر کیا تھا۔

1. The stance of learned counsel for the petitioners that the disputed property had been independently allotted to

Petitioner/Defendant No. 1 is misconceived. The defence raised by Petitioner/Defendant No. 1 in his written statement as referred above was that he alone being nominee of his father was entitled for the transfer of the disputed property and at this stage, a new version cannot be introduced. Both the learned Courts below have rightly decreed the suit and dismissed the appeal through the impugned judgments and decrees on the valid reasons.

1. There is found nothing wrong with the impugned judgments and decrees passed by the two Courts below, who have arrived at concurrent findings of fact and law. This Court does not normally interfere in the concurrent conclusion arrived at by the Courts below unless the same is found to be illegal, perverse or suffered from any jurisdictional defect or tainted with any misreading and non-reading of the evidence. Reliance in this respect is placed on the judgments reported as “Aurangzeb through LRs vs. Muhammad Jaffar” (2007 SCMR 236), “Shafi Muhammad vs. Khanzada Gul”(2007 SCMR 368), “Rashid Ahmad vs. Said Ahmad” (2007 SCMR 926), Ahmed Nawaz Khan vs. Muhammad Jaffar Khan and others (2010 SCMR 984) and “Bashir Ahmed vs. Ghulam Rasool” (2011 SCMR 762). The learned counsel for the petitioners has failed to bring the case within the parameter of illegality and material irregularity as prescribed under Section 115 of CPC, 1908, hence, the instant Civil Revision is dismissed.

(R.A.) Revision dismissed

LJ 2016 Lahore 317 (FB) [Multan Bench Multan]

Present: Muhammad Farrukh Irfan Khan, Shahid Waheed and Ali Akbar Qureshi, JJ.

MUHAMMAD BARAN KHAN--Petitioner

versus

JUDGE BANKING COURT NO. III, MULTAN and another--Respondents

W.P. No. 2444 of 2015, decided on 1.7.2015.

Financial Institutions (Recovery of Finances) Ordinance, 2001 (XLVI of 2001)--

----S. 19(2)--Banking Companies Ordinance, 1962, S. 25-B--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Recovery as arrears of land revenue--Powers of banking Court--Decree-holders--Execution proceedings--Mode of--Validity--Banking Court while executing decree at request of decree holder may have resort to transfer execution matter to collector/revenue officer for recovery of decretal amount from judgment debtor as arrears of land revenue--Banking Court can recover decretal amount in such manner as it considers appropriate--Powers given under Section 19(2) of FIO fully justify the order passed by Banking Court for recovery of decretal amount as arrears of land revenue through assistance of revenue authorities. [Pp. 321 & 322] A & C

Financial Institutions (Recovery of Finances) Ordinance, 2001 (XLVI of 2001)--

----S. 7(4)--W.P. Land Revenue Act, (XXV of 1967), Ss. 79 to 112--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Recovery of bank dues--Determination--Procedure for recovery as arrears of land revenue is provided u/Section 79 to 112 of Act, 1967--Banking Court rightly acting under law declared decretal amount as amounts recoverable as arrears of land revenue for recovery of arrears of land revenue--Banking Courts are fully authorized to adopt any of modes for recovery of decretal amount as arrears of land revenues--If Court had initiated execution proceedings under any one of modes so provided by law, it will continue to follow same and cannot deviate to skip to another mode of execution.

[Pp. 322 & 327] B, D & E

Mr. Muhammad Suleman Bhatti, Malik M. Riaz Khokhar, Mr. Sarwar Khalil Samdani, Mr. Javaid Ahmad Khan, Advocates for Petitioner.

Sardar Riaz Karim, M/s. Mansoor Alam, Saleem Iqbal, Muhammad Ashraf, Shakeel Akhtar Hashmi, Muhammad Nazim Khan and Aamer Riaz, Advocates for Respondents-Bank.

Sh. Muhammad Naeem Goreja, D.A.G. for Pakistan for Respondents.

Dates of hearing: 18, 19, 23, 24, 25.2.2015.

Judgment

Muhammad Farrukh Irfan Khan, J.--This judgment shall govern Writ Petition Nos. 2444/2015, 2443/2015, 2442/2015, 17358/2014, 413/2014, 16907/2014, 16906/2014, 12494/2013, 7367/2013, 3311/2014, 3867/2014, 2994/2013, 14412/2013, 3719/2014, 14651/2014, 6221/2014, 7686/2014, 15616/2014, 10353/2014, 6046/2014, 15240/2013, 3935/2014, 5484/2013, 17357/2014 and 14223/2013 as the same have been clubbed together to dilate upon the question which was formulated by a Division Bench of this Court in the following terms:

“whether under Section 19(2) of the Financial Institutions (Recovery of Finances) Ordinance, 2001, the Banking Court could only adopt the procedure provided under Section 79 of the Land Revenue Act, 1967 or could also employ the machinery provided under the Act”. In 2012 CLD 1663 title Mian Aftab Ahmad Sheikh and two others vs. M/s. Trust Modaraba through Trust Management Services Ltd. and another their lordships in Division Bench of this Court held that though procedure given in the Land Revenue Act, 1967 could be adopted but the same could be put to service by executing itself and not through a revenue officer. In F.A.O No. 10/2011 title Muhammad Fayyaz Hussain vs. Judge Banking Court and 3 others, their lordships in a Division Bench of this Court held in their judgment dated 25th January, 2011 that besides adopting the procedure given in Section 79 of Land Revenue Act, 1967 the decree could also be executed through a revenue officer. Since this Bench is faced with a divergent view taken by the two learned Division Benches of this Court, therefore, the matter is to be referred to the Hon’ble Chief Justice of this Court for constitution of a Larger Bench to dilate upon the question formulated above.”

1. During the course of arguments learned counsel for the parties had jointly submitted that common questions of law and facts are involved in all the cases and, therefore, the same be decided alongwith the question, reproduced above, framed by a Division Bench of this Court. Believing the said statement as correct, we allowed the learned counsels for the parties to advance their respective arguments on other questions of law and facts involved in the cases. However, while dictating judgment we found that the said statement was factually incorrect. Perusal of each matter unfolds that the said petitions may be classified into three categories. The cases of the first category are Writ Petition. Nos. 2444/2015, 2443/2015, 2442/2015, 17358/2014, 413/2014, 16907/2014, 16906/2014, 12494/2013, 7367/2013, 3311/2014, 3867/2014, 2994/2013, 14412/2013, 3719/2014, 14651/2014, 6221/2014, 7686/2014, 15616/2014, 10353/2014, 6046/2014, 15240/2013 and 3935/2014 which are against the impugned orders of the Banking Courts directing recovery of the decretal amount as arrears of land revenue through the Revenue Officer. In second category of cases, that is, Writ petition No. 5484 of 2013 and Writ Petition No. 17357 of 2014 the procedure for recovery was firstly started under the provisions of the Code of Civil Procedure, 1908 but later on recovery was directed to be made under the Land Revenue Act. While in W.P. No. 14223/13 (i.e. third category) the recovery proceedings were initiated by exercising the mode, provided under the provisions of the Code of Civil Procedure, 1908 and then provisions of Section 19(3) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 were invoked and lastly decretal amount was ordered to be recovered as arrears of land revenue.

2. Learned counsel for the petitioners have argued that the decretal amounts should be recovered from the mortgaged properties being the primary security against the extended finance facilities; that under Section 19(1) of the FIO, 2001 on conversion of decree into execution proceedings the case is to be heard by the Banking Court for execution of its decree on the expiry of 30 days from the date of pronouncement of the judgment and decree; that sub-section (2) of Section 19 ibid suggests procedure of CPC or In accordance with any other law for the time being in force or any such manner which the Banking Court may at the request of the decree holder consider appropriate including recovery as arrears of land revenue. It has emphatically been argued that the FIO is a special law and particularly enacted for summary disposal of loan cases, therefore, the impugned orders passed by the different Banking Courts during the execution proceedings shall be looked into keeping in view the scheme of law provided under FIO, 2001 whereas on referring the matters to Revenue Officers under Section 79 of the Land Revenue Act, 1967 the very object of the FIO, 2001 would be defeated particularly when decree passed by a Banking Court is based on a mortgaged clause decree and in terms of Section 14 of the FIO, 2001 it is passed for the foreclosure or sale of the mortgaged property, therefore, very object of Section 14 would also be defeated in case decretal amount is transferred to “Revenue Office” for its recovery as arrears of land revenue. Further argued that in the wording as used in Section 19(2) of the FIO, 2001 there is no ambiguity with regard to recovery of decretal amount and application of procedure to execution proceedings, inasmuch as in mortgaged clause decrees, decretal amount in the first instance is recovered from mortgaged properties and in case proceeds recovered from sale of mortgaged property are found insufficient only then other assets and properties of judgment, debtor could be held responsible for effecting recovery. They went on to argue that a Revenue Officer when proceeds to recover the amount as arrears of land revenue he exercises the power under the Land Revenue Act, 1967 including confirmation of sale, issuance of sale certificate and transfer of holding whereas parallel mechanism is provided in FIO, 2001 which is a special law enacted for the specific purpose and in case of conflict between the two special law shall prevail. To sum up their arguments learned counsel for the petitioners laid stress that there is no provision in FIO, 2001 by which a Banking Court may direct recovery of the decretal amount as arrears of land revenue rather it can adopt the procedure provided for the recovery of arrears of land revenue. In support of their arguments they have relied upon the cases of Muhammad Attique v. Jami Limited and others (2015 SCMR 148), Brig. (Retd) Mazhar-ul-Haq and another v. M/s. Muslim Commercial Bank Limited, Islamabad and another (PLD 1993 Lahore 706), and Messrs Lanvin Traders, Karachi v. Presiding Officer, Banking Court No. 2, Karachi and others (2013 SCMR 1419).

3. Learned counsel for the respondents have argued that there is no conflicting view in the aforementioned two judgments inasmuch as in the case cited as 212 CLD 1663 (supra) the provisions of Modarba Companies Modarba (Floatation and Control) Ordinance, 1980 have been considered and interpreted and not the FIO, 2001 or a Banking Court. They added that the judgment in the above, cited ease has been passed in its own peculiar circumstances and facts and the law relevant to the jurisdiction of the Modarba Tribunal in the matters of recovery of its decrees, therefore, the observations made in that judgment is in no way concerned with the powers of the Banking Court under Section 19 of the FIO, 2001 nor does it contradict the decisions or the law laid down in the ease titled Muhammad Fayyaz Hussain v. Judge Banking Court (supra). Learned counsel for the respondents submits that the case in hand is to be governed by the provisions of FIO, 2001 and Section 19(2) of the Ordinance ibid provides following mode for execution of the decree passed by the Banking Court.

(i) by following the procedure provided by the, CPC.

(ii) Any other law for the time being in force.

(iii) in any such manner as the Backing Court may at the request of the decree holder consider appropriate including recovery as arrears of land revenue.

It is thus quite obvious that under the third mode provided under Section 19(2) of the FIO, 2001 the Banking Court while executing the decree at the request of the decree holder may have resort to transfer the execution matter to the Collector/Revenue Officer for recovery of the decretal amount from the judgment debtor as arrears of land revenue. In support of this contention they have made reference to Section 25-B of the Banking Companies Ordinance, 1962 which reads as under:

“Loans and advances made by the Banking Company for agricultural and other purposes and any other amounts decreed by any Court in favour of a Banking Company or a financial institution specified in Section 3-A shall, be recoverable as an arrears of land revenue as if the Banking company were a local authority for the purposes of Section 5 of the Revenue Act, 1890 (I of 1890).”

According to them, the above section requires determination of the bank dues by a competent Court which for the purposes of recovery of bank dues under Section 7(4) of the FIO, 2001 is only and only a Banking Court and for recovery of the same, the same has to be treated as arrears of land revenue and then has to be recovered through the Collector/Revenue Authorities. Section 7(4) of the FIO, 2001 is subject to Section 5. The procedure for recovery as arrears of land revenue is provided under Sections 79 to 112 of West Pakistan Land Revenue Act, 1967. As per their version the Banking Court thus rightly acting under the law declared the decretal amount as the amounts recoverable, as arrears of land revenue and referred the same to the Collector for recovery of the same as, arrears of land revenue. The procedure, adopted by the Banking Court cannot be said to be in violation of any law. The Banking Court can recover the decretal amount in such manner as it considers appropriate. The powers given under Section 19(2) of the FIO fully justify the impugned order passed by the Banking Court for recovery of the decretal amount as arrears of land revenue through the assistance of the Revenue Authorities.

1. Arguments heard. Record perused.

2. First of all, we would like to discuss the issue whether there is any conflict between the two judgments of this Court titled Mian Aftab Ahmad Sheikh versus M/s. Trust Modarba etc. (2012 CLD 1663) and the other passed, in FAO No. 10/2010 titled Muhammad Fayyaz versus Judge Banking Court and others referred supra. After going through both the judgments, we are of the considered view that they are not divergent to each other. The judgment passed in Mian Aftab Ahmad's case has its own peculiar facts & circumstances and is relatable to the law relevant to the jurisdiction of the Modarba Tribunal. The observation made in this judgment has no bearing on the powers given by the legislature under Section 19 of the Financial Institutions (Recovery of Finances) Ordinance, 2001. In that case, there was a dispute against Company and not against any financial institution, as such, provisions of Modarba Companies, Modarba (Flotation and Control), Ordinance, 1980 were considered and interpreted therein and the lis before this Court was whether Modarba. Tribunal had jurisdiction to execute its decree or not. On the other hand, in the judgment of other case titled Muhammad Fayyaz versus Judge Banking Court and others the dispute was against the financial institution and the Banking Court had exercised the jurisdiction under the provisions of Financial Institutions (Recovery of Finances) Ordinance, 2001. The procedure for trial and execution of decrees under the Modarba Companies, Modarba (Flotation and Control), Ordinance, 1980 and Financial Institutions (Recovery of Finances) Ordinance, 2001 is independent and quite different from each other. For execution of its decrees, the Banking Court as against the Modarba Tribunal has very vast powers under Section 19 of the Financial Institutions (Recovery of Finances) Ordinance, 2001. The procedure for trial of cases and the mode of execution of decrees in both the above referred cases were different and were governed under two different laws. Thus we are of the view that the above referred two judgments are not in conflict with each other and they have been adjudicated, and decided in their own peculiar facts, circumstances and the law applicable on the subject.

3. The next question which falls for determination is as to what are the powers of the Banking Court for execution of decree under the provisions of the Financial Institutions (Recovery of Finances) Ordinance, 2001 which was enacted for expediting the recoveries of the claims of the Financial Institutions. Under Section 7(4) read with Section 19(2) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 the Banking Court has jurisdiction to execute its decree. Section 7(4) reads as under:--

(4) Subject to sub-section (5), no Court other than a Banking Court shall have or exercise any jurisdiction with respect to any matter to which the jurisdiction of a Banking Court extends under this Ordinance, including a decision as to the exercise of otherwise of a finance and the execution of a decree passed by the Banking Court.

Section 19(2) of the Ordinance ibid is to the following effect:--

(2) The decree of the Banking Court shall be executed in accordance with the provisions of the Code of Civil Procedure, 1908 (Act V of 1980) or any other law for the time being in force or in such manner as the Banking Court may at the request of the decree-holder consider appropriate, including recovery as arrears of land revenue.”

The conditionalities of sub-section (2) of Section 19 for the execution of decree have been the subject-matter of different cases. In this regard we may conveniently commence the survey of case law from the case of Muhammad Hassan v. Messrs Muslim Commercial Bank Ltd. through Branch Manager and 3 others (2003 CLD 1693) wherein it was held as follows:

“As far as the submission that, under the provisions of Section 19 of the Ordinance XLVI of 2001, the Court had the power to execute the decree in any manner, as it considers fit, suffice it to say that, such power can only be exercised when there is request in this behalf made by the decree-holder and the Court by application of conscious mind, comes to the conclusion that the decree cannot be executed by applying the general rules as provided in the Civil Procedure Code. We have perused the record and find an obvious omission in this behalf. The Court has never, by a speaking order on the request of the decree-holder, exercised its discretion in terms of Section 9, rendering the provisions of the Civil Procedure Code inapplicable, rather from the record, particularly from the order dated 6.6.2001 and also on account of issuance of notice to the appellant under Order XXI, Rule 66, it seems clear that the executing Court intended to execute the decree according to the provisions of the Civil Procedure Code, rather than under the special law. “

In Muhammad Attique vs. Jami Limited and others (PLD 2010 SC 993) the Hon’ble Supreme Court held as under:

“We would like, to observe here that in terms of Section 19(2) of the Financial Institutions (Recovery & Finances) Ordinance, 2001, the Executing Court has to choose the mode of execution in accordance with the provisions of the Civil Procedure Code or any other law for the time being in force or in such manner as the Banking Court may at the request of the decree-holder considers appropriate, but once it has chosen the mode as provided in the Civil Procedure Code, then it cannot be permitted to divert that mode at subsequent stage without conscious application of mind.”

In Mst. Nadia Malik vs. Messrs Makki Chemical Industries Pvt. Ltd. through Chief Executive and other (2011 SCMR 1675) it was observed as under:

“The aforesaid sub-section, stipulates three modes authorizing the banking Court to execute its decree. The first mode empowers a banking Court to execute a decree by applying the provisions of C.P.C. The second mode provides that a banking Court can execute a decree in the manner provided, under any other law for the time being in force and the third mode provides that at the request of the decree-holder, a Court may adopt any procedure for execution of a decree which it deems appropriate. The word “or” used twice in sub-section (2) of Section 19 of the Ordinance which has to be read disjunctively classify three modes for execution of the decree. In the case in hand, the Executing Court has adopted, the procedure for executing the decree as provided, under, C.P.C., which fact is manifested from the proclamations issued, at times, by it. In clause 2 of the proclamations, it is provided that the highest bidder shall deposit 25 % of the auction money immediately on conclusion of the auction. Clause 4 of the proclamations provides that the remaining 75% of the auction money shall be deposited, in Court within 15 days from the date of auction, failing which the executing Court can forfeit the amount of auction, deposited on the conclusion of the auction. These conditions are in fact borrowed from the provisions of Order XXI, Rules 84, 85 and 86, C.P.C. for executing the decree. There is nothing on record to show that the decree-holder had ever approached the banking Court to execute the decree in the manner other than the one provided under the, C.P.C. Therefore, the arguments of the learned, counsel for the appellant on the issue of application of the provisions of C.P.C. by the executing Court are without substance.

………………………………………………………………………………………………………………………………………………………………………………………………………………………………

The appellant admittedly has violated the mandatory conditions and the contention of the learned counsel for the appellant that the Court in its discretion can extend time to the appellant for deposit of balance amount of 75 % of the sale price after the lapse of 15 days by virtue of sub-section (2) of Section 19 of the Ordinance does not appeal to reason. The executing Court can adopt any procedure for executing decree-under banking law but this power of the Court has a rider that, it would be subject to the written request of the decree-holder, which request has never been made in the case in hand. The case in hand is fully covered by the judgment of this Court in the case of Afzal Maqsood Butt v. Banking Court No. 2, Lahore and others reported as (PLD 2005 SC 470) wherein this Court has held that non-payment of 75% balance auction amount within 15 days in violation of provisions of Order XXI, Rule 85, C.P.C. would render the sale nullity and the executing Court is bound to order resell of the property in terms of Order XXI, Rule 86, C.P.C. Moreover, the case of the respondents is supported by the judgments of the Indian Supreme Court in the cases reported as Manilal Mohanlal Shah and others v. Sardar Sayed Ahmed Sayed Mahmad and others (AIR 1954 SC 349) and Balram son of Basha Ram v. Ilam Dingh and others (AIR 1996 SC 278), wherein it has been held that provisions of Order XXI, Rules 84, 85 and 86, C.P.C., are mandatory in nature and violation of the same would render the sale nullity.”

The Hon’ble Supreme Court of Pakistan while deciding the review petition in the case of Muhammad Attique vs. Jamil Limited and others (2015 SCMR 148) held as follows:--

“Suit on behalf of a customer or a financial institution in Banking Court, its proceedings and their culmination in a decree and its execution through attachment, auction and sale of property involve a long haul, therefore, the legislature introduced a mechanism, which enabled the financial institution to leap from one end to another without the intervention of the Court. It, thus, enacted Section 15 of the Ordinance. But where intervention of the Court is un-avoidable, the legislature while updating the erstwhile law enacted Section 19 of the Ordinance. Sub-section (2) of Section 19 nevertheless, provided that the decree of the Banking Court shall be executed in accordance with the provisions of the Code of Civil Procedure or any other law for the time being in force or in such manner as the Banking Court may, at the request of the decree-holder, consider appropriate including recovery as arrears of land revenue. It is, however, discretionary with the Court to adopt any of the modes mentioned above but once the Court opts to execute the decree in accordance with the. provisions of the Code, it cannot depart therefrom.'', Perusal of Section 7(4) and Section 19(2) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 and the survey of the afore-cited precedents unfolds the following principles:--

(i) the Banking Court may execute its decree through the following three modes:

(a) by following procedure provided in the Code of Civil Procedure, 1908; or

(b) by any other law for the time being in force; or

(c) in any such manner as the Banking Court may at request of decree holder, consider appropriate, including recovery as arrears of land revenue.

(ii) the word “or” used twice in sub-section (2) of Section 19 of the Ordinance would be read disjunctively;

(iii) it is discretionary with the Banking Court to adopt any of the above mentioned modes for executing decree under the Financial Institution (Recovery of Finances) Ordinance, 2001 but this power of the Court has four riders firstly, that it would be subject to written request of the decree-holder; secondly, the Court by application of conscious mind should come to the conclusion that a decree cannot be executed by applying the general rules as provided in the Civil Procedure Code; thirdly, the discretion must be exercised by “observing due process of law and through a speaking order; and, fourthly, non-compliance of above said three conditions would render the order or proceedings for the execution of decree as void.

(iv) once the Banking Court opts to execute the decree in accordance with the provisions of the Code of Civil Procedure, 1908, it cannot depart therefrom.

(v) no Court other than Banking Court shall have or exercise any jurisdiction with respect to the execution of a decree passed by a Banking Court.

1. In view of the above discussion, the Banking Courts under Section 19(2) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 are fully authorized to adopt any of the three modes mentioned therein for recovery of decretal amount. Subject to aforestated principles of law the Banking Court is fully empowered to assess the decretal amount recoverable as arrears of Land revenue and direct the same to be recovered under Section 80 onward of the West Pakistan Land Revenue Act, 1967 by itself or may forward the warrants to the Collector for recovery of the same as arrears of land revenue. However, if the Court has initiated execution proceedings under any one of the modes so provided by the law, it will continue to follow the same and cannot deviate to skip to another mode of execution.

2. After settling the question under reference, we direct the office of this Court to fix the petitions for hearing before the appropriate Bench of this Court for their decision on the basis of their individual Factual and legal merits.

(R.A.) Order accordingly

PLJ 2016 Lahore 328

Present: Shahid Waheed, J.

SheikhMUBASHAR IRFAN--Petitioner

versus

PRESIDENT OF PAKISTAN, etc.--Respondents

W.P. No. 37312 of 2015, decided on 14.12.2015.

Constitution of Pakistan, 1973--

----Arts. 47, 63(g) & 199--Constitutional petition--Opinion/observation, remarks against injunctions of Islam and Constitution--Intention to move resolution for removal of president--Procedure for commencement of impeachment proceedings--Constitution cannot be enforced through Court proceedings--Validity--Court had struck down any action of President partially or wholly on ground that same was not in accordance with provisions of Constitution, it cannot be held that President is guilty of charge of violating Constitution--High Court, under Art. 199 of Constitution cannot take upon itself exercise to record even a tentative finding that President has violated Constitution or committed misconduct warranting initiation of proceedings for his removal or impeachment under Art. 47 of Constitution--Petition was dismissed. [P. 330] A

Petitioner in person.

Date of hearing: 14.12.2015.

Order

Prayer in this petition is to issue a direction or order for the removal of Respondent No. 1 from the Office of the President of the Islamic Republic of Pakistan.

1. The above noted prayer has been made on the basis of following opinion/observation/ remarks made by Respondent No. 1 in his speech which he delivered at PTEA Export Excellence Awards, 2015 ceremony.

یہ جو ہائوس بلڈنگ فنانس سے جو لوگ قرضہ لیتے ہیں اور اس پر سود بھی دیتے ہیں تو میں علمائ سے یہ گزارش کرتاہوں کہ اس پہ غور کریں کہ کیونکہ مجبوری ہے اور کوئی اور راستہ نہیں ان کے لئے، کہ وہ ان کے لیے یہ سود کی ادائیگی کو جائز قرار دیا جائے۔

1. The above extract of the speech has piqued the petitioner. It is the case of the petitioner that the said opinion/observation/ remarks are against the injunctions of Islam and the Constitution and, therefore, the Respondent No. 1 stands disqualified under Article 63(g) of the Constitution of the Islamic Republic of Pakistan, 1973 to hold office of the President.

2. At the outset of hearing I confronted the petitioner, who is a practicing Advocate, with Article 47 of the Constitution of the Islamic Republic of Pakistan, 1973 and asked as to how the above noted prayer may be granted. In reply to this question he submits that the Opinion/observation/remarks made by Respondent No. 1 in his speech are against tenets of Islam, provisions of law and the Constitution and, thus, on the basis of principle laid down in the case of Haji Rana Muhammad Shabbir Ahad Khan v Federation of Pakistan through Attorney General for Pakistan and another (PLD 2001 SC 18), Dr. Azim-ur-Rehman Khan Meo v Government of Sindh and another (2004 SCMR 1299) and Suo Motu Case No. 15 of 2009 (PLD 2012 SC 610) every citizen and member of public has the duty to highlight and raise voice with respect to illegal and unconstitutional acts of the Head of the State and, that this Court being custodian of the Constitution is bound to issue direction as prayed for in this petition.

3. Argument canvassed by the petitioner has not persuaded me to grant relief as prayed for in this petition. The President cannot be removed from his office except in accordance with the provisions of Article 47 of the Constitution of the Islamic Republic of Pakistan, 1973. The procedure as laid down in the said Article is that not less than one half of the total membership of either House, that is, the National Assembly or the Senate, may give to the Speaker of the National Assembly, or, as the case may be, to the Chairman, written notice, containing particulars of incapacity or of the charge, of their intention to move resolution for the removal of the President. If the notice of removal is received by the Chairman of the Senate, he will transmit it forthwith to the Speaker of the National Assembly. Upon receipt of notice, the Speaker shall within three days cause a copy of the notice to be transmitted to the President. “It is made incumbent upon the Speaker to summon joint meeting of the two Houses not earlier than seven days and not later than fourteen days from the receipt of notice by him. The joint sitting may investigate or cause to be investigated the ground or the charge upon which the notice is founded. The President has the right to appear and be represented during the investigation, if any, and before the joint sitting. If, after consideration of the result of the investigation, if any, resolution is passed at the joint sitting by the votes of not less than two-thirds of the total membership of Majlis-e-Shoora (Parliament) declaring that the President is unfit to hold the office due to his incapacity or is guilty of violating the Constitution or of gross misconduct, the President shall cease to hold office immediately on the passing of the resolution. The action of impeaching the President “for violating the Constitution or gross misconduct” is designed to operate as a brake on the natural disposition, inclination or desire of the person holding office of the President, to act in a high-handed and unconstitutional manner or to otherwise misconduct himself. The procedure for the commencement of impeachment proceedings has been designedly made difficult. The afore-stated procedure does not admit filing of a petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 for a direction or order to the Speaker of the National Assembly or the Chairman, Senate to initiate proceedings on a charge of violating the Constitution or gross misconduct against the President at the instance of a lawyer or a citizen. The wisdom seems to be that the President as the symbol of the unity of the Republic is entitled to the highest respect and esteem. In this regard reference may be made to the case of Shahid Orakzai v President of Pakistan, Islamabad and another (1999 SCMR 1598) wherein the Hon’ble Supreme Court held: (i) that the procedure prescribed in Article 47 of the Constitution cannot be enforced through Court proceedings; and, (ii) that just for the reason that the Court had struck down any action of the President partially or wholly on the ground that the same was not in accordance with the provisions of the Constitution, it cannot be held that the President is guilty of the charge of violating the Constitution. This Court, therefore, under Article 199 of the Constitution cannot take upon itself the exercise to record even a tentative finding that the President has violated the Constitution or committed misconduct warranting initiation of proceedings for his removal or impeachment under Article 47 of the Constitution as it will be contrary to the language and spirit of the language and spirit of the said Article.

4. In the sequel, this petition is dismissed in limine.

(R.A.) Petition dismissed

PLJ 2016 Lahore 331 [Multan Bench Multan]

Present: Sardar Muhammad Sarfraz Dogar, J.

KHALID IQBAL KHAN--Petitioner

versus

REGIONAL POLICE OFFICER, MULTAN, etc.--Respondents

W.P. No. 9380 of 2015, heard on 3.9.2015.

Police Order (Amendment) Act, 2013--

----Art. 18-A(3)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Change of investigation--Second change of investigation was not inconsonance with law--Statutory provision of law--Validity--Investigation is required to be done in a case by an investigation officer or a team of investigation officers of a rank equal to or higher than rank of previous investigation officer or officers--Investigation is required to be conducted by I.O. of rank equal to or higher than rank of previous I.O., but unfortunately, first change of investigation was conducted by DSP/SDPO and declared petitioner as innocent, thereafter, change of investigation, same was conducted by Inspectors of RIB, which is without lawful authority and coram non judice, and is sheer violation of Art. 18A (3) of Police Order, 2013--Second investigation was not conducted in line with statutory provisions of law--Petition was allowed.

[Pp. 332, 333 & 335] A & B

Mr. Ahmad Raza, Advocate for Petitioner.

Mr. Muhammad Aurangzeb Khan, AAG with Iftikhar A.S.I. alongwith record.

Ch. Muhammad Manzoor, Advocate for Respondent No. 5.

Date of hearing: 3.9.2015.

Judgment

Through this petition, the petitioner has impugned order dated 5.3.2015 issued by Respondent No. 1, wherein the application of Respondent No. 5 for 2nd change of investigation in case FIR No. 828/2013, dated 7.9.2013, under Section 489-F, PPC, Police Station Cantt., District Multan was allowed.

1. Precise facts gathered from the file are that the petitioner is running a business of Travel Agency in the name and style of “Sky Links Travels”. Respondent No. 5 alleged that the petitioner has borrowed an amount of Rs. 1,34,00,000/- from him in the presence of witnesses, and the petitioner gave five cheques of his account No. 0001017206, United Bank Limited, L.M Road, Multan, but the same was bounced, and Respondent No. 5 lodged FIR No. 828/2013, dated 7.9.2013, under Section 489-F, PPC, Police Station Cantt., District Multan. The petitioner filed an application for first change of investigation, which was allowed, and vide Police Diary No. 18 dated 27.1.2015, duly conducted by DSP/SDPO Circle Haram Gate, Multan, the petitioner was declared innocent. Thereafter, Respondent No. 5 moved an application for 2nd change of investigation, which was allowed vide impugned order dated 5.3.2015 by Respondent No. 1, which was entrusted to Inspectors of Regional Investigation Branch (RIB), who declared the petitioner as guilty.

2. Learned counsel for the petitioner argued that 2nd change of investigation is not inconsonance with the law laid down by the Hon’ble Supreme Court of Pakistan, and the same was also not done in line with the statutory provisions of law, therefore, the same is liable to be set-aside.

3. On the other hand, learned counsel for Respondent No. 5 vehemently opposed the contentions raised by learned counsel for the petitioner, and argued that the investigation was conducted in true lines of the Police Order, 2002 as well as the dictum laid down by the apex Courts. Further argued that no illegality or irregularity has been committed by the RIB.

4. Heard, record perused.

5. I have carefully perused the record with the eminent assistance of learned counsel for the parties and collected the facts from the record. The question before this Court taken up by the parties with respect to 2nd change of investigation vide impugned order dated 5.3.2015 issued by Respondent No. 1. The facts examined from the file speak at volume with regard to the manner and mode for the 2nd change of investigation, which is not inconsonance with the same. Rather, it would be against the statutory provisions of law as the investigation for the 2nd time was not done within the due course of law. The only question which is to be addressed was that under Article 18-A(3) of the Police Order, (Amendment) Act, 2013 (“Police Order, 2013”) the investigation is required to be done in a case by an investigation officer or a team of investigation officers of a rank equal to or higher than the rank of the previous investigation officer or officers. The investigation is required to be conducted by the Investigating Officer of rank equal to or higher than the rank of previous Investigating Officer, but unfortunately, first change of investigation was conducted by DSP/SDPO and declared the petitioner as innocent, thereafter, in the 2nd change of investigation, the same was conducted by the Inspectors of RIB, which is without lawful authority and coram non judice, and is sheer violation of Article 18-A(3) of Police Order, 2013. For the assistance of the parties, Article 18-A(3) of Police Order, 2013 is hereby reproduced hereunder:

(3) If a Regional Police Officer has decided an application for transfer of an investigation, the Provincial Police Officer may within thirty days of filing of an application, after obtaining opinion of a Standing Review Board, transfer investigation of a case to an investigation officer or a team of investigation officers of a rank equal to or higher than the rank of the previous investigation officer or officers.

1. As far as mandatory provision of law is concerned, the same is required to be enforced strictly without interpreting/construing it in any manner liberally. Such a principle of interpretation is discussed and applied in the case of “Niaz Muhammad v. Mian Fazal Raqib” (PLD 1974 SC 134) in the following words:--

“It is the duty of the Courts to try to get at the real intention of the Legislature, by carefully attending to the whole scope of the statute to be construed. 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 acts shall be null and void. To put it differently, if the Act is directory, its disobedience does not entail any invalidity; if the Act is mandatory, disobedience entails serious legal consequences amounting to the invalidity of the act done in disobedience to the provision”.

In this respect, it will be advantageous referring to a celebrated passage from the Interpretation of Statutes by Maxwell (Tenth Edition--1953):

“On the other hand, where the prescriptions of a statute relate to the performance of a public duty and where the invalidation of acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty without promoting the essential aims of the legislature, such prescriptions seem to be generally understood as mere instructions for the guidance and Government of those on whom the duty is imposed, or, in other words, as directory only. The neglect of them may be penal, indeed, but it does not affect the validity of the act done in disregard of them. It has often been held, for instance when an Act ordered a thing to be done by a public body or public officers and pointed out the specific time when it was to be done, that the Act was directory only and might be complied with after the prescribed time.”

The nature of a mandatory provision is described in the “Words and Phrases”, Permanent Edition, Vol. 26, P. 463 in the following words:

“Generally, where statutory provision concerning powers and duties of public officer affect the public interest or are intended to protect a private citizen against loss or injuries to his property, provisions are “mandatory” rather than “director”.

“A “mandatory provision” of a statute is one the failure to follow which readers the proceeding to which it relates illegal and void.”

The other principle of jurisprudence in this very context is that the things are required to be done strictly according to law, or it should not be done at all. Reference in this behalf may be made to the case of Mir Dost Muhammad v. Government of Balochistan” (PLD 1980 Quetta 1), relevant Para therefrom is reproduced below:

“It is well settled principle of law that in a case where statute provides a procedure for doing of a thing in a particular manner, that thing should be done in that manner and in no other way or it should not be done at all”.

It has also been held in “Sharafat Kaleem v. Additional District Judge, Bahawalnagar and 11 others” (2013 CLC 185) and “Bakht Munir v. Qadir Khan and another” (PLD 2014 Lahore 87) that when law required a thing to be done in a particular manner, the same must be done accordingly and if the prescribed procedure was not followed, if would be presumed that the same had not been done in accordance with law. The Hon’ble Supreme Court of Pakistan has held in “Zia Ur Rahman v. Syed Ahmed Hussain and others” (2014 SCMR 1015) that If the law requires a particular thing to be done in a particular manner if has to be done accordingly, otherwise it would not be in-compliance with the legislative intent.

1. The Hon’ble Supreme Court of Pakistan held in “Ghulam Sarwar Zardari v. Piyar Ali alias Piyaro and another “ (2010 SCMR 624) that High Court has jurisdiction under Art. 199 of the Constitution and is competent to correct such proceedings and pass necessary orders to ensure justice and fair play---Investigation authorities do not have entire and total authority of running investigation to their whims--If investigation is lauched mala fide or

beyond jurisdiction of investigating agency, then the same can be corrected and appropriate orders can be passed. Furthermore, the modus operandi which has been provided under Article 18-A(3) of the Police Order, 2013 was not duly complied with by the investigating agency.

1. What has been discussed above, I am of the confirmed view that the 2nd investigation was not conducted in line with the statutory provisions of law. Therefore, this petition is allowed and impugned order dated 5.3.2015 passed by Respondent No. 1 for 2nd change of investigation is set-aside being unlawful.

(R.A.) Petition allowed

PLJ 2016 Lahore 335

Present: Shahid Mubeen, J.

PERVAIZ AKHTAR--Petitioner

versus

GOVERNMENT OF PUNJAB, etc.--Respondents

W.P. No. 28283 of 2012, decided on 23.11.2015.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Allotment of quarter--Parent concession scheme--Entitlement--Validity--Petitioner had no vested right for government accommodation--Case of son of petitioner does not fall within ambit of Para-7 of policy as petitioner’s son is neither servant at principal seat, nor in Pb. civil secretariat and Pb. Govt., therefore, he was not entitled for government accommodation. [Pp. 337, 340 & 341] A, B, C & D

Mr. Shahid Azeem, Advocate for Petitioner.

Mr. Muhammad Arif Yaqub Khan, Addl. Advocate General for Respondents.

Date of hearing: 23.11.2015.

Order

Through this writ petition, the petitioner seeks direction to Respondent No. 1/Chief Secretary for allotment of Quarter No. K-63, Wahdat Colony, Lahore in the name of his son namely Qasim Pervez Constable (No. 21287).

1. Briefly the facts of the case are that petitioner retired as Naib Tehsildar at Lahore in BS-15 after serving 42 years in service. The petitioner was allotted two room junior quarter below entitlement. The petitioner retired on 23.06.2012. The petitioner made an application to the respondents for allotment of quarter No. K-63, Wahdat Colony, Lahore which was already in his occupation, in the name of either of his sons who qualify for the said allotment under Parent Concession Scheme. In response to the said request of the petitioner, the Chief Minister, Punjab was pleased to direct Additional Chief Secretary to examine the case of the petitioner and put up a summary within 07-days. This letter was written to the Additional Chief Secretary on 24.03.2012 but no report was sent inspite of reminder dated 25.5.2012. Being disappointed from the respondents, the petitioner filed Writ Petition No. 17225/2012 before this Court which was disposed of vide order dated 29.06.2012 directed Respondent No. 2 to decide representation of the petitioner in accordance with law. Respondent No. 2 in compliance of order dated 29.06.2012 passed in W.P. No. 17225/2012, Respondent No. 2/Additional Chief Secretary considered only son of the petitioner namely Abdul Aziz, Security Guard (BS-1), Jinnah Hospital, Lahore and rejected application on the ground that petitioner’s son does not qualify for the allotment of said quarter under Allotment Policy, hence, this writ petition.

2. It is contended by learned counsel for the petitioner that his son namely Qasim Pervez Constable (21287) Punjab Constabulary BS-05 is fully qualified to be accommodated under Allotment Policy under Parent Concession Scheme. He further submits that application to the extent of his son Abdul Aziz has illegally and unlawfully been rejected. Further submits that it is a case of discrimination as one Amir Salamat, Mazhar Hussain and Hafiz Imran Khan have been accommodated according to the Policy which they are not entitled. On the other hand learned Addl. Advocate General contends that petitioner’s son does not qualify for allotment of the quarter as per Allotment Policy-2009 particularly Paras No. 7, 15 and 30.

3. Heard. Record perused.

4. For the following reasons this writ petition is liable to be dismissed:--

(i) As per Para No. 15 of the Allotment Policy no one can claim a vested right to provide residential accommodation which is reproduced herein below:--

“The Provincial Government has no legal obligation to provide residential accommodation to any Government servant and no Government servant has any vested legal right or claim to the allotment of Government owned residential accommodation.”

The petitioner has no vested right for government accommodation. Reliance is placed on case law titled as “Dil Awaiz Khan v. Government of Punjab through Secretary Colonies Department and another” (PLD 2014 Lahore 50). The relevant portion of the judgment is reproduced herein below:

“A vested right is created when it is mature in every respect and no contingency exists before its completion. When merely the passing of formal order remains to finalize the status of a claimant then according to the Hon’ble Supreme Court in Nabi Ahmed and another v. Home Secretary, Government of West Pakistan, Lahore and 4 others (PLD 1969 SC 599 at page 616) his entitlement qualifies as a vested right. The relevant extract of the said judgment is reproduced below:

“What is a vested right? According to the Oxford English Dictionary, “vested” means “clothed, robed, dressed especially in ecclesiastical vestments…. vested rights essentially differ…. from rights which are contingent…. that is, completely created vested interests may perhaps be defined as rights based not upon contract but upon custom”. A close examination of these meanings and explanations reveals that a vested right is free from contingencies, but not in the sense that it is exercisable anywhere and at any moment.”

Reference may also be made to the case law titled as “Muhammad Anwar v. Muhammad Zubair Asif and 4 others” (1998 MLD 617). The relevant portion of the judgment is reproduced herein below:

“In these circumstances, it was not open to the Trial Court to substitute its own decision as regards merit position of both the applicants for the allotment of a Government accommodation for there is no vested right under the law in any Government servant to claim allotment of Government accommodation and if in these circumstances the functionaries of the State found petitioner more eligible, deserving and needy as compared to Respondent No. 1, the same could not have been interfered with or held mala fide as such the findings on Issues Nos. 6, 7 and 3 are hereby reversed and the said issues are decided in favour of the petitioner.”

Reference may also be made to the judgment of a Division Bench of Lahore High Court, Lahore reported as “Asif Mahmood v. Deputy Commissioner, Sheikhupura and another” (2005 MLD 589). The relevant portion of the judgment is reproduced herein below:--

“It is also settled principle of law that it is the prerogative of the Competent Authority to allot the Government accommodation to the employee or not and it is not a vested right of any Government employee to retain the house as of right and the Constitutional petition is not maintainable as per law laid down by the Honourable Supreme Court in Syed Tahir Hussain’s case (PLD 1962 SC 75).

References may also be made to the case laws reported as “Maqsood Ahmed Toor and 4 others v. Federation of Pakistan through the Secretary to the Government of Pakistan, Ministry of Housing and Works, Islamabad and others” (2000 SCMR 928) and “Agha Nadeem v. Additional Secretary Welfare and 3 others” (2014 PLC (C.S.) 268) and “Agha Nadeem v. Additional Secretary Welfare, Government of the Punjab, Services and General Administration Department Lahore and 2 others” (2013 PLC (C.S.) 306).

(ii) The petitioner applied for the allotment of said government accommodation in the name of his son Qasim Pervez, Police Constable No. 21287 under Parent Concession Scheme vide his application dated 24.02.2010 through Chief Minister Directive dated 25.02.2010. His request was considered and vide letter dated 15.03.2010 the petitioner was informed that competent authority has considered his request and regretted being contrary to the Allotment Policy. The petitioner has not challenged the order dated 15.03.2010 which has attained finality. This is so stated by respondents in their report and parawise comments as preliminary Objection No. 2.

(iii) This writ petition suffers from laches on the face of it as order was passed on 15.03.2010 whereas the writ petition was filed on 15.11.2012 after a delay of about 03 years.

(iv) Earlier the petitioner filed a Writ Petition No. 17225/2012 for allotment of said government accommodation in the name of his son namely Abdul Aziz which was disposed of by this Courtvide order dated 29.06.2012 with the following observations:--

“Learned counsel for the petitioner states that he would be satisfied, if the direction be issued to the Respondent No. 2 to decide the application pending before him.

1. Let a copy of this petition alongwith all the annexure be transmitted to Respondent No. 2, who shall treat this petition as representation of the petitioner and take a decision thereon after providing opportunity of hearing to the petitioner strictly in accordance with law within a period of one month.”

The department considered representation of the petitioner and decided the same vide order dated 31.08.2012 as under:--

“4. AND WHEREAS, so far as request of the applicant for allotment of subject quarter in the name of his son Mr. Abdul Aziz, Security Guard (BS-1), Jinnah Hospital, Lahore is concerned, it is clear as per para 30(a) of the Allotment Policy “the allottees on their retirement will be entitled to have their allotments transferred in the names of their real sons/daughters, belonging to the eligible department only and is serving in Basic Scale equivalent or higher than required for the allotment of the said Government residence, subject to rent clearance and all utility bills. The retiring Government servant should apply for such allotment within a period of one year before his/her retirement”. Mr. Abdul Aziz belongs to ineligible department i.e. Health Department and cannot be allotted a government accommodation, under Parent Concession Scheme, out of the Pool of S&GAD. Moreover, the said residence is also above his entitlement. Hence his request is contrary to Para-30(a) of the Allotment Policy.

5. AND WHEREAS, it is pertinent to mention here that the Chief Minister, Punjab has also regretted the request of the applicant on a summary being above entitlement and the applicant belongs to ineligible department.

1. NOW THEREFORE, after having gone through the record and affording opportunity of personal hearing, I, SUHAIL AAMIR, am of the view that request/representation of Mr. Pervaiz Akhtar regarding allotment of Quarter No. K-63, Wahdat Colony, Lahore to Mr. Abdul Aziz, Security Guard (BS-01), Jinnah Hospital, Lahore, under Parent Concession Scheme is not covered under Allotment Policy. Hence, the same is rejected.”

It appears that petitioner is in the habit of filing writ petitions and at no cost wants to vacate the government residence.

(v) The petitioner applied for allotment of said government accommodation in the name of his son Qasim Pervez, Police Constable No. 21287. In this regard Para-7 of the Policy is reproduced herein below:-

“Only the Government servants posted at the Principal Seat, Lahore High Court, Lahore, Punjab Civil Secretariat and Provincial Assembly of Punjab, posted at Lahore, are eligible for allotment of Government owned accommodation. A Government servant who is transferred out of Lahore or out of the institutions referred above will lose his eligibility after expiry of the period for which he or his family can retain possession of the residential accommodation as specified in Para-33.

The case of the son of the petitioner does not fall within the ambit of Para-7 of the Policy as petitioner’s son is neither servant at Principal Seat, Lahore High Court, Lahore, nor in Punjab Civil Secretariat and Provincial Assembly of Punjab, therefore, he is not entitled for the said government accommodation.

(vi) The petitioner’s son is also not entitled under Para-30(a) of the Policy as he does not belong to eligible departments as stated in Para No. 7 of the Allotment Policy.

(vii) As far as the contention of learned counsel for the petitioner that one Amir Salamat, Mazhar Hussain and Hafiz Imran Khan have been accommodated under Parents Concession Scheme is concerned, if allotments have made in their favour then the petitioner should have impleaded them as party so that they may explain the allegation leveled by the petitioner. However, if

allotment has been made in violation of policy, the department should take action against them in accordance with law and policy applicable. There is another aspect that if they have been accommodated illegally this does not amount to discrimination as two wrongs cannot make one right. Reference may be made to case law (1998 SCMR 882 and 2011 SCMR 1239).

(vii) According to report and parawise comments the disputed quarter has been allotted to Hafiz Muhammad Aslam Staff Car Driver, S&GAD, hence, this writ petition is liable to be failed on the ground that petitioner has not impleaded him as he was necessary party to whom disputed quarter has been allotted.

(viii) The petitioner submitted an application to the Chief Minister for some favourable order and when the same was declined, he filed this writ petition, therefore he has estopped to file the same.

(ix) According to report and parawise comments the application of his son namely Qasim Pervez was considered and regretted on 15.03.2010, therefore, he is guilty of concealment of facts, hence, he is not entitled for discretionary relief. Reference may be made to PLD 1973 SC 236.

1. Sequel to the above, this writ petition has no force, hence, dismissed with no order as to cost.

(R.A.) Petition dismissed

PLJ 2016 Lahore 341 [Bahawalpur Bench Bahawalpur]

Present: Zafarullah Khan Khakwani, J.

Hafiz MUHAMMAD IDREES KHAN and others--Petitioners

versus

CHANCELLOR, ISLAMIA UNIVERSITY OF BAHAWALPUR/ GOVERNOR, PUNJAB, LAHORE and others--Respondents

W.P. No. 6548 of 2015, decided on 2.9.2015.

Educational Institution--

----Shortage of attendance--Refusal to appear in annual examination--Policy rules were approved by competent authority--Objection was not communicated--Validity--It is settled principle of law that a right to seek admission in an educational institution and to continue studies therein is always subject to rules of discipline prescribed by institution and, therefore, a student intends to pursue his studies in institution was bound such rules--Petition was dismissed. [P. 343] A

Ch. Riaz Ahmad, Advocate for Petitioners.

Mr. Muhammad Nasir Joiya, Legal Advisor of Islamia University Bahawalpur.

Date of hearing: 2.9.2015.

Order

By this single order I intend to decide instant constitutional petition and W.P. No. 6547 of 2015 as common questions of law and facts are involved in both these petitions.

1. Through these petitions under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 the petitioners have prayed for a direction to respondents to allow them to appear in Bachelor of Eastern Medicine & Surgery Annual Examination, 2015.

2. Brief facts of the case leading to the filing of instant petition are that petitioners are students of Bachelor of Eastern Medicine & Surgery in different Sessions. They were refused to appear in the Annual examination commencing on 24.08.2015 due to shortage of their attendance in the lectures which was 70% to 72% and required attendance was 80%. It is alleged that said objection was not communicated to the petitioners at relevant time and that the students having 70 to 74.4% attendance have been allowed by university authorities to appear in the examination and thus the petitioners have been discriminated. It is further maintained that previously 70% attendance was required and under the said impression the petitioners also achieved the target attendance but suddenly the university authorities have increased the attendance requirement from 70% to 80% without any prior notice or intimation to the students. The petitioners approached university authorities for redressal of their grievance but they flatly refused.

3. In response to the notice issued by this Court, the respondents submitted report and parawise comments in which they contended that Dean of a particular department has the authority to grant relaxation in attendance up to 5% on the reasons of illness, death in family and representing in university sports and debates, etc. The Vice Chancellor has also power to condone another 5% shortage of attendance in lectures. It is alleged that petitioners willfully absented from the lectures and no valid reason or plausible explanation was forwarded by the petitioners for their; shortage of attendance. Learned

counsel appearing for respondent-university submits that the Syndicate in its 51st meeting held on 05.09.2012 took decision that students having less than 80% attendance in one academic sessions should not be allowed to sit in the examination.

1. Arguments heard and record perused.

2. Admittedly, the petitioners have not brought on record any valid and cogent reason regarding their non-appearance in the university lectures. No medical certificate has been produced to show any serious illness refraining them to achieve required target of attendance. On the other hand, the Syndicate of the respondent university in its meeting approved the requirement of 80% attendance in one academic year to qualify for appearance in the examination. The objection raised by respondents is in accordance with law and policy/rules introduced and approved by the competent authority. The respondents cannot be forced to go beyond the policy/rules and the student is also bound by the said rules. It is settled principle of law that a right to seek admission in an educational institution and to continue studies therein is always subject to the rules of discipline prescribed by the institution and therefore a student who intends to pursue his studies in the institution is bound by such rules. Guidance in this regard can be taken from the cases reported as “Akhtar Ali Javed v. Principal Quaid-Azan Medical College, Bahawalpur” (1994 SCMR 532) and “Ali Yousuf and another v. Chairman, Academic Council and Principal, Dow Medical College Karachi and others” (2000 SCMR 1222).

3. In view of the above discussion, these petition being meritless are dismissed.

(R.A.) Petition dismissed

PLJ 2016 Lahore 343

Present: Shahid Karim, J.

GHULAM NABI CHAUDHARY etc.--Petitioners

versus

RETURNING OFFICER, etc.--Respondents

W.P. No. 33697 of 2015, decided on 5.11.2015.

Punjab Local Government (Conduct of Elections) Rules, 2013--

----R. 36--Application for recount of votes, decided by Returning Officer--Notice was issued by election commission to candidates--Since sole grievance of petitioners was regarding failure on part of R.O. to decide upon application, it is directed that said application

shall be decided strictly in accordance with Rule 36 of Rules, 2013 [P. 344] A

Ch. Azhar Siddique Cheema, Advocate for Petitioners.

Mian Irfan Akram, D.A.G. on Court’s call alongwith Hafiz Adeel Ashraf, Law Officer for Respondents.

Date of hearing: 5.11.2015.

Order

The learned counsel for the petitioners submits that an application for the recount of the votes has been made to the Returning Officer in terms of Rule 36 of the Punjab Local Government (Conduct of Elections) Rules, 2013 (the Rules, 2013) but that application is still to be decided by the Returning Officer.

1. Be that as it may, since the sole grievance of the petitioners is regarding the failure on the part of the Returning Officer to decide upon the application, it is directed that the said application shall be decided strictly in accordance with Rule 36 of the Rules, 2013. It is also brought to the notice of this Court that on 21.10.2015 a letter has been issued by the Election Commission of Pakistan to (sic) candidates before the consolidation of results takes place. This has to be meticulously followed by the Returning Officers before the consolidation of results takes place. This petition is disposed of with the direction that the Returning Officer shall decide the application of the petitioner. This order shall also be conveyed by the learned Deputy Attorney General to the Provincial Election Commissioner who shall in turn issue specific instructions to the Returning Officer concerned to follow the mandate of Rule 36 of the Rules, 2013 in letter and spirit.

2. Disposed of.

Copy dasti on payment of usual charges.

(R.A.) Petition dismissed

PLJ 2016 Lahore 344

Present: Shahid Jamil Khan, J.

MUHAMMAD NAZIR etc.--Petitioners

versus

GOVERNMENT OF PUNJAB etc.--Respondents

W.P. No. 8533 of 2012, heard on 21.10.2015.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Transfer of ownership rights of state land--Right to purchase state land through private treaty--Possession was denied--Illegal occupant--Issue of selling state land through private treaty--No unfettered power to allot state land--Validity--Petitioners had failed to establish that they were in occupation of state land, under any legal authority--Denied proprietary right over state land for having possession over 40 years, in absence of any document to establish any right of possession--Petitioners shall be granted a fair chance to participate in auction, if land has not yet been auctioned--Petitioners may approach Civil Court for appropriate remedies, against alleged dispossession of state land--Petition was disposed of.

[Pp. 347 & 348] A, B & C

Mr. Musharaf Ali Khan, Advocate for Petitioners.

Mr. Muhammad Hammad Khan Rai, Assistant Advocate General, Punjab along with Qamar Abbas Sultan, Assistant Director (M&S), Colonies Department, Lahore, Ms. Rafia Haider, A.C. Faisalabad Saddar, Rana Abid Iqbal, Naib Tehsildar and Tariq Iqbal, Patwari for Respondents.

Date of hearing: 21.10.2015.

Judgment

This petition is for direction to respondents for transfer of ownership rights of State land to petitioners, over which, they claim to have possession since 1947.

This judgment shall also decide connected Writ Petition No. 16967 of 2012 and Crl. Org. No. 917-W of 2012, which are filed in consequence of an interim order dated 06.04.2012 passed in this petition.

1. Facts, as asserted in this petition, are that the petitioners, being displaced persons, after partition, settled in Chak No. 31/JB, Tehsil and District Faisalabad. Shops and rooms were constructed by them for living and earning livelihood. On 04.04.1982 an application was moved for grant of proprietary rights, through private treaty, which was followed by a reminder letter dated 04.10.1987. In December 1998; Secretary Punjab Privatization Board requested respondents to assess value of lands, including the land in occupation of petitioners, for sale through private treaty under policy Letter No. 187-98/1410-CSI dated 08.07.1998. Price was assessed, however, Respondent No. 1 on 18.05.1999 directed for reassessment on the basis of commercial and residential lands separately. As per petition, the petitioners kept pursuing the case and finally on 30.09.2002 District Price Assessment Committee Faisalabad (“DPAC”) assessed the price of land for sale through private treaty.

2. Learned counsel for the petitioners contends that respondents did not process the case for transfer of ownership of land, after decision by DPAC, with mala fide intent. Further submits that petitioners have been pursuing this case from pillar to post till filing of this petition. Reliance is also placed on an order dated 11.02.2002 passed in ICA No. 108 of 2002 by learned Division Bench of this Court. Further argues that valuable rights have accrued in favour of the petitioners, hence this petition.

3. Learned AAG has opposed this petition by denying the asserted facts and right to purchase the State land through private treaty. Possession of petitioners on the land, at the time of filing this petition, is denied. It is asserted that they were illegal occupants of the land owned by Provincial Government. Also argues that shops in question were constructed on the berm of road, which could not be sold under the policy. He submits that case was never pursued vigilantly by the petitioners as no price of the land was deposited. Adds that the petition suffers from laches. On merits, he argues that a ban was imposed on transfer of State land through private treaties vide Notification dated 08.03.2010 by Board of Revenue Punjab, which was endorsed by succeeding Notification dated 24.06.2010 and vide Notification dated 26.11.2013, policy of transferring State land has been finalized. Further submits that the issue of selling State land through private treaty was taken up by Hon’ble Supreme Court of Pakistan in a suo moto case (Human Rights Cases No. 7581-P & 9059-P of 2009). It was held that Chief Minister does not have unfettered power to allot State land through private treaties. During proceedings; connected case of Bar Associations was delinked for hearing and decision on merits, which was separately decided by Hon’ble Supreme Court in Province of Punjab through Secretary Revenue and others v. District Bar Association, Khanewal and others (2014 SCMR 1611). Learned AAG has read the judgment by Hon’ble Supreme Court to contend that Notification dated 26.11.2013 was endorsed by reproducing the same in this judgment, wherein policy for the sale of State land is elaborated.

4. Heard, record perused.

5. The fact regarding possession of land in question is disputed; Petitioners claim possession over the land since decades, however, possession at the time of filing this petition is denied by learned AAG. A separate petition (W. P. No. 16967 of 2012) was also filed for registration of FIR against the respondents, claiming that petitioners were dispossessed by respondents after interim stay by this Court vide order dated 06.04.2012. This petition was accompanied by a contempt petition (Crl. Org. No. 917-W of 2012). The order dated 06.04.2012, in the instant petition, is examined, which was passed for maintaining status quo.

Petitioners have failed to establish that they were in occupation of State land, in question, under any legal authority. The Apex Court, by a judgment in Fazal ur Rehman and others v. Province of Punjab through District Officer (Revenue) Bhakkar and another (2014 SCMR 1351) has denied proprietary right over State land for having possession over 40 years, in absence of any document to establish any right of possession. Since petitioners could also not establish that they were in possession under any authority of law, therefore, law laid down in this judgment is applicable to this case. In presence of law laid down, ibid, there is no need to enter into factual inquiry regarding possession. Hence, decision on connected writ and contempt petition would be an unnecessary exercise. For these reasons, both connected petitions are being dismissed by separate orders.

1. Learned Counsel for the petitioners could not justify the delay in filing this petition; Price of the land was, assertively, assessed in the year 2002 and the petition is filed in April 2012. No vigilant effort for deposit of the assessed price is appearing from record and delay in filing this petition is also not explained. Objection of learned AAG that this petition suffers from laches caries force. August Court has discussed in detail the principles of laches in Dr. Muhammad Tahir-ul-Qadri v. Federation of Pakistan through Secretary M/o Law, Islamabad and others (PLD 2013 S.C. 413) and this petition does not fall in any of the exceptions.

2. Petitioner’s claim of equal treatment on the basis of judgment by learned Division Bench of this Court in the above noted ICA is misplaced. Perusal of the judgment shows that a direction was given to Member (Colonies) Board of Revenue to decide the case pending before him. No right to property was either determined or created by this judgment.

3. Reliance of learned AAG on judgment by Hon’ble Supreme Court in District Bar Association Khanewal’s Case (supra) is well placed. Hon’ble Court has specifically held that no person shall have any right or title in the State land until a written order has been passed and allottee/grantee has taken over lawful possession. Relevant part from the judgment is reproduced hereunder:--

“10. In view of the aforesaid Notification both the organizations have no case for allotment of State land as the grant/allotment of State land is not a right of an individual and, in fact, it is a grace. No person shall have any right or title in the State land until a written order has been passed and allottee/ grantee has lawfully taken over the possession but in the instant case neither the land was allotted to both the organizations nor they lawfully acquired possession thereof. But the learned High Court has erroneously observed in the impugned judgment that the matter was finally decided between the parties and was concluded/ finalized whereas the fact of the matter is that the two Bar Associations were never allotted the land in dispute or delivered its possession. Thus, the arguments of the learned counsel for the respondents Bar Associations and the observations of the learned High Court on the letter dated 9.5.1991 are against the facts as the said letter was written by the Deputy Commissioner, Khanewal by making proposal for such allotment and it cannot be said to be an allotment unless and until it is approved by the competent Authority. Moreover, it is a matter of record that summaries for such approval were declined thrice by the Chief Minister, Punjab.”

(emphasis supplied)

In another unreported judgment dated 18.12.2014 in Civil Appeal No. 214-L of 2014, Hon’ble Supreme Court, while allowing appeal of Government against allotment of State land in violation of law and scheme, observed, “grant of State land is not a bounty”.

1. Admittedly, land in question, had never been transferred in the name of petitioners through any written order. Learned counsel for the petitioners has not denied application of the Notifications/Schemes referred by learned AAG and endorsed by Hon’ble Supreme Court in District Bar Association, Khanewal’s Case (supra). In view of Article 189 of the Constitution of Islamic Republic of Pakistan, 1973, directions/ findings by Hon’ble Supreme Court of Pakistan are binding on all the concerns including this Court.

2. Though the question of possession and existence of vacant land is in controversy, nevertheless, it is observed that petitioners shall be granted a fair chance to participate in the auction, if the land in question has not yet been auctioned. The petitioners may approach Civil Court for appropriate remedies, against alleged dispossession of the State land, if so advised.

3. For the reasons noted above, this petition, as prayer, cannot be allowed. However, with the direction of providing fair chance of participation in auction, this petition stands disposed of.

(R.A.) Petition disposed of

PLJ 2016 Lahore 349

Present: Ali Baqar Najafi, J.

SAFDAR HUSSAIN--Appellant

versus

Mst. NOSHI (NISHAT) GILLANI, etc.--Respondents

R.F.A. No. 268 of 2009, heard on 23.11.2015.

Copy Rights Act, 1962 (XXXIV of 1962)--

----S. 14(1)--Civil Procedure Code, (V of 1898), O. VII, R. 11--Agreement of copyright--Writer of book published--Author as an owner of copy right can assign only for period of 10 years from date of assignment--Applicability of Order VII, Rule 11, CPC--Validity--Precise legal question raised before High Court is as to whether an author of a book can give rights of publication to a publisher for indefinite period or that such right is limited to specific period of 10 years--Copyright is modern form of acknowledgment of one's invention/creation--Author of a book should be equally possessive and to be proud of its creation and such right has been acknowledged under Copyright Ordinance, 1962--Assignment of copyright includes act of publishing a literary work and meaning of publication was showing of copies of work to public in sufficient quantities--Maximum period of such assignment in cases other than Government, educational, charitable, religious and non profitable institution was only 10 years, whereas typographical arrangement in edition was protected for 25 years--Author of a book may not specify period of agreement but by operation of law its life can be curtailed to a defined period, therefore, its enforceability can always be questioned--Plaint of suit which was barred by law is to be rejected and scope of provision has been explained by apex Court.

[Pp. 350, 351, 353, 354 & 355] A, B, C, D & E

AIR 1991 Calcutta 308, 1989 CLC 2447, rel.

Rana Farman Ali Sabir, Advocate for Appellant.

Mr. Muhammad Waseem Sindhu, Advocate for Respondents.

Date of hearing: 23.11.2015.

Judgment

This appeal is directed against the judgment and decree dated 18.02.2009 passed by the learned Addl. District Judge, Lahore whereby the plaint of suit for declaration and permanent injunction under the Copyrights Ordinance, 1962 was rejected under Order VII Rule 11, CPC, as barred by law under Section 14(1) of the Copyrights Act, 1962.

1. Brief facts giving rise to the filing of this appeal are that Respondent No. 1/Mst. Noshi (Nishat) Gillani, a writer of book published as “Mohabbatain Jub Shumar Karna” made an agreement dated 08.01.1993 with the appellant whereby she transferred all the legal rights in relation to publication and publicity of the said book in favour of the appellant. In order to fulfill his responsibility as a publisher, he invested huge amount, borne all the necessary expenses and paid the agreed royalty/compensation to Respondent No. 1. According to the appellant, since he has the exclusive and absolute right of publication of said book for indefinite period, therefore, Respondents No. 2 and 3 could not republish the said book in violation of the agreement.

2. During the pendency of said suit, the Respondent No. 1 filed an application under Order VII Rule 11, CPC, read with Section 14 of the Copyrights Act, 1962 stating that the suit is barred under Section 14 of the Copyrights Act, 1962 as the life of the agreement between the parties is 10 years which was allowed and the plaint was rejected vide the impugned order dated 18.02.2009, hence this Regular First Appeal.

3. Rana Farman Ali Sabir, learned counsel for the appellant submits that under Section 3 of the Ordinance, a publisher has an exclusive right of publication and under Section 28 ibid, he can publish edition of work for 25 years. Adds that Section 14 of the Ordinance is not attracted as it is not the assignment of copy to right of publication. Places reliance upon Shakeel Adilzadah versus Pakistan Television Corporartion Ltd. and 2 others (1989 CLC 2447) and Jogendra Nath Sen and another v. State and another (AIR 1991 Calcutta 308), and prays for setting aside of the impugned judgment.

4. Mr. Muhammad Waseem Sindhu, learned counsel for Respondent No. 1 on the other hand, submits that it was the agreement of copyright under Section 14 of the Ordinance under which the author as an owner of copyright can assign only for a period of 10 years from the date of assignment and, therefore, prays for dismissal of the appeal.

5. Arguments heard. File perused.

6. The precise legal question raised before this Court is as to whether an author of a book can give the rights of publication to a publisher for indefinite period or that such right is limited to specific period of 10 years. Here it will be essential to understand the true import and meaning of word “Copyright”.

7. The word “Copyright” by now has been accepted all over the world as an exclusive right of a creator over the created work. But if we go a little deeper into the meanings and the connotation, we would find it to be very close to the nature. It is a very common observation that whosoever creates something is called its creator and is entitled to be recognized as such. The creation is named after the creator. Since ancient times for example, any momentum or any invention or even discovery had always been acknowledged with reference to a person. In more simplified form take the example of parents, who are responsible to bring a child into this world and that child after getting the birth, is called their child. Here the child will be named after the name of their parents. In bringing him up the parents are very jealous and possessive when it comes to his protection as they know how to groom them properly. Take another example of religions. The Christianity, for example, is named with reference to Hazrat Eisa (The Holy Christ), Jewishism as we know it because of its Prophet Hazrat Musa (A.S.) and last but not least the religion of Islam which is named after Hazrat Muhammad (P.B.U.H.) who introduced these religions to this world. Therefore, all these religions have been recognized through their Prophets.

8. Copyright is the modern form of acknowledgment of one's invention/creation. The author of a book should be equally possessive and to be proud of its creation and this right has been acknowledged under the Copyright Ordinance, 1962.

9. For our purposes, Section 3 sub-clause (a) is relevant, which is reproduced as under:--

Meaning of Copyright.--(1)For the purposes of this Ordinance, “copyright” means the exclusive right, by virtue of, and subject to the provisions of this Ordinance:--

(a) in the case of a literary, dramatic or musical work, to do and authorize the doing of any of the following acts, namely:--

(i) ----------------------------------------

(ii) to publish the work;

(iii) ----------------------------------------

Under Section 2 (n) “infringing copy” means, --

(i) in relation to a literary , dramatic or artistic work, a reproduction thereof otherwise than in the form of a cinematographic work:

(ii) -------------------------

The word Publication is defined in Section 4 and sub-sections (1)(a) will be relevant which is reproduced as under:

Meaning of publication. (1) For the purposes of this Ordinance, “publication” means:--

(a) in the case of literary, dramatic, musical or artistic work, the issue of copies of the work to the public in sufficient quantities;

(b) ------------------------

(c) ------------------------

(2) -------------------------

Section 14 of the Ordinance, the benefit of which is being claimed by Respondent No. 1 and has granted by the Court is about the assignment of the copyright. Section 14 is reproduced as under:--

Assignment of copyright.--(1) The owner of the copyright in an existing work or the prospective owner of the copyright in a future work may assign to any person the copyright either wholly or partially and either generally or subject to limitations and either for the whole term of the copyright of any part thereof:

Provided that, in case of the assignment of copyright in any future work, the assignment shall take effect only when the work comes into existence:

Provided further that, where the owner of the copyright in a work is the author of the work, no assignment of the copyright in the work or of any interest in such, copyright shall be made, or if made shall be effective (except where the assignment is made in favour of Government of or any educational, charitable, religious or non-profit institution) for a period of more than ten years beginning from the calendar year next following the year in which the assignment is made; if an assignment of the copyright in a work is made in contravention of this proviso, the copyright in the work shall, on the expiry of the period specified in this proviso, revert to the author (who may reassign the copyright in the work subject to the provisions herein contained), or if the author be dead to his representative in interest.

“Provided further that the copyright in an unpublished work assigned by its author to any person or organization for the specific purpose of its publication shall revert to the author if such work is not published within a period of three years from the date of its assignment, “; and

(2) Where the assignee of a copyright becomes entitled to any right comprised in the copyright, the assignee as respects the rights so assigned, and the assignor as respects the right not assigned, shall be treated for the purpose of this Ordinance as the owner of the copyright and the provisions of this Ordinance shall have effect accordingly.

“(2A) If the owner of a copyright, or the publisher to whom such right has been assigned, considers any of the terms of the assignment to be likely to effect his interests adversely, he may within one year of such assignment apply to the Board to consider such term and the Board may, after hearing both the parties, pass such order as it may deem fit; and the order of the Board shall be binding on both the parties.”

(3) In this Section, the expression “assignee” as respects the assignment of the copyright in any future work includes the legal representatives of the assignee, if the assignee dies before the work comes into existence.

1. It will also be equally relevant to reproduce Section 28 ibid to weigh the contention of the respondents:--

Protection of typography and terms of protection.--The publisher of an edition of a work shall enjoy the right to authorize the making, by any photographic or similar process, of copies, intended for sale in commerce, or the typographical arrangement of the edition, and such right shall subsist until twenty-five years from the beginning of the calendar year next following the year in which the edition was first published.”

1. Here the perusal of above statutory provision reveals that assignment of copyright includes the act of publishing a literary work and the meaning of publication is the showing of copies of work to the public in sufficient quantities. The maximum period of such assignment in cases other than Government, educational, charitable, religious and non profitable institution is only 10 years, whereas the typographical arrangement in edition is protected for 25 years.

2. After having understood the legal position, it will equally beneficial to reproduce the:

محبتیں جب شمار کرنا نہ تو میں کبھی خود شائع کروں گی اور نہ ہی کسی دوسرے ادارے کو اس کے اشاعتی حقوق ﴿دوں گی﴾ اس کتاب کو ہمیشہ الحمد پبلیکیشن لاہور ہی شائع کرے گا۔

A perusal of agreement dated 08.1.1993 admitted between the parties reveals that the exclusive right of publication of the said book was exclusively given to the appellant. But any valid agreement is one which is not barred by law, and only those clauses are enforceable which are not in conflict with any statute. The author of a book may not specify the period of agreement but by operation of law its life can be curtailed to a defined period, therefore, its enforceability can always be questioned. Under Section 2(i) of the Contract Act, 1872:-

1. Interpretation clause.

(j) A contract which ceases to be enforceable by law becomes void when it ceases to be enforceable.

The agreement, therefore, binds the parties only for 10 years. Interestingly, the suit was filed on 06.06.1998 i.e. after 5 years and on 08.06.1998 a restraining order was passed by the Court which continued till the plaint was rejected under Order VII Rule 11, CPC, on 18.02.2009, and by that time almost seventeen years had lapsed since the agreement was executed.

1. Coming to the case law referred to by the learned counsel for the appellant as (AIR 1991 Calcutta 308) suffice it to say that it dealt the right of a assignee of a copyright in respect of the publication but it did not dilate upon the time period of the agreement which was not referred in Section 14 of the Indian Copyright Act, 1957. In Shakeel Adilzadah versus Pakistan Television Corpqrartion Ltd. and 2 others (1989 CLC 2447), Section 15 of the Copyright Act, 1962 was interpreted where the proposition was different than what we have in the present case, hence irrelevant.

2. Here we are also to embark upon the applicability of Order VII Rule 11, CPC, which is reproduced as under for ready reference:

11. Rejection of plaint.--The plaint shall be rejected in the following cases:--

(a) where it does not disclose a cause of action;

(b) where the relief claimed is under-value, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;

(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;

(d) where the suit appears from the statement in the plaint to be barred by any law.

A plaint of the suit which is barred by law is to be rejected and the scope of this provision has been explained by the apex Court in case titled (2014 SCMR 513) in which following was held:--

“------ The object of the powers conferred upon the trial Court under Order VII, Rule 11, C.P.C. is that the Courts must put an end to the litigation at the very initial stage when on account of some legal impediments full fledged trial will be a futile exercise. In view of the above facts the suit of the plaintiff/respondents challenging the gift mutation was on the face of the record barred by time and there was no need for recording of evidence------”

In view of what has been discussed above, the appeal filed by the appellant has been found meritless and is dismissed on merits.

(R.A.) Appeal dismissed.

PLJ 2016 Lahore 355 (DB)

Present: Mrs. Ayesha A. Malik and Faisal Zaman Khan, JJ.

MURDAN ALI ZAIDI, etc.--Appellants

versus

ELECTION COMMISSION OF PAKISTAN, etc.--Respondents

I.C.A. No. 1584 of 2015, heard on 23.11.2015.

Punjab Local Government (Conduct of Elections) Rules, 2013--

----R. 35(5)--Punjab Local Government Act, (XVIII of 2013), Ss. 37 & 38--Civil Procedure Code, (V of 1908), S. 12(2)--Election for seat of chairman and V.C. union council--Recount of votes--Order of R.O. was challenged--Once consolidation order was issued, R.O. cannot entertain for recounting of votes--No fraud or misrepresentation--Question of--Whether Returning Officer’s order was speaking order or not--Validity--No justification to interfere as Rules prohibit recount after consolidation of results--Election process would be concluded before challenges to election process begin--Pendency of an application for recount does not affect consolidation of results and consolidation order cannot be set aside on account of pendency of application--If R.O. does not entertain application, then applicant left without a remedy and will not be able to challenge result--Once name of returned candidate is published in official gazette, an election petition can be filed under Section 38 of Act r/w Rule 62 of Rules before election tribunal--All illegalities and irregularities committed by R.O. as alleged by election commission can be decided after declaration of results in an election petition--Remedy of appeal was not available as election tribunals have not been established--Remedy of appeal was provided in Act therefore, to require it to be available at that stage was premature since an election petition can only be filed once result was declared in official gazette. [Pp. 358, 359 & 361] A, B, C & E

Punjab Local Government Act, 2013 (XVIII of 2013)--

----S. 60--Corrupt practice--Recounting of votes--Conduct of officials--Consolidation order--Allegation of abuse of powers--Validity--Corrupt practice, bribery, undue influence, illegal practice, tampering and conduct of officials can also be tried under Section 60 of Act--Allegations of abuse of power can also be raised by way of a complaint under Act, 2013. [P. 360] D

2013 SCMR 1676 & PLD 2008 SC 487, rel.

Hafiz Muhammad Saleem, Advocate for Appellants.

Mirza Nasar Ahmad, DAG for Respondents.

Rai Akhtar Suleman, Advocate for Respondents No. 5 and 6.

Date of hearing: 23.11.2015.

Judgment

Mrs. Ayesha A. Malik, J.--Through this Intra Court Appeal, the Appellant has impugned order dated 19.11.2015 passed in an application being C.M. No. 3 of 2015 filed by Respondents No. 5 and 6 under Section 12 (2) of the Code of Civil Procedure (“CPC”) whereby the said application was dismissed and order dated 17.11.2015 by virtue of which W.P.No. 35350/2015 was accepted by learned Single Judge.

1. The facts of the case are that the Appellant and Respondents No. 5 and 6 contested Local Government Election for the seat of Chairman and Vice Chairman in U.C No. 198 Shadman Lahore held on 31.10.2015. The Appellants were the winning candidates for the seat of Chairman and Vice Chairman. Respondents No. 5 and 6 moved an application for recount of the votes on 01.11.2015. They filed W.P.No. 34053/2015 before this Court seeking a direction to Respondent No. 4, Returning Officer for U.C 198 to decide their pending application. This direction was issued by this Court on 06.11.2015. However, Respondents No. 5 and 6 concealed the fact that on 06.11.2015 notice for consolidation of result had been issued and that the result was consolidated on 07.11.2015. The Returning Officer of U.C No. 198 on the direction of the Court heard the application and rejected it on the ground that notice for consolidation of result had already been issued, hence no recounting could take place. This order of the Returning Officer was challenged by Respondents No. 5 and 6 through filing of W.P.No. 35350/2015. In terms of the order dated 17.11.2015 passed by the learned Single Judge the Returning Officer was obligated to decide the application for recounting before the consolidation of result. Hence the consolidation order of 07.11.2015 was set-aside and a direction was given to the Returning Officer to decide the application for recount of vote before proceeding with the consolidation. Against this order of 07.11.2015, the Appellants moved application C.M. No. 3/2015 under Section 12(2) of the CPC primarily on the grounds that on 17.11.2015 the result was consolidated and Respondents No. 5 and 6 misrepresented the facts to the Court in W.P. No. 34053/2015 and obtained an order directing the Returning Officer to recount the votes. The application of the Appellants was heard but dismissed on the ground that no fraud or misrepresentation by Respondents No. 5 and 6 has been brought before the Court. Hence this appeal.

2. Learned counsel for the Appellants argued that Respondents No. 5 and 6 obtained a direction from the Court on 06.11.2015 for a decision on their application for recount of votes when the consolidation process was underway and finalized on 07.11.2015. Learned counsel stated that Respondents No. 5 and 6 concealed the issuance of consolidation notice from the Court which consolidation was fixed for 06.11.2015 and then postponed to 07.11.2015. Learned counsel stated that consolidation process was completed on 07.1 1.2015 at 10.00 AM in the presence of all the parties. The Respondents No. 5 and 6 then challenged the decision of the Returning Officer rejecting their recount application on 07.11.2015 and the learned single Judge notwithstanding the consolidation order, directed the R.O. to decide upon the recount application and then consolidate the result. Learned counsel argued that once the consolidation order is issued the Returning Officer cannot entertain any application for recounting of votes as per Rule 35(5) of the Punjab Local Government (Conduct of Elections) Rules, 2013 (“Rules”).

3. On the other hand, learned counsel for Respondents No. 5 and 6 argued that no case of fraud or misrepresentation has been made out. He stated that Respondents No. 5 and 6 moved application for recounting of votes well before beginning of the consolidation process and the Returning Officer failed to take notice of the application filed by Respondents No. 5 and 6. Hence they approached this Court in its constitutional jurisdiction for a simple direction on their application. Learned counsel argued that a direction was issued on 06.11.2015 in W.P.No. 34053/2015 whereafter the Returning Officer on 07.11.2015 rejected the application of Respondents No. 5 and 6. Learned counsel argued that the stated Respondents challenged the said order of rejection on the ground that at that time, the consolidation order had not been issued, hence the Returning Officer was obligated to decide their application.

4. Leaned DAG also supports the contention made by learned counsel for Respondents and supports the impugned order passed by learned Single Judge.

5. We have heard the learned counsel for the parties at length and gone through the available record. The order impugned dated 19.11.2015 before us has rejected the application of the Appellants filed under Section 12(2), CPC on the ground that no fraud or misrepresentation has been made out. The Appellants have also impugned the order of 17.11.2015 passed by learned Single Judge in WP No. 35350/2015 on the ground that the consolidation order could not have been set-aside simply on account of the fact that the application of Respondents No. 5 and 6 for recount of votes was pending. In this regard Rule 36(5) of the Rules provides that the Returning Officer may recount the valid ballot papers before consolidation of results if the Returning Officer is satisfied that the request or the challenge is reasonable. In terms of this Rule there is no obligation on the Returning Officer to decide every single application for recount that is placed before him. In the first instance, the Returning Officer must satisfy himself that the request for recount or the challenge is reasonable, whereafter he can order for recounting of the votes. As per Rule 36(5) of the Rules this entire exercise must be done before consolidation of results. Once the result is consolidated, the Returning Officer cannot entertain any application for recounting of votes.

6. In this case, WP No. 35350/2015 was filed on 16.11.2015 challenging the consolidation order of 07.11.2015 and an order was issued on 17.11.2015 requiring the Returning Officer to decide upon application for recount after the consolidation order had been issued on 07.11.2015. The record shows that it took Respondents No. 5 and 6 ten days to file the writ petition challenging the order of 07.11.2015. Given that the consolidation order had already been issued there was no justification to interfere as the Rules prohibit recount after consolidation of results. As we understand, the spirit of the law is that the entire election process should be concluded before the challenges to the election process begin. The pendency of an application for recount does not affect the consolidation of results and the consolidation order cannot be set aside on account of the pendency of the application. This is because Rule 36 (5) of the Rules is clear that the Returning Officer may entertain an application for recount. In this context, it was argued that if the Returning Officer does not entertain the application, then the applicant left without a remedy and will not be able to challenge the result. We have considered this argument as well and find that it is also without any merit. As per the Rules, after consolidation of the result, the election result is declared under Section 37 of the Punjab Local Government Act, 2013 (“Act”) read with Rule 38 of the Rules and in terms thereof the Election Commission publishes the results in the Official Gazette. Once the name of the returned candidate is published in the Official Gazette, an election petition can be filed under Sections 38 of the Act read with Rule 62 of the Rules before the Election Tribunal. Section 38 and 39 of the Act provide that an election of a returned candidate can only be called into question through an election petition before an Election Tribunal. The grounds for declaring the election of a returned candidate as void are provided in Section 42 of the Act, which reads as follows:--

“42. Ground for declaring election or returned candidate void.--

(1) The Election Tribunal shall declare the election of the returned candidate to be void if it is satisfied that--

(a) the nomination of the returned candidate was invalid; or

(b) the returned candidate was not, on the nomination day, qualified for or was disqualified from, being elected as a member; or

(c) the election of the returned candidate has been procured or induced by any corrupt or illegal practice; or

(d) corrupt or illegal practice has been committed by the returned candidate or his election agent or by any other person with the connivance of the candidate or his election agent.

(2) The election of a retuned candidate shall not be declared void if the Election Tribunal is satisfied that any corrupt or illegal practice was committed without the consent or connivance of that candidate or his election agent and that the candidate and the election agent took all reasonable precaution to prevent its commission.”

Section 44 of the Act provides the ground on which the entire election can he declared void, which reads as under:--

1. Ground for declaring elections as a whole void.

The Election Tribunal shall declare the election as a whole to be void if it is satisfied that the result of the election has been materially affected by reasons of--

(a) the failure of any person to comply with the provisions of this Act or the rules; or

(b) the prevalence of extensive corrupt or illegal practice at the election.

Therefore, the spirit of the Act is that the election process should be completed whereafter the declared result can be challenged on several grounds including the ground that the provisions of the Act or the Rules were not complied with.

1. We also noted that corrupt practice, bribery, undue influence, illegal practice, tampering and conduct of officials can also be tried under Section 60 of the Act meaning thereby that allegations of abuse of power can also be raised by way of a complaint under the Act. In the case cited at Muhammad Aslam Baro v. Sardar Muhammad Muqeen Khosa and others (2013 SCMR 1676) it was held that the High Court can issue a direction for deciding applications because a direction does not disenfranchise the petitioner and the bar under Article 225 of the Constitution of Islamic Republic of Pakistan, 1973 (“Constitution”) would not be applicable. In the case cited at Syed Nayyar Hussain Bukhari v. District Returning Officer, NA-49 Islamabad and other (PLD 2008 SC 487) it was held that in election matters the High Court can interfere if no remedy is available to the petitioner. In the case before us remedy is available to the Appellants, however they seek interference before availing that remedy. Learned Single Judge set aside the consolidation order simply because the Returning Officer had not decided the application for recount of votes. The learned Single Judge issued a direction on 06.11.2015 to decide the application if the consolidation of result has already not taken place. When the matter came up again before him on 17.1 1.2015 he set aside the consolidation order because the recount order was not a speaking order, and the Appellants were not heard. We are of the opinion that irrespective of whether the Returning Officer's order was a speaking order or not, any decision on the application was subject to consolidated results. Once the consolidation of results was announced, the Appellants have to wait for the results to be published in the Official Gazelle. Thereafter they have remedy available to them to

challenge the result or the process, as the case may be, before the Election Tribunal. All illegalities and irregularities committed by the Returning Officer, as alleged by the Respondents, can be decided after the declaration of results in an election petition. Therefore, to our minds interference in the election process only slows down or delays the declaration of results especially when the Act read with Rules enables the process as well as the results to be challenged by way of an election petition. It was also argued that the remedy of appeal is not available as the Election Tribunals have not been established. The learned DAG stated that as per practice and procedure once the results are declared the Election Tribunals will be notified. We note that the remedy of appeal is provided in the Act therefore, to require it to be available at this stage is premature since an election petition can only be filed once the result is declared in the Official Gazette.

1. Under the circumstances, the appeal is accepted and the orders dated 19.11.2015 and 17.11.2015 passed by learned Single Judge are set-aside and the order dated 07.11.2015 passed by Returning Officer U.C 198 Shadman, Lahore is maintained.

(R.A.) Appeal accepted

PLJ 2016 Lahore 361 (DB) [Bahawalpur Bench Bahawalpur]

Present: James Joseph and Khalid Mahmood Malik, JJ.

HafizMUHAMMAD IDRESS KHAN and 3 others--Appellants

versus

CHANCELLOR ISLAMIA UNIVERSITY OF BAHAWALPUR, GOVERNOR PUNJAB, LAHORE and 4 others--Respondents

I.C.A. No. 109 of 2015 in W.P. No. 6548 of 2015, decided on 14.12.2015.

Educational Institutions--

----Students were not allowed to appear in annual examination--Shortage of attendance--Appellants had failed to bring on record any reason through solid evidence to substantiate version regarding non appearance in lectures--Validity--Students of an educational institution, are under legal obligation to abide by all rules for maintaining discipline of institution--Right to seek admission in educational institution and to continue studies therein was always subject to rules of discipline prescribed by institution and student who intended to pursue his studies in institution was bound by such rules. [P. 363] A

Mr. Ahmad Mansoor Chishti, Advocate for Appellants.

Mr. Muhammad Nasir Joiya, Advocate for Respondents.

Date of hearing: 14.12.2015.

Order

Through this Intra Court Appeal filed under Section 3 of The Law Reforms (Amendment) Act VIII of 1972, the appellants have called in question order dated 02.09.2015, delivered by learned Single Judge in Chamber whereby he dismissed the constitutional petition (W.P No. 6548/2015).

1. Brief facts for the disposal of this intra Court appeal are that appellants are students of Bachelor of Eastern Medicine & Surgery in different Sessions. They were not allowed to appear in the Annual examination commencing on 24.08.2015 due to shortage of their attendance in the lectures which was 70% to 72% and required attendance was 80%. The main stance of the appellants was that (i) aforementioned condition was not communicated to the appellants at relevant time, (ii) the students having 70 to 74.4% attendance have been allowed by university authorities to appear in the examination and thus they have been discriminated, (iii) that previously 70% attendance was required and under the said impression the appellants have achieved the target attendance but suddenly the university authorities have increased the attendance requirement 70% to 80% without any prior notice or intimation to the students. (iv) that the appellants approached university authorities for redressal of their grievance but they flatly refused.

2. Arguments pro and contra have been heard and record perused.

3. It is reflected from perusal of record that during pendency of writ petition report and parawise comments were called from the respondents. Para-2 of preliminary objections is relevant which is reproduced hereunder:--

“A candidate with an attendance of less then 80% of the total number of lectures delivered to his class in all papers taken together (aggregate) and 80% of the practical in all papers taken together (aggregate) shall not be allowed to take previous or final examination as the case may be, provided that the Dean, may, on recommendation of the Chairman of the Department concerned, condone, for valid reasons, (i) Illness

(ii) Death in family

(iii) Representing the University in sports and debates etc

Deficiency up to 5% of the total number of lectures and practical (separately) delivered to his class. Besides, the Vice-Chancellor may, on special grounds condone up to another 5% of the total number of lectures and practical taken separately.”

1. In view the above criteria, case of appellant Hafiz Muhammad Idrees Khan was examined, his participation and in attendance in festival of Ideas from 9.2.2015 to 12.2.2015 (4-days) and attendance in festival of Ideas from 4.12.2014 to 8.12.2014 (5-days), the Departmental condonation committee, vide Letter No. 615/UCCM dated 20.10.2015 after going through application and attached documents decided that if condonation of 9-days is given to him even then he does not meet the required standard of attendance for appearing in examination i.e. 80%. The attendance of appellants in the lectures was 70% to 72% and required attendance was 80%.

2. The appellants have failed to bring on record any reason through solid evidence to substantiate their version regarding, non appearance in the university lectures. The students of an educational institution, are under legal obligation to abide by all rules for maintaining discipline of the institution. Right to seek admission in an educational institution and to continue studies therein was always subject to the rules of discipline prescribed by the institution and a student who intended to pursue his studies in the institution was bound by such rules. Reliance in this respect is placed upon Ali Yousuf and another vs Chairman of Academic Council And Principal, DOW Medical College, Karachi and others (2000 SCMR 1222).

3. Keeping in view all the attending facts of the case and by relying the aforementioned case of Apex Court, learned Single Judge in Chamber has passed the impugned order, which does not suffer from any illegality or jurisdictional defect. Even otherwise, the controversy of fact cannot be resolved in constitutional jurisdiction. The intra-Court appeal being devoid of merits is hereby dismissed.

(R.A.) I.C.A. dismissed

PLJ 2016 Lahore 364[Bahawalpur Bench Bahawalpur]

Present: Sadaqat Ali khan, J.

MUHAMMAD ANWAR SIDDIQUI--Petitioner

versus

Mst. NOOR ELLAHI, etc.--Respondents

C.R. No. 50 of 2008/BWP, heard on 8.9.2015.

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

----O. XVII, R. 3--Right to produce evidence was closed--Failed to produce evidence despite availing opportunities--Additional evidence--Validity--Petitioner cannot re-open matter by filing application to produce additional evidence which had already been decided by Courts below, by closing right to produce evidence under Order XVII Rule 3, CPC--Courts below had rightly dismissed application of petitioner to produce additional evidence through impugned orders--Petition was dismissed. [P. 365] A

Mr. Muhammad Atif Saleem Qureshi, Advocate for Petitioner.

Date of hearing: 8.9.2015.

Judgment

The instant Civil Revision No. 50 of 2008 has been filed by the present petitioner/plaintiff against the order dated 29.11.2007 passed by the learned Additional District Judge, Bahawalpur, according to which appeal of the present petitioner was dismissed filed by him against the order dated 25.01.2007 passed by the learned Civil Judge, Bahawalpur, according to which application of the present petitioner to produce the additional evidence was dismissed.

1. The brief facts of the case are that present petitioner being plaintiff on 05.01.1993 filed suit for specific performance regarding suit land, whose details are mentioned in the head-note of the plaint. Present respondents submitted their written statements and out of divergent pleadings of the parties, learned trial Court framed issues on 27.07.1997. The right of the present petitioner to produce evidence was closed under Order XVII Rule 3, CPC by the learned trial Court on 19.09.2005. Thereafter, on 11.12.2006, present petitioner moved an application to produce additional evidence before the learned trial Court which was dismissed by the learned trial Court vide order dated 25.01.2007. Appeal filed by the present petitioner was also dismissed by the lower appellate Court vide order dated 29.11.2007. Hence this civil revision.

2. Learned counsel for the petitioner submitted that impugned orders of both the Courts below are against law and facts on the file and are liable to be set-aside. It is further submitted that both the Courts below have committed illegality while dismissing the application of the present petitioner.

3. I have heard learned counsel for the petitioner and perused the record, whereas no one is present from the side of the respondents.

4. The present petitioner being plaintiff filed suit for specific performance on 05.01.1993. Issues were framed on 27.07.1997 but present petitioner was failed to produce his evidence despite availing many opportunities and his right to produce evidence was closed by the learned trial Court under Order XVII Rule 3, CPC vide order dated 19.09.2005. Civil Revision filed by the present petitioner was also dismissed by the learned Additional District Judge, Bahawalpur vide order dated 06.11.2006 and the above mentioned orders have attained finality. Thereafter, present petitioner on 11.12.2006 filed application to produce the additional evidence which was dismissed by the Courts below through the impugned orders. The present petitioner cannot re-open the matter by filing application to produce additional evidence which has already been decided by the Courts below through the orders dated 19.09.2005 and 06.11.2006, mentioned above, by closing the right to produce evidence under Order XVII Rule 3, CPC. Both the Courts below have rightly dismissed the application of the present petitioner to produce additional evidence through the impugned orders.

5. Learned counsel for the petitioner could not point out any illegality in the impugned orders. This civil revision has no merits and is hereby dismissed.

(R.A.) Revision dismissed

PLJ 2016 Lahore 365[Multan Bench Multan]

Present: Shahid Mubeen, J.

Mst. BASHIRAN BIBI--Petitioner

versus

ADJ, etc.--Respondents

W.P. No. 3646 of 2009, decided on 17.9.2015.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Suit for recovery of dowry article, dismissal of--Dowry article was proved through evidence--List of dowry article was not exhibited--Validity--Statement of witnesses--Dowry articles were received back in presence of witnesses as petitioner do not want to live with husband hence, dowry articles were taken back through panchayat as well as relatives--Iqrar nama bears his thumb impression--No illegality with material irregularity in impugned judgment and decree--Petitioner had failed to point out any jurisdictional error and illegality in impugned judgment and decree passed by appellate Court--Petition was dismissed.

[P. 367] A, B & C

Mr. Tariq Muhammad Iqbal Chaudhry, Advocate for Petitioner.

Ch. Saleem Akhtar Warraich, Advocate for Respondent No. 2.

Date of hearing: 17.9.2015.

Order

Through the instant writ petition, the petitioner has called in question the legality and validity of impugned judgment and decree dated 09.04.2009 passed by learned Additional District judge, chichawatni.

1. Briefly the facts of the case are that petitioner instituted a suit for recovery of dowry articles of alternative Rs. 2,40,000/-. The suit was resisted by Respondent No. 2 by filing written statement. The controversy led to the framing of following issues:--

(i) Whether the plaintiff is entitled for recovery of dowry Articles as per list annexed with the plaint or alternative Rs. 2,40,000/- as prayed for? OPP

(ii) Whether the Court lacks jurisdiction to try this suit and suit to the extent of Defendant No. 2 is triable by the Civil Court Tandlianwala? OPP

(iii) Whether the plaintiff has no cause of action? OPD

(iv) Whether the suit is false, frivolous and defendant is entitled for compensatory costs under Section 35-A of C.P.C.? OPD

(v) Relief.

1. The parties led their evidence pro and contra to prove their respective contentions. The suit of the petitioner was partially decreed to the extent of Rs. 1,00,000/- in lieu of dowry articles. Respondent No. 2 filed appeal which was accepted vide impugned judgment and decree dated 09.04.2009 and the suit of the petitioner for recovery of dowry articles was dismissed.

2. It is contended by learned counsel for the petitioner that she proved dowry articles through her evidence. The judgment and decree of the appellate Courts suffers from misreading and non-reading of evidence available on the record. On the other hand, learned counsel for Respondent No. 2 supported the impugned judgment and decree passed by the appellate Court.

3. Heard. Record perused.

4. It is pertinent to mention here that petitioner while appearing as PW-1 in her examination-in-chief has not exhibited the list of dowry articles. Even otherwise lis of dowry articles has not been got exhibited in the statement of any of the witnesses. In her examination-in-chief she has not specifically mentioned the dowry articles which were given to her at the time of marriage. Statement of DW-2 Mamand who is real brother of the petitioner is of great importance. He stated in his examination-in-chief that few articles of dowry were given to the petitioner. The dowry articles given to the petitioner were received back in presence of the witnesses as petitioner do not want to live with Respondent No. 2 hence, dowry articles were taken back through Panchayat as well as relatives. In this regard Iqrar Nama Exh. D/2 was written. He stated that Iqrar Nama bears his thumb-impression as Exh. D/2/1. Nothing could be brought out in lengthy cross-examination conducted on DW-2. The finding of the learned appellate Court is in accordance with the evidence available on record and there is no illegality with material irregularity in the impugned judgment and decree. Learned counsel for the petitioner has failed to point out any misreading and non-reading of evidence available on the record. Even in case of judgments at variance the view of the appellate Court shall prevail. Learned counsel for the petitioner has failed to point out any jurisdictional error and illegality in the impugned judgment and decree passed by the appellate Court.

5. Sequel to above discussion, this writ petition having no force is dismissed leaving the parties to bear their own costs.

(R.A.) Petition dismissed

PLJ 2016 Lahore 368 (DB)

Present: Mahmood Ahmad Bhatti and Ch. Muhammad Iqbal, JJ.

ABDUL RAZZAQ--Petitioner

versus

STATE and 2 others--Respondents

W.P. No. 2559 of 2015, heard on 30.3.2015.

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

----S. 540--Constitution of Pakistan, 1973, Art. 199--Additional evidence--Investigation--Application to summon call detail report--Accused did not take any plea at initial stage--Court cannot summarily dismiss an application for additional evidence in terms of Section 540, Cr.P.C. by merely holding that either witness was not mentioned in challan or that it was belated application or that it may fill-up lacunas, unless totality of material placed before it is considered to find out whether examination of witness is essential for a just decision of case. [P. 374] A

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

----S. 540--Investigation is defective--Summon as witness or recall and re-examine--Court even without any formal application from prosecution or accused, can summon any person as witness or examine any person in attendance though not summoned as a witness or recall and re-examine any person already examined.

[P. 375] B

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

----S. 540--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Application to summon CDR--Delay--Mere delay in moving an application under Section 540, Cr.P.C. is not a valid ground in eyes of law to reject it--They might be re-summoned and re-examined by prosecution so as to provide them an adequate opportunity to explain their conduct and point of view with regard to C.D.R.--Such a course would strike a balance between prosecution and defence--Raisin deter of Courts is to dispense justice and strive hard to get to truth rather than rushing through trials/cases. [P. 377] C & D

Mr. Mushtaq Ahmad Tanveer, Advocate for Petitioner.

Malik Muhammad Bashir Lakhesir, Assistant Advocate General for Respondents Nos.1 & 2.

Malik Muhammad Iftikhar, Advocate for Respondent No. 3.

Date of hearing: 30.3.2015

Judgment

Mahmood Ahmed Bhatti, J.--Through this writ petition, Abdul Razzaq, the petitioner has assailed the validity of the order dated 18.2.2015 passed by the learned Judge Anti-Terrorism Court, Dera Ghazi Khan, whereby an application moved by the petitioner under Section 540, Cr.P.C. to summon Call Detail Report (C.D.R.) of Zafar Iqbal, Altaf Hussain, Muhammad Riaz Hussain and Naseebullah, P.Ws was turned down.

1. The facts necessary for the disposal of this petition are that the petitioner is indicted for abduction and murder of Muhammad Umar aged 06, son of Altaf Hussain, the complainant. As per the F.I.R., the deceased minor disappeared on 24.11.2013 from outside his house. The complainant along with Muhammad Aslam and Muhammad Naseer set out to search the missing child but they could not find any clue. At long last, four days after the disappearance of the child, case F.I.R. No. 616/2013 was lodged under Section 363, PPC at Police Station Chowk Azam, District Layyah against unknown accused. Subsequently, Sections 365-A and 302, PPC were added. The petitioner was implicated in the case through a supplementary statement, made by Altaf Hussain (P.W.1). Be that as it may, the petitioner was charged with the offences of abduction and murder of Muhammad Umar, the minor. The prosecution produced Altaf Hussain (P.W.1), Zafar Iqbal (P.W.2), Muhammad Riaz Hussain (P.W.3) and Muhammad Naseer (P.W.4). Inam-ul-Haq ASI/In charge Crime Scene, DPO Office Layyah was also examined as P.W.12, who made a detailed statement about the C.D.R. He also produced 27 pages of C.D.R. as Exh.P.6/1 to 27. Since the petitioner’s side has annexed the copies of the testimonies of only 4/5 witnesses, we have no other details about the other witnesses examined by the prosecution. Even otherwise, their evidence does not appear to have a bearing on the outcome of the controversy in issue. Before the aforesaid witnesses could be subjected to cross-examination, the defence moved an application on 16.2.2015 under Section 540, Cr.P.C. to summon the C.D.R. of Zafar Iqbal, Altaf Hussain, Muhammad Riaz Hussain and Naseebullah P.Ws. However, it was dismissed by the learned trial Court vide order dated 18.2.2015, observing that the Call Data/Detail Record was not put to P.Ws and that it was too late to summon the same for the benefit of the defence. It was also observed that the accused did not take any plea at the initial stage with reference to C.D.R. Another reason which prevailed with the learned trial Court to reject the application of the petitioner was that the case of the prosecution might be prejudiced by summoning the C.D.R., as prayed by the accused/petitioner.

2. In support of this petition, the learned counsel for the petitioner has reiterated the grounds urged in the writ petition. It is stressed by him that the reasons which weighed with the learned trial Court are not contemplated by the provisions of Section 540, Cr.P.C. It is argued by him that any witness or document might be summoned at any stage of the proceedings. According to him, it must be summoned by the Court when the relevant record is found essential for the just decision of the case. To reinforce his submissions, he has placed reliance upon the case reported as “Ansar Mahmood v. Abdul Khaliq” (2011 SCMR 713).

3. On the other hand, the learned counsel for Respondent No. 3/the complainant has supported the impugned order. He puts forth the argument that the C.D.R. sought to be summoned by the petitioner is irrelevant and the sole purpose of the petitioner in moving the application under Section 540, Cr.P.C. is to drag on the proceedings and to sidetrack the proceedings. Guriously enough, the learned Assistant Advocate General appearing for the State did not support the impugned order. It was fairly conceded by him that under the provisions of Section 540, Cr.P.C., the learned trial Court cannot evade the onerous responsibility to summon any witnesses or record from anywhere provided the same is essential to the just decision of the case. He was candid enough to state that the delay in moving an application under Section 540, Cr.P.C. is by itself no ground to dismiss the same.

4. We have heard the learned counsel for the petitioner, the complainant and the learned Law Officer, besides perusing the record annexed to the writ petition with their assistance.

5. Without commenting upon the evidence produced by the prosecution, suffice it to say that the case of the prosecution rests to a large extent upon Call Detail Record. Allegedly, the complainant received calls on his Cell Phone, demanding a ransom of Rs. 20,00,000/- for the return of the child, who had gone missing. Likewise, Zafar Iqbal (P.W.2) made a deposition regarding his mobile phone (Exh.P.1) and SIM No. 344-3687306 (Exh.P.2). In the same way, Inam-ul-Haq, P.W.12, who was posted as ASI/In charge Crime Scene, DPO Office Layyah in 2013 testified on oath about C.D.R. consisting of 27 pages, which were exhibited as Exh.P.6/1 to 27. When the prosecution has employed the modern device and adopted sophisticated technique to connect the petitioner with the commission of the offence, the petitioner has got every right to prove himself innocent by making use of the very same C.D.R. It goes without saying that the dispensation of justice is to be even-handed and under no circumstances should it be allowed to be tipped in favour of one party at the cost of the other.

6. The provisions of Section 540, Cr.P.C. have repeatedly engaged the attention of the Hon’ble Supreme Court of Pakistan. It would be advantageous to make reference to a few celebrated cases reported as “Muhammad Azam v. Muhammad Iqbal” (PLD 1984 S.C. 72), “Maulvi Hazoor Bakhsh v. The State” (PLD 1985 S.C. 233), “The State v. Muhammad Yaqoob” (2001 SCMR 308) and “Imran Ashraf and 7 others v. The State” (2001 SCMR 424).

7. In the case of “Muhammad Azam v. Muhammad Iqbal” (PLD 1984 S.C. 72), the Hon’ble Supreme Court elaborated the provisions of Section 540, Cr.P.C. as under:

“It needs to be observed that for purpose of acting under Section 540, Cr.P.C. (whether the first or second part), it is permissible to look into the material not formally admitted in evidence, whether it is available in the records of the judicial file or in the police file or elsewhere. The perusal of both these records would show that if evidence, in connection with the items already noticed, would have been properly entertained the reasoning and decision of the learned two Courts might have been different.

Sometimes apprehension is expressed that any action by the trial Court under Section 540, Criminal Procedure Code would amount to filling the gaps and omissions in the version or evidence of one or the other party. It may straightway be observed that in so far as the second part of Section 540 goes, it does not admit any such qualification. Instead, even if the action thereunder is of the type mentioned, the Court shall act in accordance with the dictates of the law. In fact the Court has no discretion in this behalf. It is obligatory on it to admit evidence thereunder if it is essential for the just decision of the case. It was held in Syed Ali Nawaz Gardezi v. Lt. Col. Muhammad Yusuf (PLD 1963 SC 51) that even if a witness who is ultimately to be produced by the accused in his defence is examined by the trial Court as a Court- witness at an earlier stage than notwithstanding the fact that the defence would have an extra advantage of putting leading questions to the witness when standing in the witness-box as a Court-witness, it would not affect the power of the Court (under Section 540, Cr.P.C.) to summon and examine the witness if, of course, as was observed in that case, it was in the interest of justice and thus presumably essential for the just decision of the case. Again in The State v. Maulvi Muhammad Jamil and others (PLD 1965 SC 681) when examining the effect of change in the criminal procedure, regarding right to further cross-examination, during the transitional period, this Court held that even though it would be for the benefit of the defence, the trial Court could avoid any prejudice to the defence by acting under Section 540, Cr.P.C. After holding so a very weighty observation was made which needs to be reproduced:

This section empowers a Court at any stage of inquiry, trial or any other proceeding under the Code, to summon any person as witness, or recall and re-examine any person already examined, and it is obligatory for the Court to summon and examine or recall and re-examine any such person, if his evidence appears to it essential for the just decision of the case.” (emphasis added)

1. In the case of “The State v. Muhammad Yaqoob” (2001 SCMR 308), the law on the subject was reiterated in the following words:

“It is thus manifest that calling of additional evidence is not always conditioned on the defence or prosecution making application for this purpose but it is the duty of the Court to do complete justice between the parties and the carelessness or ignorance of one party or the other or the delay that may result in the conclusion of the case should not be a hindrance in achieving that object. It is salutary principle of judicial proceedings in criminal cases to find out the truth and to arrive at a correct conclusion and to see that an innocent person is not punished merely because of certain technical omission on his part or on the part of the Court. It is correct that every criminal case has its own facts and, therefore, no hard and fast rule or criteria for general application can be laid down in this respect but if on the facts of a particular case it appears essential to the Court that additional evidence is necessary for just decision of the case then under second part of Section 540, Cr.P.C. it is obligatory on the Court to examine such a witness ignoring technical/formal objection in this respect as to do justice and to avoid miscarriage of justice.” (emphasis added)

1. In the case of “Imran Ashraf and 7 others v. The State” (2001 SCMR 424), the law laid down in the case of Rasheed Ahmad v. The State (PLD 1971 S.C. 709) was cited with approval as under:--

“In yet another case Rashid Ahmad v. The State (PLD 1971 SC 709), this Court made it more clear that ‘a Criminal Court is fully within the rights in receiving fresh evidence even after both the sides have closed their evidence and the case, is adjourned for judgment, for till then the case is still pending. The only question therefore, is as to whether in the interest of fairness further opportunity should have been given to the accused’ and, it was held that ‘there is no bar to the taking of additional evidence in the interest of justice, at any stage of inquiry or trial as provided by the provisions of Section 540, Cr.P.C.’. In these cases if the question regarding so-called filling of the gaps would have been raised more squarely, the answer in view of what has been noticed above would have been the same as already rendered; namely, that if it is essential for the just decision of the case, then the same is the command of the law under the second part of Section 540, Cr.P.C. it would not be possible to canvass that when the action under the said provision amounted to so-called filling of a gap, the Court would for this reason, avoid its duty to admit the additional evidence. Two more decisions by this Court as illustrative of the practice, may also be noted. They are: Bashir Ahmad v. The State and another (1975 SCMR 171) and Yasin alias Cheema and another v. The State (1980 SCMR 575).”

10-A. In the latest pronouncement on the subject, reported as “Nawabzada Shah Zain Bugti and others v. The State” (PLD 2013 Supreme Court 160), the Apex Court observed as under:

“8. A close reading of afore-mentioned provision indicates that it gives rather wide powers to the Court to examine any witness as a Court witness at any stage of the case. It enables the Court rather in certain situations imposes a duty on it to summon witnesses who could not otherwise be brought before the Court. The section consists of two parts: one giving discretionary power to the Court and the other imposing an obligation on it. In Jamatraj Kewalfi Govani v. State of Maharashtra (AIR 1968 SC 178), the Court was seized of a similar issue when it held as follows:--

“(10) Section 540 is intended to be wide as the repeated use of the word 'any' throughout its length clearly indicates. The section is in two parts. The first part gives a discretionary power but the latter part is mandatory. The use of the word 'may' in the first part and of the word 'shall' in the second firmly establishes this difference. Under the first part, which is permissive, the Court may act in one of the three ways: (a) summon any person as a witness, (b) examine any person present in Court although not summoned, and (c) recall or re-examine a witness already examined. The second part is obligatory and compels the Court to act in these three ways or any one of them, if the just decision of the case demands it. As the section stands there is no limitation on the power of the Court arising from the stage to which the trial may have reached, provided the Court is bona fide of the opinion that for the just decision of the case, the step must be taken. It is clear that the requirement of just decision of the case does not limit the action to something in the interest of the accused only. The action may equally benefit the prosecution. There are, however, two aspects of the matter which must be distinctly kept apart. The first is that the prosecution cannot be allowed to rebut the defence evidence unless the prisoner brings forward something suddenly and unexpectedly.”

10-B. The Court cannot summarily dismiss an application for additional evidence in terms of Section 540, Cr.P.C. by merely holding that either the said witness was not mentioned in the challan or that it was belated application or that it may fill up lacunas in prosecution case, unless the totality of material placed before it is considered to find out whether examination of the said witness is essential for a just decision of the case. While dilating on the purpose of an analogous provision in Indian Criminal Procedure Code (Section 311), the Supreme Court of India in Iddar and orders v. Aabida and another (AIR 2007 SC 3029) observed as follows:--

“The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the Court to summon a witness under the Section merely because the evidence supports the case for the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trial under the Code and empowers Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is “at any stage of inquiry or trial or other proceeding under this Code”. It is, however, to be borne in mind that whereas the section confers a very wide power on the Court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind.”

10-C. The Court has also to keep in mind that in trying a case it has to find out the truth to render a judgment in accord with canons of justice. If it finds that the investigation is defective, it cannot just sit idle as a timorous soul and has to exercise all the enabling provisions under the law including Section 540, Cr.P.C. to discern the truth. For the purpose of this provision, the Court even without any formal application from prosecution or accused, can summon any person as witness or examine any person in attendance though not summoned as a witness or recall and re-examine any person already examined. In Ansar Mehmood v. Abdul Khaliq (2011 SCMR 713), the judgment of the High Court was reversed and that of the trial Court restored which had allowed examination of additional evidence in terms of Section 540, Cr.P.C. While doing so, the Court commented on the ambit of this provision in terms as follows:--

“5. Bare reading of Section 540, Cr.P.C. transpires that where an evidence is essential for just decision of the case, it is obligatory upon the Court to allow its production and examination. Examining the law on the subject, reference can be had to Muhammad Murad Abro v. The State through A.G. Balochistan (2004 SCMR 966), wherein it was held that provision of Section 540, Cr.P.C., is to enable the Court to go at the truth of the matter, so as to come to a proper conclusion. In the case under trial, it is obligatory to summon a person whose evidence is essential for just decision of the case. Similar view was taken in Painda Gul and another v. The State and another (1987 SCMR 886), with addition that the Court has widest powers under Section 540, Cr.P. C. and can summon a witness for examination at any stage of the case. However, while exercising discretion it must guard itself against the exploitation of this power by a litigant party and keep in view the guiding principle, what the ends of justice demand. Cases titled as Dildar v. State through Pakistan Narcotics Board, Quetta (PLD 2001 Supreme Court 384) and the State v. Muhammad Yaqoob(2001 SCMR 308), lay down guide. Observations made in 2001 SCMR 308, are quoted:--

“It is thus manifest that calling of additional evidence is not always conditioned on the defence or prosecution making application for this purpose but it is the duty of the Court to do complete justice between the parties and the carelessness or ignorance of one party or the other or the delay that may result in the conclusion of the case should not be a hindrance in achieving that object. It is salutary principle of judicial proceedings in criminal cases to find out the truth and to arrive at a correct conclusion and to see that an innocent person is not punished merely because of certain technical omission on his part or on the part of the Court. It is correct that every criminal case has its own facts and, therefore, no hard and fast rule criteria for general application can be laid down in this respect but if on the facts of a particular case it appears essential to the Court that additional evidence is necessary for just decision of the case then under second part of the Section 540, Cr.P.C., it is obligatory on the Court to examine such a witness ignoring technical/formal objection in this respect as to do justice and to avoid miscarriage of justice.”

1. In Shahbaz Masih v. The State (2007 SCMR 1631), a similar view was reiterated by the Court and it was held as under:

2. Court enjoys full, powers to summon and, examine any person as a witness at any stage of trial; rather it is imperative for the Court within terms of Section 540, Cr.P.C. to summon and examine a person when evidence of such person appears to the Court essential to do the just decision of the case. Also, the Court can examine any person in attendance though not called as a witness. The underlying object, always, is to reach truth…...”

3. The Hon’ble Federal Shariat Court formulated its opinion on the provisions of Section 540, Cr.P.C. in the case reported as “Muhammad Shafi alias Sakhi Muhammad v. The State and another” (2012 YLR 2302) as under:

“It is an established principle of law that provisions of Section 540, Cr.P.C. in examining, recalling, or summoning any witness were incorporated to confer jurisdiction on the Court to arrive at the truth in accordance with law and technicalities should not be allowed to interfere with that function. A learned Division Bench of the Peshawar High Court in the case of Maqbool v. The State 2006 P.Cr.L.J. 110 held “Provisions contained in Section 540, Cr.P.C. in examining, recalling or summoning any witness are wide enough to give free hand to a Court of law to see that the justice does not slip out of hand or is defeated on the technicalities of law.”

1. Apart from the provisions of Section 540, Cr.P.C., Section 94 Criminal Procedure Code, 1898 is also relevant in the context of this case. It would be expedient to reproduce sub-section (1) thereof, which reads as under:--

“94. Summons to produce document or other thing. (1) Whenever any Court, or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officers a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order:”

1. From the case law cited above, it is abundantly clear that the mere delay in moving an application under Section 540, Cr.P.C. is not a valid ground in the eyes of law to reject it. As for the apprehension of the learned trial Court that some of the Call Detail Record relates to those witnesses who have already been examined and not confronted with the same, suffice it to observe that they might be re-summoned and re-examined by the prosecution so as to provide them an adequate opportunity to explain their conduct and point of view with regard to the C.D.R. in question. Such a course followed by the learned trial Court would strike a balance between the prosecution and the defence. Needless to say, that the raison detre of the Courts is to dispense justice and strive hard to get to the truth rather than rushing through the trials/cases.

2. For what has been stated above, this petition is allowed by setting aside the order dated 18.2.2015 passed by the learned Judge Anti-Terrorism Court, Dera Ghazi Khan. Consequently, the application moved by the petitioner under Section 540, Cr.P.C. before the learned trial Court is accepted, with the result that the Call Detail Record (C.D.R) requisitioned by the petitioner shall be duly sent for and brought on the record in accordance with the law.

(R.A.) Petition allowed

PLJ 2016 Lahore 378 (DB)

Present: Muhammad Anwaar-ul-Haq and Mrs. Erum Sajad Gull, JJ.

MAQBOOL HUSSAIN alias JAMALA DOGAR--Applicant

versus

FEDERATION OF PAKISTAN--Respondent

Review Application 76 of 2015, decided on 20.8.2015.

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

----S. 114 & O. XLVII, R. 1--Scope--Review--Correction its own mistake or error to prevent injustice--Main objective of review under Section 114 r/w Order XLVII of CPC is to enable Court to correct its own mistake or error to prevent injustice--But no such substantial mistake or error in judgment could be pointed out by counsel--Review power was only to be exercised on account of some mistake or error apparent on face of record but under garb of a review proceedings re-hearing of a decided case is not warranted--It cannot be permitted to convert a review petition into an appeal--Petitioner was attempting to re-open and re-argue case afresh, which course of action was not permissible while hearing review application--Consequently, no case for review was made out and petition being misconceived and devoid of any merit was accordingly dismissed.

[Pp. 379 & 380] A, C & D

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

----O. XLVII, R. 1--Scope of--Review--Review has a very limited scope and is permissible and maintainable if conditions in Rule 1 of Order XLVII of CPC were fulfilled and not otherwise [P. 379] B

Mr. A.K. Dogar, Advocate for Applicant.

Date of hearing: 20.8.2015

Order

Petitioner seeks review of this Court’s order dated 12.8.2015 through which Writ Petition 19907 of 2015 was dismissed by this Court.

1. In addition to the grievances being voiced through the captioned Review Application the counsel for the petitioner argued that there were actually three points on which this Review Petition revolves which are:--

(i) The petitioner was not afforded a proper hearing, and the case law referred by him were not cited nor discussed in the impugned judgment, by the learned Division Bench of this Court.

(ii) That the order was forthwith announced in the open Court, therefore, on this ground the petitioner has a right to request the Court for a re-hearing of the matter as the order orally pronounced was not a valid order in the eye of law. Reliance was placed on 1997 SCMR 209.

(iii) That every accused under Article 10-A of the Constitution has a fundamental right to be represented through a counsel, even immediately after his arrest and at investigation stage, but this point has not been touched in the impugned order under review, and the learned Division Bench of this Court emphasized on the point of right of giving an opportunity for representation only to the extent of the trial against the accused.

1. Referring to the Civil Miscellaneous No. 6390 of 2015 filed with the review petition, the counsel for the petitioner contended that the petitioner having no legs cannot be hanged in terms of the relevant Pakistan Prison Rules 1978.

2. Heard. Record perused.

3. We have carefully read through the Judgment impugned. The learned counsel was unable to point out any infirmity or perversity in the said Judgment. The points raised by him have been discussed in the impugned Judgment elaborately. The main objective of Review under Section 114 read with Order XLVII of the Civil Procedure Code is to enable the Court to correct its own mistake or error to prevent injustice. But no such substantial mistake or error in the judgment could be pointed out by the Counsel. Review has a very limited scope and is permissible and maintainable if conditions in Rule 1 of Order XLVII of the Civil Procedure Code were fulfilled and not otherwise. Review power was only to be exercised on account of some mistake or error apparent on the face of the record but under the garb of a Review proceedings re-hearing of a decided case is not warranted, where full opportunity of hearing was given to all the parties. It cannot be permitted to convert a Review Petition in to an appeal. The Supreme Court of Pakistan has held in 2010 SCMR 1036 ‘Mehmood Hussain Lark and others versus Muslim Commercial Bank Limited and others’ that “incorrectness of a conclusion arrived at after a conscious perusal of record and in depth examination of evidence cannot be made a ground for review because to permit a review on the ground of incorrectness would amount to granting the Court jurisdiction of re-hearing appeals against its own judgment”.

4. All factual and legal grounds available to the petitioner raised by the learned counsel, were duly considered, and dealt with, learned counsel for the petitioner is attempting to re-open and re-argue the case afresh, which course of action is not permissible while hearing the Review Application. Consequently, no case for review is made out and this petition being misconceived and devoid of any merit is accordingly dismissed. And upon dismissal of the captioned Review Application, Civil Miscellaneous No. 6390 of 2015 automatically stands dismissed.

(R.A.) Petition dismissed

PLJ 2016 Lahore 380 (DB) [Bahawalpur Bench Bahawalpur]

Present: James Joseph and Farrukh Gulzar Awan, JJ.

VICE CHANCELLOR ISLAMIA UNIVERSITY BAHAWALPUR and 3 others--Appellants

versus

TANVEER MANZOOR and 16 others--Respondents

Intra Court Appeal No. 85 of 2015/BWP in W.P. No. 5964 of 2015, decided on 13.8.2015.

Law Reforms Ordinance, 1972 (XII of 1972)--

----S. 3(2)--Constitution of Pakistan, 1973, Art. 199--Educational institution--Right of appeal--Direction to issue roll number slip and permission was granted--Challenge to--Relaxation of attendance--Validity--It would be appropriate, if fair opportunity is provided to students to appear in examination conditionally and directed university to consider appeal of students while exercising parental jurisdiction in transparent manner but no order was passed on application/appeal--No such application/appeal was filed before respondent--Appellants had failed to point out any illegality or infirmity in impugned order passed by Single Judge which was in accordance with law, appeal is without any merit, same stands dismissed in limine. [P. 382] A, B & C

Mr. Muhammad Nasir Joiya, Advocate for Appellants.

M/s. Ch. Riaz Ahmad and Ahmad Mansoor Chishti, Advocate for Respondents No. 5.

Date of hearing: 13.8.2015.

Order

This Intra Court Appeal has been preferred under Section 3 of Law Reforms Ordinance, 1972 against the order dated 07.08.2015 passed by learned single Judge in Chamber whereby Writ Petition No. 5964 of 2015 filed by the respondents for issuance of direction to present appellants to issue roll number slips to the present respondents for Annual Examination, 2015 was disposed of.

1. Succinctly, the facts of the case are that the respondents filed writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 for seeking direction to issue roll number slips to the present respondents and grant them permission to appear in annual examination scheduled to be held in August, 2015. The learned Single Judge in Chamber while disposing of the writ petition observed as under:--

“In view of above, this Court is directed to Respondents No. 3 & 4 to issue roll number slips to the petitioners, provisionally/conditionally subject to the decision of appeal pending before Respondent No. 1 and allow the petitioners to appear in the forthcoming examination of Pharmacy Professional on 12.08.2015. “

1. The appellant-University being dissatisfied with the said order has file this Intra Court Appeal for setting-aside the impugned order dated 07.08.2015 passed by learned Single Judge in Chamber.

2. Learned counsel for the appellants has contended that the learned Single Judge in Chamber has erred in law while holding that the appeal of the respondents is pending before Chancellor but neither such appeal was filed by the respondents nor the same is pending before Appellant No. 1. Further contended that the learned Single Judge in Chamber ignored the material facts and also failed to consider relevant rules and regulations, which is illegal and not sustainable in the eyes of law and prayed for acceptance of instant Intra Court Appeal.

3. On the other hand learned counsel for respondents have strongly opposed this appeal and has contended that due to harsh attitude of the appellants, educational career of the respondents is at stake and prayed for rejection of Intra Court Appeal.

4. We have heard the arguments advanced by learned counsel for the parties and perused the available record.

5. The application/appeal filed by the respondents dated 05.08.2015 for relaxation of attendance from 70-75% is available on the

record as Annex-D/1 of the writ petition. Learned Single Judge in Chamber has rightly observed that it would be appropriate, if fair opportunity is provided to the respondents to appear in examination conditionally and directed Appellant No. 1 to consider the aforesaid appeal of the respondents while exercising parental jurisdiction in transparent manner but no order has been passed on the aforesaid application/appeal of the respondents. Learned counsel for the appellants has assailed the legality of impugned order dated 07.08.2015 on the ground that no such application/appeal was filed before Respondent No. 1 but the record speaks otherwise.

1. Section 3(2) of the Law Reforms Ordinance, 1972 bars the right of appeal, which reads as under:-

“the appeal referred to in this sub-section shall not be available or competent if the application brought before High Court under Article 2[199] arises out of any proceedings in which the law applicable, provided for at least one appeal 3[or one revision or one review] to any Court, Tribunal or authority against the original order.”

1. Learned counsel for the appellants has failed to point out any illegality or infirmity in the impugned order passed by learned Single Judge in Chamber which is in accordance with law, the appeal in hand is without any merit, the same stands dismissed in limini. However, Appellants No. 1 to 4 are directed to issue roll number slips to the respondents provisionally/conditionally subject to the decision of appeal pending before Appellant No. 1 and allow them to appear in annual examination of Pharmacy Professional scheduled to be held in August 2015.

(R.A.) Appeal dismissed

PLJ 2016 Lahore 382 (DB)

Present: Ali Baqar Najafi and Mrs. Erum Sajad gull, JJ.

ASGHAR ALI--Petitioner

versus

NATIONAL ACCOUNTABILITY BUREAU, etc.--Respondents

W.P. No. 18098 of 2014, decided on 1.7.2015.

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

----Ss. 25(b) & 34--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Imposition of 15% as incidental charges--Fake fard malkiats--Legalities--Petitioner availed benefit of plea-bargaining and pursuant to which petitioner deposited specific amount while for balance amount petitioner had submitted properties as sureties--NAB authorities use their discretion and by way of pick and choose apply 15 % incidental charges to some accused persons and waivers it off for some--It cannot be presumed that 15% incidental charges is condition as mentioned in S.25 (b) because law has to be clear and precise--Imposition of 15% incidental charges is illegal having no force of law and is imposed in violation of Section 25 of NAB Ordinance 1999--If NAB authority intends to impose 15% as incidental charges to be paid in addition to total amount to be recovered from an accused person, who prefers a plea bargain--Petition was allowed.

[Pp. 384, 385 & 386] A, B, C & D

Mr. Muhammad Amjad Pervaiz, Advocate for Petitioner.

Syed Faisal Raza Bukhari, Additional Deputy Prosecutor General for NAB.

Date of hearing: 1.7.2015

Order

Through this writ petition, the petitioner has challenged the legality of the imposition of 15% as incidental charges amounting to Rs. 1,13,25,268 levied by the respondents on the total liability to be paid by the Petitioner amounting to Rs. 7,55,01,788.

1. Brief facts of the case are that the Petitioner while posted as Patwari in Mauza Balhar, Tehsil Model Town, Lahore Cantt. issued fake fard malkiats to different private land owners beyond their entitlement/ownership. This was done in connivance with the land owners and land contractors of State Life Employees Co-operative Housing Society, Lahore. Thereafter, the said land owners sold that land to the State Life Insurance Corporation Employees Co-operative Housing Society Lahore and received consideration of Rs. 6,56,53,729. This amount was deposited in the accounts of the landowners who after cashing the cheques handed over the amount to the Petitioner/accused in cash. During Investigation the Petitioner was declared guilty for committing the fraud by misusing his official capacity and causing huge financial loss to the State Life Insurance Corporation Employees Co-operative Housing Society Lahore.

2. The petitioner, was arrested on 08-04-2014 and confessed to his guilt and offered to return Rs. 7,55,01,788/- as total loss caused to the Society and agreed to pay in addition to that 15% as incidental charges. The DG NAB Lahore accepted the Plea Bargain offer made by the petitioner/accused, the said application of the Plea Bargain was duly signed by the Petitioner. And approved by the Administrative Judge Accountability Court, Lahore, vide Order dated 17-05-2014. The petitioner has paid a sum of Rs. 2,88,02,306/- as 34% while for balance amount of Rs. 4,66,99,482/- petitioner has submitted properties as surety.

3. During the pendency of this writ petition, learned counsel for the petitioner did not press instant writ petition to the extent of relief claimed at Serial Nos. (i), (iii) and (iv) and only pressed the relief claimed at Serial No. (ii) which is reproduced below:--

“To declare that incidental charges amounting to Rs. 1,13,25,268/- (15%) be declared as illegal, unlawful and void ab-initio on the rights of the petitioner. To declare that petitioner is only liable to make payment of Rs. 6,41,76,520/- and no extra amount as incidental charges can be charged by respondents.”

1. We have heard the arguments and perused the record.

2. It is admitted that the petitioner availed the benefit of plea-bargaining and pursuant to which the petitioner deposited an amount of Rs. 2,88,02,306/- as 34% while for the balance amount of Rs. 4,66,99,482/- the petitioner has submitted properties as sureties. An amount of Rs. 98,48,059/- as 15% incidental charges upon the total amount was deposited by the petitioner with the Deputy Registrar (Judicial) of this Court on his request vide order dated 02.07.2014.

3. Section 25 of the National Accountability, Ordinance, 1999 and in fact the whole afore said Act does not mention the imposition and recovery of 15% as incidental charges from an accused person who has agreed to an out of Court settlement as envisaged under Section 25 of the National Accountability, Ordinance, 1999. That while preferring an out of Court settlement an accused should not be under any duress and the settlement should be transparent and according to law. A person who is under arrest with the NAB authorities cannot be said to be a free person and for his freedom he will agree to sign any document however illegal it may be but then it is for the NAB authorities to ascertain that while entering into a Plea Bargain with an accused person, the procedure according to law is strictly followed.

4. It has been held by the Honorable Supreme Court of Pakistan in PLD 2010 Supreme Court 265 “Dr. Mobashir Hassan and others Versus Federation of Pakistan and other that “The 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 a settlement.”

5. In PLD 2003 Supreme Court 837 Syed Ali Nawaz Shah and 2 others Vs The State and others, in which reliance was placed upon PLD 2001 SC 607 Khan Asfandyar Wali and others versus Federation of Pakistan through Cabinet Division Islamabad and others. It was also held that the NAB authorities could persuade an accused person to opt for an out of Court Settlement by entering into a Plea of Bargain under Section 25 of the NAB Ordinance but this had to be done without duress, threat or pressure.

6. In 2013 P.Cr.L.J 1571 Balochistan “Haji Khan Muhammad Vs Government of Pakistan National Accountability Bureau through Chairman and 2 other. The Petitioner/Accused chose to request for an out of Court settlement/plea bargain. This offer was accepted by the NAB authority but 15 % interest was charged upon the total outstanding amount. But as no provision of law could substantiate the imposition of 15 % interest on the total outstanding amount, therefore the Court declared the imposition of 15% interest as illegal and without lawful authority and in violation to Section 25 of the NAB Ordinance 1999.

7. In the case before us instead of 15% interest, on the total outstanding amount 15%, incidental charges have been levied. Incidental charges have not been defined under the National Accountability Ordinance 1999. It has been noticed that the NAB authorities use their discretion and by way of pick and choose apply the 15 % incidental charges to some accused persons and waivers it off for some, as in”2010 YLR 2604 (Lahore) Farhat Shamshad Vs Court of National Accountability Bureau Lahore and an other”. That under the SOP (Standard Operating Procedures) issued by Chairman NAB vide letter No. 7(807)2012(SOP)/NAB(VR/PB) dated 20-09-2012 he has formulated Rules for the determination of the liability mentioned in Paragraph Nos. 11 & 12 of the afore mentioned SOP. Even while applying the SOP, discretion of the Chairman NAB plays a vital role, hence once again makes the whole procedure very vague. Under the National Accountability Ordinance, 1999 Section 34 the Chairman NAB must take approval of the President for making Rules and without the approval of the President rules cannot be formulated on the discretion of the Chairman NAB as this will be in violation to S.34 of the said Ordinance. It cannot be said that SOP issued by the Chairman NAB will have the force of rules as envisaged by S.34 of The said Ordinance. Section 25(b) of the National Accountability Ordinance 1999 mentions “---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”. It cannot be presumed that 15% incidental charges is the condition as mentioned in S. 25(b) because law has to be clear and precise. Meaning that imposition of 15% incidental charges is illegal having no force of law and is imposed in violation of Section 25 of the NAB Ordinance 1999.

8. That the National Accountability Ordinance 1999 till date has not framed any Rules though under Section 34 of the NAB Ordinance 1999, power has been conferred to frame Rules. The same reads as under:

“34. Power to make rules--The Chairman NAB may with the approval of the President by notification in the official Gazette, make rules for carrying out the purpose of this Ordinance.”

We are unable to understand as to why till date no Rules have been framed under the NAB Ordinance 1999. If the NAB authority intends to impose 15% as incidental charges to be paid in addition to the total amount to be recovered from an accused person, who prefers a Plea Bargain. Then appropriate Rules should be framed under the Statute/National Accountability Ordinance 1999 so as to legalize the imposition of the 15 % incidental charges. Rules when framed under the NAB Ordinance 1999, will then be called the Statutory Rules and will then be held as the integral part of the Parent Act/ the NAB Ordinance, 1999.

1. The learned Prosecutor did not cite any provision of law, entitling the NAB authorities to collect 15 %, in excess of the actual amount.

2. In view of as discussed as above, this Petition is allowed, the claim of 15% as incidental charges by the NAB authorities, is declared illegal, having no force of law and in violation to Section 25 of the NAB Ordinance, 1999. The respondents are permanently restrained from claiming excess amount as 15% incidental charges from the petitioner.

(R.A.) Petition allowed

PLJ 2016 Lahore 387

Present: Mrs. Erum Sajad Gull, J.

HABIB BANK LIMITED--Petitioner

versus

CAPITAL CITY POLICE OFFICER LAHORE etc.--Respondents

Writ Petition No. 28918 of 2012, decided on 7.7.2015.

Offences in Respect of Banks (Special Courts) Ordinance, 1996--

----S. 5(8)--Financial Institutions (Recovery of Finances) Ordinance, 2001, S. 7--Police Order, 2002, S. 155(c)--Criminal Procedure Code, (V of 1898), Ss. 22-A & 22-B--Matter relating to banks--Misappropriated major portion of hypothecated stock--Criminal case was not registered--Order of Justice of Peace--Validity--Special Banking Laws have been enforced to deal with all matter pertaining to Banks--If an accepted rule that Special Law will override general law--If a procedure is not prescribed in Special Law then General Law will be followed--Banks have a choice to first avail remedy under General Law or Special Law--All matters relating to bank have to be dealt by Banking Courts-- Bank had no authority or justification to file an application under Sections 22-A & 22-B of, Cr.P.C. and Ex-Officio Justice of Peace had no authority/jurisdiction to entertain application of bank--Petition was dismissed. [Pp. 389 & 391] A & B

Mr. Hassan Iqbal Warraich, Advocate for Petitioner.

Malik Waseem Mumtaz, Addl. Advocate General for Respondents.

Date of hearing: 7.7.2015

Order

This writ petition has been filed by Habib Bank Limited, through its Manager, for compliance of the order dated 16.10.2012 passed by the Ex-Officio Justice of Peace/Additional Sessions Judge Lahore. And, for a direction, to the Respondent No. 2/ Station House Officer, Police Station Misri Shah, Lahore to register a criminal case against the Respondent No. 3/Rana Muhammad Arif, Respondent No. 4/Rana Muhammad Nadeem and Respondent No. 5/ Mst. Fakhara Arif. The Petitioner-Bank has further sought for a direction from this Court that the Respondent No. 1/ Capitol City Police Officer, Lahore be directed to proceed against Respondent No. 2/Station House Officer, Police Station Misri Shah, Lahore, under the Section 155-C of The Police Order, 2002, as ordered by the learned Additional Sessions Judge, Lahore vide order dated 01.11.2012.

1. Brief facts of the case are that Respondent No. 3 Rana Muhammad Arif, Respondent No. 4 Rana Muhammad Nadeem and Respondent No. 5 Mst Fakhara Arif obtained a finance facility of Rs. 45.000 Million from the Petitioner-Bank through mortgage of immoveable properties and creation of hypothecation charge on certain moveable assets. That on 26-09-2012, when the Manager of the Petitioner-Bank went for a survey to inspect the said hypothecated stock of the Petitioner-Bank, which had been handed over to the Respondents No. 3 to 5 as a trust, it was unearthed that Respondents No. 3 to 5 had misappropriated a major portion of the hypothecated stock. The bank approached the Respondent No. 2/SHO Police Station, Misri Shah, Lahore, for registration of a criminal case against Respondents No. 3 to 5, but the case was not registered. The petitioner then moved an application under Sections 22-A & 22-B of, Cr.P.C. before the learned Addl. Sessions Judge/Ex-Officio Justice of Peace, Lahore, which was disposed of vide order dated 16.10.2012 with a direction to the Respondent No. 2 /SHO Police Station Misri Shah, Lahore to record the statement of the petitioner and proceed in accordance with law. The Respondent No. 2/ SHO Police Station Misri Shah, Lahore did not comply with the said orders. The Petitioner-Bank then filed another application under Sections 22-A, 22-B of, Cr.P.C. before the Ex-Officio Justice of Peace, Lahore who after calling a report from the Respondent No. 1/Capitol City Police Officer, Lahore disposed of the said application with a direction to the Respondent No. 1 to personally look into the matter and ensure the compliance of the order dated 16.10.2012. And also, to proceed against the Respondent No. 2/SHO Police Station Misri Shah, Lahore under Section 155-C of The Police Order, 2002. But till date none of the orders of the Ex-Officio Justice of Peace Lahore, have been complied with.

2. Parawise comments were submitted by Respondent No. 2/SHO Police Station Misri Shah, Lahore in this Court on 22-12-2012 in which it has been stated that the case pertains to the Police Station Badami Bagh, Lahore and is not in the territorial jurisdiction of Police Station Misri Shah Lahore, therefore the Petitioner-Bank should present the orders of the Ex-Officio Justice of Peace, Lahore before the SHO, Police Station Badami Bagh, Lahore so that the orders of the Ex-Officio Justice of Peace, Lahore could be complied with according to law. But since the year 2012 this Writ Petition is pending before this Court and strangely the Petitioner-Bank never submitted the orders of the Ex-Officio Justice of Peace Lahore to the concerned Police Station that is, Police Station Badami Bagh, Lahore.

3. The learned counsel for the petitioner contends that Respondents No. 1 and 2 have shown utter disregard to the successive orders passed by the Ex-Officio justice of Peace Lahore by not registering a case against Respondents No. 3 to 5. He further contended that under the law an option is given to the bank to register a criminal case against a private person under the general law or before the Special Court under Section 5 of the Offences in Respect of Banks (Special Courts) Ordinance, 1984 or register a case before the Banking Court under Section 7 of the Financial Institutions (Recovery of Finances), Ordinance, 2001. Reliance has been placed on Industrial Development Bank of Pakistan and others Vs. Mian Asim Fareed and others (2006 SCMR 483) and Shaukat Ali and others Vs. The State and others (2012 CLD 1).

4. The learned Addl. Advocate General facilitated the arguments given by the learned counsel for the petitioner.

5. Arguments have been heard and record has been perused with the assistance of the learned counsels.

6. Special Banking Laws have been enforced to deal with all matter pertaining to Banks. It is an accepted rule that Special Law will override the General Law. In most Special Laws there are provisions that in case if a procedure is not prescribed in the Special Law then the General Law will be followed. Section 5 of the Offences in Respect of Banks (Special Courts) Ordinance, 1984 says the same and nowhere does it say that the Banks have a choice to first avail the remedy under General Law or Special Law. Section 5(8) of the Offences in Respect of Banks (Special Courts) Ordinance, 1984 is reproduced as under:

S.5(8) “A Special Court shall in all matters with respect to which no procedure has been prescribed by this Ordinance, follow the procedure prescribed by the Code for the trial of the cases by Magistrate”.

The Financial Institutions (Recovery of Finances) Ordinance 2001 is a complete code. And nowhere does it say that in matters relating to Banks, the Banks had a choice to avail General or Special remedy. Relevant portions of Section 7 of the Financial Institutions (Recovery of Finances) Ordinance 2001 are reproduced as under:

S.7(1)(b) “in the exercise of its criminal jurisdiction, try offences punishable under this Ordinance and shall, for the purpose have the same powers as are vested in a Court of Sessions under the Code of Criminal Procedure, 1898 (Act V of 1898):

Provided that a Banking Court shall not take cognizance of any offence punishable under this Ordinance except upon a complaint in writing made by a person authorized in this behalf by the financial institution in respect of which the offence was committed.

S.7(2) A Banking Court shall in all matters with respect to which the procedure has not been provided for in this Ordinance, follow the procedure laid down in the Code of Civil Procedure, 1908 (Act V of 1908), and the Code of Criminal Procedure, 1898 (Act V of 1898).

S.7(3) All proceedings before a Banking Court shall be deemed to be judicial proceedings within the meaning of Sections 193 and 228 of the Pakistan Penal Code (Act XLV of 1860), and a Banking Court shall be deemed to be a Court for purposes of the Code of Criminal Procedure, 1898 (Act V of 1898).

Section 20 of the Financial Institutions (Recovery of Finances) Ordinance 2001 is a provision relating to certain offences.

1. The Financial Institutions (Recovery of Finances) Ordinance 2001 is a complete Code, provided for Banking Courts and deals with any offence. The application filed under Sections 22-A & 22-B of, Cr.P.C. before the Ex-Officio Justice of peace, Lahore by the Petitioner-Bank through its Manager for registration of an FIR against the Respondents No. 3 to 5, was done with mala fide intentions, as the law is clear that the remedy to be availed was through the Banking Court under the Financial Institutions (Recovery of Finances), Ordinance, 2001.

2. The learned counsel for the Petitioner-Bank has relied upon two cases mentioned above but both the cases cited are regarding quashing of an FIR and not regarding an application filed before the Ex-Officio Justice of Peace under Sections 22-A & 22-B of, Cr.P.C. Hence the cases cited above are not applicable to this case in hand and are distinguishable. The Petitioner-Bank during the same period availed one remedy before the learned Banking Court, against the Respondents No. 3 to 5 by filing a suit for damages against their factory “M/s. Rana Aluminum Industry”, claiming an amount of Rs. 48,500,000/- as damages. It is difficult to comprehend that why the Petitioner-Bank is insisting to register an FIR through Ex-Officio Justice of Peace when the remedy exists before the learned Banking Court.

3. The law is very clear that all matters relating to Bank have to be dealt by the learned Banking Courts. Therefore, the Petitioner-Bank had no authority or justification to file an application under Sections 22-A & 22-B of, Cr.P.C. before the Ex-Officio Justice of Peace, Lahore and the Ex-Officio Justice of Peace had no authority/jurisdiction to entertain the application of the Petitioner-Bank. Reliance is placed upon Tariq Hameed and 2 others Versus Additional Session Judge and 5 others’ [2015 MLD 1188(Lahore)] and Muhammad Asif Nawaz Versus Additional Sessions Judge/Justice of Peace Multan and 2 others [2014 P.Cr.L.J 1 (Lahore)].

4. In view of what has been deliberated upon, the instant writ petition is dismissed and both the orders passed by the Ex-Officio Justice of Peace Lahore dated 01.11.2012 and 16.10.2012 are set side as being coram non judice. The Petitioner-Bank may file an application before the befitting forum.

(R.A.) Petition dismissed

PLJ 2016 Lahore 391 (DB)

Present: Shahid Bilal Hassan and Ch. Muhammad Iqbal, JJ.

AMINA WELFARE TRUST (Regd.) through its Executor Trustee--Appellant

versus

ASHFAQ AHMAD QURESHI etc.--Respondents

R.F.A. No. 1118 of 2010, heard on 27.10.2015.

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

----S. 92--Breach of trust--Dispute of trust--These provisions of law deals with internal management/affairs/disputes of trust as well as breach of trust and in that eventuality, suit can only be filed with consent of advocate general. [P. 395] A

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

----S. 92--Owner of rent property--Suit can be filed without consent of advocate general--Object of Section 92, CPC is to regulate institution of suits for relief so that trust and rights of public in such trusts are safeguarded and if reliefs mentioned in Section 92 are not claimed, then suit can be filed without consent of Advocate General. [P. 395] B

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

----S. 92--Suit was filed by trust in private capacity--Validity--It was not necessary for appellant to obtain prior consent of advocate general under Section 92, CPC for filing suit. [P. 396] C

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

----S. 92 & O. VII, R. 11--Suit was barred as was filed without prior permission of advocate general whereas same was not required because appellant was owner of suit property--Question of--Permission of A.G. was required to file suit--Validity--Suit was barred under Section 92, CPC and illegally & without any lawful jurisdiction rejected plaint under Order VII Rule 11, CPC--Suit property was not a trust property rather it is his inherited property whereas in second application, he alleged that plaintiff was a trust, as such, suit filed by it is hit by provisions of Section 92, CPC.

[P. 396] D & E

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

----S. 18--Pecuniary jurisdiction to hear appeal against order or decree upto value of Rs. 25,00,000/--Judgment was corum-non-judice--Validity--Whereas appellant in plaint has assessed value of suit for purposes of Court fee and jurisdiction as Rs. 1,30,00,000/-, as such, ASJ had no jurisdiction to decide revision petition. [P. 397] F

Mr. Zahid Aziz Bhutta, Advocate for Appellant.

M/s. Syed Kazim Bukhari & Muhammad Zahid Sadiq, Advocates for Respondent No. 1.

Date of hearing: 27.10.2015.

Judgment

Ch. Muhammad Iqbal, J.--Through this R.F.A., the appellant has challenged the order & decree dated 18.02.2010 whereby plaint of the suit for possession, filed by the appellant, was rejected under Order VII Rule 11 of CPC by the learned Civil Judge Ist Class, Lahore.

1. Brief facts of the case are that the appellant filed a suit for possession of House No. 173/A-1, Ahmad Block, New Garden Town, Lahore against Respondent No. 1 as well as public-at-large. On 2.9.2003, power of attorney on behalf of Respondent No. 1 was filed and despite availing numerous opportunities, he failed to file his written statement whereupon his right of defence was struck offvide order dated 12.2.2004. Thereafter, on 17.7.2006, Respondent No. 1 filed an application under Order VII Rule 11, CPC on the ground that the suit property is not a trust property as Clause-5 of Deed of Trust excludes it from the classification of trust properties; and that the suit property is his inherited property, which was owned by his mother. The said application was dismissed by the learned trial Court videorder dated 1.3.2007 by observing that despite availing several opportunities, Respondent No. 1 did not file the written statement, therefore, his right to file the same was struck offvide order dated 12.2.2004, which has not been challenged by him, as such, without challenging the said order, he cannot file the application under Order VII Rule 11, CPC; and that the question raised in the application requires evidence. Respondent No. 1 challenged the order dated 1.3.2007 by filing the Revision Petition No. 30/2007 before the learned Addl. District Judge, Lahore, which was accepted and as a consequence thereof, the order dated 1.3.2007 was set aside and the case was remanded back to the learned trial Court for deciding the application under Order VII Rule 11, CPC afresh after hearing the parties vide judgment dated 12.9.2008. Thereafter, on 29.4.2009, Respondent No. 1 filed second application under Order VII Rule 11, CPC for rejection of the plaint on the ground that the appellant is a trust and it has filed the suit without obtaining permission from the Advocate General, as such, the suit is barred under Section 92, CPC, which was accepted by the learned trial Court vide order and decree dated 18.2.2010 and consequently plaint of the suit for possession, filed by the appellant, was rejected under Order VII Rule 11 of CPC vide order dated 18.2.2010. Hence, this appeal.

2. Learned counsel for the appellant submits that the impugned order and decree is against the law and facts of the case; that the learned trial Court without recording the evidence of the parties, non-suited the appellant/plaintiff by rejecting the plaint under Order VII Rule 11, CPC in hasty and summary manner by observing that the suit is barred under Section 92, CPC as the same was filed without prior permission of the Advocate General whereas in fact the same was not required because the appellant is the owner of the suit property which has illegally been occupied by Respondent No. 1, as such, the impugned order and decree is not sustainable in the eye of law and is liable to be set aside. In support of his contention, he has placed reliance on the cases of Abdur Rahim & Others Vs. Syed Abu Mahomed Barkat Ali Shah & Others (AIR 1928 Privy Council 16) and Bachint Singh & Another Vs. Ganpat Rai & Others (AIR 1937 Lahore 660).

3. On the other hand, the learned counsels for Respondent No. 1 have supported the impugned order & decree dated 18.02.2010 on the ground that without obtaining prior permission under Section 92, CPC from the Advocate General the appellant had filed the suit, therefore the same was not maintainable; and that the appellant had no cause of action to file the suit because under Clause-5 of the Trust Deed, the suit property has been excluded from the ownership of the appellant, as such, learned trial Court has rightly rejected the plaint of the appellant.

4. Heard. Record perused.

5. The questions/issues, which requires resolution by this Court, are that:

(1) Whether prior permission of the Advocate General under Section 92, CPC was required to the appellant to file the suit in hand; and

(2) Whether the suit property is not a trust property.

For reply of first question, Section 92 of the Civil Procedure Code, 1908, is very much relevant and for the facility of ready reference, the same is reproduced as under:--

“Public charities.––(1) In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate General, or two more persons having an interest in the trust and having obtained the consent in writing of the Advocate General, may institute a suit, whether contentious or not, in the principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the Provincial Government within the local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situate, to obtain a decree--

(a) removing any trust;

(b) appointing a new trustee;

(c) vesting any property in a trustee;

(d) directing accounts and inquiries;

(e) declaring what proportion of the trust- property or of the interest therein shall be allocated to any particular object of the trust;

(f) authorizing the whole or any part of the trust-property to be let, sold, mortgaged or exchanged;

(g) settling a scheme; or

(h) granting such further or other reliefs as the nature of the case may require.

(2) Save as provided by the Religious Endowments Act, 1863, no suit claiming any of the reliefs specified in sub-section (1) shall be instituted in respect of any such trust as is therein referred to except in conformity with the provisions of that sub-section.”

From the plane reading of the above provisions of law, it is crystal clear that these provisions of law deals with the internal management/affairs/disputes of the Trust as well as breach of trust and in that eventuality, the suit can only be filed with the consent of the Advocate General. The object of Section 92, CPC is to regulate the institution of the suits for the relief enumerated in the said section so that the trust and the rights of the public in such trusts are safeguarded and if the reliefs mentioned in the said Section are not claimed, then the suit can be filed without the consent of Advocate General. In other words, to file a suit under Section 92, CPC, the following conditions must be fulfilled:--

(i) There must exist a trust for a public purpose of a charitable or religious nature;

(ii) The plaint must either allege that there is a breach of trust or that the directions of the Court are necessary for the administration of the trust;

(iii) The suit must be a representative one on behalf of the public and not for the assertion of the personal rights of the plaintiffs

(iv) The relief claimed must be one of the reliefs enumerated in Section 92, CPC.

Putting these conditions in juxtaposition to the present case, it appears that the suit in hand was filed by the Trust itself in a private capacity against Respondent No. 1, who allegedly has occupied the suit property of the Trust illegally, and not for the reliefs mentioned in Section 92, CPC. So, it was not necessary for the appellant to obtain prior consent of the Advocate General under Section 92, CPC for filing the suit in hand. The learned trial Court has misconstrued the provisions of law and erroneously held that the suit is barred under Section 92, CPC and illegally & without any lawful jurisdiction rejected the plaint under Order VII Rule 11, CPC. In this regard, reliance is placed on the cases of “Fakir Shah and others VS Mehtab Shah Pir Bukhari Masjid Committee and others” (PLD 1989 SC 283), “Miskin VS Additional District Judge, Mansehra and 32 others” (2003 SCMR 121), “Khadim Hussain and 3 others VS Ata Muhammad and 7 others” (PLD 1967 Lahore 915), “Syed Arif Ali Vs Syed Firdous Ali and others” (2002 MLD 908 Karachi), “Jamia Masjid Muhammadia and Madrassa Faizia VS Shamsher Khan and others” (2003 CLC 682 Karachi), and “Ghulam Yahya through Attorney and Legal Representative VS Ali Muhammad Jamal Maternity Homes” (PLD 2005 Karachi 240).

1. Now coming to the second issue vis-a-vis whether the suit property is the trust property or not, it is submitted that admittedly the appellant is a Trust created under the Trust Act, 1882, by the Chairperson (Late) Begum Amina Ghani Ghuman, which was registered with Sub-Registrar, Lahore on 13.09.2001 and the following properties are mentioned in the Deed of Trust:--

“1. Amina Welfare Trust Head-Office 173/A-1, Ahmed Block Garden Town, Lahore.

1. Amina Welfare Complex including land and constructed building with shops equipped with furniture and fixture and dispensary situated at corner of Aman Abad Pasroor Road Pul Aik Sialkot.

2. Any of the properties which were so executed in trust deed registered on 05-06-1970 which survive after the demise of my late husband (trustee) and declared in the said trust deed including:

3. Bank A/C in the name of the Trust and

4. Any other further business done by the Trustee and properties referred at Nos. 2 to 5 etc.”

From the bare reading of the above portion of the Deed Trust, it is very much clear that the suit property is included in the Trust Deed because its Head Office is established there inasmuch as Clause-5 of the Trust Deed deals with the business done by the Trustee and the properties referred at Sr. Nos. 2 to 5 etc. Even otherwise, after the words “Any other further business done by the Trustee and properties referred at Nos. 2 to 5 etc.”, mentioned in clause-5, the words “hereinafter referred as Trust Property” are written/printed, which connote to all the properties mentioned above, as such, the property mentioned at Sr. No. 1 is also the trust property. Even otherwise, the issue in the suit in hand was that whether Respondent No. 1 is in illegal possession of the same or not, as such, the learned trial Court has illegally and erroneously declared that the suit property is not the property of the trust.

Moreover, in the first application, Respondent No. 1 alleged that the suit property is not a trust property rather it is his inherited property whereas in the second application, he alleged that the plaintiff is a trust, as such, the suit filed by it is hit by the provisions of Section 92, CPC. These stances of Respondent No. 1 are contradictory with each other.

1. It will not be out of place to mention here that earlier Respondent No. 1 also filed an application under Order VII Rule 11, CPC for rejection of the plaint by raising an objection that the suit property is not the trust property. The learned trial Court dismissed the said application videorder dated 1.3.2007 by observing that despite availing several opportunities, Respondent No. 1 did not file the written statement, therefore, his right to file the same was struck offvide order dated 12.2.2004, which has not been challenged by him, as such, without challenging the said order, he cannot file the application under Order VII Rule 11, CPC; and that the question raised in the application requires evidence. Respondent No. 1 had challenged the said order by filing the revision petition before the learned Addl. District Judge, Lahore, who accepted the same vide judgment dated 12.9.2008 but the said judgment is corum-non-judice because of the reason that under Section 18 of the Civil Courts Ordinance, 1962, the District Judge has the pecuniary jurisdiction to hear the appeal against the order or decree upto the value of Rs. 25,00,000/- whereas the appellant in Paragraph No. 8 of the plaint has assessed the value of the suit for the purposes of Court fee and jurisdiction as Rs. 1,30,00,000/-, as such, the Addl. District Judge had no jurisdiction to decide the revision petition. In this regard, reliance is placed on the case of “Muhammad Ayub and 4 others VS Dr. Obaid Ullah and 6 others” (1999 SCMR 394).

2. In view of the above, the instant appeal is accepted, the impugned order and decree dated 18.2.2010 passed by the learned Civil Judge, Lahore is hereby set aside and as a consequence of the same, the application under Order VII Rule 11, CPC is dismissed and the suit

filed by the appellant/plaintiff will be deemed to be pending before the learned trial Court who is directed to decide the same afresh strictly on merits and in accordance with law.

1. The parties are directed to appear before the learned District Judge, Lahore, on 1.12.2015, who will entrust the main suit to a competent Court of law for further proceedings.

(R.A.) Appeal accepted

PLJ 2016 Lahore 398

Present: Mrs. Erum Sajad Gull, J.

NISAR AHMED BHATTI--Petitioner

versus

ADDL. SESSIONS JUDGE etc.--Respondents

Writ Petition No. 304 of 2014, decided on 5.8.2015.

Constitution of Pakistan, 1973--

----Art. 199--Criminal Procedure Code, (V of 1898), Ss. 22-A & 22-B--Constitutional petition--Ex-Officio Justice of Peace--Report of police--Advisible for justice of peace to call for police report--Justice of Peace without applying his mind passes mechanical order--Validity--Though it was not obligatory for ex-officio Justice of Peace to call for police report, but once police report is called for, Justice of Peace cannot ordinarily brush it aside. [P. 400] A

PLD 2005 Lah. 470 & 2014 P.Cr.LJ 1146, ref.

Mr. Arshad Iqbal Bhullar, Advocate for Petitioner.

Mr. Safdar Mehmud Warraich, Advocate and Mr.Sittar Sahil, AAG for Respondents.

Date of hearing: 5.8.2015

Order

This petition is directed against the order dated 21.12.2013 whereby the Ex-Officio Justice of Peace, Pakpatan accepted the application filed under Section 22-A, 22-B, Cr.P.C., submitted by the Respondent No. 2 Mst Sakina Bibi alleging therein that the SHO Police Station Dera Rahim and others while trespassing into her house had robbed her by forcibly taking away cattle valuing Rs. 900,000/- motorcycles, 17 chickens, gold ornaments weighing two ‘tolas’ and clothes.

1. In pursuance of the direction passed by the Ex-Officio Justice of Peace/Respondent No. 2, a report was submitted by the Station House Officer. In his report and comments the concerned Station House Officer Police Station Dal Waryam, Pakpattan/ Respondent No. 3, categorically denied either to have conducted any raid or to have stolen any articles from the house of Mst.Sakina Bibi. He further submitted that in connection with the arrest of one Ejaz alias Ejazi, a wanted criminal in a number of cases, the police functionaries of Police Station Dera Rahim did conduct a raid, and in that regard, Entry No. 19 was also incorporated in the Roznamcha of Police Station Dalwaryam. However, the above mentioned wanted criminal could not be apprehended. He also submitted that in the course of inquiry conducted by the District Police Officer Sahiwal, it transpired that the police had conducted a legal raid to arrest the afore mentioned hardened criminal with two unknown persons and during the raid the said criminals succeeded to escape, leaving the stolen property behind. The said stolen property was taken into possession by the Police under Section 550, Cr.P.C. The inquiry report of the DPO Sahiwal confirmed that the police did not conduct any raid on the house of Mst.Sakina Bibi and that the accusations of trespass and dacoity were also found to be baseless.

2. Learned counsel for the petitioner contends that the Ex-Officio Justice of Peace has passed the impugned order arbitrarily and summarily without appreciating the fact that petition under Section 22-A/22-B, Cr.P.C. was filed in a malicious and mala fide manner by the Respondent No. 2 Mst. Sakina Bibi, with the ulterior motive to save the skin of some of her close relatives nominated in a number of criminal cases. Further argued that no documentary evidence was available or brought on record on behalf of Mst.Sakina Bibi in order to establish any nexus or title with the articles alleged to have been stolen by the police in the course of the raid conducted by them. Learned counsel adds that had the assertions of trespass and dacoity been true, the same would have been substantiated through some tangible and credible evidence.

3. Both the learned AAG and the counsel for the Respondent No. 2 have supported the impugned order passed by the Ex-Officio Justice of Peace.

4. In pursuance of this Court’s directions, Respondent No. 3 SHO Police Station Dal Waryam, District Pakpattan has filed a report and parawise comments to this Writ Petition.

5. Arguments heard. Record perused.

6. Respondent No. 2, Mst Sakina Bibi, in her application filed under Section 22-A & 22-B, Cr.P.C. has withheld and concealed the true facts apparently with a view to get a favorable order in her favour. The Ex Officio Justice of Peace seized of the matter called for the Police report, but did not rely on the same and while brushing aside the same did not advance any cogent reasons. In the Police report it is clearly stated that the Respondent No. 2 Mst. Sakina Bibi had moved the application before the Justice of Peace against the Police functionaries with mala fide intentions so as to dissuade and pressurize the Police not to lay its hands on her real nephew Ejaz @ Ejazy, against whom several FIRs have been registered, the list whereof has been appended with the police report. In the report and parawise comments before this Court, it is clearly stated therein that even the son of Respondent No. 2, namely Noor Samand is implicated in a number of criminal cases and is wanted by the Police as well.

7. The contention of the Petitioner who is a Police official that the application preferred on behalf of Respondent No. 2 is false and concocted. And in fact, it was actuated as a counter blast to the cases registered against the close relatives of Respondent No. 2, viz, her son and nephew, should not have been ignored by the Justice of Peace. If the family members of the accused persons or the accused persons themselves are encouraged to prosecute the Police on the one hand, and the Justice of Peace without applying his mind passes a mechanical order on the other hand by not even considering the Police Report, would encourage the trend already in vogue to manage to get an order against the Police Officers. Such course of action would eventually erode the system to the verge of collapse. Be that as it may, even otherwise, Respondent No. 2 did not approach the Court with clean hands and apparently had withheld and concealed the material facts.

8. In the case reported as PLD 2005 Lahore 470 Khizer Hayat and others vs Inspector General of Police (Punjab) Lahoe and others’, it was emphasized that it was advisable for the Justice of Peace to call for the Police Report. The sole object of this mechanism is to bring the true facts on record. Though it was not obligatory for the Justice of Peace to call for the Police Report, but once the Police Report is called for, the Justice of Peace cannot ordinarily brush it aside. And in case the Justice of Peace proposes to pass an order contrary to the Police Report, then he is supposed to furnish tangible reasons for not relying upon the solicited Police Report. Dictum of law as laid down by the aforesaid authoritative and celebrated judgment was followed in the cases reported as 2013 P.Cr.L.J 684 Khalid Anwar Vs Ex-Officio Justice of Peace Lahore and 3 others and 2014 P.Cr.L.J 1146 Mureed

Hussain Vs Additional Sessions Judge/Justice of Peace Jampur and 3 others.

1. For the above mentioned facts and reasons, it is a fit case for interference and invalidation of the impugned order. Consequently, by allowing this writ petition, impugned order dated 21-12-2013 passed by Ex-Officio Justice of Peace Pakpattan is set aside. If Respondent No. 2 has any further grievance (s), she would be at liberty to avail the alternate remedy under the law at the appropriate forum.

(R.A.) Petition allowed

PLJ 2016 Lahore 401 [Bahawalpur Bench Bahawalpur]

Present: Zafarullah Khan Khakwani, J.

MUKHTAR AHMAD--Petitioner

versus

RETURNING OFFICER etc.--Respondents

W.P. No. 8320 of 2015, decided on 12.11.2015.

Punjab Local Governments (Conduct of Elections)Rules, 2013--

----R. 12--Constitution of Pakistan, 1973, Art. 199--Constitution petition--Nomination paper--Proposer and seconder--Denial of signatures by proposer and seconder was not enough--Conduct summary inquiry--Comparison of signatures, finger impression--Change to proposer and seconder--Validity--After announcement of Election Schedule R.O. shall give public notice inviting nominations upon which any voter of a union council or ward may propose or seconder name of any duly qualified person to be a candidate for an election of a member or Chairman and V.C. of U.C. by a prescribed nomination paper, which shall be signed by proposer and seconder and shall, on solemn affirmation made, be signed by candidate--Signatures of proposer and seconder were bogus--Once law has provided a summary inquiry it was incumbent upon R.O. to hold a (summary) inquiry to satisfy his conscience about genuineness of signatures especially keeping in view peculiar facts and circumstances of instant case and keeping in view earlier allegation by petitioner that his proposer and seconder had been abducted and later that they had been won over by his rival candidates--After submission of a nomination paper same cannot be changed at time of scrutiny it may become very easy for a rival to defeat a candidate on technical ground by winning over his proposer or seconder because at that stage candidate becomes helpless--Perhaps in order to cope with such situation, legislature empowered a Returning Officer to conduct summary inquiry--Possibility of respondents having been won over by rival candidate of petitioner after putting their signatures/thumb marks on nomination paper, cannot be ruled out. [Pp. 404, 405 & 406] A, B, C & E

PLD 1990 SC 899, ref.

Punjab Local Governments (Conduct of Elections)Rules, 2013--

----R. 12--Qanun-e-Shahadat Order, (10 of 1984), Art. 84--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Mechanism for verification of signature, thumb impressions in summary proceedings--Nomination paper--Proposer and seconder--Denial of signature--In order to ascertain genuineness or otherwise of signatures, Courts have been empowered to make comparison of signatures, words or figures written over disputed documents with those of admitted one and to exercise their judgments of resemblance of admitted writing on record. [P. 406] D

1999 SCMR 85, ref.

Malik Imtiaz Mahmood Awan, Advocate for Petitioner.

Ch. Abdul Jabbar, Standing Counsel for Federation of Pakistan for Respondents.

Syed Lutaf Jehanian, Advocate for Respondents No. 4 and 5.

Date of hearing: 12.11.2015

Order

Brief facts of the case are that Mukhtar Ahmad, petitioner submitted his nomination paper as candidate for the Seat of General Member of Ward No. 2, Union Council No. 130 Rindan, Tehsil Liaqat Pur of Rahim Yar Khan being proposed by Muhammad Maqbool and seconded by Irfan Ali, Respondents No. 3 and 4 respectively. Later on 12.10.2015 the petitioner submitted an application for permission to replace his proposer and seconder on the ground that both of them had been won over by his rival candidates. The said application was dismissed and nomination paper of the petitioner was also rejected on the ground of absence of proposer and seconder before the Returning Officer. By not accepting the decision, the petitioner filed an appeal which was accepted by the appellate authority and matter was remanded to the Returning Officer to decide the same afresh. In post remand proceedings the Returning Officer vide order dated 30.10.2015 again rejected nomination paper of the petitioner on the ground that the proposer and seconder of the petitioner have given affidavits against the petitioner. The appeal filed by the petitioner was also dismissed by the appellate authority/Respondent No. 2 vide order dated 31.10.2015. Hence this petition.

1. Learned counsel for the petitioner submits that Respondents No. 3 and 4 had proposed and seconded nomination of the petitioner and had duly signed and thumb marked nomination paper in presence of the petitioner who has duly sworn affidavit in this respect but the respondents have failed to appreciate this aspect. Further submits that simple denial of the signatures by the proposer and seconder was not enough and in such a situation it was obligation of Respondent No. 1 under the law to conduct inquiry to ascertain genuineness or otherwise of the claim of Respondents No. 3 and 4. He adds that to conduct a summary inquiry the respondents could have adverted to the provisions of Article 84 of the Qanun-e-Shahadat Order, 1984 whereby they have been empowered to make a comparison of signatures, finger- impressions etc. in order to ascertain whether the same have been made by the person to whom the same is attributed or not but the respondents did not bother to accede to this submission of the petitioner and straightway rejected the nomination paper without application of judicious mind and as such the impugned orders are liable to be set aside and nomination paper merits to be accepted.

2. In the wake of provisions of Article 84 of the Qanun-e-Shahadat Order, 1984, the learned Law Officer does not seriously defend the impugned orders. Learned counsel for Respondents No. 4 and 5, however, strenuously contested the petition. He submitted that Respondents No. 3 and 4 never signed the nomination papers of the petitioner and that signatures of the said respondents on the nomination paper were bogus as such the respondents have rightly rejected nomination paper of the petitioner.

3. Arguments heard and record perused.

4. The impugned order dated 30.10.2015 passed by Respondent No. 1 evinces that nomination paper of the petitioner was rejected on the ground that his proposer and seconder have denied having signed the nomination paper. The said order does not depicts as to whether the Returning Officer conducted any summary inquiry into the matter or he straightway held the signatures/thumb-impression of the proposer and seconder bogus one only on relying on their statements/affidavits.

5. The Punjab Local Governments (Conduct of Elections) Rules 2013 provide a procedure for submission and process of nomination papers. Rule 12 of the said Rules deals with Nomination for elections which says that after announcement of the Election Schedule by the Election Commission, the Returning Officer shall give public notice inviting nominations upon which any voter of a union council or ward may propose or second the name of any duly qualified person to be a candidate for an election of a member or the Chairman and the Vice Chairman of a Union Council by a prescribed nomination paper, which shall be signed by both the proposer and the seconder and shall, on solemn affirmation made, be signed by the candidate. Rule 14 relates to scrutiny of the nomination paper by the Returning Officer. Since this rule is of vital importance for the purpose of adjudication of this petition as such relevant portion of the same is reproduced hereunder:

Scrutiny.--(1) The scrutiny of nomination papers shall be open to the candidates, their election agents, proposers and seconders, or the persons who made objections against the nomination papers, and any voter of the constituency with the permission of the Returning Officer before the commencement of the scrutiny, and the Returning Officer shall give all those present reasonable opportunity for examining all nomination papers delivered to him under Rule 12.

(2) The Returning Officer shall, in the presence of the persons attending the scrutiny under sub-rule (1), examine the nomination papers and decide an objection raised by any such person to a nomination.

(3) The Returning Officer may, either on his own accord or on an objection, conduct such summary enquiry as he may think fit and reject a nomination paper if he is satisfied that:

(a) the candidate is not qualified to be elected as a member, Chairman and Vice Chairman, or Mayor and Deputy Mayor;

(b) the proposer or the seconder is not qualified to subscribe to the nomination paper;

(c) any provision of Rule 12 or Rule 13 has not been complied with

(d) the signature or thumb-impression of the proposer or the seconder is not genuine.

1. Plain reading of the above Rule 3(d) would show that the Returning Officer is empowered to reject nomination paper of a candidate if he is satisfied that signature or thumb-impression of the proposer or the seconder is not genuine. This means that if an objection is raised that the signature or thumb-impression of the proposer or the seconder is not genuine the Returning Officer should satisfy him with regard to genuineness of the allegation and in this regard he can conduct a summary inquiry. The impugned order does not reveal that any such inquiry was conducted. So it cannot be inferred as to from which source the Returning Officer satisfied him that the signatures of the proposer and seconder were bogus. Once the law has provided a summary inquiry it was incumbent upon the Returning Officer to hold a (summary) inquiry to satisfy his conscience about genuineness of the signatures especially keeping in view peculiar facts and circumstances of this case and keeping in view earlier allegation by the petitioner that his proposer and seconder had been abducted and later that they have been won over by his rival candidates. In view of well established principle reiterated by the Hon’ble Supreme Court in Mst. Aziz Begum v. Federation of Pakistan and others (PLD 1990 SC 899) that the “law may be blind but the Judge is not”, the most significant fact of this case which must not lose sight is that most of the population in rural areas of our country comprise of rustic humble families living under the influence of their masters/landlords and become easy prey and surrender to the pressure of the landlords. In view of the fact that after submission of a nomination paper the same cannot be changed at the time of scrutiny it may become very easy for a rival to defeat a candidate on technical ground by winning over his proposer or seconder because at this stage the candidate becomes helpless. Perhaps in order to cope with such situation, the legislature empowered a Returning Officer to conduct summary inquiry.

Article 84 of the Qanun-e-Shahadat provides a mechanism for verification of signatures/thumb impressions in summary proceedings/ inquiry. It says as under:

“84. Comparison of signature, writing or seal with others admitted or proved.--(1) In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made any signature, writing or seal admitted or proved to the satisfaction off the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose.

(2) The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person.

(3) This Article applies also, with any necessary modifications, to finger-impressions.

Bare reading of this Article would make it clear that in order to ascertain the genuineness or otherwise of the signatures, the Courts have been empowered to make the comparison of the signatures, words or figures written over the disputed documents with those of the admitted one and to exercise their judgments of resemblance of admitted writing on record. It appears that this provision of law escaped notice of consideration by the respondents which could be very helpful in checking the genuineness of signatures of the proposer and seconder in summary proceedings. While dealing with Article 84 of Qanun-e-Shahadat Order, 1984 the Hon’ble Supreme Court in the case titled Messrs Waqas Enterprises and others v. Allied Bank of Pakistan and two others (1999 SCMR 85) held as under:

“It is settled principle that in certain eventualities Court enjoins plenary powers to itself compare the signature along with other relevant material to effectively resolve the main controversy.”

Under the aforementioned provision of law empowering the Court to itself compare the signatures and the dictum laid down by the apex Court in this regard, I have carefully gone through the process. Both the proposer and the seconder are present in person. With the assistance of learned counsel for the parties, both Muhammad Maqbool, proposer/Respondent No. 3 and Irfan Ali, seconder/ Respondent No. 4 have been directed to put their signatures and thumb impressions on the plain white papers given to them. Muhammad Maqbool respondent has put his thumb marks on the given paper whereas Irfan Ali respondent has put his thumb mark and also signatures on the other paper given to him. I have put both these papers carrying signatures/thumb mark and the disputed one on the nomination paper, in juxtaposition and found after comparison that these thumb marks/signatures have more than 95% similarity and resemblance. Even learned counsel for the private respondents could not deny this resemblance. These papers have been Marked-A, B & C, signed by me and placed on the file. In this view of the matter possibility of Respondents No. 3 and 4 having been won over by the rival candidate of the petitioner after putting their signatures/thumb marks on nomination paper, cannot be ruled out.

1. In the light of above, this petition is allowed, the impugned orders of Respondents No. 1 and 2 are set aside and Respondent No. 1 is directed to accept nomination papers of the petitioner and to proceed further in accordance with law.

2. It may, however, be mentioned that this petition has been allowed on the basis of tentative assessment permitted by law. If the petitioner is declared returned candidate and Respondents No. 3 and 4, if so advised, want to challenge genuineness of the signatures/thumb impression, they would be at liberty to avail their remedy before the Election Tribunal where they would have full opportunity to substantiate their stance by producing evidence.

(R.A.) Petition allowed

PLJ 2016 Lahore 407 [Bahawalpur Bench Bahawalpur]

Present: Zafarullah Khan Khakwani, J.

SHAHZAD ASLAM, etc.--Petitioners

versus

PROVINCE OF PUNJAB, etc.--Respondents

Civil Revision No. 145 of 2009, decided on 13.10.2015.

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

----O. XVII, R. 3--Closing evidence--Sufficient opportunities to adduce evidence were provided but failed to do so--Progress with suit by not producing evidence--Validity--Unnecessary adjournments do dent efficiency of judicial process and faith of litigant public in that process is losing day by day--No litigant has a right to halt procedure of law--Order closing right of petitioners to produce evidence and dismissing suit was passed in order to save administration of justice and penal provision was invoked due to failure of petitioners/plaintiffs to produce evidence, therefore, complete justice has been done and petitioner has failed to demonstrate that trial Court had exercised its discretion capriciously or arbitrarily in passing impugned order.

[Pp. 410 & 411] A & B

Mr. Jamshed Iqbal Khakwani, Advocate for Petitioners.

Mr. Muhammad Iqbal Maher, Assistant Advocate General for Respondents No. 1 to 4.

Mr. Muhammad Altaf Nawaz, Advocate for Respondents No. 6 and 7.

Date of hearing: 13.10.2015

Judgment

Through this revision petition filed under Section 115 of the Code of Civil Procedure (V of 1908), the petitioners have challenged the validity of order dated 24.02.2007 passed by learned Senior Civil Judge, Rahim Yar Khan whereby learned trial Court after closing evidence of the petitioners/plaintiffs dismissed their suit for declaration and permanent injunction under Order-XVII Rule-3 of C.P.C. and judgment and decree dated 04.03.2009 passed by learned District Judge, Rahim Yar Khan whereby appeal filed by the petitioners against order and decree dated 24.02.2007 passed by learned trial Court was dismissed.

1. The material facts for the purpose of appreciating the contentions raised by the learned counsel for the parties are that the petitioners/plaintiffs instituted a suit for declaration against respondents/defendants maintaining therein that they were in possession of the suit land, detail of which was fully described in the head note of the plaint, and the respondents/defendants had no concern with the suit land. It was further maintained that predecessor of petitioners/plaintiffs, namely, Muhammad Aslam had purchased land measuring 35-kanals 19-marlas from respondents/defendants through registered sale-deed and Mutation No. 1637 dated 09.09.1992. In consequence of sale-deed Mutation Nos.1426 dated 23.01.1989, 1509 dated 24.07.1990 and 1510 dated 24.07.1990 were sanctioned. Thereafter inheritance Mutation No. 202 dated 13.12.1995 was also sanctioned after the death of predecessor of petitioners. It was further maintained that the inquiry report submitted by the Magistrate initiated on the application of Respondent No. 7 recommending review of aforesaid mutation was illegal. The orders dated 22.05.2001 and 23.08.2001 for review of Mutations No. 1426, 1509, 1510 & 1637 were also called in question through the said suit.

2. The process initiated by learned trial Court for effecting the service of defendants was responded and the respondents/defendants appeared in the Court and contested the suit by raising different objections. It was specifically pleaded in the written statement filed by Respondents No. 6 & 7 that predecessor of petitioners/plaintiffs obtained the land in dispute on lease from their father and after his death sale-deed was got registered by committing forgery and fraud.

3. On the basis of divergent pleadings raised by the parties the learned trial Court framed the following issues:--

4. Whether plaintiffs are owners in possession of disputed property, impugned orders are wrong, against law and facts, without notice to the plaintiffs and without authority, hence, ineffective against the rights of plaintiffs? OPP

5. Whether plaintiffs are entitled to a decree for declaration and injunction as prayed for? OPP

6. Whether valuation of suit for the purposes of Court fee and jurisdiction is not fixed properly, if so, its effect? OPD 6 & 7.

7. Whether the suit is not maintainable in its present form? OPD 6 & 7.

8. Whether the suit is filed on the basis of forged and fake sale-deeds, hence, plaintiffs are not entitled to any discretionary relief? OPD 6 & 7.

9. Whether the suit is filed to arrest the legal proceedings being initiated by the Defendants No. 1 to 4, if so, its effect? OPD 6 & 7.

10. Whether civil Court has no jurisdiction to try this suit, if so, its effect? OPD 6 & 7.

11. Whether the suit is false, frivolous and vexatious, hence, liable to be dismissed with special costs of Rs. 20,000/- per defendant? OPD 6 & 7

12. Relief.

13. After framing of issues on 18.04.2002 the case was adjourned for recording of evidence of the petitioners/ plaintiffs. More than sufficient opportunities were granted to them by learned trial Court to adduce their evidence but they failed to do so. Resultantly, pursuant to stark failure of the plaintiffs to produce their evidence despite availing several opportunities, their right to produce evidence was closed under Order-XVII Rule 3, C.P.C. and the suit was dismissed vide order and decree dated 24.02.2007.

14. The said order and decree was challenged by petitioners/plaintiffs in Appeal No. 32-13 of 2007 on 24.03.2007 which met with the same fate and was dismissed vide judgment and decree dated 04.03.2009. Hence, this revision petition.

15. Learned counsel for the petitioners contends that petitioners were not granted sufficient opportunities by learned trial Court to adduce evidence; that the petitioners were not put to notice by learned trial Court before closing their right to produce evidence; that partial evidence of petitioners remained available on some dates but learned trial Court did not record their statements; that various adjournments on which learned Presiding Officer was on leave cannot be attributed to the petitioners and learned trial Court should have granted proper opportunities to the petitioners to produce their evidence and that the impugned order passed by learned trial Court being harsh in nature is liable to be set-aside.

16. Learned Law Officer assisted by learned counsel for Respondents No. 6 & 7 while supporting the conclusions drawn by both learned Courts below vehemently opposed this petition maintaining that sufficient opportunities were provided by learned trial Court to the petitioners to produce evidence but they failed to do so.

17. Arguments heard and record perused.

18. The record available with this petition clearly indicates that the suit was filed on 06.09.2001 and issues were framed on 18.04.2002. Learned trial Court had granted more than sufficient opportunities to the petitioners/plaintiffs for production of their evidence in support of their case but they miserably failed to do so. The suit remained pending for recording of evidence of the plaintiffs w.e.f. 18.04.2002 to 24.02.2007 about five years when the impugned order of closing evidence and dismissal of suit was passed by learned trial Court. On 17.02.2014 the suit was fixed for recording of evidence of the plaintiffs but evidence was not available and learned trial Court adjourned the proceedings to 24.02.2007 granting final opportunity to plaintiffs to produce evidence on the next date of hearing. On 24.02.2007 learned trial Court called the case twice, kept the suit pending till 2:55 p.m. and waited for evidence of the plaintiffs but the petitioners/plaintiffs failed to produce their evidence. In the circumstances, the petitioners/plaintiffs practically made it impossible for learned trial Court to further progress with the suit by not producing evidence. In this eventuality the learned trial Court had no option but to close the evidence and dismiss the suit.

It is irksome to portray that the litigants seek and the Courts grant adjournments at the drop of hat. In case of refusal by the Courts the litigants arrange all type of strategies to protract the litigation. Due to this calculated attempt of the litigants civil disputes in our civil Courts drag on and on for decades and misplaced sympathy of the Courts compound the malady further. It is time to realize that unnecessary adjournments do dent the efficiency of judicial process and the faith of litigant public in this process is losing day by day. No litigant has a right to halt the procedure of law. This case is classic example of abuse of process of law. The plaintiffs/petitioners miserably failed to produce evidence for about five years and at the last learned trial Court was forced by the circumstances to close the evidence and dismiss the suit.

1. The Hon’ble Apex Court of Pakistan in a latest pronouncement reported as “Rana Tanveer Khan v. Naseer-ud-Din and others” (2015 SCMR 1401) while dealing with the similar proposition held as under:--

“In the present case, as mentioned above, it is clear from the record that the appellant had availed four opportunities to produce his evidence and in two of such orders (the last in the chain) he was cautioned that such opportunity granted to him at his request shall be the last one, but still on the day when his evidence was closed in terms of Order XVII Rule 3, CPC no reasonable ground was propounded for the purposes of failure to adduce the evidence and justification for further opportunity, therefore, notwithstanding that these opportunities granted to the appellant were only in a span of about 1 month and 26 days, yet his case squarely fell within the mischief of the provisions ibid and his evidence was rightly closed by the trial Court.”

Reference in the above context may also advantageously be made to the cases of “Ghulam Qadir alias Qadir Bakhsh v. Haji Muhammad Suleman and 6 others” (PLD 2003 SC 180), “Abdul Shakoor and others v. Province of the Punjab and 4 others” (2005 SCMR 1673) and “Syed Tasleem Ahmad Shah v. Sajawal Khan, etc.” (1985 SCMR 585).

1. All the above discussion clearly persuaded me to hold that impugned order closing right of petitioners to produce evidence and dismissing the suit was passed in order to save administration of justice and the penal provision was invoked due to failure of the petitioners/plaintiffs to produce the evidence, therefore, I find that complete justice has been done and learned counsel for the petitioner has failed to demonstrate that learned trial Court had exercised its discretion capriciously or arbitrarily in passing the impugned order dated 24.02.2007 upheld by the learned lower appellate Court vide judgment dated 04.03.2009.

2. In view of what has been discussed above, I do not find any legal infirmity, irregularity or jurisdictional defect in the impugned judgments and decrees rendered by both learned Courts below. Resultantly, this revision petition is hereby dismissed.

(R.A.) Petition dismissed

PLJ 2016 Lahore 412 [Bahawalpur Bench Bahawalpur]

Present: Zafarullah Khan Khakwani, J.

MUHAMMAD SABIR--Petitioner

versus

TALIB HUSSAIN SHAH, etc.--Respondents

C.R. No. 218 of 2008, decided on 15.10.2015.

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

----Art. 33--Statements of counsels for appointment of Referee--None of parties had made any such express request to refer matter to any person--Question of--Whether appointment of referee made on statement of counsel and not that of parties themselves fulfils requirement of law and would be sufficient for admission of statement of such person on behalf of party--Validity--If a party to suit has himself expressly made statement for appointment of a Referee then statement made by Referee would be considered as admission by party appointing Referee and not otherwise--Appointment of referee was not valid because he was not expressly appointed by parties and their counsels were not having any sort of instructions for appointment of referee--Order passed by trial Court was not a lawful order and was outside purview of Art. 33 of Qanun-e-Shahadat vide which he directed referee for rendition of account and thirdly, referee was to make statement simpliciter furnishing information but he stretched his powers and made inquiry by inspecting record and also by affording opportunity of hearing to other persons which exercise was not within his domain and as such report made by referee cannot be equated with mere statement of information rather same was a decision/faisla.

[Pp. 417 & 419] A & D

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

----Art. 33--Statement of Counsels--Appointment of Referee--Assumed powers of arbitrator--Referee was not competent to conduct rendition of account--Domain--Role of a Referee is only to make statement of information based on his personal knowledge and such a statement of a referee amounts to admission by a party. [P. 417] B

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

----Art. 33--Rendition of account--Statements of counsel--Appointment of referee--Domain--Report submitted was not mere statement of information but decision after rendition of account--Validity--Referee ever made any statement of information rather he submitted his report based on inquiry conducted by him which is not requirement of law and thus there is no statement of information by referee. [P. 419] C

Mr. Ghazanfer Ali Khan, Advocate for Petitioner.

Mr. Muhammad Ibrahim Khan, Advocate for Respondents No. 1 & 3.

Date of hearing: 9.9.2015.

Judgment

This civil revision is directed against the judgments and decrees dated 4.5.2007 and 10.3.2008 passed by learned Civil Judge, Haroonabad and learned Additional District Judge, Haroonabad respectively whereby suit for rendition of accounts filed by the petitioner/plaintiff was concurrently dismissed.

1. The petitioner/plaintiff filed Suit for Rendition of Accounts before the learned Civil Judge, Haroonabad against the respondents/ defendants with the assertion that the petitioner had business dealings of sale/purchase of cotton with Respondents No. 1 and 2 since 1985. However, from the year 1998 onward he started business with Malik Sarfraz and Co. The petitioner asserted that after closure of business with Defendants No. 1 and 2 the matter of accounts was settled between the parties but later on Respondents No. 1 and 2 entered bogus entries of transactions of money in the name of the petitioner whereas nothing of said respondents was due towards him; that the defendants were many times asked to settle the accounts with the plaintiff and pay the remaining amounts to him but they flatly refused to do so. Hence the suit.

2. In response to the notice issued by learned trial Court Defendants No. 1 to 3 appeared and defended the suit by filing their written statements whereas Defendant No. 4 was proceeded against ex-parte. The record depicts that during pendency of the suit learned counsel for both the parties made statements before the learned trial Court for appointment of Referee and the learned trial Court with their concurrence appointed one Akhtar Hussain Chaudhry, President Anjuman-e­Artiyan, Grain Market, Haroonabad as Referee to verify the dispute of accounts between the parties. The Referee submitted his report which was placed on record by the learned trial Court vide Mark-C and relying on the said report learned trial Court vide judgment and decree dated 4.5.2007 dismissed the suit filed by the petitioner/plaintiff.

3. Feeling aggrieved of the said judgment and decree the petitioner approached the learned lower appellate Court by way of appeal but the same was dismissed by the learned Additional Distt. Judge, Haroonabad videjudgment and decree dated 10.3.2008. Hence this revision petition.

4. Learned counsel for the petitioner submits that under the law only the parties were competent to make request for appointment of Referee and in that eventuality statement of information of the Referee was to be accepted by the learned trial Court but in the present case appointment was made on the statement of their counsel which cannot be stricto senso called a valid appointment and as such any statement of information or submission of report was not a statement of information within the meanings of Article 33 of the Qanun-e-Shahadat Order, 1984. Further submits that the Referee so appointed by learned trial Court inspected record of the respondents in absence of the petitioner and did not join him and that the report made by the Referee would show that the same was a decision after thorough inquiry which exercise was beyond the scope of Referee; that he assumed role of an Arbitrator while preparing his report but the learned trial Court did not consider this legal aspect of the matter and that the learned lower appellate Court did not exercise his judicious mind and relied only on the report of the Referee which was alien to law and as such the impugned judgments and decrees of both the learned Courts below are liable to be set aside.

5. Conversely, learned counsel appearing for Respondents No. 1 to 3 submits that the learned trial Court appointed the Referee on the statement made by learned counsel for the parties; that the petitioner never disowned the statement made by his counsel; that the petitioner was summoned by the Referee more than once but he did not choose to join the proceedings and appeared only once and then again absented. Learned counsel submits that the Referee submitted only his report of information and did not give his decision and the learned Courts below gave their verdict according to law and as such the impugned judgments and decrees do not suffer from any illegality.

6. Learned counsel for the parties have been heard and record appended with this petition perused with their assistance.

7. During the pendency of suit for rendition of accounts, learned counsel for both the parties agreed to the appointment of a Referee. With concurrence of learned counsel for the parties the learned trial Court appointed Mr. Akhtar Hussain Chaudhry, President Anjuman-e-Artiyan, Grain Market, Haroonabad as Referee. Statements of learned counsel for the parties and the order of the Court may be of some relevance for decision of this petition, as such the same are reproduced hereunder:

4.12.2006کونسل فریقین حاضر

مدعا علیہ 2, 3 کیطرف سے جواب دعوی داخل شد کونسل مدعا علیہم بیان دینا چاہتے ہیں جو حسب ذیل قلم بند کیا جاتا ہے۔

بلاخلافبیان کیا کہ رسیور کی بجائے اگر ریفری مقرر کر دیا جاوے تو مجھے کوئی اعتراض نہ ہے۔ دستخط

بیان کونسل مدعی رائو عابد علی خان ایڈووکیٹ

بلاخلافبیان کیا کہ تقرری ریفری پر اعتراض نہ ہے۔

سنکر درست تسلیم کیا

دستخط

حکمبیانات کونسل فریقین کی روشنی میں درخواست رسیور سپتاتی جاتی ہے اب ملتوی ہو کر برائے تقرری ریفری بتقرر 14.12.2006 پیش ہووے۔

دستخط

کونسل فریقین حاضر

حاجی اختر حسین صدر انجمن آڑھیتاں ہارون آباد کو ریفری مقرر کیا جاتا ہے جو لین دین کا حساب کتاب کر کے رپورٹ عدالت میں پیش کرے۔ ملتوی ہو کر برائے رپورٹ ریفری بتقرر 15.1.2007 پیش ہووے۔

دستخط

The above referred order clearly indicates that the trial Court passed the order for rendition of account which is outside the domain of Article 33 of the Qanun-e-Shahadat Order 1984 and the Referee is not competent to conduct rendition of account. Anyway, consequent to the said order, the Referee afforded hearing to the Secretary Anjuman-Artiyan and other persons, thrashed out all the record and after conducting rendition of account submitted his report which was placed on record by learned trial Court as Mark-C. A perusal of said report would reveal that the Referee inspected documents relating to accounts etc. maintained by the respondents and came to the conclusion that the petitioner had conducted business with the respondents but thereafter he left his business relations with the respondents and got him attached with some other persons and that according to the respondents' accounts record certain amount was outstanding towards the petitioner. As per report the Referee sent notices to the petitioner but he did not join the proceedings except for once when he made promise to produce his witnesses but thereafter never turned up. The Referee opined that the petitioner owed some amount to the respondents and he filed the suit only to usurp the said money. The learned trial Court treating the said report as admission by the petitioner within the meanings of Article 33 of the Qanun-e-Shahadat, 1984 dismissed the suit. At this juncture three questions arise in one's mind. First, whether appointment of Referee made on the statements of the counsel and not that of the parties themselves fulfils the requirement of law and would be sufficient for admission of the statement of such person on behalf of a party within the meaning of Article 33 of the Qanun-e-Shahadat? Second, whether report submitted by a Referee tantamount to his statement of information as required by Article 33 ibid or a decision/”faisla”? and, Third, whether such statement or report (if Question No. 2 above is answered in positive) must be purely based on personal knowledge of the Referee or it can be made after conducting some inquiry etc.?

1. In order to resolve the above said queries, Article 33 of Qanun-e-Shahadat may be of much help. The said provision of law runs as under:

“Admission by person expressly referred to by party to suit: Statements made by person to whom a party to the suit has expressly referred for information in reference to matter in dispute are admissions.”

If one minutely examines this provision of law, it would reveal that the words “party to the suit has expressly referred” are of much significance. Since statement of information made by a Referee would become an admission on behalf of the party which may not suit to the party, as such the legislature in its wisdom added the word “expressly” to make it imperative for the party to himself make reference to any person to make statement of information on his behalf. In this way, while examining whether statement made by a counsel on behalf of a party is sufficient to infer that such statement was expressly made by the party himself, one has to take extra ordinary care because once a statement by a Referee is made it becomes an admission on behalf of said party. In the present case none of the parties had made any such express request/statement to refer the matter to any person. There is nothing on record to show that the petitioner/parties had given instructions to his/their counsels for making statement for appointment of Referee. I have minutely gone through the power of attorney given by the parties to their learned counsel. It has not been mentioned anywhere that the petitioner had also empowered his counsel to make any such statement before the Court for appointment of Referee. The above provision of law reveals that if a party to the suit has himself expressly made statement for appointment of a Referee then the statement made by the Referee would be considered as admission by the party appointing Referee and not otherwise. So in my view, the counsels of the petitioner and the respondents were not competent to make statements in absence of any such specific instruction.

1. Although learned counsel for the parties appearing before learned trial Court had made statements for appointment of Referee but the Referee assumed the powers of an Arbitrator. Needless to mention here that role of a Referee is only to make statement of information based on his personal knowledge and such a statement of a Referee amounts to admission by a party. Secondly Referee so appointed did not make any statement of information. Rather he made inquiry by inspecting record of accounts and joining other witnesses and thus the report submitted by him was not based on his personal knowledge. A similar matter came up before the Hon'ble Supreme Court of Pakistan in the case of Nazir Ahmad and others v. Muhammad Qasim and others (2004 SCMR 1292) and while interpreting Article 33 supra it was held as under:

Article 33 in unambiguous words goes to lay down that the reliance by the party in a litigation is made on the statement of a third party. The law provides that if the matter is left to the statement of the third party, such statement is to be considered as admission by the party. The illustrations below Article 33 further elaborates the matter that when the question is, whether a horse sold by A to B is sound, the statement of C regarding the condition of horse would amount to an admission provided A made an offer to B to “Go and ask C. C knows all about it”. There are four ingredients of Article 33 aforesaid: First, that some party must have referred the matter to a third person. Second, that the reference must be for information and third, that the referee must make a statement qua such information and lastly that such statement shall be deemed to be an admission by the party who expressly referred to such third person for information. Here the status of such third person is more of a witness than of either an arbitrator or a local commission. Whatever is stated by the third party is nothing but an information. Whenever a case is agreed upon to be decided on the statement of a referee, the matter might fall under Article 33 of Qanun-e-Shahadat but a reference to a third person to decide a matter in dispute is a reference to arbitration.”

In the present case the parties never agreed that the Referee should make his own opinion so at the most the role of the Referee was to make a statement simpliciter furnishing information but he formed his own opinion and expressed his view after making ex-parte inquiry which in my humble view is not the command of law and thus he has exceeded his role and the report submitted by him is not mere a statement of information but a decision/faisla after rendition of account. In somewhat a similar case while discussing the role of a Referee in the light of Article 33 of the Qanun-e-Shahadat Order, 1984 the Hon'ble Supreme Court in the case titled Ghulam Farid Khan v. Muhammad Hanif Khan and others (1990 SCMR 763) observed as under:

“It will be noticed that this Article relates to statements furnishing information and not to decisions involving judicial determinations of disputes or controversies. It hardly need be added that furnishing of information and pronouncing faisla between contesting parties are two entirely different matters. In this context, reference may be made to the observations of the Judicial Committee of the Privy Council in Chhabba Lal v. Kallu Lal AIR 1946 PC 72. In this case, there was dispute between the parties with regard to the partition of the joint family property. The dispute was taken to Court, while the proceedings were pending, the parties appointed their Guru as a referee for the decision of all the facts and also for the decision in respect of the costs of the suit. The question for consideration before the Judicial Committee was whether the decision given by the Guru was covered by the provision of Section 20, Evidence Act which, as already mentioned, corresponds to Article 33, Qanun-e-Shahadat. The Judicial Committee answered the question in the negative and observed:

“It is obvious that a reference to an outside party to decide matters in dispute in a suit and the question of costs is not a reference to that party for information in reference to matter in dispute, and if the reference is to be regarded as made only under Section 20, it was a bad reference.”

It is, therefore, difficult to accept the contention of the appellant that the 'decision' presented by Hafiz Nasrullah Khan before Court was a statement within the meaning of Article 33.”

The record does not depict that the Referee ever made any statement of information rather he submitted his report based on the inquiry conducted by him which is not the requirement of law and thus there is no statement of information by the Referee.

1. To sum up the discussion in the light of above observations, suffice it to say that the impugned judgments and decrees are not sustainable in the eye of law firstly on the ground that appointment of referee was not valid because he was not expressly appointed by the parties and their counsels were not having any sort of instructions for appointment of referee. Secondly, the order dated 14.12.2006 passed by learned trial Court was not a lawful order and was outside the purview of Article 33 of Qanun-e-Shahadat vide which he directed the referee for rendition of account and thirdly, the referee was to make statement simpliciter furnishing information but he stretched his powers and made inquiry by inspecting the record and also by affording opportunity of hearing to other persons which exercise was not within his domain and as such the report made by the referee cannot be equated with mere statement of information rather the same was a decision/faisla.

2. In this view of the matter, this petition is accepted, the impugned judgments and decrees passed by both the Courts below are set aside and the case is remanded to the learned trial Court where suit filed by the petitioner shall be deemed to be pending and shall be decided afresh in accordance law.

(R.A.) Petition accepted.

PLJ 2016 Lahore 419 [Bahawalpur Bench Bahawalpur]

Present: Zafarullah Khan Khakwani, J.

SARDAR SAEED AHMAD KHAN, etc.--Petitioners

versus

APPELLATE AUTHORITY etc. --Respondents

W.P. No. 8029 of 2015, decided on 4.11.2015.

Punjab Local Government (Conduct of Election) Rule, 2013--

----R. 14(10)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Nomination papers for Local Government Election, rejected--Nomination papers were not signed by proposer or of seconder--Defect of procedural nature--Question of--Whether omission of signatures of proposer or seconder on nomination papers is a substantial defect or that deficiency can be allowed by R.O. to be cured under powers provided in Rule 14(7)--Defect/non-fulfillment of a mandatory provision is not a procedural defect but a substantial defect which cannot be allowed to be remedied by exercising powers and even appellate authority cannot allow a candidate to remove such deficiency under garb of making correction in nomination form and that too after expiry of cut-off date. [P. 424] A & B

Punjab Local Government (Conduct of Election) Rule, 2013--

----Rr. 12(3), 14(3) & (7)--Nomination paper for election of local govt. rejected--Non signed by proposer and seconder--Validity--Compliance of requirements made under Rule 12(3) by a candidate while filing his nomination papers is mandatory in nature and non-compliance of same is a substantial defect which entails penal consequence in shape of Rule 14(3) and cannot be cured under Rule 14(7) and thus R.O. has rightly rejected nomination papers and that appellate authority has no powers to validate an invalid nomination paper and that too after closer of cut-off date as it would mean a fresh nomination to be made which cannot be allowed. [P. 425] C

Mr. Khalid Hassan Khan Durani, Advocate for Petitioners.

Ch. Abdul Jabbar, Standing Counsel for Federation of Pakistan.

Mr. Ghazanfer Ali Khan and Sardar Muhammad Abbas Khan, Advocates for Respondents No. 2 and 3.

Date of hearing: 4.11.2015

Order

Material facts of the case for the purpose of appreciating the contentions raised by learned counsel for the parties before this Court are that the petitioners and Respondents No. 2 and 3 filed their nomination papers for the election of Chairman and Vice Chairman from Union Council No. 77, Ghazi Pur, Tehsil Khanpur Distt. Rahim Yar Khan. Last date for submission of nomination papers was 7.10.2015. The Returning Officer for the said union council vide order dated 10.10.2015 rejected nomination papers of Respondents No. 2 and 3 on the ground that the nomination papers did not carry signatures either of the proposer or of the seconder. Feeling aggrieved of the said order, Respondents No. 2 and 3 filed an appeal before the Appellate Authority as provided under Rule 14(10) of the Punjab Local Government (Conduct of Election) Rules, 2013. The said appeal was accepted, above-mentioned order dated 10.10.2015 of the Returning Officer was set aside and the Returning Officer was directed to provide an opportunity to Respondents No. 2 and 3 to correct their nomination papers. By not accepting the said order the petitioners who are rival candidates of Respondents No. 2 and 3 have approached this Court by way of instant Constitutional petition.

1. Learned counsel for the petitioners contends that it was incumbent upon Respondents No. 2 and 3 to submit duly completed nomination papers as required by law/rules but they failed to fulfill this mandatory requirement as such the Returning Officer was justified in rejecting their nomination papers but the learned appellate authority/Respondent No. 1 adopted a novel procedure alien to law by facilitating the said respondents to fill lacunae by providing opportunity to correct their nomination papers which is against the mandates of Rules 12 and 14 of the Punjab Local Governments (Conduct of Elections) Rules, 2013 and thus the impugned order is nullity in the eye of law and is liable to be set aside.

2. Learned Law Officer could not seriously defend the impugned order of appellate authority whereby Respondents No. 2 and 3 were given opportunity to correct their nomination papers. Learned counsel for Respondents No. 2 and 3, however, with hectic efforts defended the impugned order by referring sub Rule (7) of Rule 14 of the Punjab Local Governments (Conduct of Elections) Rules, 2013 whereby the Returning Officer was required not to reject the nomination papers of a candidate on the ground of any defect which was not of substantial nature and defect of procedural nature was allowed to be remedied. Learned counsel submits that it was sheer omission that signatures of the proposer and seconder could not be obtained on the nomination papers and submits that the said proposer and seconder have sworn affidavits in this regard and that they are even today present before this Court and are ready to sign the nomination papers.

3. Arguments pro and contra have been heard and record perused.

4. The order dated 10.10.2015 depicts that the Returning Officer rejected nomination papers of Respondents No. 2 and 3 on the ground that the nomination papers were not signed by the proposer and the seconder. The ensuing local government elections are being held under the Punjab Local Government Act, 2013. Under Section 144 of the said Act certain rules have been framed by the Government which are cited as the Punjab Local Governments (Conduct of Elections) Rules 2013 (hereinafter to be called ‘The Rules’). Rule 12 of the Rules deals with Nomination for elections. According to sub Rule (1) of Rule 12 after the announcement of the Election Schedule by the Election Commission, the Returning Officer is obliged to give a public notice in Form-I inviting nominations. Sub Rule (2) says that any voter of a constituency may propose or second the name of any duly qualified person to be a candidate for an election of a member or the Chairman and the Vice Chairman of a Union Council. Sub-rule (3) deals with the procedure and requirements to be adopted. Since this sub- rule is of vital importance for the purpose of adjudication of this petition as such relevant portion of the same is reproduced hereunder for facility of reference:

“12(3) Every nomination shall be made by separate nomination paper which shall be signed both by the proposer and seconder and shall, on solemn affirmation made and signed by the candidate or, as the case may be, the candidates for an election of:

(i) the Chairman and the Vice Chairman of a Union Council as joint candidates in Form-II(A).

A bare perusal of this provision of law would reveal that a candidate for an election of a Chairman and vice Chairman of a Union Council as joint candidates is obliged to file nomination paper in Form-II(A), which shall be signed by both the proposer and the seconder and shall, on solemn affirmation made, be signed by both the joint candidates. The question is if a nomination paper is not signed by both the proposer and the seconder or by either of them, should they subsequently be allowed to sign the same not being a defect of substantial nature as provided by Rule 14(7) of the Rules or the nomination papers should be out-rightly rejected considering the same to have been filed in contravention of the provisions of Sub Rule (3) supra, as has been done by Returning Officer in the present case?

Sub Rule (6) of the Rules enumerates that every nomination paper shall be delivered by the candidate or his proposer or seconder to the Returning Officer who shall assign a serial number to the nomination paper and endorse thereon the name of the person presenting it and acknowledge the receipt of the nomination paper specifying the date and time of receipt, and inform such person of the time, date and place at which he shall hold scrutiny. Sub Rule (10) provides that the objection, if any, shall be taken into consideration at the time of scrutiny of nomination papers. Rule 14 relates to scrutiny. Since this rule relates to the heart of the issue involved in this petition as such relevant portion of the same is also reproduced hereunder:

1. Scrutiny.--(1) The scrutiny of nomination papers shall be open to the candidates, their election agents, proposers and seconders, or the persons who made objections against the nomination papers, and any voter of the constituency with the permission of the Returning Officer, before the commencement of the scrutiny, and the Returning Officer shall give all those present reasonable opportunity for examining all nomination papers delivered to him under Rule 12.

(2) The Returning Officer shall, in the presence of the persons attending the scrutiny under sub-rule (1), examine the nomination papers and decide an objection raised by any such person to a nomination.

(3) The Returning Officer may, either on his own accord or on an objection, conduct such summary enquiry as he may think fit and reject a nomination paper if he is satisfied that:

(a) the candidate is not qualified to be elected as a member, a Chairman and a Vice Chairman, or a Mayor and a Deputy Mayor;

(b) the proposer or the seconder is not qualified to subscribe to the nomination paper;

(c) any provision of Rule 12 or Rule 13 has not been complied with; or

(d) the signature or thumb-impression of the proposer or the seconder is not genuine.

1. A careful examination of Rule 14 in conjunction with Rule 12 (3) (quoted above) would make it clear that nomination papers of a candidate for election must be signed both by the proposer and the seconder under Rule 12(3) and in case this requirement is not fulfilled, the nomination papers merits to be rejected under Rule 14(3)(c). A question may arise at this juncture as to whether signature of proposer or the seconder are mandatory or directory in nature. Clause (c) to Sub rule (3) of Rule 14 comes to rescue this query. This clause is punitive in nature which provides that if any provision of Rule 12 or Rule 13 has not been complied with the Returning Officer, may reject a nomination paper. This penal clause makes the requirement enumerated in Rule 12 as mandatory. Therefore, it was obligatory for the candidate(s) along with proposer and seconder to put their signatures on the nomination papers as mandated by Rule 12(3) and non-signing of nomination paper of the candidate by the proposer and the seconder is fatal in character and is not curable.

Another query may creep into one’s mind as to whether omission of signatures of the proposer or the seconder on the nomination papers is a substantial defect or this deficiency can be allowed by the Returning Officer to be cured under the powers provided in sub rule (7) of Section 14. For facility of reference said provision may also be reproduced which runs as under:

14(7). The Returning officer shall not reject a nomination paper on the ground of any defect which is not of a substantial nature and may allow such defect to be remedied forthwith, including an error with regard to the name, serial number in the electoral roll or other particulars of the candidate or his proposer or seconder so as to bring them in conformity with the corresponding entries in the electoral rolls.

Bare reading of this rule would reveal that the power of the Returning Officer has been controlled for not rejecting the nomination papers on any defect which is not of substantial nature and he has been empowered to allow a candidate to remove a defect of procedural nature such as an error with regard to the name, serial number or other particulars of his own or of his proposer or seconder so as to bring them in conformity with the corresponding entries in the electoral rolls. But a defect/non-fulfillment of a mandatory provision is not a procedural defect but a substantial defect which cannot be allowed to be remedied by exercising powers under sub rule (7) quoted above and even the appellate authority cannot allow a candidate to remove such deficiency under the garb of making correction in the nomination form and that too after expiry of cut-off date. While dealing with a case of like nature, the Hon’ble Supreme Court in the case titled Muhammad Jamil v. Munawar Khan and others (PLD 2006 SC 24) held as under:

“The Returning Officer is empowered to reject a nomination form on conducting summary enquiry and he had no jurisdiction to allow a candidate to submit further explanation of the assets owned by him during the process of scrutiny. It is to be observed that such concession if extended to a candidate, would tantamount to allow him an opportunity to make up deficiency if any in submitting nomination papers. Essentially such concession cannot be extended to candidate after the expiry of date of filing of nomination papers, as it would mean that period of filing nomination papers along with Declaration Form No. XIX has been extended to his benefit, which is prohibited in view of following principle of Law highlighted in Bindra’s (7th Edition 1984, 678) Dr. Haq Nawaz v. Balochistan Public Service Commission and others (1996 CLC 58) as under:

“As a general proposition, the rule with respect to statutory directions to individuals is the opposite of that which obtains with respect of public officers. When a statute directs things to be done by a private person within specified time and makes his rights dependent on proper performance thereof, unless the failure to perform in time may injure the public or individuals the statute is mandatory. When an individual is the person not complying, he has no grounds for complaint. Under statutes of procedure, failure to complete required steps within the time specified is fatal to the case.”

1. Crux of the above discussions and observations is that compliance of requirements made under Rule 12(3) by a candidate while filing his nomination papers is mandatory in nature and non-compliance of the same is a substantial defect which entails penal consequence in shape of Rule 14(3) and cannot be cured under Rule 14(7) and thus the Returning Officer has rightly rejected the nomination papers of Respondents No. 2 and 3 and that the appellate authority has no powers to validate an invalid nomination paper and that too after the closer of cut-off date as it would mean a fresh nomination to be made which cannot be allowed. The Appellate Authority erred in law while directing the Returning Officer to afford an opportunity to Respondents No. 2 and 3 herein to correct their nomination papers.

2. All the above facts taken together persuade me to hold that the impugned order of the appellate authority is alien to law and as such not sustainable. Resultantly, this petition is accepted, impugned order dated 19.10.2015 passed by Respondent No. 1 is set aside and the order dated 10.10.2015 passed by the Returning Officer whereby he rejected the nomination papers of Respondents No. 2 and 3, is upheld.

(R.A.) Petition accepted

PLJ 2016 Lahore 425 [Bahawalpur Bench Bahawalpur]

Present: Zafarullah Khan Khakwani, J.

AHMAD NAWAZ KHAN BAKHTIARI--Petitioner

versus

APPELLATE AUTHORITY, etc.--Respondents

W.P.No. 8386 of 2015 & C.M. No. 5116 of 2015, decided on 19.11.2015.

Punjab Local Government Act, 2013--

----S. 27(1)(b)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Nomination paper to contest election for joint candidature of union council, rejected--Objection of qualification--Not qualified being under 25 years of age--Appeal was accepted--Challenge to--Qualification and disqualification for candidates--NIC--Date of birth--Determination of age--It is by now settled proposition of law that entries in CNIC are considered to be more authentic and admitted to be correct and have to be given preference over other documents/certificates unless same was rebutted by better and strong evidence--Entries in NIC carry sufficient weight to be considered for determining age of any person--Preference is to be given to entries made in Identity Card issued under Section 10 over entries made in B.R.C. and that too issued after issuance of NIC or any other document including S.L.C. which do not carry equal authenticity--High Court is of considered view that candidate was less than 25 years of age at time of submission of his nomination papers and was thus not eligible to contest election in view of bar contained in Section 27(1)(b) of Punjab Local Government Act, 2013--Petition was allowed. [Pp. 429 & 430] A, B, C & D

Syed Muhammad Ibrahim Bukhari and Syed Muhammad Areeb Abdul Khafid Shah Bukhari, Advocates for Petitioner.

Ch. Abdul Jabbar, Standing Counsel for Federation.

Malik Muhammad Hayat, Advocate for Respondents No. 3 and 4.

Date of hearing: 19.11.2015.

Order

C.M. NO. 5116 OF 2015

This is an application under Order 1 Rule 10 of the, C.P.C. seeking permission to array Syed Mahboob Alam Meharvi son of Syed Abdul Hameed as co-petitioner on the ground that since the petitioner is contesting election for the joint candidature of Chairman and Vice Chairman of the Union Council as such said Syed Mahboob Alam Meharvi is necessary party to be impleaded as co-petitioner.

1. For the reasons mentioned above, this C. M. is allowed subject to all just and legal exceptions and the amended petition appended with this C.M. is allowed to be placed on the file.

MAIN CASE

Briefly stated the facts for the purpose of appreciating the contentions raised by learned counsel for the parties are that nomination papers of Ishaq Ahmad, Respondent No. 3 filed along with Respondent No. 4 to contest election for the joint candidature of Chairman and Vice Chairman of Union Council No. 68, Distt. Bahawalpur, were rejected by the Returning Officer/Respondent No. 2 vide order dated 13.10.2015 on the objection raised by the petitioners not qualified being under 25 years of age at the time of filing of his nomination papers. However, the appeal filed by said Ishaq Ahmad, respondent has been accepted by the appellate authority vide order dated 4.11.2015 necessitating filing of this constitutional petition by the petitioners being rival candidates.

1. By referring to Section 27(1)(b) of The Punjab Local Government Act, 2013 learned counsel for the petitioners submits that as per National Identity Card issued by the NADRA age of Respondent No. 3 was below 25 years i.e. less than the required age to contest election of the local government and as such he was not qualified but the appellate authority while ignoring said provision of law wrongly accepted nomination papers of Respondent No. 3 which are liable to be set aside.

2. Conversely, learned Law Officer assisted by learned counsel for Respondent No. 3 by referring entries made in the Birth Registration Certificate issued on 19.10.2015 (after rejection of nomination papers) by Secretary Union Council Chanab Rasool Pur, Ahmad Pur East, contends that according to Birth Certificate date of birth of the said respondent was 30.6.1989 i.e. more than 25 years at the time of filing of nomination papers as required by law, therefore, his appeal was rightly accepted. Further contends that Respondent No. 3 has already filed civil suit before the Court of competent jurisdiction for correction of his date of birth in the National Identity Card, therefore, counting 25 years from the date of birth mentioned in his Birth Certificate, he was qualified to contest the election.

3. Arguments from all corners heard at length and record perused.

4. Section 27 of the Punjab Local Government Act, 2013 deals with qualifications and disqualifications for candidates and elected members of Local Governments. Sub-Section (1) of this Section runs as under:

5. Qualifications and disqualifications for candidates and elected members.--(1) A person shall qualify to be elected as a member or to hold an elected office of a local government, if he:

(a) is a citizen of Pakistan;

(b) except the youth member, is not less than twenty five years of age on the last day fixed for filing the nomination papers; and

(c) is enrolled as a voter in the electoral rolls of the ward or the local government from which he is contesting the election.

It is manifest from above quoted Clause (b) that a person shall be qualified to contest election if he is not less than 25 years of age on the last date fixed for filing of nomination papers.

1. The National Identity Card of Respondent No. 3 issued by the National Database and Registration Authority (NADRA) on 22.9.2015 depicts his date of birth as 4.5.1993. If one goes by this entry in the Card, then age of Respondent No. 3 was less than 25 years on the last date for filing of nomination papers. Although learned counsel for Respondent No. 3 has produced photo copy of Birth Registration Certificate purportedly issued by NADRA with the signatures of Secretary Union Council Chanab Rasool Pur, Ahmad Pur East in which date of birth of Respondent No. 3 is mentioned as 30.7.1989, to contend that as per said Birth Certificate said respondent was more than 25 years of age and thus qualified to contest the forthcoming election of local government but said contention is of no avail to the said respondent for the following reason:

Section 9 of the National Database and Registration Authority Ordinance, 2000 deals with registration of citizens. Sub-section (1) says that every citizen in or out of Pakistan who has attained the age of eighteen years shall get himself and a parent or guardian of every citizen who has not attained that age shall, not later than one month after the birth of such citizen, get such citizen registered in accordance with the provision of this Ordinance. Perusal of this provision would demonstrate that it has two parts; one, that every citizen who has attained the age of eighteen years shall get himself registered and the other is that a parent or guardian of a citizen who has not attained that age, within one month of birth of said citizen shall get such citizen registered as prescribed by the provisions of said Ordinance. Sub-Section (5) authorizes the Authority to issue Certificate of Registration (Birth Certificate) to a citizen who has not attained the age of eighteen years but is registered under sub-section (1). Section 10 deals with National Identity Cards. It says that the Authority shall issue or renew on certain terms and conditions, subject to every citizen who has attained the age of eighteen years and got himself registered under Section 9, a card to be called National Identity Card.

Importance of National Identity Card can be gathered from the purposes enumerated in Section 19 of the Ordinance. Sub-Section (1) of Section 19 prohibits issuance of passport, permit or other travel documents for going out of Pakistan to a citizen who has attained the age of eighteen years but does not possess or produce a National Identity Card. Sub-section (2) says that any officer charged with the duty of conducting the poll at an election may, for the purpose of satisfying himself as to the identity of any person, require such person to produce his National Identity Card. Sub-section (4) contemplates that a card including a National Identity Card issued to a person under this Ordinance shall be proof of his identity as could be established from the contents of such card for any purpose for which his identity is required to be established. This means that identity of a citizen is dependent upon the contents of the National Identity Card and the entries of the identity card are the proof of identity of a person. Needless to mention that the National Identity Card is issued after full inquiry is made on the basis of solemn affirmation of the applicant regarding the information supplied by him. It is a public document and has got probative value. Presumption of truth is attached to it and can be considered as an evidence. It is with this background that making any false information or material particular which is not believed to be true to obtain National Identity Card has been made punishable under Section 30(2)(a) of the National Databas and Registration Authority Ordinance, 2000.

1. It is by now settled proposition of law that entries in CNIC are considered to be more authentic and admitted to be correct and have to be given preference over other documents/certificates unless the same was rebutted by better and strong evidence. I am, therefore, of the considered view that entries in the National Identity Card carry sufficient weight to be considered for determining the age of any person. Steering thoughts in this regard have been gathered from the cases of Abdul Ghani and others v. Mst. Yasmeen Khan and others (2011 SCMR 837), Mst. Razia Khatoon through Legal Heirs v. Dr. Roshan H. Nanji and another (1991 SCMR 840) and Malik Muhammad Faisal and another v. State Life Insurance Corporation through Chairman and 2 others” (2008 SCMR 456). This being the position, preference is to be given to the entries made in the Identity Card issued under Section 10 over the entries made in the Birth Registration Certificate and that too issued after issuance of National Identity Card or any other document including School Leaving Certificate which do not carry equal authenticity.

2. There is another aspect of the matter which cannot be lightly ignored. In the Electoral Roll 2012, copy of which is appended as Annex-D, vote of said respondent was registered at Sr.No. 274 in Census Block Code No. 243090505 in Electoral Area of Rasoolpur, District Bahawalpur having same number of National Identity Card. This fact indicates that Computerized National Identity Card had been issued to the said respondent much before preparation of Electoral Roll 2012 meaning thereby that the present Computerized National Identity Card issued on 22.09.2015 is revised/duplicate or has been issued after expiry of old CNIC. Last date of filing of nomination papers was 07.10.2015. There is nothing on record to suggest any effort made by said respondent for correction of his date of birth if wrongly mentioned on Computerized National Identity Card before filing his nomination papers. This fact is sufficient to demonstrate that Respondent No. 3 used this National Identity Card for many years for different purposes without any complaint. According to plaint, the civil suit was filed by Respondent No. 3 for correction of date of birth on 21.10.2015 i.e. after rejection of nomination papers. Learned counsel for Respondent No. 3 frankly conceded that date of birth depicted on the Computerized National Identity Card of said respondent is 4.5.1993. He even failed to place on record any educational document to display his date of birth as 30.7.1989. By filing civil suit in Civil Court the respondent has admitted that in the line of his date of birth mentioned as 4.5.1993 in the Computerized National Identity Card he was less than 25 years of age at the time of filing of nomination papers.

3. In the factual background supra, after perusal of entire material available on record with respective submissions from all corners, this Court is of the considered view that Respondent No. 3 was less than 25 years of age at the time of submission of his nomination papers and was thus not eligible to contest election in view of the bar contained in Section 27(1)(b) of The Punjab Local Government Act, 2013. Resultantly, this constitutional petition is allowed. The impugned order dated 4.11.2015 passed by appellate authority/Respondent No. 1 is set-aside and the order dated 13.10.2015 of the Returning Officer/Respondent No. 2 is upheld consequent of which nomination papers filed by Respondent No. 3 and 4 are rejected.

(R.A.0 Petition allowed

PLJ 2016 Lahore 431 [Bahawalpur Bench Bahalwalpur]

Present: Zafarullah Khan Khakwani, J.

MUHAMMAD AJMAL--Petitioner

versus

DISTT. RETURNING OFFICER, etc.--Respondents

W.P. No. 8733 of 2015, decided on 25.11.2015.

Punjab Local Government (Conduct of Election) Rules, 2013--

----R. 17--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Election of Govt.--Candidate for seat of general member died--Terminate proceedings--Question of--Whether contesting candidate or was validly nominated candidate--Validly nominated candidate when his papers were accepted after scrutiny--Validity--When a contesting candidate dies before the day fixed for poll, proceedings relating to that election shall be terminated by Returning Officer--If any candidate dies before passing of day of withdrawal of nomination papers and issuance of Form-VII, he is validly nominated candidate and election proceedings shall continue and if dies after issuance of Form-VII (through which symbols are allocated) then proceedings of election would be terminated.

[P. 433] A

Mr. Jam Muhammad Afzal Gasoora and Syed Jamil Anwar Bokhari, Advocates for Petitioner.

Ch. Abdul Jabbar, Standing Counsel for Federation with Muhammad Afzal, Distt. Election Commissioner and Shoaib Ashraf A.R.O. for Respondents.

Date of hearing: 25.11.2015

Order

Through this Constitutional petition, Muhammad Ajmal, petitioner seeks a direction to respondent-Returning Officer to terminate proceedings relating to election for Ward No 4 of Union Council No. 136, Rahim Yar Khan on the ground that his father Hazoor Bukhsh, a candidate for the seat of General Member of said Ward has died.

1. Learned counsel for the petitioner submits that Hazoor Bukhsh, a candidate for the seat of General Member of above-mentioned Ward died on 24.10.2015 and application for termination of proceedings of that election under Rule 17 of the Punjab Local Governments (Conduct of Elections) Rules, 2013 was submitted but the same was dismissed by Respondent No. 2 on 10.11.2015 without application of judicious mind, as such the impugned order is not sustainable in the eye of law and is liable to be set aside.

2. Learned Standing Counsel, however, contested the petition with vehemence.

3. Rule 17 of the Punjab Local Governments (Conduct of Elections) Rules, 2013 (hereinafter called the Rules) caters for a situation in case of death of a candidate before election. This Rule runs as under:

“17. Death of candidate after nomination.--(1) If a contesting candidate dies before the day fixed for poll, the Returning Officer shall, by public notice, terminate the proceedings relating to that election.” (emphasis is mine)

According to learned Standing Counsel Hazoor Bukhsh (deceased) filed his nomination paper on 7.10.2015 as per mandate of Rule 12 of the Rules. Scrutiny of nomination papers under Rule 14 was made by the Returning Officer on 10.10.2015 and his nomination paper was accepted and he was declared validly nominated candidate. Learned Law Officer further informs that last date for withdrawal of nomination papers under Rule 16 was 6.11.2015 and thereafter symbols were allocated to the validly nominated candidates on 7.11.2015 and after allotment of symbol list of contesting candidates was finally prepared on Form-VII. Rule 17 quoted above postulates that if a contesting candidate dies before the day fixed for poll proceeding to that election shall be terminated. The question is as to whether Hazoor Bukhsh was a ‘contesting candidate’ or was a ‘validly nominated candidate’. The answer lies in Rule 2(g) and 2(y) i.e. definition of these two phrases which may be reproduced for ready reference:

“2(g) “contesting candidate” means a validly nominated candidate who has not withdrawn his candidature;

2(y) “validly nominated candidate” means a candidate whose nomination has been accepted;”

Clause (z) of Rule 2 may also be of relevance and as such is reproduced below:

“2(z) “withdrawal day” means a day fixed on or before which candidature is withdrawn.”

Reading the aforementioned Rule 17 in conjunction with these clauses (g)(y) and (z) would reveal that a person qualifies to be a validly nominated candidate when his papers are accepted after scrutiny. He

will remain a validly nominated candidate till passing of day of withdrawal of nomination papers because he may withdraw his nomination papers till final day fixed for withdrawal of his candidature. If he does not do so and once symbol is allocated to him to contest election and Form VII is prepared by including his name, thereafter he is termed as contesting candidate. Title of Form-VII is very much significant which enshrines it as “LIST OF CONTESTING CANDIDATES”. Here comes Rule 17 in operation which says that when a contesting candidate dies before the day fixed for poll, the proceedings relating to that election shall be terminated by the Returning Officer. It means that if any candidate dies before passing of day of withdrawal of nomination papers and issuance of Form-VII, he is validly nominated candidate and election proceedings shall continue and if dies after issuance of Form-VII (through which symbols are allocated) then proceedings of the election would be terminated. This is not the position in the present case. At the cost of repetition it is mentioned that Hazoor Bukhsh died on 24.10.2015 whereas List of contesting candidates on Form-VII was prepared on 7.11.2016. As such present case does not fall within the category of contesting candidates indicated in Rule 17 of the Rules. This being the position, I find that the Returning Officer has validly dismissed application of the petitioner.

1. Consequently, I do not find any illegality or irregularity in the impugned order. Resultantly, this petition being devoid of any merits is dismissed.

(R.A.) Petition dismissed

PLJ 2016 Lahore 433

Present: Ali Baqar Najafi, J.

MUHAMMAD ASHRAF--Petitioner

versus

Mst. UZMA QAMAR, etc.--Respondents

W.P. No. 26492 of 2014, decided on 17.12.2015.

Constitution of Pakistan, 1973--

----Art. 199--Criminal Procedure Code, (V of 1898), S. 491--Constitutional petition--Custody of minors--Minor was allowed to see father only once a month--Challenge to--Entitled to get custody of minors--Question of--Whether welfare of children lies in custody of father or mother--Determination--By now it is universally accepted that lap of mother is best protection for a minor on this earth as her incomparable love is direct manifestation of greatest attributes of Almighty Allah--Psychologically, development of child’s personality is directly proportion to level of care and attention given by her mother--Any admiration of minor in his academic or extra-curricular activities is quickly received by his mother, and likewise, any reprimand or condemnation will take no time to reach her mother--If minors are appreciable in their conduct before High Court, mother should be given credit rather than discredit and should not be deprive from custody of minors for their further grooming--Even best intention or acts of father cannot possibly substitute company of mother--Petitioner is entitled to get custody of minors on every saturday and will return minors on sunday and also entitled to get minors for Eid-ul-Azha for three days, besides for month of July of every year in summer vacations and in last week of December of every year during winter vacation--Petitions were dismissed [Pp. 435 & 436] A & B

Mr. Shehzada Mazhar, Advocate for Petitioner.

Mian Shahid Iqbal, Advocate for Respondent No. 1.

Date of hearing: 17.12.2015

Order

This order shall dispose of the instant writ petition as well as W.P. No. 26488 of 2014, titled, “Muhammad Ashraf v. Mst. Uzma Qamar, etc.” Crl. Original No. 1883-W of 2015, filed in W.P. No. 26492 of 2014, titled” “Muhammad Ashraf v. Mst.Uzma Qamar, etc.” and Crl.Original No. 1882-W of 2015, filed in W.P.No. 26488 of 2014, titled “Muhammad Ashraf v. Mst.Uzma Qamar, etc.” as common question of law and facts are involved.

1. Brief facts giving rise to the filing of these petitions are that the petitioner/Muhammad Ashraf married Respondent No. 1/ Mst.Uzma Qmar, on 27.11.2004 and from their wedlock two minor sons namely, Muhammad Usman and Muhammad Subhan were born who are in the custody of Respondent No. 1. On 09.04.2010, Respondent No. 1 went to her parents’ house with the promise to come back after 2/3 days but later on she refused. The petitioner time and again requested Respondent No. 1 to come back in his house for the welfare and proper upbringing of the minors but all in vain. She then filed a petition under Section 491, Cr.P.C. before the learned Sessions Judge who handed over temporary custody of the minors to her/mother against which the petitioner filed W.P.No. 19183 of 2010 before this Court in which it was observed that untill the final determination regarding custody of the minors by the Guardian Court the petitioner was allowed to have the custody temporarily of his son namely, Muhammad Usman only on every Saturday at 11:00 a.m till 4:00. Thereafter, the petitioner filed guardian petition on multiple grounds which was contested by Respondent No. 1 who denied all the allegations leveled against her. Issues were framed, evidence was recorded and consequently, learned Guardian Judge, Okara, dismissed the petition by observing that the petitioner is entitled to get the custody of the minors on every Saturday at 3:00 p.m and will return the minors on Sunday at 3:00 p.m and also entitled to get minors for Eid-ul-Azha for three days, besides for the month of July of every year in summer vacations and in the last week of December of every year during winter vacation. The petitioner preferred appeal against the order passed by the Guardian Judge which was dismissed vide order dated 30.08.2014, with modification that minor was allowed to see father only once a month on saturday which are being assailed through these writ petitions.

2. Arguments heard. Record perused.

3. In the instant case custody of the minors namely, Muhammad Usman (born on 11.09.2005) and Muhammad Subhan (born on 09.07.2008) is being sought by the petitioner being the real father. The Courts below have concurrently given their custody to Respondent No. 1/mother but made out a schedule for their meeting with the father on every week end. Since marriage has been dissolved and the maintenance of the minor children is being paid regularly by the petitioner, but minor children are studying in class-1 and 4 respectively and their outstanding results have been shown to this Court which demonstrates that so far they are getting excellent education. Even otherwise, they appear to be very confident in their behaviour and respectful for their father. But this Court on the overall facts and circumstances has to ascertain whether the welfare of the children lies in the custody of the father or mother?. It is obvious that the confidence shown and achievements so far made by the minors are due to care and attention paid to them by their mother. She has also not contracted 2nd marriage and appears to be committed with the minor children.

4. By now it is universally accepted that the lap of the mother is the best protection for a minor on this earth as her incomparable love is the direct manifestation of the greatest attributes of Almighty Allah. Psychologically, the development of child’s personality is directly proportion to the level of care and attention given by her mother. Any admiration of the minor in his academic or extra-curricular activities is quickly received by his mother, and likewise, any reprimand or condemnation will take no time to reach her mother. If the minors are appreciable in their conduct before this Court, the mother should be given credit rather than discredit and should not be deprive from the custody of the minors for their further grooming. Even the best intention or acts of the father cannot possibly substitute the company of the mother. So, ignoring the conduct of the father, which he might have adopted out of his pure love for the minors, it is appropriate that he should be allowed to meet the minors as per schedule made out by the Guardian Court and not by the Appellate Court. The petitioner is entitled to get the custody of the minors on every Saturday at 3:00 p.m. and will return the minors on Sunday at 3:00 p.m. and also entitled to get minors for Eid-ul-Azha for three days, besides for the month of July of every year in summer vacations and in the last week of December of every year during winter vacation.

5. For the above stated reasons, all these petitions have been found meritless and are hereby dismissed with above modification.

(R.A.) Petitions dismissed

PLJ 2016 Lahore 436

Present: Ali Baqar Najafi, J.

ZAKA ULLAH etc.--Petitioners

versus

MANZOOR HUSSAIN (deceased) etc.--Respondents

Civil Revision No. 891 of 2011, heard on 8.12.2015.

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

----Art. 79--Sale deed--Execution--Two attested witnesses--Proof of--Non-production of PW was neither explained by petitioners nor any serious effort was made to produce him before Court through process of law. [P. 439] A

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

----Art. 17--Competency of a witness--Scope of--Except for a will, no document can be used in evidence until it is proved by two attesting witnesses. [P. 439] B

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

----O. XVI, R.1--Witness of signing of document by witnesses--Not qualify to be witness--A witness cannot be introduced to prove a document unless his name exists on document, or was referred by any of witnesses in their statements or was named as such in plaint, therefore, at least his name was required to be mentioned in list of witnesses under Order XVI, C.P.C.--If tendency is allowed to prevail, any person at any time will come forward to be considered as witness to prove any document which will be against spirit of law relating to proof of a document. [P. 441] C & D

PLD 2007 Lah. 254 & PLD 2011 SC 241, rel.

Mirza Hafeez-ur-Rehman, Advocate for Petitioners.

Mian Subah Sadiq Klasson, Advocate for Respondents No. 1 (1-A to 1-G).

Date of hearing: 8.12.2015

Judgment

This civil revision is directed against the concurrent findings of fact recorded by the Courts below whereby the suit of the petitioners for specific performance of the agreement dated 01.09.2004 in respect of 11 Kanals 8 Marlas for a consideration of Rs. 3,42,000/- was dismissed on the ground that the said document was not proved on the basis of the two witnesses.

1. Brief facts giving rise to the filing of this revision petition are that on 01.09.2004 an agreement was executed between the petitioners and Manzoor Hussain, the predecessor of Respondents No. 1-A to 1-G, in respect of 11 Kanals 8 Marlas of agricultural land situated in Chak No. 286/G.B., Tehsil and District Toba Tek Singh in the presence of Khalid Javaid son of Muhammad Sadiq and Zawar Hussain son of Muhammad Bakhsh (PW4). An amount of Rs. 3,42,000/- was also paid and the possession of the property was handed over to the petitioners. As the property was mortgaged with the Agricultural Development Bank of Pakistan, therefore, it was also agreed that the same will be redeemed within 6 months and the registered sale-deed will be executed in favour of the petitioners. Upon his failure, a suit for specific performance of the agreement was filed by the petitioners on 12.06.2006. The suit was resisted by filing the written statement upon which the followings issues were framed:--

ISSUES:

1. Whether Manzoor Hussian deceased predecessor-in-interest of Defendant No. 1-A to 1-G agreed to sell property measuring 11 kanals 8 marlas out of Khewat No. 283/279 Khatooni No. 681 rectangle No. 53 situated in the area of Chak No. 286/GB, Toba Tek Singh at the rate of Rs. 2,40,000/- per acrevide agreement dated 1.9.2004? OPP

2. Whether the plaintiffs paid Rs. 3,42,000/- as consideration to Manzoor Hussain and the possession of Killa No. 14/2 measuring 4 kanals 9 marlas, 15/2 measuring 2 kanals , killa No. 16/1 measuring 3 kanals 11 marlas killa No. 16/2 measuring 5 kanals 7 marlas was delivered to the plaintiffs by the predecessor-in-interest of the defendant? OPP

3. Whether plaintiff has no cause of action and locus standi to institute the suit? OPD

4. Whether suit is not maintainable in its present form? OPD

5. Whether suit is bad due to misjoinder of parties? OPD

6. Whether suit is false, frivolous, vexatious and the same is liable to be dismissed with special costs? OPD

7. Whether the impugned agreement is false, baseless result of forgery, without consideration and the same is liable to be cancelled? OPD

8. Relief.

The learned trial Court while giving its finding on Issue No. 1 observed that the said agreement Exh.P-1 was attested by Khalid Javaid and Zawar Hussain but only Zawar Hussain was produced as PW-4 and the second witness Khalid Javaid was not produced without any explanation of either summoning him through the process of the Court, therefore, the said document is not proved under Article 17 and 79 of the Qanun-e-Shahadat Order, 1984. It was also observed that PW-2/Muhammad Munir Arshad was a scribe who even admitted that the document did not contain either his name or his signatures. It was also observed that the witness did not prove the payment of consideration for the said transaction and Issue No. 2 was also decided against the petitioners. The learned appellate Court concurred with the findings of the learned trial Court and upheld the reasons given by it. Hence this civil revision.

1. Mirza Hafeez-ur-Rehman, Advocate, learned counsel for the petitioners contends that a document can be proved by two witnesses who attested the document and not by the two marginal witnesses. Adds that PW-4/Zawar Hussain is as good as any other witness of the document despite being a vendor. He places reliance upon Mst. Sakina Bibi and another versus Muhammad Anwar alias Mujahid and others (PLD 2007 Lahore 254) and Sana Ullah and another versus Muhammad Manzoor and another (PLJ 1996 SC 526) and prays for setting aside of the two judgments passed by the two Courts below.

2. Conversely, Mian Subah Sadiq Klasson, Advocate, learned counsel for the legal heirs of Manzoor Hussain/Respondent No. 1 (1-A to 1-G), however, contends that the agreement to sell Exh.P1 was required to be proved by Khalid Javaid, the other marginal witness and that stamp vendor/scribe cannot be substituted for other marginal witness. Further contends that even the name of Muhammad Munir Arshad/PW-2, the alleged vendor, is not mentioned anywhere in the plaint or in the alleged agreement to sell, Exh.P-1, therefore, he cannot be considered as a witness of the document. The date of the execution was not mentioned on the document Exh.P1 and Article 17 of the Qanun-e-Shahadat Order, 1984 duly applies requiring the proof of a document by two witnesses. Places reliance upon Hafiz Tassaduq Hussain versus Muhammad Din through Legal Heirs and others (PLD 2011 SC 241) and also submits that the judgment cited by the learned counsel for the petitioners in the case of Mst. Sakina Bibi and another versus Muhammad Anwar alias Mujahid and others (PLD 2007 Lahore 254) does not relate to an agreement to sell as it deals with the case of a will.

3. Arguments heard. File perused.

4. The petitioners’ case as put forthwith by Mirza Hafeez-ur- Rehman, Advocate is that the agreement to sell dated 01.09.2004, Exh.P-1 was duly executed between the petitioners and the predecessor of the Respondents (1-A to 1-G), namely, Manzoor Hussain which was proved on the basis of the statement of PW-4/Zawar Hussain and Muhammad Munir Arshad/PW-2 as both witnessed the execution of the document and that the latter despite being a scribe, was a marginal witness. However, the introduction of PW-2 as a witness was seriously objected by Mian Subah Sadiq Klasson, Advocate, learned counsel for Respondent No. 1 (1-A to 1-G) on the ground; firstly, that his name was not mentioned on the document; secondly, he was not a stamp vendor since he did not produce any valid license or any register showing entry of the said stamp paper and thirdly, he has not witnessed the transaction having been completed in his presence.

5. Admittedly, Exh.P1, the alleged sale-deed was executed in the presence of Khalid Javaid and Zawar Hussain as two witnesses. Non-production of Khalid Javaid was neither explained by the petitioners nor any serious effort was made to produce him before the Court through the process of law. Legally speaking, a document is required to be proved under Article 79 of the Qanun-e-Shahadat Order, 1984, which is reproduced as under:--

“79. Proof of execution of document required by law to be attested. If a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses [at] least have been called for the purpose of proving its execution, if there be two attesting witnesses alive, and subject to the process of the Court and capable of giving evidence:

Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provision of the Registration Act, 1908, (XVI of 1908) unless its execution by the person by whom it purports to have been executed is specifically denied.”

The competency of a witness has been laid down in Article 17 of Qanun-e-Shahadat Order, 1984 which is also reproduced as under:--

“17. Competence and number of witness.--(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.”

A perusal of the above said two provisions of the Qanun-e- Shahadat Order, 1984, clearly demonstrates that except for a will, no document can be used in evidence until it is proved by two attesting witnesses.

1. In the instant case, Zawar Hussain and Khalid Javaid were the two attesting witnesses and mere production of one i.e. Zawar Hussain in evidence as PW-4 will not discharge the burden upon the petitioners to prove the said document when its execution was specifically denied by the respondent. Interestingly, neither in the agreement to sell (Exh.P-1) nor in the plaint name of Muhammad Munir Arshad was mentioned in any capacity. He himself admitted that though he witnessed the signing of the document but remained ignorant about the payment having been made in his presence. He claims to be a witness of the signing of the said document by two witnesses, therefore, he cannot be considered as a witness of the transaction mentioned in the document. PW-4 though admitted that the payment was made in his presence to Manzoor Hussain yet he does not mention anywhere that Muhammad Munir Arshad was a witness of the document. He just said that some scribe signed the document.

2. A witness cannot be introduced to prove a document unless his name exists on the document, or was referred by any of the witnesses in their statements or was named as such in the plaint, therefore, at least his name was required to be mentioned in the list of witnesses under Order XVI, C.P.C. I am afraid, even the statement of Muhammad Munir Arshad cannot support the petitioners as he does not qualify to be a witness on the basis of the above said criteria. If this tendency is allowed to prevail, any person at any time will come forward to be considered as witness to prove any document which will be against the spirit of law relating to the proof of a document. The judgment relied upon by the learned counsel for the petitioners in case of Mst. Sakina Bibi and another versus Muhammad Anwar alias MUJAHID and others (PLD 2007 Lahore 254) also supports this point of view. However, I am fortified by the recent judgment of apex Court in case of Hafiz Tassaduq Hussain versus Muhammad Din through Legal Heirs and others (PLD 2011 SC 241), where it was held as follows:--

“…..Therefore, in my considered view a scribe of a document can only be a competent witness in terms of Articles 17 and 79 of the Qanun-e-Shahadat Order, 1984 if he has fixed his signature as an attesting witness of the document and not otherwise; his signing the document in the capacity of a writer does not fulfil and meet the mandatory requirement of attestation by him separately, however, he may be examined by the concerned party for the corroboration of the evidence of the marginal witnesses, or in the eventuality those are conceived by Article 79 itself not as a substitute.”

1. Even otherwise, the concurrent findings of fact recorded by the learned Courts below cannot be interfered with in the exercise of revisional jurisdiction in the absence of any illegality or glaring irregularity, as a result of which this revision petition has been found meritless and is, therefore, dismissed.

(R.A.) Petition dismissed

PLJ 2016 Lahore 442

Present: Muhammad Sajid Mehmood Sethi, J.

M/s. PHARMAWISE LABORATORIES (PVT.) LTD., LAHORE through Chief Executive Officer--Petitioner

versus

GOVERNMENT OF THE PROVINCE OF PUNJAB through Secretary, Health C.S., Lahore and 2 others--Respondents

W.P. No. 27589 of 2015, heard on 21.10.2015.

Punjab Procurement Rules, 2014--

----Rr. 16 & 17--Pre-qualify bidders--Essential--It is discretionary for a procuring agency to engage in pre-qualification of bidders--In case of procurement of goods of one hundred million rupees or above and large consultancy, procuring agency is required to pre-qualify bidders, except where a procuring agency, for reasons to be recorded in writing, dispenses with requirement of pre-qualification of bidders--For exercising power of blacklisting a person under Rule 19 of Punjab Procurement Rules, 2009 (repealed) and Rule 21 of Rules, 2014, respectively, and not process of pre-qualification which has been provided under Rules 16 and 17 of Rules, 2014.

[P. 451] A & B

Punjab Procurement Rules, 2014--

----R. 16--Process of pre-qualification--Pharmaceutical manufacturing units of drugs--Allegations of malafide, discrimination and unfairness--It is now well settled that such allegations require proof of high order and burden of proof lies on person who makes it, therefore, mere leveling of unsubstantiated allegations of mala fide, unfairness and discrimination on part of public functionaries does not advance case of petitioner. [P. 452] C

Punjab Procurement Rules, 2014--

----R. 34--Discrimination between bidders--Violation--Malafide--Even minor deviation from rules / regulations in absence of any credible allegation of mala fides or corruption does not furnish a valid ground for interference in judicial review. [P. 452] D

Constitution of Pakistan, 1973--

----Art. 199--Punjab Procurement Rules, 2014, Rr. 16 & 17--Constitutional petition--Bidders--Business of pharmaceutical drugs--Question of--Whether a contractor or supplier or a class of contractors or suppliers are pre-qualified or not is either a policy issue or commercial transaction requiring specialized fields--Courts lack expertise to express any opinion as to technical expertise or managerial capabilities of contractors and, therefore, ordinarily refrain from entering into policymaking domain of executive authority unless same smacked of arbitrariness, favoritism and in total disregard for mandate of law. [P. 452] E

Contradictory Pleas--

----New and contradictory pleas were raised in rejoinder--Unclear and outside pleadings of parties--It is well settled that new plea cannot be raised in rejoinder--No party can be allowed either to make a departure from its pleadings or improve case set up by it therein.

[P. 453] F

Rejoinder--

----A new case cannot be set up in rejoinder. [P. 454] G

Sh Muhammad Nawaz, Advocate for Petitioner.

M/s. Muhammad Ejaz, Assistant Advocate General, Muhammad Asif Iqbal, Law Officer, Health Department, Tayyab Farid, Procurement Specialist, and Usman Habib, Pre-qualification Specialist, Health Department for Respondents.

Date of hearing: 21.10.2015

Judgment

This consolidated judgment shall dispose of instant writ petition along with following connected writ petitions as common questions of law and facts are involved in these cases:

1. W.P. No. 26355 of 2015. M/s. Mega Pharmaceuticals Limited, v. The Government of the Province of Punjab, etc.

2. W.P. No. 27575 of 2015. M/s. FYNK Pharmaceuticals, v. The Government of the Province of Punjab, etc.

3. W.P. No. 30123 of 2015. M/s. Venus Pharma. v. The Government of the Province of Punjab, etc.

4. Brief facts for disposal of this writ petition are that petitioner-company is engaged in the business of pharmaceutical drugs. Respondents invited applications through website to prequalify for supply of drugs for the year 2015-16. Petitioner accordingly applied in April 2015. Respondents declared the petitioner as “Not Prequalified” in the 'List of Prequalified Firms by the Health Department, Punjab for Central Rate Contract 2015-16' dated 13.08.2015. Feeling aggrieved of the aforesaid, petitioner submitted representation before Respondent No. 1, which was rejected, vide decision of the Grievance Committee Meeting dated 27.08.2015, on the basis of sample fail and conviction and the petitioner was again declared “Not Prequalified”. The aforesaid decisions of respondents have been assailed through the instant petition, with the following prayer:-

“In these circumstances, it is most respectfully prayed that this petition may very kindly be accepted, the decision dated 13.8.2015, working paper and decision dated 28.8.2015 passed by the respondents whereby the respondents ordered “NOT PREQUALIFIED” the petitioner mentioned with reference to the Application No. 196 at Serial No. 161 in Annex “D”, “D/1” and “F” dated 13.8.2015 and 28.8.2015, and the entire proceedings regarding prequalification process, prequalification and not qualification, invitation of Tenders/ Bids may very kindly and graciously be declared as unlawful, illegal, unconstitutional, void therefore of no legal effect, without lawful authority, as such set aside the same by an appropriate order for Re-tendering / bidding in the interest of justice.

It is further prayed that during the pendency of titled petition, operation of the impugned order/decision i.e. Order dated 13.8.2015 Annex. “D”, working paper Annex. “D/1” and Decision dated 28.8.2015 Annex. “F” may very graciously be suspended and respondents may very kindly be directed to receive the Bids and entertain the petitioner's Tenders for the purchase of Drugs for the year 2015-2016 to meet the ends of justice, in the meanwhile further process of bidding / Tender that of awards may kindly be stayed.

Any other relief which this Honourable Court deems fit and necessary in the interest of justice may also be allowed.”

1. Learned counsel for petitioner submits that the Chapter IV of the Punjab Procurement Rules, 2014 (hereinafter referred to as the “Rules, 2014”) deals with the prequalification, qualification and disqualification but not for medicines. Condition of prequalification is in violation of the Circular dated 29.04.2010, which was placed before this Court by the respondents in W.P. No. 3553 of 2010. He adds that the said Circular contained the guidelines for procurement of drugs / medicines / equipments for District Governments, which was reproduced by this Hon'ble Court in the order dated 28.05.2010, as under:--

“with reference to electro medical equipment and medicine pre-qualification and registration of firms may not be undertaken henceforth.”

Learned counsel for the petitioner argues that respondents are under legal duty to specify a mechanism and manner for the purposes of barring a contractor from participating in any procurement process of the procuring agency which they have failed to provide in the light of law and principles laid down by this Court in the decisions rendered in W.P. No. 9910 of 2014 dated 05.05.2014 and W.P. No. 424 of 2014 dated 22.01.2015. Regarding test reports of samples, he submits that all the test reports were not supplied to petitioner, and they have yet to pass through the process of scrutiny, and are even otherwise irrelevant for the purposes of prequalification being not the part of mechanism and manner. Adds that Rule 16 of the Punjab Procurement Rules, 2014 is not applicable for the Procurement of Pharmaceutical Drugs and Rule 16(2) of the said Rules exempt the bidders from the condition of prequalification in case the goods for procurement are worth rupees One Hundred Million and above. He also referred to the Rule 34 of the Rules, 2014, which lays down that no procuring agency shall introduce any condition, which discriminates between bidders or which is difficult to meet. In support of his submissions, he has relied upon Saghir Ahmed through Legal Heirs v. Province of Punjab through Secretary, Housing and Physical Planning Lahore and others (PLD 2004 Supreme Court 261) and Messrs Ittehad Cargo Service and 2 others v. Messrs Syed Tasneem Hussain Naqvi and others (PLD 2001 Supreme Court 116), to contend that this Court possesses the jurisdiction to examine the validity of order with regard to grant of a concluded contract and strike down the same on the ground of mala fide, arbitrary exercise of discretionary powers, lack of transparency, discrimination and unfairness etc. He further submits that the decision to debar the petitioner is a void order based on discrimination, prepared for political victimization, as rendered in the judgment passed in W.P.No. 424 of 2015 supra. He finally submits that the impugned actions of respondents are violative of the Articles 4 and 18 of the Constitution of the Islamic Republic of Pakistan, 1973 (“Constitution”) as well as the provisions of the Drugs Act, 1976, and Drugs Regulatory Authority of Pakistan Act, 2012.

1. On the other hand, learned Assistant Advocate General submits that Health Department, Government of the Punjab, received a reference from Drug Regulatory Authority of Pakistan, Ministry of National Health Services, Regulation and Coordination, Islamabad, wherein it was intimated that the Senate Standing Committee has recommended to ensure prequalification of manufacturers for supply of drug / medicine in Government Hospital and Health Institutions. He further contends that the Defective Drug Inquiry Tribunal, constituted to probe the incidence of Punjab Institute of Cardiology, in its report made following amongst other recommendations regarding acquisition of medicines for the hospitals:--

“13.6 RECOMMENDATIONS REGARDING ACQUISITION OF MEDICINES:

(a) The procedures prescribed in PPRA Rules may be followed with modifications designed to acquire medicines for hospitals.

(b) There must be emphasis on ensuring that the intending suppliers meet the minimum criteria of cGMPs compliance and are pre- qualified for that purpose before they are pre-qualified to submit bids for supply of medicines to the hospitals.

(c) ……………..…

(d) ………………..

(e) …………..……

(f) ………………..

(g) ……………..…

(h) ………………..

(i) ………………..

(j) ………………..

(k) ……..…………

(l) ………………..

(m) ………..………

(n) The pre-qualification procedures and criteria adopted and followed by Agha Khan Hospital for acquisition of drugs may be studied and adopted in order to ensure that the emphasis shifts from price to quality.”

Learned AAG submits that Health Department gave advertisement in the press for prequalification of Pharmaceutical suppliers and 277 applications were received by the Prequalification Cell, notified vide Notification No. PA / ASA / 1-2 / 2015 dated 25.03.2015, on 22.04.2015. On initial scrutiny, it was observed that only 233 applications were from local pharmaceutical manufacturers and sole agents of foreign principals (importers) whereas others were firms marketing products which were not registered with Ministry of Health/Drug Regulatory Authority of Pakistan, Islamabad. He submits that meeting of Prequalification Committee was held on 11.08.2015, under the chairmanship of Additional Secretary (Drug Control), to assess the applications and prequalify the pharmaceutical manufacturers and sole agents of foreign principals who had applied for prequalification to the Health Department, and, keeping in view the recommendations of Senate Standing Committee and Defective Drug Inquiry Tribunal, it was decided as under:--

“(i) Not to prequalify those firms who have applied for prequalification and marketing products which are not registered with MOH/DRAP, Islamabad and those in which there are no competitors (Monopoly items).

(ii) Only those firms will be prequalified who have valid GMP for manufacturing / marketing in Pakistan and not to consider the GMP issued for export purpose by the Federal Government.

(iii) For those companies whose GMP Certificate is in process, the inspection report will be considered in which there are no adverse remarks for action to be taken by the Federal Government.

(iv) The firms will not be prequalified if convicted from the Drugs Courts as reported by Chief Drugs Controller Punjab.

(v) The firms will not be prequalified whose numbers of drug samples are greater than three as declared by Drugs Testing Laboratories (DTLs) in Punjab; as reported by the Provincial Quality Control Board (PQCB).”

Learned AAG submits that the 16 samples of the petitioner were reported substandard by Drugs Testing Laboratories (“DTLs”) in Punjab, and it was also convicted by the Drug Court, Lahore, on 13.05.2015, therefore, the petitioner was declared as “Not Prequalified”. He further submits that the petitioner filed a grievance petition in the Health Department against the decision of Prequalification Committee which was rightly rejected by the Grievance Redressal Committee of Health Department. Adds that petitioner has not approached this Hon'ble Court with clean hands. Prequalification process was initiated prior to the invitation of bid. Applicants were declared prequalified and not-prequalified without any discrimination, and the non-prequalified firms were debarred to participate in the further process of bidding of procurement of medicines and surgical disposable on 09.09.2015 by the Health Department, Government of the Punjab. Learned Assistant Advocate General finally contends that petitioner has failed to point out any illegality or legal infirmity in the bidding process and violation of rules, regulations and law applicable thereto, therefore, the writ petition is liable to be dismissed.

1. Arguments have been heard and record perused.

2. Pre-qualification process, which is the subject matter of the instant case, is provided under Rules 16 and 17 of the Rules, 2014, which are reproduced below for ready reference:--

“16. Prequalification.--(1) Subject to sub-rule (2), a procuring agency may, prior to floating the tenders or invitation to proposals or offers, engage in prequalification of bidders in case of services, civil works, turnkey projects and also in case of procurement of expensive and technically complex equipment to ensure that only technically and financially capable firms or persons having adequate managerial capacity are invited to submit bids.

(2) The procuring agency shall prequalify bidders under sub-rule (1) in case of procurement of goods of one hundred million rupees and above and large consultancy, except where a procuring agency, for reasons to be recorded in writing, dispenses with the requirement of prequalification of bidders.

(3) For purposes of the prequalification of bidders, a procuring agency shall take into consideration the following factors:

(a) qualifications;

(b) relevant experience and past performance;

(c) capabilities with respect to personnel, equipment, and plant;

(d) financial position;

(e) appropriate managerial capability; and

(f) any other factor that a procuring agency may deem relevant, not being inconsistent with these rules.

(4) The procuring agency shall ensure that the prequalification is based on the capacity of the interested parties to satisfactorily perform the services or works.

(5) In case of fast track projects where the time is the essence or where potential consultants are limited or the assignment is of a complex nature, the procuring agency may, after recording reasons and with the approval of Provincial Development Working Party, invite a request for proposals through public notice under Rule 12.

(6) Notwithstanding anything contained in sub-rules (1) and (2), Planning and Development Department of the Government may shortlist the individual consultants, firms or companies involving legal, financial and technical expertise.

(7) A procuring agency may, at the time of prequalification process consider any of the individual consultants, firms or companies shortlisted under sub-rule (6), after conducting the due evaluation process (technical or financial), in case where:

(a) procuring agency lacks capacity of prequalification process;

(b) sufficient time to take up the process of prequalification is not available; and

(c) expertise acquired by individual consultant, firms or companies shortlisted under sub-rule (6) in line with the requirements of the procuring agency.

(8) Planning and Development Department of the Government shall:

(a) before shortlisting process, in consultation with the key line departments, determine the parameters and selection criteria for shortlisting of individual consultants, firms or companies to be considered as consultant;

(b) shortlist all such individual consultants, firms or companies only for one financial year through its notified committee strictly in accordance with the procedure provided under these rules;

(c) shortlist atleast three individual consultants, firms or companies for each area of expertise;

(d) upload the list of such shortlisted individual consultants, firms or companies on the website of Punjab Procurement Regulatory Authority and Planning and Development Department of the Government for the consumption of public sector organizations; and

(e) circulate the list to all the public sector organizations.

(9) A procuring agency intending to use the facility of shortlisted individual consultants, firms or companies, while taking up the process of procurement, shall invite technical or financial bids from all such shortlisted individual consultants, firms or companies as per requirement of the procuring agency.

(10) A procuring agency may select a consultant under this rule and where this rule is silent about any selection process, it shall adopt the selection process of a consultant provided in other rules.

1. Prequalification process.--(1) The procuring agency engaging in prequalification shall announce, in the prequalification documents, all information required for prequalification including instructions for preparation and submission of the prequalification documents, evaluation criteria, list of documentary evidence required by contractors to demonstrate their respective qualifications and any other information that the procuring agency deems necessary for prequalification.

(2) The procuring agency shall provide a set of prequalification documents to any contractor, on request and subject to payment of such price as the procuring agency may determine to defray the cost on account of printing and provision of the document.

(3) The procuring agency shall promptly inform the contractor who has applied for the prequalification whether or not he has been prequalified and shall, on request from the applicant who had applied for prequalification, a list of contractors who have been prequalified.

(4) On a request, the procuring agency shall communicate to the contractor who has not been prequalified the reasons for not prequalifying the contractor.

(5) Only the prequalified contractors shall be entitled to participate in the subsequent procurement proceedings.”

Bare perusal of Rules 16 and 17 shows that in terms of sub-rule (1) of Rule 16, it is discretionary for a procuring agency to engage in pre-qualification of bidders, however sub-rule (2) of the Rule 16 mandates that in case of procurement of goods of one hundred million rupees or above and large consultancy, the procuring agency is required to pre-qualify bidders, except where a procuring agency, for reasons to be recorded in writing, dispenses with the requirement of pre-qualification of bidders. Rule 16(3) enlists factors to be considered by procuring agency for the purposes of the pre-qualification of bidders, and in terms of Rule 16(3)(f) a procuring agency can consider any factor which it may deem relevant and which is not inconsistent with the rules. Similarly Rule 17 ibid deals with the process of pre-qualification. Under Rule 17(5) only the pre-qualified contractors are entitled to participate in the subsequent procurement proceedings. In the facts and circumstances of this case, reliance of the learned counsel for the petitioner on judgments passed by this Court in W.P. No. 9910 of 2014 and W.P. No. 424 of 2014 is totally misplaced as in the said judgments, learned single benches of this Court has discussed and interpreted “mechanism” and “manner” for exercising power of blacklisting a person under Rule 19 of the Punjab Procurement Rules, 2009 (repealed) and Rule 21 of the Rules, 2014, respectively, and not the process of pre-qualification which has been provided under Rules 16 and 17 of the Rules, 2014.

1. Record shows that the petitioner was not declared prequalified as 16 samples of its medicines were reported substandard by the DTLs in Punjab, and, admittedly, the firm was convicted on 13.05.2015 by the Drug Court, Lahore. Learned counsel for the petitioner has laid much emphasis on Circular dated 29.04.2010, which was placed before this Court by the respondents in W.P.No. 3553 of 2010, to argue that Rule 16 of the Punjab Procurement Rules, 2014 is not applicable for procurement of medicines, therefore, the impugned process of prequalification is in violation of the said Circular. This argument of the learned counsel is without any force as the entire process of prequalification of pharmaceutical manufacturing units of drugs (medicines and disposables) & sole agents of foreign principles has been carried out under Rules, 2014 and the said Circular cannot over ride the Rules ibid which have been lawfully made by the Government under Section 26 of the PPRA Act, 2009 for carrying out the purposes of the said Act of 2009.

2. Learned counsel for the petitioner has leveled allegations of mala fide, arbitrary exercise of discretionary powers, lack of transparency, political victimization, discrimination and unfairness etc. against the respondents. It is now well settled that such allegations require proof of high order and the burden of proof lies on the person who makes it, therefore, mere leveling of unsubstantiated allegations of mala fide, unfairness and discrimination on the part of the public functionaries does not advance the case of the petitioner. In this regard, reference can be made to Afzal Motors Company (Pvt.) Limited v. Provicne of Sindh and others (2009 SCMR 659) and Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others (2012 SCMR 455). Learned counsel for the petitioner has failed to point out any condition, which discriminates between bidders or which is difficult to meet in violation of the Rule 34 of the Rules ibid. Even minor deviation from rules / regulations in absence of any credible allegation of mala fides or corruption does not furnish a valid ground for interference in judicial review. As held by the Supreme Court of India in M/s. Michigan Rubber (India) Ltd. v. State of Karnataka and others (2013 SCMR 526), basic requirement of fundamental right of equality before law is fairness in action by the public functionaries, and non-arbitrariness in essence and substance is the heartbeat of fair play. Actions of public functionaries are amenable to judicial review only to the extent that the public functionaries must act validly for a discernible reason and not whimsically for any ulterior purpose. Where the public functionaries act within the bounds of reasonableness, it is legitimate to take into consideration the national priorities.

3. The question as to whether a contractor or supplier or a class of contractors or suppliers are prequalified or not is either a policy issue or commercial transaction requiring specialized fields. Courts lack expertise to express any opinion as to technical expertise or managerial capabilities of the contractors and, therefore, ordinarily refrain from entering into the policymaking domain of executive authority unless the same smacked of arbitrariness, favoritism and in total disregard for mandate of law. In this regard reference can be made to the case of Dr. Akhtar Hassan Khan supra and M/s. Khalid and Brother through proprietor and 5 others v. Punjab Province through Secretary Housing Urban Development and Public Health Engineering Department, Punjab Lahore and 2 others (2014 CLD 1410). Case law relied on by the learned counsel for the petitioner is not applicable on the facts and circumstances of this case, therefore, does not support the case of the petitioner.

4. Learned counsel for the petitioner has tried to take altogether new pleas, for challenging the orders impugned in the instant writ petition, by presenting two rejoinders at the time of final hearing of the case without confronting the same to the respondents. In one of the two rejoinders presented by the petitioner, it has been contended that the Public Procurement Rules, 2014, framed under the Public Procurement Regulatory Authority Act, 2009, are in contravention of the statute as there is no provision for “prequalification” in the PPRA Act, 2009, therefore, the same must be regarded as ultra vires of the statute. In support of this plea taken in the rejoinder, judgments reported as Executive District Officer Schools and Literacy, District Dir Lower and others v. Qamar Dost Khan and others (2006 SCMR 1630), Khawaja Ahmad Hassaan v. Government of Punjab and others (PLD 2004 Supreme Court 694), Zarai Taraqiati Bank Limited v. Said Rehman (2013 SCMR 642) and Syed Imam Shah and others v. Government of N.-W.F.P. and others (PLD 2004 Supreme Court 285) have been mentioned. These submissions of the petitioner cannot be considered for various reasons. New and contradictory pleas have been raised in the rejoinders, which are even otherwise vague, unclear and outside the pleadings of parties. If is well settled that new plea cannot be raised in rejoinder. No party can be allowed either to make a departure from its pleadings or improve the case set up by it therein. Petitioner was bound to make out its own case in conformity with the assertions made by it in the petition. Rejoinder is supposed to be just a supplement of its petition and is supposed to clarify such ambiguities which are left in the petition or are pointed out by the respondents in their reply. Altogether new case cannot be allowed to be presented in rejoinders based on additional set of papers at the time of final hearing as there will be no opportunity for the respondents to controvert such a new case set up in the rejoinders. Reference can be made to State Life Insurance Corporation v. Haji Abdul Ghani and 3 others (1986 MLD 1245), Syed Mohsin Raza Bukhari and 4 others v. Syed Azra Zenab Bukhari (1993 CLC 31). Similar view has been taken by the Superior Courts from Indian jurisdiction. In the case of Vishal Nilesh Mandlewala v. Justice R.J. Shah (Retd.) (2007) 2 GLR 1764), Gujarat High Court has held as under:

“11. The aforesaid submission does not deserve consideration for the simple reason that this submission does not form part of the pleadings and as recorded hereinbefore, at the stage of rejoinder, it is not possible to permit the petitioner to develop a new case. Apart from that, the petitioner has to succeed or fail on the facts of the case pleaded by the petitioner himself and cannot seek any relief on the basis of so-called case of omission or commission of the other side qua third party, without there being any prima facie evidence or pleadings to substantiate the averments that the case of the petitioner is identical with those third parties, namely in absence of any foundational facts.”

Similarly, Madras High Court in the case of M/s. Dollar Company (Pvt.) Ltd. v. The Deputy Commissioner of Central Excise, Division C, Chennai I Commissionerate, and others (2013 TMI 244 Madras High Court), and Rajasthan High Court in the case of Ram Prasad Somani v. The Bank of Rajasthan Limited (2001 (3) WLC 517 =(2002 (1) WLN 153) has held that a new case cannot be set up in rejoinder. Relevant part judgment passed by Madras High Court in the case of M/s. Dollar Company (Pvt.) Ltd. supra is as under:

“24. It is not understood how altogether a new case can be set up in rejoinder based on additional set of papers. Only those typeset of papers can be taken note of, which form part of pleadings, as the Court is to decide the case on the basis of pleadings set out in the writ petition, and not on the typeset of papers or additional typeset of papers as is sought to be projected by petitioner in this case.”

1. Petitioner has failed to point out any illegality or mala fide on part of the respondents warranting interference in judicial review. Even otherwise, question as to whether petitioner is qualified or not is a factual controversy, which cannot be resolved by this Court in its Constitutional jurisdiction.

2. For the reasons discussed above, this petition has no merits and the same is dismissed with no order as to costs.

(R.A.) Petition dismissed

PLJ 2016 Lahore 462

Present: Syed Mansoor Ali Shah, J.

WAJID ALI--Petitioner

versus

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

W.P. No. 6727 of 2014, decided on 11.12.2015

Punjab Legal Practitioners & Bar Council Rules, 1974--

----R. 5.2(b)--Punjab Legal Practitioners and Bar Councils Act, 1973, S. 26(1)(c)(iii)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Degree of LLB (Honours)--Exemption from training on basis of LL.M. Degree--Grant of exemption with LL.B. (Honours) was against mandate of Law--Held: Pb.B.C. will ensure that exemptions were granted strictly in terms of Rule 5.2-B of Rules, 1974 and as a consequence no exemptions shall be granted to the applicants holding LL.B. (Honours)--Petition was disposed of.

[P. 463] A

Mr. Sheraz Zaka, Advocate for Petitioner.

Mr. Nasar Ahmad, Deputy Attorney General for Pakistan.

Barrister Leharsib Hayat Dahar, Advocate for Pakistan Bar Council

Rana Intezar, Advocate for Respondent Punjab Bar Council

Mr. Khalid Umer, Assistant Secretary, Punjab Bar Council.

Date of hearing: 11.12.2015

Order

Grievance of the petitioner is that the respondent Punjab Bar Council is granting exemptions to candidates from training and examination provided under Rule 5.2B of the Punjab Legal Practitioners & Bar Council Rules, 1974 ("Rules"), after holding a degree of LL.B. (Honours) from Pakistan or abroad. His contention is that under Rule 5.2B of the Rules, exemption is available to an applicant who has obtained an LL.M. degree from any University in Pakistan or from a University recognized under Section 26(1)(c)(iii) of the Punjab Legal Practitioners and Bar Councils Act, 1973 or a degree or diploma which is declared by the Pakistan Bar Council to be equivalent to that degree or the applicant has been called to the Bar in England and has completed a full year training with a senior counsel in England which training thereafter entitles him to appear independently in Court in England.

1. Rana Intezar Ahmed, Chairman, Legal Education Committee of the Punjab Bar Council fully supports the contentions of the petitioner and submits that the submissions made by the petitioner reflect the legal position. He frankly submits that grant of exemption to applicants with LL.B (Honours) was against the mandate of the law.

2. In this view of the matter, Punjab Bar Council will ensure that exemptions are granted strictly in terms of Rule 5.2B of the Rules and as a consequence no exemptions shall be granted to the applicants holding LL.B. (Honours).

3. Disposed of in the above terms.

(R.A.) Petition disposed of

PLJ 2016 Lahore 463

Present: Muhammad Farrukh Irfan Khan. J

MUHAMMAD ARSHAD--Petitioner

versus

A.D.J., etc.--Respondents

W.P.No. 6338 of 2015 & C.Ms. No. 1, 2 of 2015, decided on 6.3.2015

Punjab Rented Premises Act, 2009--

----S. 9(b)--Relationship of landlord and tenant--Framing of issues--Annual value of rent of premises--Validity--Where tenancy is oral one, Tribunal will first direct landlord to deposit a fine equivalent of annual value of rent of premises in terms of Section 9(b) of Punjab Rented Premises Act, 2009 and then assume jurisdiction in matter--Petition allowed. [P. 464] A

Shahzada Muhammad Zeeshan Mirza, Advocate for Petitioner

Date of hearing: 6.3.2015

Order

Learned counsel submits that the impugned order and judgment dated 23.05.2014 and 17.12.2014, passed by learned Special Judge (Rent) and learned Additional District Judge, Lahore respectively, are illegal as the petitioner in his application for leave to contest denied the relationship of landlord and tenant, which requires framing of issue and recordal of evidence but both the learned Courts below have evicted him from the disputed premises refusing his application for leave to contest. Further submits that it has been held by the august Supreme Court of Pakistan that where the tenancy is oral one, the learned Rent Tribunal will first direct the landlord to deposit a fine equivalent of the annual value of the rent of the premises in terms of Section 9(b) of the Punjab Rented Premises Act, 2009 and then assume jurisdiction in the matter.

1. Points raised need consideration. Admit. Notice to Respondents No. 3-A to 3-D for 26.03.2015.

C.M. No. 1/2015

1. Notice for 26.03.2015. Meanwhile, operation of the impugned order and judgment dated 23.05.2014 and 17.12.2014 is suspended till the next date.

C.M. No. 2/2015

1. Dispensation sought for is allowed subject to all just and legal exceptions. CM. stands disposed of.

(R.A.) Petition allowed

PLJ 2016 Lahore 465

Present: Muhammad Farrukh Irfan Khan, J.

IFTIKHAR RASOOL ANJUM, etc.--Petitioners

versus

NATIONAL BANK OFPAKISTAN, etc.--Respondents

W.P. No. 13590 of 2010, decided on 15.1.2016.

Bank Nationalization Act, 1974--

----S. 13(1)--National Bank of Pakistan Ordinance, 1949, S. 32--Constitution of Pakistan, 1973, Art. 199--Circular No. 228(c), dated 26.12.1977----Constitutional petition--Retired officers of NBP--New pension scheme--Bank employees were required to opt for new scheme of pension--Objection of laches--Discretionary on basis of equity--Suffering financial loss due to circular--Maintainability of petition--Validity--Petitioners were employees of NBP and they served bank in different capacities during period and stood retired after attaining age of superannuation--Board of dissectors had traveled beyond its competence while reducing pensionary benefits of petitioners through circular which was not even having assent/approval of Government--Notification being devoid of any legal status, declared illegal without any lawful authority and had no effect as against pensionary benefits--Petitioners were officers/employees of NBP which was a body corporate having being established under Ordinance, 1949--Board of Directors had travelled beyond its competence while reducing the pensionary benefits of petitioners through circular which was not even having the assent/approval of Government--Notification being devoid of any legal status is, therefore, declared illegal, without any lawful authority and had no effect as against pensionary benefits of petitioners provided to them under circular--Petitions were accepted. [Pp. 468, 469 & 473] A, B & C

M/s. Hafiz Tariq Naseem, Umar Hayat Khawaja, Faiz Rasool Jalbani, Ch. Muhammad Akhtar and Muhammad Faheem,Advocates for Petitioners.

Kh. Muhammad Farooq Mehta, Ch. Muhammad Ashraf Khan and Abid HussainCh., Advocates for Respondents.

Mr. Zakria Sheikh, DAG and Syed Nadeem Anjum, Standing Counsel.

Dates of hearing: 30.7.2015 & 15.10.2015.

Judgment

Through this single judgment I intend to decide Writ Petition No. 13590/10 as well as Writ Petitions No. 8260/14, 31187/13, 19765/10, 13400/10, 13401/10, 21843/10, 22757/10, 8730/13, 8731/13, 25207/13, 27942/13, 28452/13, 29211/2013, 29217/13, 29717/13, 30704/13, 32081/13, 1111/14, 1112/14, 2588/14, 2590/14, 3209/14, 5903/14, 5907/14, 7246/14, 8724/14, 8798/14, 8956/14, 8958/14, 9029/14, 9551/14, 10590/14, 10925/14, 2259/13 and 19091/15 as they all proceed almost on similar facts and circumstances and the law points involved therein are also identical.

1. Brief facts of the case leading to the controversy in hand are that all the petitioners are retired officials/officers of National Bank of Pakistan (a financial institution) which was constituted under National Bank of Pakistan Ordinance, XIX of 1949 and were governed by the statutory Rules, 1973 made thereunder duly approved by the Federal Government of Pakistan. During their service with the Bank, Federal Government introduced new pension, scheme which was circulated by the respondent-bank vide Circular No. 228 (C) dated 26.12.1977. As per Clause 4(b) of the said circular the pension of the retired employees of the Bank was to be calculated at the rate of 70% of average emoluments on completion of 30 years qualifying service. The bank employees were required to opt for a new scheme of pension and accordingly the petitioners opted for aforesaid scheme. In Para No. 10 of the aforesaid scheme it was further mentioned that any change or revision in rates/scales of pension or gratuity that may thereafter be made by the Federal Government shall also apply to the officials/ officers of the Bank. In the year 1999 the Management of the1 Bank issued Circular No. 37/1999 dated 16.06.1999 whereby the pension was reduced to almost 33% as against 70% which is impugned herein these writ petitions.

2. Learned counsels for the petitioners contends that Circular No. 228 (C) dated 26.12.1977 was issued with the approval of the Federal Government and the petitioners opted for the said scheme in writing which was accepted by the respondent-bank as such a lawful right stood accrued in favour of the petitioners which could not be recalled without first putting the petitioners under notice and seeking approval from the Federal Government. In this regard, reliance has been placed upon case law reported as Saqib Akbar A.S.I, and others vs. Sanobar Khan, A.S.I, and others (1998 SCMR 2013). It has further been contended that the Board of Directors of the National Bank has no authority to reduce pensionary benefits of the petitioners which are protected under Section 13(i) of the Banks Nationalization Act, 1974. Reliance is placed on case reported as Muhammad Tariq Badar and another vs. National Bank of Pakistan and others (2013 SCMR 314). Learned counsels have also made a reference to the case reported as Rasheed Baig and others vs. Zarai Taraqiati Bank Limited ( 2013 PLC (C.S) 1444) of the Islamabad High Court to contend that in a similar situation the employees of Zarai Taraqiati Bank Ltd. have been restored previous formula factor @ 70% with regard to their pension. They next contended that the impugned circular reducing the pensionary benefits of the petitioners is also violative of Articles 3, 4, 9 and 10 of the Constitution of Pakistan, 1973 and hit by the principle of loucs poenitentiae. He added that being aggrieved by the impugned circular the petitioners have been moving various applications before the administration of the Bank but of no avail.

3. Learned counsels for the Bank on the other hand have strenuously argued that the matter relates to the applicability of National Bank of Pakistan (Staff) Service Rules, 1980, and it is a prerogative of the administration of the respondent/bank to decide the matter according to their policy. They add that to regulate pension of the employees of the bank is purely an executive act and based on a policy decision taking into consideration various factors including growing inflation and institutions financial constraints; that Board of Directors of the respondent/bank is fully empowered to fix amount of pension of its employees, make increase therein, bring about changes in its formulae from time to time and prescribe methods for its calculation. They further contended that these writ petitions are not maintainable inasmuch as the petitioners are getting much more benefits than the required ones and that writ cannot be issued on account of the matter being based on controversial facts. They also raised an objection that the matter pertains to the year 1999 whereas writ was filed in the year 2010 as such the same is hit by the principle of laches and this alone is a sufficient ground for dismissal of the writ petition. It was further added that after circular of the year 1977 the management of the bank also issued a number of instructions and circulars whereby the pay scales of the bank employees were revised and their pension rates were also enhanced accordingly to which the employees of the bank including the petitioners were also benefitted, therefore, the present claim of the petitioners is not justified. In this regard, they have made reliance on case reported as Ch. Abdul Hameed etc. vs. National Bank of Pakistan (NLR 1982 Service 243). In the end, learned counsel for the bank has also produced comparative chart showing calculation on the basis of Circular No. 288(C) dated 26.12.1977, Circular No. 37/99 dated 16.06.1999, Circular No. 58/2008 dated 01.07.2008 and Circular No. 33/2010 and submitted that the employees of the Bank have not suffered any loss of pensionary benefits as alleged by them.

4. Arguments heard. Record perused.

5. First of all I would like to deal with the objection of laches. The petitioners have invoked Constitutional jurisdiction of this Court which is discretionary and the relief granted thereunder is always on the basis of equity. The issue of laches is to be considered and examined on the basis of equitable principles and this Court finds that in this case equity leans in favour of the petitioners because it has been proved on record that the petitioners have been agitating their claim before the administrative authorities of the Bank from the very inception of the impugned circular, when they were still in their service. It is also evident from the record that on the agitation of the petitioners certain Circulars No. 24/2005 dated 01.02.2005, No. 54/2006 dated 10.07.2006 and No. 16/2008 dated 15.02.2008 were issued and they were assured that their grievance will be redressed and a committee was also formed in this regard. In this view of the matter the objection of laches raised by the bank is without substance. Even otherwise, the petitioners are continuously suffering financial loss due to impugned circular, therefore, being a continuous wrong done in the matter of their pensionary emoluments and the petitioners cannot be ousted on the ground of laches which is merely of a technical nature.

6. So far as objection of the Bank regarding maintainability of this writ petition on the ground of controversial facts is concerned, suffice it to say that the lis in hand involves a legal question insofar as the petitioners’ case is that during their service in the year 1977 a circular was issued by the Bank and they were asked to give option whether it was acceptable to them or not. The petitioners admittedly adopted the said circular and their option was accepted by the bank, therefore, now the issue which arises before this Court is whether the Bank thereafter could unilaterally override the terms and conditions thereof which is purely a legal question and this Court has jurisdiction to adjudicate upon the same.

7. Now coming to the merits of the case. Admittedly, the petitioners are officers/employees of the National Bank of Pakistan which is a body corporate having being established under the National Bank of Pakistan Ordinance, 1949. U/S. 32 of the said Ordinance the Central Board of the Bank was empowered to make bye-laws, with previous approval of the central Government to run and regulate the affairs of the bank and to provide for all matters for which provision is necessary for the purposes of governing the services of the employees of the bank. Accordingly, Central Board made the rules called as National Bank of Pakistan (Staff) Services Rules, 1973 which were duly sanctioned by the Central Government and thus earned the status of statutory rules. In 1974 the' Banks (Nationalization) Act, 1974 was promulgated for nationalization of banking business in Pakistan and U/S. 13 of the said Act all officers and other employees of the bank were provided to continue in their respective offices and employments on the same terms and conditions, remuneration and rights of pension and gratuity as were applicable to them immediately before the commencing day. Under Act, 1974 no rules were framed U/S. 20 of the said Act by the Federal Government. However, the executive board of the bank U/S. 11(4) of the Act ibid framed National Bank of Pakistan (Staff) Service Rules 1980. Thus it is manifestly clear that 1973 rules were the statutory rules which were duly approved by the Federal Government, whereas, 1980 Rules having no sanction by the Federal Government could not acquire the status of statutory rules. Admittedly, the petitioners are employees of National Bank of Pakistan and they served the Bank in different capacities during the period between 1965 to 2005 and stood retired after attaining the age of superannuation. Their sole grievance is that during the tenure of their service the Federal Government introduced a pension scheme which was circulated by the Bank vide Circular No. 228 (C) dated 26.12.1977, Clause 4(b) of which provided as under:

“(b) Pension shall be calculated at the rate of 70% of average emoluments on completion of 30 years qualifying service. Where qualifying service is less than 30 years but not less than 10 years, proportionate reduction in percentage shall be made. Any amount of pension in excess, of Rs. 1,000/- shall be reduced by 50% ……”

1. The petitioners as per requirement opted to adopt the aforesaid scheme which was duly accepted by the respondent/bank. In Para 10 of the said scheme it was further laid down as under:

“Since the rates of pension and gratuity given above have been fixed by the Pay Commission for banks and financial institutions on the same lines as obtaining on the side of the Federal Government, the existing provisions and any changes or revision in the rates or scales of pension or gratuity that may hereafter be made by the Federal Government shall also apply to the officers/executives of the Bank.”.

1. The petitioners’ right of pensionary benefits stood protected by virtue of Section-13 (1) of the Banks (Nationalization) Act, 1974 which envisages that all officers and other employees, of a Bank shall continue in their respective offices and employment on the same terms and conditions, remuneration and rights as to pension and gratuity, as were applicable to them immediately before the commencing day. Further, in view of Section-20 of the said Act, it is only the Federal Government which may by notification in the official gazette make rules to provide for all matters which provision is necessary or expedient for the purpose of giving effect to the provisions of the Act. The impugned circular was issued by the Bank administration under National Bank, of Pakistan (Staff) Service Rules, 1980 and it is an admitted position that the aforesaid rules were not framed as mandated in Section-20 of the Act ibid inasmuch as neither they have any approval of the Federal Government nor published in the official gazette. The value and sanctity of the aforesaid Rules have Already, been discussed and adjudged by the Hon’ble Supreme, Court of Pakistan in case of Muhammad Tariq Badar supra wherein it has been observed as under:

“It is an admitted position that 1980 Rules have not been framed as per mandate of law ibid inasmuch as these rules are neither made by the Federal Government nor published in the official gazette. There is also no cavil/quibble that the said rules have not been composed/enforced with the prior approval of the Government or any subsequent benediction was conferred to those by the Government whether (admittedly) the rules have been formulated by the Board of the respondent-bank, constituted U/S. 11 of the Act 1974 which stipulate the general power of the Board pertaining to the policy making and the administration and management of the Nationalized Banks. Sub-section (4) thereof specifically provides “The general direction and superintendence of the affairs and business of a bank, and overall policy malting in respect of its operations, shall, rest in its Board”. Furthermore as per sub-section (5) of the Act 1974 the Board shall determine “personal policies of the Bank, including appointment and removal of officers and employees “and in accordance with sub-section (10) “All selections, promotion and transfer of employees of Banks except the President and decisions as to there remuneration and benefits shall be made by the President in accordance with the evaluation criteria and personnel policies determined by the Board”. From the above it is unequivocally clear that 1980 rules have been framed by the Board of the Bank personal to its authority in the nature of management/ superintendence of the affairs of the bank and/or the policy making power; however for all intents and purposes, it is so done in the exercise of an executive authority under the statute, but having even no remote or possible or permissible connection and nexus to any statutory jurisdiction, these rules thus can at best be termed, understood, comprehended and construed merely as the guidelines or the domestic instructions of the N.B.P. for the purposes of highlighting, elucidating or beneficially revamping the service structure of bank's employees for their advantage provided the same do not in any manner contravene the 1973 Rules, but nothing more than that can be imputed to those; and in any case the rules do not enjoy status of statutory instrument. And this is not disputed by the parties, therefore the legal question which eminently calls for the resolution, is that whether non-statutory rules although (we have herein construed these as mere instructions etc.) have and/or can repeal, rescind or displace the statutory rules of 1973? To plead so, it has been inter alia submitted on the bank's behalf that on account of Section 13(2) of the Act 1974 particularly the expression “Notwithstanding” which shall operate as a non-obstante provision/clause even though 1980 Rules are non-statutory, yet as per the force of the law afore-stated, these (1980 Rules) have the overriding effect qua the 1973, Rules. In order to appreciate above contention, it shall be germane to reproduce, the whole Section 13 which reads as follows:

“13. Provisions regarding Staff.--(1) Save as otherwise provided in this Act, all officers and other employees of a bank shall continue in their respective offices and employment on the same terms and conditions, remuneration and rights as to pension and gratuity, as were applicable to them immediately before the commencing day.

(2) Notwithstanding any law or any provision contained in a contract agreement, letter of appointment, rules or regulations of a bank, every officer and employee of a bank shall be liable to transfer to any of its branches in or outside Pakistan or to any other bank:

Provided that this status and emoluments shall not be adversely affected.

“A Plain reading of Section 13(1) ibid unambiguously postulates that the service of the officers and other employees of the nationalized banks have in fact and in true sense and spirit been secured and protected (emphasis supplied) as per force thereof “on the same term’s and conditions” etc. which were applicable to them immediately before the commencement of the Act, 1974. It is an admitted and undisputed factual reality that before the commencing day of 1974 Act, 1973 Rules were validly in force and for all intents and purposes were serving as the conclusive terms and conditions of service of the employment for the N.B.P. officers etc. Thus, by virtue of the Section 13(1), such rules were specifically saved, guarded and shielded instead of having been displaced/repealed/rescinded or overridden. The language of the Section 13(1) without any shadow of doubt, spells out the clear intendment of the legislature to preserve the earlier terms and conditions of the nationalized bank, which in the present case undoubtedly, were 1973 Rules, rather than being obliterated. The arguments of the learned counsel for the respondent that the expression “notwithstanding” appearing in Section 13(2) should be construed as a non obstante provision/clause to annul and cancel 1973 rules 'as a whole' and thus be replaced by 1980 rules is doubtlessly misconceived and unfounded. The protection and security provided under Section 13(1) which in fact is absolute and unambiguous in nature cannot be negated and vitiated by Section 13(2) on account of the expression “notwithstanding” which is an expression only relatable to that specific part and purpose of the Section (i.e. 13(2)). In my candid view it can neither be legally done, or permissible under the law nor it is the purport or the meaning and. the spirit of Section 13(2) when it is read in the syntax of its full text. In simplest terms, the tenor and the command of this sub-section is limited and restricted qua the transfer of the officers/employees of a nationalized bank, inter se the branches of' the same bank, and/or a room has been provided for such transfer to any other nationalized bank. Obviously this being the legislative command and if there was anything to the contrary contained in any other law for the time being in force i.e. any law in force at the time of enforcement of 1974 Act, including the 1973 rules to this restricted extent, the provisions of sub-section (2) of Section 13 shall prevail and anything inconsistent thereto even in the said (1973) Rules or contract/agreement etc. shall be subservient to this provision and has to give way. But this shall be without in any manner affecting any other earlier terms and conditions of service, which stand fully secured under Section 13(1). I may like to add here with emphasis that the board of N.B.P. constituted under Section 11 of the Act, 1974, at the most was conferred with the power of managing the affairs of the bank in terms of the policies etc. to be formulated by it on the subject enumerated in the section, but by no express command of law (Section 11) was empowered to make service rules, which can be termed as statutory in nature, with the further authority to annul the statutory rules already in force. In any case, the Board in the garb of its general empowerment of policy making, superintendence and managing the affairs and business of the bank, by no stretch of legal comprehension and principle of interpretation could, rescind, replace, substitute and/or vitiate the 1973 Rules. This undoubtedly could not be done by a non statutory instrument, which has come into being through simipliciter account of the exercise of executive authority of the Board; and it is a fundamental rule of jurisprudence that the executive has no empowerment to annul or in any manner invalidate or vitiate the command of the statute. Therefore, I am constrained to hold that 1980 Rules have not replaced or rescinded the earlier rules of 1973.”

1. In view of the above discussion and in the light of authoritative judgment of the Hon’ble Apex Court, it has become crystal clear that the Rules of 1980 in any event and in no manner can rescind, replace or substitute the statutory Rules of 1973. The Board of Directors has travelled beyond its competence while reducing the pensionary benefits of the petitioners through the impugned circular which was not even having the assent/approval of the Federal Government. The impugned notification being devoid of any legal status is, therefore, declared illegal, without any lawful authority and has no effect as against the pensionary benefits of the petitioners provided to them under Circular No. 228 (C) dated 26.12.1977.

2. For what has been discussed above, all the aforementioned writ petitions are accepted and the respondent/bank is directed to release pensionary benefits of the petitioners in accordance with Circular No. 228(C) dated 26.12.1977 within two months from the date hereof.

(R.A.) Petitions accepted

PLJ 2016 Lahore 474 [Multan Bench Multan]

Present: Amin-ud-Din Khan, J.

PROVINCE OF PUNJAB through D.O. (Revenue) and another--Petitioners

versus

Ch. MUHAMMAD RASHEED AHMAD--Respondent

C.R. No. 264-D of 2010, decided on 9.10.2015.

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

----S. 115--Civil revision--Scheme for allotment of plots--Relinquishment policy of allotment of plot of specific quota--If subsequently Government changed policy, that cannot effect rights, retrospectively--Question of--Whether earnest money received from plaintiff had been returned--Conditions of allotment for specific quota--Validity--When in the first scrutiny respondent-plaintiff was declared eligible and plot has been allotted to him, when no specific degree or certificate of specific institution has been mentioned in the conditions of allotment and there are concurrent findings of Courts below--High Court cannot substitute findings of Courts below unless there is some misreading or non-reading of evidence on part of Courts below-Therefore, no case for interference has been made out--Revision was hereby dismissed. [P. 477 & 478] A & C

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

----S. 115--Civil revision--Objection of time barred--Leviable of Court fee of Rs. 15/- upon civil revision--Revision was filed without paying a single penny of Court fee--Validity--Conduct of petitioners is though not appreciable but by non-payment of Court fee within limitation does not make revision petition as time barred and further when originally revision petition has been filed within prescribed period of limitation, if extra time is consumed for removing office objection, ordinarily consumption of extra time in removing office objection also does not make it time barred under Limitation Act. [P. 477] B

Malik Muhammad Bashir Lakhesir, AAG for Petitioners.

Ch. Anwar-ul-Haq, Advocate and Mr. Muhammad Fahad Anwar,Advocate for Respondent.

Date of hearing: 9.10.2015.

Judgment

Through this civil revision petitioner Province of Punjab has challenged the judgment & decree dated 02.09.2009 passed by learned Additional District Judge, Sahiwal whereby appeal filed by the petitioners was dismissed and the judgment & decree dated 22.04.2006 passed by learned Civil Judge 1st Class, Sahiwal whereby suit for declaration filed by the plaintiff-respondent was decreed.

1. Brief facts of the case are that plaintiff-respondent on 3.5.2000 filed a suit for declaration and mandatory injunction wherein he pleaded that Defendant No. 2 Secretary District Housing Committee Sahiwal launched a Scheme for allotment of plots in the year 1991. In the scheme there was specific quota for various persons mentioned below:--

وکلاء اہل قلم، تجارتی سربراہ، جرنلسٹ، صحافی، علماء، سکالر، فنکار، شعرا، ٹیچر، مصنفین، ڈاکٹر، انجیئر، آرکیٹیکٹ، اکائونٹنٹ ﴿پندرہ سال﴾ حیثیت/تجربہ کے حامل﴾ اور قومی معیار کے کھلاڑی الاٹمنٹ کے اہل ہیں۔

Plaintiff-respondent applied on the basis of being Engineer. His application was scrutinized and he was declared eligible for the allotment of plot under specific quota of engineers and a 7 marla Plot Bearing No. 308 in category “C” was allotted to him by the District Housing Committee consisting upon 5 members, the allotment was approved by the Chairman i.e. Deputy Commissioner. Subsequently, a Letter No. DHC/SWL/2000/528 dated 20.4.2000 was written to the plaintiff-respondent by the Secretary, District Housing Committee, whereby he was directed to supply the attested copy of Engineering Council Registration and copy of Engineering degree within 15 days. Respondent was forced to file the suit. Written statement was filed, suit was contested. Learned trial Court framed the issues, invited the parties to produce their evidence. Both the parties produced their oral as well as documentary evidence. Learned trial Court decreed the suit vide judgment & decree dated 22.4.2006. Appeal was preferred, which was dismissed by the learned first appellate Court vide judgment & decree dated 2.9.2009.

1. Learned AAG argues that for his entitlement respondent was required to provide the above referred documents though admits that before balloting his application was scrutinized, he was declared eligible and Plot No. 308 was allotted to him, states that when the requisite documents were not produced, therefore, his allotment cannot remain in the field and due to the litigation same has not so far been, cancelled. Further argues that afterwards the Government of the Punjab has relinquished its policy of allotment of plot of specific quota, therefore, the plot cannot be given-to the plaintiff-respondent.

2. On the other hand, while relying upon 1997 SCMR 1606 ''Secretary to Government of Punjab, Housing, Physical & Environmental Planning Department, Lahore versus Mehr Muhammad Amin Advocate and 2 others” and PLJ 2007 SC 811 “Government of Punjab through Secretary Housing & Physical Planning & Environmental Planning Lahore & others versus Muhammad Ismail Khan Bhatti” learned counsel for the respondent/ plaintiff argues that at the time of launching of relevant housing scheme and submission of application, the quota was available, therefore, if subsequently the Government has changed its policy that cannot affect the rights of the respondent-plaintiff retrospectively when the plot stood allotted to the respondent and allotment is still intact. Further argues that when allotment committee has declared the plaintiff-respondent eligible for allotment of plot and plot has been allotted and Chairman has approved the same then the Secretary Housing Committee has no power to ask the plaintiff-respondent to provide the above said documents. Argues that no specific degree of Engineering was mentioned in the conditions of allotment and further that admittedly the respondent is Diploma holder in engineering from the Board of Technical Education, Lahore in Session 1967 and at the time of application for allotment he was serving as SDO in the Water & Power Development Authority and states that even further certificates of Diploma and Certificate of Graduation issued by the competent forum have been produced in the evidence by the plaintiff from Exh. P.1 to Exh.P.18. Learned counsel for the respondent has further raised the objection that the revision has been filed after the prescribed period of limitation and further without payment of a single penny of Court fee the same was filed which was not competent and when the Court fee has been paid only then the revision can be considered to have been competently filed. Prays for dismissal of the revision petition on the ground that there are concurrent findings of fact recorded against the petitioners and further that revision petition is time barred.

3. I have heard learned counsel for the parties, gone through the record, evidence produced by both the parties as well as findings recorded by both the Courts below.

4. When questioned to the learned AAG whether the plot is still vacant, the answer is in the affirmative and whether the same has been cancelled from the name of the plaintiff-respondent, the answer is in the negative and further that whether the earnest money received from the plaintiff has been returned to him, the answer of this question is also in the negative and whether the plot in question has been allotted to any other person, the answer of this question is in negative. It means that the plot is still in the name of the plaintiff-respondent, his allotment is intact, his earnest money is with the petitioners and never returned to him, his allotment has never been cancelled, therefore, no question of return of earnest money.

5. I have gone through the document produced as Exh.P.1 i.e. the conditions of allotment for specific quota which are ambiguous in which no specific degree or certificate of any specific institution has been mentioned. Even various categories like

وکلاء اہل قلم، تجارتی سربراہ، جرنلسٹ، صحافی، علماء، سکالر، فنکار، شعرا، ٹیچر، مصنفین، ڈاکٹر، انجیئر، آرکیٹیکٹ، اکائونٹنٹ ﴿پندرہ سال﴾ حیثیت/تجربہ کے حامل﴾ اور قومی معیار کے کھلاڑی

have been mentioned and with regard to their credentials no specific institution is mentioned that the certificate of which institution will be competent. In these circumstances, when in the first scrutiny the respondent-plaintiff was declared eligible and plot has been allotted to him, when no specific degree or certificate of specific institution has been mentioned in the conditions of allotment and there are concurrent findings of two Courts below, therefore, I am unable to disagree with the concurrent findings recorded by the Courts below and further I have observed that initially the revision has been filed within the prescribed period of limitation vide Diary No. 1154 on 18.12.2009. On 21.12.2009 office raised various objections including the objection of 4 days' time barred and same was returned on 21.12.2009 with a direction to refile the same within seven days, after removing the objections. Petitioners opted to refile the same on 11.2.2010 vide Diary No. 118. I am noting with concern that a Court fee of Rs. 15/- was leviable upon this civil revision but initially the revision was filed without paying a single penny of the Court fee and the Court fee was paid on 11.2.2010. This conduct of the petitioners is though not appreciable but by non-payment of Court fee within limitation does not make the revision petition as time barred and further when originally the revision petition has been filed within prescribed period of limitation, if extra time is consumed for removing office objection, ordinarily consumption of the extra time in removing office objection also does not make it time barred under the Limitation Act. The time consumed for removing office objection is governed under the Lahore High Court Rules and Orders.

1. In this view of the matter, when there are concurrent findings of fact recorded by both the Courts below after complete and thorough examination of the evidence produced by both the parties, this Court cannot substitute the findings of the Courts below unless there is some misreading or non-reading of evidence on the part of the Courts below. No such misreading and non-reading is visible in the

findings of the Courts below, therefore, no case for interference has been made out. Resultantly, this revision having no merit is hereby dismissed.

(R.A.) Revision dismissed

PLJ 2016 Lahore 478

Present: MuhammadSajid Mehmood Sehti, J.

ASHRAF HUSSAIN--Petitioner

versus

PUNJAB LABOUR APPELLATE TRIBUNAL, LAHORE, etc.--Respondents

W.P. No. 9374 of 2012, decided on 17.11.2015.

Industrial & Commercial Employment (Standing Order) Ordinance, 1968 (VI of 1968)--

----S.O. 12(3)--General Clauses Act, 1897, S. 24-A--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Penalty of compulsory retirement cannot be awarded--Dismissal from service--Grievance petition--Re-instatement into service alongwith all back benefits--Adverse findings--Non-application of independent mind--Validity--No financial loss was caused to bank and petitioner was never charged for misconduct throughout his service, whereby not only petitioner was ordered to be reinstated, but also converted penalty of dismissal as initially awarded into compulsory retirement--No action can be taken which can adversely effect terms and conditions of service including retirement benefits, which were prescribed by laws, rules and regulations--Such penalty could not be imposed without proof of serious allegations--Punishment awarded must be proportionate to and commensurate with magnitude of offence, especially when labour Court had set aside penalty of dismissal of petitioner--Mere acceptance of legal dues by an employee would not amount to waiver as to estop from challenging order passed against him--Such remedy could not be denied to him if charge of misconduct had not been established.

[Pp. 480, 482 & 483] A, B, C & E

Constitution ofPakistan, 1973--

----Arts. 4 & 199--General Clauses Act, 1897, S. 24-A--Retirement benefits--Estopped from assailing--On account of penalty of ‘compulsory retirement’, he had received only partial benefits, while he had been deprived of substantial amount owing to penalty--Further there is no estopple against law, and petitioner is entitled to be treated in accordance with law in terms of Art. 4 of Constitution--He has right to be dealt with fairly and justly under Section 24-A of General Clauses Act, 1897. [P. 483] D

Mr.Munawar Ahmad Javed, Advocate for petitioner.

M/s.Farooq Zaman Qureshi and Athar Farooq, Advocates for Respondents.

Date of hearing: 17.11.2015.

Order

Brief facts, as stated in this writ petition, are that petitioner joined service with Respondent No. 2/Muslim Commercial Bank Ltd. w.e.f. 25.01.1973, and worked there continuously till 13.08.2004. Petitioner was issued a letter of charge on 23.12.2003 which was replied by him. The said letter of charge was followed by a letter of inquiry. Thereafter, an inquiry was held and petitioner was dismissed from service vide order dated 12.08.2004. Petitioner moved a grievance petition on 20.11.2004, before learned Punjab Labour Court No. V, Sargodha, against the said dismissal order. Respondents No. 2 to 5 submitted written statement. After recording of evidence, learned Labour Court, vide order dated 12.02.2007, allowed the grievance petition moved by the petitioner, and directed his reinstatement into service along with all back benefits. Respondents No. 2 to 5 preferred an appeal dated 14.03.2007, before Respondent No. 1/the Punjab Labour Appellate Tribunal. During the pendency of the appeal, the petitioner was proceeded on LPR (365-days) w.e.f. 03.01.2011. Finally, the appeal filed by Respondents No. 2 to 5 was partly allowed by Respondent No. 1 vide judgment dated 11.04.2011. Through the instant petition, the petitioner has impugned the aforesaid judgment with the following prayer:

“It is therefore respectfully prayed that this Honourable Court may very kindly be pleased to allow this petition with special compensatory costs and while declaring the impugned judgment dated 11.04.2011, to be patently illegal, without jurisdiction, wholly unjust, perverse, without lawful authority and of no legal effect and the same be accordingly set aside, restoring the Order dated 12.02.2007 (Annex A/9) passed by the Learned Punjab Labour Court No. 5 at Sargodha, directing reinstatement of the petitioner into service along with all the back benefits.

Any other additional relief which may be found just & proper, in the circumstances of the case may also be granted in the interest of justice.”

1. Learned counsel for petitioner submits that the letter of dismissal dated 12.08.2004, was totally bereft of explicit reasons as required by law. It was result of non-consideration of defence version and evidence, and non-application of independent mind, therefore, the same was rightly recalled by the learned Labour Court but learned Labour Appellate Tribunal proceeded to award penalty of compulsory retirement which violates Standing Order 12 (3) of the Ordinance VI of 1968 read with Section 24-A of the General Clauses Act, 1897, as no penalty of ‘compulsory retirement’ is provided in law. He adds that before dismissing the petitioner from service, the petitioner was not provided with a copy of the inquiry report in order to rebut and explain adverse findings, if any, against him. He submits that the impugned letter of dismissal and impugned judgment dated 11.04.2011 are liable to be struck down on this score alone.

2. On the other hand, learned counsel for respondents has defended the impugned judgment dated 11.04.2011 by contending that petitioner has failed to point out any illegality or legal infirmity in it and prayed for dismissal of instant writ petition.

3. Arguments have been heard and record perused.

4. Perusal of the impugned judgment reveals that even after considering that no financial loss was caused to the respondent bank; and the petitioner was never charged for misconduct throughout his 32 years of service prior to this incident, the learned Appellate Tribunal not only proceeded to set aside order of the Labour Court, whereby petitioner was ordered to be reinstated, but also converted penalty of dismissal, as initially awarded, into compulsory retirement. The operative part of the impugned judgment dated 11.04.2011, passed by Respondent No. 1, is reproduced as under:

“13. The prosecution has proved their case and has taken into consideration all aspects of the matter. The claim of the respondent that he earned no blemish or never was charged of misconduct throughout his 32 years of service prior to this incident has not been refuted by the bank. Although the bank had suffered in reputation on account of this technical jugglery of the respondent nevertheless it is equally a fact that no financial loss had occurred to the bank and this was clearly admitted by the enquiry officer while appearing as RW-1. In these circumstances I would hesitate to confirm the imposition of extreme penalty of dismissal and would award him penalty of compulsory retirement. This I belief would meet the ends of justice.

1. In this view of the matter the appeal is partly accepted and the order of the learned Labour Court is modified. The penalty of dismissal is converted into compulsory retirement. There shall be no order as to costs.”

2. Under the similar circumstances, in a case emanating from a service matter, Hon’ble Supreme Court of Pakistan held as under, in case titled Deputy Director Food and others v. Muhammad Rafique Khan (2005 PLC (C.S.) 214):

“It may be noted that as per the definition of ‘misconduct’ and ‘inefficiency’ under the Efficiency and Discipline Rules, 1999, the respondent, in view of above charges, cannot be held accused for either of them. It is also to be noted that on account of allegations as have been alleged against him, no loss to public exchequer or the Government has occurred. Therefore, we are of the opinion that in such view of the matter, if respondent, for any reason, could not answer satisfactorily about the fumigation process etc., he would not be penalized by imposing major penalty. Besides it, as far as remaining two other charges i.e. non-cleanliness of the godowns and infestation in the gunjies etc. are concerned, no loss admittedly has been caused to the Government on that account, therefore, for such reason, the Provincial Service Tribunal was quite justified to interfere in the order of the Departmental Authority.”

1. Examination of the Standing Order 12 (3) of the Industrial & Commercial Employment (Standing Orders) Ordinance VI of 1968 (“Standing Order”), shows that the penalty of compulsory retirement cannot be awarded under the law. The said provision of law reads as under:

“(3) The services of a workman shall not be terminated, nor shall a workman be removed, retrenched, discharged or dismissed from service, except by an order in writing which shall explicitly state the reason for the action taken. In case of workman is aggrieved by the termination of his services or removal, retrenchment, discharge or dismissal, he may [take action in accordance with the provisions of] Section 25-A of the Industrial Relations Ordinance, 1969 (XXIII of 1969), and thereupon the provisions of the said section shall apply as they apply to the redress of an individual grievance.”

1. From bare reading of the afore-quoted provision, it is clear that penalty of ‘compulsory retirement’ is alien to the Standing Order as the prescribed penalties are removal, retrenchment, discharge and dismissal from service, but there is no penalty of ‘compulsory retirement’. The impugned penalty, which has also not been prescribed by law, even otherwise appears to be harsh thus, the same is not sustainable in the eye of law, as it has also deprived the petitioner from award of full retirement benefits.

2. The fundamental principle, which is enunciable from the labour laws, is that the same hold out a guarantee to all workmen that no action can be taken which can adversely affect terms and conditions of their service including retirement benefits, which are prescribed by laws/rules/regulations. Any adverse action, offending his right to retirement benefits, is also violative of Article 9 of the Constitution of Islamic Republic of Pakistan, 1973.

3. Major penalty, as the Tribunal suggested, was a severe and extrement punishment; in the context of labour laws, it could mean the end of a person’s service. Such penalty could not be imposed lightly and without proof of serious allegations. Punishment awarded must be proportionate to and commensurate with the magnitude of the offence, especially when the Labour Court had set aside the penalty of dismissal of petitioner, operative part of which reads as under:--

“20. It is proved from the material brought on record that there was no complaint of embezzlement of Rs. 40,000/- against the petitioner as the alleged complainant Sher Zaman neither moved an application to the bank for embezzlement nor appeared before the enquiry officer during enquiry by levelling allegation of embezzlement of Rs. 40,000/- against the petitioner. It is also an admitted fact that no financial loss has been caused to the respondents’ bank and charge-sheet is also proved to be time barred and dismissal order and charge- sheet were not issued by the competent authority. More-over, after concluding the enquiry and before passing the dismissal order, no final show-cause notice was served upon the petitioner and he was deprived of giving opportunity of personal hearing. The respondents by dismissing the petitioner have acted in an illegal manner and contrary to the principle of justice and equity. So, the order of dismissal dated 12.8.2004 is liable to be set aside.

1. The petitioner has also taken the plea that he is un-employed since the date of his dismissal and this fact was not controverted by the respondents in the statement of R.W.1, so this fact stands proved.

2. So, in the circumstances mentioned above, the application under Section 46(3) of the IRO, 2002 is hereby accepted by setting aside the dismissal order dated 12.8.2004 with the direction to the respondents to reinstate the petitioner into service with all the back benefits within a period of one month from today. The file be consigned to the record room after completion.”

3. Learned counsel for the respondent bank submits that the petitioner has received the retirement benefits and now he is estopped from assailing it further. Suffice it to say that on account of penalty of ‘compulsory retirement’, he had received only partial benefits, while he had been deprived of substantial amount owing to the impugned penalty. Further there is no estopple against law, and petitioner is entitled to be treated in accordance with law in terms of Article 4 of the Constitution. He has the right to be dealt with fairly and justly under Section 24-A of General Clauses Act, 1897. The argument is thus repelled.

4. More-so, mere acceptance of legal dues by an employee would not amount to waiver as to estop him from challenging the order passed against him. Such remedy could not be denied to him if the charge of misconduct had not been established. Likewise, Hon’ble Supreme Court of Pakistan, in case titled Farasat Hussain and others v. Pakistan National Shipping Corporation through Chairman and others (2005 PLC (C.S.) 890), observed that merely receiving such an amount would not constitute estoppel and the appropriate legal remedy could be sought.

5. In this view of the matter, instant writ petition is allowed and the impugned order is set-aside. The case is remanded to the Respondent No. 1/Punjab Labour Appellate Tribunal, Lahore, to decide it afresh, after hearing the petitioner and all concerned, through a speaking order, within a period of two months from the date of receipt of this order, under intimation to Deputy Registrar (Judl:) of this Court.

(R.A.) Petition allowed

PLJ 2016 Lahore 484

Present: MuhammadSajid Mehmood Sethi, J.

STATE LIFE INSURANCE CORPORATION OF PAKISTAN--Petitioner

versus

ADDITIONAL DISTRICT JUDGE, LAHORE & another--Respondents

W.P. No. 4937 of 2014, decided on 12.10.2015.

Insurance Ordinance, 2000 (XXXIX of 2000)--

----S. 162(2)--Scope of--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Life insurance policies--Death claim was filed by policy holder against insurance company--Repudiation of insurance claim was assailed--Prior permission sanction of SECP is required and not required for filing insurance claims in insurance tribunal--Jurisdiction--Validity--Claims of insurance are neither subservient to the provisions of Section 162 of Insurance Ordinance, 2000, but independent, nor any prior permission from SECP is necessary, for filing of insurance claims in Insurance Tribunals--Established principle of interpretation of statutes is that no provision of law, contained in a statute, is to be considered in isolation, until and unless any Section/provision is a complete code in itself and any scheme contained in statute is to be considered in totality of the scheme--It is settled law that where literal construction or plain meaning causes hardship, futility, absurdity or uncertainty, the purposive or contextual construction is preferred to arrive at a more just, reasonable and sensible result--It is duty of Court to mould or creatively interpret legislation by liberally interpreting the statute--It is duty of Court to interpret the various provisions of statute harmoniously in order to advance the remedy. [Pp. 488 & 489] A, B, C, D & E

Mr. Ibrar Ahmed, Advocate for Petitioner.

M/s. Liaquat Ali Butt, Advocate, Akhtar Ali Kureshi, Standing Counsel for Pakistan, and Muhammad Ejaz, Assistant Advocate General for Respondents.

Date of hearing: 12.10.2015.

Judgment

This consolidated judgment shall dispose of instant writ petition along with following connected writ petitions as common questions of law and facts are involved in these cases:

1. W.P. No. 8816 of 2014. State Life Insurance Corporation of Pakistan v. The Additional District Judge-1, Lahore & another.

2. W.P. No. 8919 of 2014. State Life Insurance Corporation of Pakistan v. The Additional District Judge-1, Lahore & another.

3. W.P. No. 13458 of 2014. State Life Insurance Corporation of Pakistan v. The Additional District Judge-1, Lahore & another.

4. W.P. No. 30906 of 2014. State Life Insurance Corporation of Pakistan v. The Additional District Judge-1, Lahore etc.

5. W.P. No. 31511 of 2014. State Life Insurance Corporation of Pakistan v. The Additional District Judge-1, Lahore etc.

6. W.P. No. 31512 of 2014. State Life Insurance Corporation of Pakistan v. The Additional District Judge-1, Lahore etc.

7. Brief facts for disposal of this writ petition are that the deceased wife of Respondent No. 2, namely, Jameela Kausar, purchased two life insurance policies from petitioner. Respondent No. 2 has been named as her nominee. The policy-holder died on 25.06.2009. Respondent No. 2 lodged a death claim thereafter, being nominee in the insurance policy, which claim has been repudiated by petitioner. Respondent No. 2 assailed this repudiation of insurance claim, before Respondent No. 1, which is still pending adjudication. Petitioner filed an application under Section 162(2) of the Insurance Ordinance, 2000 (“Ordinance”), read with Order VII Rule 11, CPC for rejection of the insurance application being not maintainable, as having been filed without previous sanction of the Securities & Exchange Commission of Pakistan (“SECP”), in terms of Section 162 of the Ordinance. Petitioner’s application has been dismissed by Respondent No. 1 vide order dated 28.01.2014. Through the instant petition, petitioner has assailed the aforesaid order, with the following prayer:--

“(a) The impugned Order dated 28.01.2014 passed by the Respondent No. 1 while exercising powers of Insurance Tribunal Punjab may please be declared illegal, arbitrary and ultra vires of the provision of Insurance Ordinance 2000 being passed without lawful authority and consequently of no legal effect.

(b) The writ petitioner’s application filed under Section 162 (2) of the Insurance Ordinance 2000 read with Order VII Rule 11, CPC for rejection of insurance application filed by the Respondent No. 2 may please be accepted.

(c) Any other relief, which this Hon’ble Court may deem fit and appropriate, may also be awarded to the writ petitioner against the respondents to meet the ends of justice.”

1. Learned counsel for petitioner submits that prior permission/sanction of the SECP is mandatory before initiating any proceedings before the Insurance Tribunal against an insurer, in terms of Section 162 of the Ordinance. In this regard, learned counsel for petitioner has relied upon Muhammad Huzafa v. American Life Insurance Company (Pakistan) Ltd. (ALICO) through Chairman/ General Manager/Managing Director and another (2013 CLD 1470). He further submits that impugned order has been passed in violation of Section 162 of the Ordinance and case law referred above. In support of his contention, learned counsel for petitioner has further relied upon Syed Saghir Ahmad Naqvi v. Province of Sindh through Chief Secretary, S & GAD, Karachi and another (1996 SCMR 1165) and UBL Insurers Limited v. Ashiq Hussain and another (2014 CLD 1155).

2. On the other hand, learned counsel for Respondent No. 2 submits that Section 162 of the Ordinance falls in Part XIX (Offences and Penalties) of the Ordinance. This part starts from Section 156 and the last section of this part is 163. He further submits that only in criminal prosecution, prior permission/sanction of SECP is required, and it is not required for filing insurance claims in the Insurance Tribunal. Learned counsel for Respondent No. 2 has relied upon Ismail Ebrahim Alloo and others v. The State (PLD 1959 (W.P.) Karachi 440), State Life Insurance Corporation of Pakistan & 04 others v. Mst. Sartaj Begum (R.F.A. No. 43 of 2009), Muhammad Huzafa v. American Life Insurance Company (Pakistan) Ltd. (ALICO) through Chairman/General Manager/Managing Director and another (2013 CLD 1470) (referred above), Surendra Nath Sarkar and others v. Kali Pada Das (AIR 1940 Calcutta 232), Jaswantray Manilal Akhaney v. State of Bombay (AIR 1955 Bombay 259), and National Insurance Company Ltd. v. Narendra Kumar Jhanjhri (1990 Cri LJ 773).

3. Arguments have been heard and record perused.

4. It is evident from bare reading of the scheme of Insurance Ordinance, 2000, that the Insurance Tribunal and its jurisdiction for entertaining insurance claim is dealt in Part XV of the Ordinance, starting from Sections 121 to 124. Section 121 deals with Constitution of the Tribunal, Section 122 relates to power of Tribunal, Section 123 lays down procedure of Tribunal for trial of an application and Section 124 provides right of appeal to the aggrieved person against decision of Tribunal before High Court. Provision of Section 122 clearly lays down that the tribunal shall, in its exercise of civil jurisdiction, in respect of a claim filed by a policy-holder against an insurance company, in respect of or arising out of a policy of insurance, all the powers vested in a Civil Court under the Code of Civil Procedure, 1908 (“CPC”). Provision of Section 122(3) says that no Court other than a Tribunal shall have or exercise any jurisdiction with respect to any matter to which the jurisdiction of a Tribunal extends under this Ordinance, including a decision as to the territorial limits and the execution of a decree, order or judgment passed by a Tribunal. The Tribunal, for the purpose of trial of an application, follow such procedure as may be prescribed and have the same powers as are vested in a Civil Court trying a suit under the, CPC, in respect to summoning and enforcing the attendance of any person examining him on oath, requiring the discovery and production of documents and material object, receiving evidence on affidavits, and issuing commission for the examination of witnesses or documents.

5. The concept of prior sanction is basically linked with a criminal prosecution. Provisions which govern the criminal offences and penalties are in Part XIX of the Ordinance. It starts from the provision of Section 156 to Section 163 of the Ordinance. Section 156 deals with penalty for default in complying with, or acting in contravention of this Ordinance, Section 157 provides penalty for transacting insurance business in contravention of Sections 5, 6 and 29, Section 158 lays down penalty for false statement in document, Section 159 states wrongfully obtaining or withholding property, Section 160 stipulates power of Tribunal to order restoration of property of insurer or compensation in certain cases, Section 161 relates to notice to Commission and hearing. Section 162 deals with prior sanction of commission for institution of proceedings and Section 163 deals with power of Court to grant relief. Provision of Section 162 of the Ordinance is reproduced as under:--

“162. Previous sanction of Commission for institution of proceedings.--(1) Except where proceedings are instituted by the Commission no proceedings under this Ordinance against an insurer or any director, manager or other officer of an insurer shall be instituted by any person unless he has previous thereto obtained the sanction of the Commission (which shall not unreasonably be withheld) to the institution of such proceedings.

(2) Where the proceedings are not initiated by the Commission or the Commission have not been made a party, the Tribunal shall before proceeding further in the matter give notice to the Commission and shall not proceed to hear and decide the matter without giving the Commission the opportunity of participating in the proceedings and being heard”.

Reading the Section 162 in juxtaposition with other provisions, starting from Section 156 to Section 163 of the Ordinance, makes it clear that prior sanction is confined to criminal prosecution against insurance companies or its employees, as mentioned therein. It is not for the purpose of filing insurance claims. Had it been so, it could have been clearly mentioned in the relevant provisions dealing with the insurance claims. The object of the legislature seems to be very clear that prior sanction is required for initiating criminal proceedings under Chapter XIX of the Ordinance, which governs the criminal offences and penalties.

1. Perusal of impugned order also indicates that learned Insurance Tribunal has specifically noted that in Part XIX of the Ordinance, the concept became very clear as these provisions relate to other proceedings/disputes against insurance company or its Directors or officers, whereas the provisions relating to the claims of insurance are neither subservient to the provisions of Section 162 of the Insurance Ordinance, 2000, but independent, nor any prior permission from SECP is necessary, for filing of the insurance claims in the Insurance Tribunals.

2. The established principle of interpretation of statutes is that no provision of law, contained in a statute, is to be considered in isolation, until and unless any section/provision is a complete code in itself and any scheme contained in statute is to be considered in totality of the scheme. Thus, adhering to this principle, the Court has to consider all the relevant provisions of Insurance Ordinance, 2000. One provision of the section is not to be considered ignoring its other provisions. Provisions of Section 162 which mandates prior sanction are not to be applied in isolation but simultaneously in juxtaposition to other sections starting from Sections 156 to 163. Statute is to be interpreted by making it consistent with the scheme of the Ordinance. It has to be read as a whole and not in bits and pieces. Law is to be interpreted and applied rationally, fairly and not arbitrarily.

3. It is settled law that where literal construction or plain meaning causes hardship, futility, absurdity or uncertainty, the purposive or contextual construction is preferred to arrive at a more just, reasonable and sensible result. Every law is designed to further the ends of justice and not to frustrate it on mere technicalities. Though the function of the Court is only to interpret the law and not to legislate, nonetheless the legislature cannot be asked to sit to resolve the difficulties in the implementation of its intention and the spirit of the law. In such circumstances, it is the duty of the Court to mould or creatively interpret the legislation by liberally interpreting the statute. The statutes must be interpreted to advance the cause of statute and not to defeat it. There is consensus that a remedial enactment is intended to provide relief which was not already provided for. The remedy is to obviate a defect, anomaly or hardship, and is designed to bring the existing law in line with the intention of the legislature. It is the duty of Court to interpret the various provisions of statute harmoniously in order to advance the remedy. It has to construe the law beneficial for the said purpose.

4. Any other interpretation of provision of Section 162 of the Ordinance leads to suppression of remedy that does not seem to be in conformity with the provisions of Articles 2-A, 3, 4, 5, 9, 18 & 23 of the Constitution of the Islamic Republic of Pakistan, 1973, and that will give undue advantage and edge to the Insurance Company over the bona fide claimant.

5. Learned counsel for petitioner has placed reliance upon the case of Muhammad Huzafa supra, to contend that no proceedings can be conducted without prior sanction of the commission under Section 162 of the Ordinance. The operative part of the said judgment reads as under:--

“4. The contention of learned counsel for petitioner has got no force because the provisions of Section 162 of the Insurance Ordinance are very much clear and unambiguous and no proceedings can be conducted without the sanction of the Commission. The provision of Section 162 is reproduced as under:--

“Except where proceedings are instituted by the Commission no proceedings under this Ordinance against an insurer or any Director, Manager or other Officer of an insurer shall be instituted by any person unless he has previous thereto obtained the sanction of the Commission (which shall not unreasonably be withheld) to the institution of such proceedings.”

1. So, it is obvious from the above mentioned provision of Section 162 of the Insurance Ordinance, 2002 that no proceedings shall be lodged by any person without previous sanction of the Commission (i.e. SECP). Thus, we hold that the impugned order of learned insurance Tribunal is perfectly in accordance with law and legal provision, hence, warrants no interference by this Court in exercise of Constitutional jurisdiction.”

2. I have carefully gone through the said judgment. Learned counsel for respondents has brought to my notice another judgment passed by learned Division Bench of Hon’ble Peshawar High Court, Peshawar, in R.F.A. No. 43 of 2009, titled State Life Insurance Corporation of Pakistan & 04 others v. Mst. Sartaj Begum, vide dated 31.01.2012, the operative part of which reads as under:

“So far as the second objection is concerned that permission was not obtained from the Commission, that is based on misconception because that relates to the other disputes against Insurance Company or its Directors or Officers and does not speak about such claims of Insurance and this was also rightly discarded by the Tribunal.”

1. It appears that the above judgment passed by learned Division Bench of Hon’ble Peshawar High Court, Peshawar, has not been brought to the notice of another learned Division Bench of the same Court in the case of Muhammad Huzafa supra.

2. In my humble opinion, the earlier view of learned Division Bench of Hon’ble Peshawar High Court, Peshawar, given in the case of State Life Insurance Corporation of Pakistan (supra), seems to be more in conformity with the provisions of Section 162 read with all other enabling provisions of the Insurance Ordinance, 2000.

3. Resultantly, the instant writ petition along with connected petitions have no merits and the same are hereby dismissed with no order as to cost.

(R.A.) Petitions dismissed

PLJ 2016 Lahore 491 (DB)

Present: Mrs. Ayesha A. Malik and Faisal Zaman Khan, JJ.

USMAN TASSADAQ--Applicant

Versus

DISTRICT & SESSIONS JUDGE, LAHORE and 3 others--Respondents

I.C.A. No. 754 of 2012 and C.M. No. 1 of 2015, C.M. Nos. 1, 3/2013 and 2 of 2014, decided on 17.6.2015.

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

-----S. 151--Law Reforms Ordinance, 1972, S. 3--Intra Court Appeal--Withdrawal of applications--Restoration of ICA--Failed to record written judgment--Objection--Validity--Once I.C.A. was withdrawn on instructions, how could the same be resurrected and thereupon, interim orders can be passed--Applications were not competent yet the applicant managed to procure prohibitory orders which High Court was inclined to recall, however, as a request for withdrawal of application has been made--Review applications had been infructuous. [P. 493] A & B

Mr. Imtiaz Rasheed Siddiqui, Advocate for Applicants.

SardarFaiz Rasool Khan Jalbani, Advocate for Respondents.

Date of hearing: 17.6.2015.

Order

C.M. 01-2015

This is an application under Section 151, CPC for consolidation of different applications pending before this Court.

1. Learned counsel appearing for respondent (who is counsel for the applicant in CM No. 1-2013 (filed for resurrection of Intra Court Appeal No. 754-2012, C.M.3-2013 and CM.2-2014) wishes to withdraw his applications.

2. With the concurrence of both the learned counsels, let afore-noted applications may be fixed for today; Office to do the needful.

3. CM. stands disposed of.

C.M. Nos. 1-2013, 3-2013 & 2-2014

C.M. No. 1-2013 is an application under Section 151, CPC for restoration of the Intra Court Appeal No. 754-2012 which was disposed of as having become infructuous on 05.06.2013. C.M. No. 1-2013 is an application for stay of proceedings before the trial Court and CM. No. 2-2014 is an application for restraining the judgment debtors from alienating their properties.

1. The facts in brief are that a suit under Order 37, CPC was decreed in favour of the applicant to the tune of Rs. 70.638 million. He applied for a certified copy of the judgment & decree which was not provided, because of which, he filed W.P. No. 10415-2012 seeking a direction from this Court for the afore-noted purpose. A report was called for by the learned Single Judge which was submitted by Member Inspection Team. Through this report, it was revealed that the learned Additional District Judge announced the judgment on 26.03.2012, however on the next dale, defendants Sifat Elahi etc. submitted a complaint before the Hon’ble Inspection Judge Lahore that learned Additional District Judge has failed to record written judgment in accordance with provisions of CPC. The Hon’ble Inspection Judge through a written order dated 27.03.2012 directed to take proper account, whereupon the office of District &. Session Judge Lahore immediately requisitioned the case file and sealed the same.

2. The report would further reveal that when the case file was taken in possession, it did not contain the judgment and decree; the Stenographer of the Court was busy in typing the judgment. It was also reported that on the next day i.e. 28.03.2012. the learned Additional District Judge after completion of judgment & decree has forwarded the same to the office for placing it in the relevant file, upon which, guidance was sought from this Court.

3. After perusal of the report, vide order dated 27.09.2012, writ petition was dismissed. Feeling aggrieved, applicant preferred Intra Court Appeal No. 754-2012 which was set down for hearing before the learned Division Bench of this Court. During the course of proceedings on 05.06.2012, following order was passed:

“The learned counsel for the appellant submits, under instructions, that due to subsequent events the instant appeal has become infrucuous. The appellant, therefore, does not wish to press the appeal.

1. Disposed of as having become infrucluous “

2. After the aforenoted order, C.M. 01-2013 was filed in which on 18.06.2013, notices were issued to the respondents. In the meantime as no judgment and decree was available in the record of the trial Court, the record was de-sealed and proceedings commenced before the trial Court. Feeling aggrieved applicant preferred C.M. 03-

2013 through which a prayer was made that proceedings pending before the trial Court may be suspended, which was allowed on 4.7.2013. Thereafter, C.M. 02-2014 was filed, through which, a prayer was made that the judgment debtors are alienating their properties in order to frustrate the decree, therefore, they may be restrained. Vide order dated 24.07.2014, respondent/judgment debtors were restrained from alienating the properties.

1. In the above back drop, on the last date of hearing, learned counsel for the applicants were confronted with the situation that once the Intra Court Appeal was withdrawn on instructions, how could the same be resurrected and thereupon, interim orders can be passed. Learned counsel at that point in time tried to justify the proceedings initiated, however, they sought an adjournment to assist this Court further. Today, Sardar Faiz Rasul Khan Jalbani Advocate, learned counsel for the applicant has entered appearance and submits that he has instructions, to withdraw the applications.

2. We are mindful of the fact that the applications were not competent yet the applicant managed to procure prohibitory orders which we were inclined to recall, however, in the peculiar circumstances as a request for withdrawal of application has been made, we asked the learned counsel for the respondents whether he has any objection to such withdrawal, his answer was in the negative.

3. In view of the afore-noted, these applications are dismissed as withdrawn.

4. As the main application has been withdrawn, therefore, Review Application No. 54-2014 has become infructuous therefore the same is also disposed of.

(R.A.) Application disposed of

PLJ 2016 Lahore 493 (DB)

Present: Ali Baqar Najafi and Shahid Waheed, JJ.

YAD ALI KHAN--Appellant

versus

PROVINCE OF PUNJAB through Secretary L&M Department and others--Respondents

R.F.A. 193 of 2012, heard ecided on 2.12.2015.

PunjabCivil Service Rules--

----R. 7.3--Constitution of Pakistan, 1973, Art. 212--Civil Procedure Code, (V of 1908), S. 80--Arrears of salary--Recovery of damages--Not entitled any benefit--Suit was relating to terms and conditions of service--Benefit for period he remained in service and continued to work but cannot draw any salary for period during which he remained absent and did not work--Claim cannot be granted--Guilty of willful absence from duty--Validity--Order of PST treated that period as extra ordinary leave without pay, therefore, it cannot be considered as period spent on duty for purpose of salary--If mala fide act has resulted into suffering of Government servant in form of dismissal from service he is entitled to the damages--He was held entitled to receive damages on account of mala fide act for his compulsory retirement--Claim of damages is based upon individual wrongs committed by Government functionaries but no such observation was given in order of PST which has already attained finality. [Pp. 499 & 500] A, B, C & D

1988 PLC (C.S.) 602; KLR 1992 Civil Cases 56; PLD 2012 SC 80 & 2003 SCMR 228 ref.

Mr. Awais Ahmad Khan, Advocate for Appellant.

Mr. Naveed Saeed, Addl. A.G. and Mr. Masood Anwar, Deputy Manager in person for Respondents No. 1(a) to 1(c).

Raja Tasawar Iqbal, Advocate for Respondent No. 2.

Nemo for Respondents No. 1(d) & 3.

Date of hearing: 2.12.2015.

Judgment

Ali Baqar Najafi, J.--This appeal under Section 96, C.P.C. is directed against the judgment and decree dated 19.12.2011 passed by the learned Civil Judge 1st Class, Lahore, whereby Civil Suit No. 629/1 /2010 filed by the appellant for declaration with consequential relief and recovery of damages was dismissed with costs.

1. Brief facts giving rise to the filing of this appeal are that the appellant worked as Senior Instructor (Plumber) BPS-16 under the administrative control of Respondent No. 1(d)/ Director Manpower & Training, Punjab and Respondent No. 1(b)/Industries and Mineral Development as well as Respondent No. 1(c)/Chairman, Technical Education and Vocational Training Authority, (TEVTA). In the month of September, 1988 due to illness of his father he went on long leave w.e.f. 26.09.1988, upon which Respondent No. 2/Afzal Ahmad, Joint Director (Technical Training) Directorate of Manpower & Training, Punjab became personal who passed order dated 25.02.1990 imposing major penalty of removing from service. The appellant made departmental representation and also preferred Appeal No. 787 of 1995 before the Punjab Service Tribunal where the said order of removal from service was set aside and the case was remanded for holding a de-novo inquiry. The appellant was reinstated by the respondents and was directed to join as Senior Instructor (Plumber), Technical Training Centre, Mianwali where he reported in compliance of order.

2. On 18.11.1997 he was again issued a charge sheet and the statement of allegation akin to the previous one. An inquiry was conducted by the Director, Manpower & Training, Punjab and others against the appellant and as a consequence whereof the appellant was imposed major penalty of removal from service with effect from 03.05.1990 by treating the period of absence from 26.09.1988 to 03.05.1990 as extraordinary leave without pay vide order dated 09.07.1998. The said order was challenged before the Punjab Service Tribunal through Appeal No. 1444 of 1999 which was partly accepted. The order treating the period of absence from 26.09.1988 to 03.05.1990 as extraordinary leave without pay was upheld whereas removal from service was ordered to take effect from 09.07.1998 instead of 03.05.1990. The appellant has frankly admitted that he did not challenge the said order before the apex Court because of insufficient funds; and, the fear that he would be further penalized for exposing the mala fide of the respondents. Due to his illegal removal from service the appellant allegedly sustained mental torture, financial difficulties, health hazards, humiliation, etc. therefore, according to him the damages amounting to Rs. 2,800,000/- were to be awarded besides payment of salary from 04.05.1990 to 09.07.1998. Notice under Section 80 of CPC was served upon the respondents but after when he got no response from the respondents, the civil suit for declaration, consequential relief with damages was instituted.

3. The suit was resisted by filing written statement. The respondents in the written statement pleaded preliminary objection of limitation; and, bar of jurisdiction etc. The allegations of the plaint were also traversed.

4. On pleadings following issues were framed:-

Issues:

1. Whether the act/omission of the defendants in avoiding to pay the salary in the BPS-16 for the period 04.05.1990 to 09.07.1998 are illegal, unlawful and tantamount to denial of the legal character of the plaintiff? OPP

2. Whether the tortoise act of the defendants against the plaintiff, entitled the plaintiff to decree for damages to the tune of Rs. 28,00,000/-? OPP

3. Whether the plaint is about the terms and conditions of Civil Service, hence the jurisdiction of this Court is barred? OPD

4. Whether the plaintiff is entitled to the decree as prayed for? OPP

5. Relief.

Vide order dated 09.03.2010 following issues were re-framed:

1. Whether the act/omission of the defendants in avoiding to pay the salary in the BPS-16 for the period 04.05.1990 to 09.07.1998 are illegal, unlawful and tantamount to denial of the legal character of the plaintiff? OPP

2. Whether the tortoise act of the defendants against the plaintiff, entitled the plaintiff to decree for damages to the tune of Rs. 28,00,000/-? OPP

3. Whether the plaint is about the terms and conditions of Civil Service, hence the jurisdiction of this Court is barred? OPD

4. Whether the suit has been filed with mala fide intention just to harass and blackmail the answering defendant? OPD

5. Whether the plaintiff has no cause of action to file the suit? OPD

6. Whether the plaintiff is entitled to the decree as prayed for? OPP

7. Relief.

On 15.04.2010, following additional issues were settled:

6-A. Whether the plaintiff was dismissed from the service due to misconduct and willful absent from duty? OPD

6-B. Whether the Defendant No. 2 was having delegate authority and acted upon the direction of the Government in accordance with law and relevant rules? OPD

6-C. Whether the instant matter is hopelessly time barred? OPD

6-D Whether the order of the Punjab Service Tribunal attained finality and what would be the affect of the same? OPD.

1. The appellant appeared as PW-1 and produced order of Punjab Service Tribunal, Exh.P.1, order of Secretary Labour and Manpower, Exh.P.2, order dated 9th July, 1998 of Director, Manpower of Training Punjab, Exh.P.3 and judgment of Punjab Service Tribunal, Exh.P.4 and notice under Section 80 of C.P.C. as Exh.P.5. On the other hand, Afzal Ahmad appeared as DW-1, Rana Muhammad Ilyas, DW-2, Masood Anwar, DW-3, Muhammad Suleman, DW-4 and Shabbir Ahmad, DW-5.

2. On consideration of the matter the suit was dismissed by the learned trial Court vide judgment and decree dated 19.12.2011 primarily on the ground that under Rule 7.3 Chapter VII of the Civil Service Rules (Punjab) it was only the appellate authority who could grant the salary and since no such order was passed, therefore, the appellant was not entitled to any benefit. Hence this appeal.

3. Mr. Awais Ahmad, Advocate/learned counsel for the appellant contends that the order of the Punjab Service Tribunal dated 16.01.2001 passed in Appeal No. 1444 of 1999 clearly permits the extraordinary leave without pay only for the period from 26.09.1988 to 03.05.1990 and not for subsequent period i.e. 04.05.1990 to 09.07.1998 for which he is also entitled to draw the salary as he remained on duty, further contends that the prayer in the suit for declaration was neither regarding terms and conditions of service nor he had emphasized on their enforcement but demanded his right determined by the Punjab Service Tribunal for the reason that it was not vested with powers to execute its decision. Adds that Rule 7.3 Chapter VII of the Civil Service Rules (Punjab) referred to in the judgment is not applicable to the appellant. Also contends that tortuous acts of the Government functionaries are amenable to the jurisdiction of the civil Court in the suit for the recovery of damages. Lastly, submits that the appellant has faced extreme hardship and difficulties besides mental torture at the hands of the respondents/Government functionaries who withheld his salary, therefore, prays for setting aside of the impugned judgment and decree. Places reliance on Federal Ministry of Railways and others vs. Zafarullah Khan [1988 PLC (C.S.) 602], Mian Ansar Hayat vs. Punjab Mineral Development Corporation through Managing Director and 4 others [2001 YLR 2670], Dr. Surraya Javed vs. Director General, Health Services and another [2000 SCMR 141], Abdul Majeed Khan vs. Tawseen Abdul Haleem and others [PLD 2012 Supreme Court 80] and Nazir Ahmad vs. Islamic Republic Of Pakistan [KLR 1992 Civil Cases 56].

4. Conversely, Mr. Naveed Saeed Khan, learned Addl. Advocate General assisted by Raja Tasawar Iqbal, Advocate/learned counsel for Respondent No. 2 contends that the appellant has already drawn salary/benefit for the period he remained in service and continued to work but he cannot draw any salary for the period during which he remained absent and did not work. Adds that the Punjab Service Tribunal has not specifically permitted the appellant to claim such salary/benefit, therefore, the same could not be allowed. Adds that the prayer made in the suit was relating to the terms and conditions of service which was not proceedable under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973. Also adds that under Rule 7.3 Chapter VII of the Civil Service Rules (Punjab) such claim cannot be granted, therefore, appeal be dismissed.

5. Arguments heard. Record perused.

6. Our findings on Issue No. 1 are as under:

The appellant while appearing as PW-1 reiterated the contents of the plaint. Afzal Ahmad/ DW-1, had also referred the documented facts to the extent that after reinstatement in service a fresh inquiry was conducted, where after the appellant was removed from service vide order dated 09.07.1998 (Exh.P.3) against which appeal i.e. Appeal No. 1444 of 1999 was filed before the Punjab Service Tribunal where the departmental order was upheld. Here, it would be expedient to reproduce operative Para of the judgment dated 16.01.2001 of the Punjab Service Tribunal (Exh.P.4).

“As a sequel of the above, the appeal is partly accepted in the following terms:--

i) the impugned orders treating the period of absence from 26.09.198 to 03.05.1990 as extra ordinary leave without pay is upheld but

ii) the order of removal from service would take effect only from the date it was passed i.e.09.07.1998.”

1. The Punjab Service Tribunal in its judgment (Exh.P-4) observed that the departmental authority rightly held the appellant to be guilty of willful absence from duty. However, the effect of order dated 09.07.1998 could not be extended retrospectively. The appellant could not point out from the record that he attended the office i.e. 26.09.1988 to 03.05.1990 for which period he could claim salary. This period, therefore, was rightly treated as extraordinary leave without pay. Order of the Punjab Service Tribunal did not say a word about the recovery of arrears of salary from 04.05.1990 to 09.07.1998.

The cases for payment of allowances etc. on reinstatement are dealt with under Rule 7.3 Chapter VII of Civil Service Rules (Punjab) which is reproduced below:-

7.3. When a Government servant who has been dismissed or removed from service, is reinstated, the revising or appellate authority may grant to him for the period of his absence from duty:-

(a) “If he is honourably acquitted, the full pay to which he would have been entitled if he had not been dismissed or removed and by an order to be separately recorded and allowances of which he was in receipt prior to his dismissal or removal” or

(b) “If other, such proportion of such pay and allowances as the revising or appellate authority may prescribe.”

In a case failing under clause (a), the period of absence from duty will be treated as a period spent on duty. In a case falling under Clause (b), it will not be treated as a period spent on duty unless the revising or appellate authority so directs.”

1. A perusal of clause (b) reveals that the revising or appellate authority may prescribe proportionate payment of such salary and allowances. The order of the Punjab Service Tribunal dated 16.01.2001 (Exh.P.4) treats this period from 26.09.1988 to 03.05.1990 as extra ordinary leave without pay, therefore, it cannot be considered as period spent on duty for the purpose of salary. Admittedly, the appellant had not worked in that period though he claimed that he remained available to perform duty. To cater the situation guidance can be sought from Syed Niaz Hussain Shah Bukhari, Technician (Process) vs. Oil And Gas Development Corporation Limited through Chairman, OGDC Head Office, Islamabad [2003 SCMR 228], the relevant para is reproduced below:

“We have considered the arguments of the learned counsel for the parties and have carefully examined the record, which shows that the period for which recovery of refund of the salary was effected from the petitioner was the period for which he did not work. By now, it is settled law that when there is no work there is no pay. The petitioner did not perform his duties as mentioned hereinabove and recovery was rightly effected from him ....”

The findings on Issue No. 1 is therefore, upheld.

1. The appellant was not reinstated in service as he was held guilty of absence from duty; therefore, he would not be entitled for damages. In a suit for recovery of damages the cause of damages are to be specifically spelled out. Certainly if mala fide act has resulted into suffering of Government servant in the form of dismissal from service

he is entitled to the damages. The citation Abdul Majeed Khan vs. Tawseen Abdul Haleem and others [PLD 2012 Supreme Court 80] and Nazir Ahmad vs. Islamic Republic of Pakistan [KLR 1992 Civil Cases 56], relied upon by the appellant's counsel, are not relevant in the facts and circumstances of this case as in those cases Government servant was reinstated in service, therefore, he was held entitled to receive damages on account of mala fide act for his compulsory retirement. In the instant case he was not reinstated in service by the Punjab Service Tribunal, therefore, the finding on Issue No. 2 by trial Court is also upheld.

1. The findings returned by the learned trial Court on Issue No. 3 also does not require any interference as the prayer was confined on the basis of judgment of Punjab Service Tribunal but for claiming salary of the period during which the appellant though did not work but claimed to have remained in service the said judgment is silent. The judgment cited by the learned counsel for the appellant as Federal Ministry of Railways and others vs. Zafarullah Khan [1988 PLC (C.S.) 602] is also not attracted to the facts and circumstances of the present case as claim of damages is based upon individual wrongs committed by the Government functionaries but no such observation was given in the order of Punjab Service Tribunal which has already attained finality since none of the parties went to apex Court.

2. Rest of issues i.e. Issues No. 6-(b), 6-(c), 4, 5 & 6 are therefore, ancillary in nature and need no proper adjudication.

3. For the above stated reason, this appeal fails and is hereby dismissed.

(R.A.)

PLJ 2016 Lahore 500 (DB) [Multan Bench Multan]

Present: Syed Muhammad Kazim Raza Shamsi and Farruk Gulzar Awan, JJ.

MUHAMMAD DANISH--Petitioner

versus

CITY POLICE OFFICER, MULTAN and 4 others--Respondents

W.P. No. 17691 of 2015, decided on 14.1.2016.

Constitution of Pakistan, 1973--

----Art. 199--Punjab Police Order (Amendment) Ordinance, 2013, Art. 18-A--Constitutional petition--Change of investigation--Challan was submitted--Validity--Challan had been submitted in trial Court where charge was framed and trial was in progress and as such transfer of investigation at such a belated stage was not sustainable--Petition was dismissed. [P. 502] A

2014 SCMR 1499 rel.

Mr. Muhammad Bilal Butt, Advocate for Petitioner.

Mehar Nazar Abbas Chawan, AAG alongwith Atif, SSP (Operation) for Respondents.

Date of hearing: 14.1.2016.

Order

Through the instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, arising out F.I.R No. 510/2015 and F.I.R.No. 512/2015 dated 15.09.2015 under Section 9(c) of the Control of Narcotic Substances Act, 1997 registered at Police Station, Shujaabad, District Multan, the petitioner has sought direction against Respondent No. 1 that the application for change of investigation moved by petitioner before him be decided.

1. It is argued by learned counsel for the petitioner that cousin Muhammad Saleem Shahzad alias Akku and father of petitioner Khiyzar Hayat were booked into above mentioned false cases due to political rivalry; that police official demanded gratification from them and on refusal they were involved in these cases just to teach them a lesson and as a result, huge quantity of contraband charas was planted on them and now both of them are in judicial lockup.

2. On the other hand, learned law officer has opposed this petition and submitted that challan of both the cases have been submitted in which charge has been framed and trial is in progress.

3. We have heard the arguments of learned counsel for the petitioner and learned A.A.G for the State and have perused the record.

4. The above mentioned cases F.I.R. No. 510/2015 and F.I.R. No. 512/2015 were registered on 15.09.2015 under Section 9(c) of the Control of Narcotic Substances Act, 1997. During investigation, both Muhammad Saleem alias Akku and Khiyzar Hayat were found involved and challan was submitted in learned trial Court. Thereafter, petitioner being dissatisfied from the aforesaid investigation, moved application for change of investigation before City Police Officer, Multan.

5. Article 18-A of the Punjab Police Order (Amendment) Ordinance, 2013 (Ordinance II of 2013) deals with the subject which is re-produced for ready reference:

“18-A. Transfer of investigation.--(1) Within seven working days of the filing of an application, the Head of District Police may, after obtaining opinion of the District Standing Board and for reasons to be recorded in writing, transfer investigation of a case from the investigation officer to any other investigation officer or a team of investigation officers of a rank equal to or higher than the rank of the previous investigation officer.

(2) If the Head of District Police has decided an application for transfer of investigation, the Regional Police Officer may, within seven working days of the filing of an application, after obtaining opinion of the Regional Standing Board and for reasons to be recorded in writing, transfer investigation of a case from the investigation officer or a team of investigation officers to any other investigation officer or a team of investigation officers of a rank equal to or higher than the rank of the previous investigation officer or officers.

3 -----------------“

1. Today SSP (Operations) has submitted report and stated that both the case files were referred to District Standing Board considering for first change of Investigation. He further stated that both the case files, investigating officer was examined minutely and application of the petitioner for change of first investigation was disposed of. Record reveals that challan of the above mentioned cases have been submitted in learned trial Court where the charge is framed and the trial is in progress and as such transfer of investigation at such a belated stage is not sustainable. Reliance in this respect is placed upon “Qari Muhammad Rafique vs. Additional Inspector General of Police (Inv.) Punjab and others” (2014 SCMR 1499).

2. In view of above, the petition in hand is without any merit, the same stands dismissed.

(R.A.) Petition dismissed

PLJ 2016 Lahore 503

Present: Muhammad Sajid Mehmood Sethi, J.

M/s. BISMA TEXTILE MILLS LIMITED, LAHORE through Chief Executive--Petitioner

versus

FEDERATION OF PAKISTAN through Secretary Revenue Division/Chairman FBR, Islamabad 2 others--Respondents

W.P. No. 5832 of 2009, decided on 29.12.2015.

Constitution of Pakistan, 1973--

----Art. 199--Income Tax Ordinance, 2001, S. 221--Constitutional petition--Rectification jurisdiction--Mistake apparent from record can be rectified by commissioner (appeal)--Held: It is well settled law that rectification jurisdiction is a very limited jurisdiction, which can only be exercised for rectifying the mistake, which is apparent on record or which is floating on surface of record--Jurisdiction cannot be assumed to set aside a well reasoned order, which was passed after due deliberation, application of mind and due consideration of relevant provisions of law and the applicable case law. [P. 507] A

PLD 1964 SC 410, 2008 PTD 253, 1992 SCMR 687 ref.

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

----S. 221--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--New industry unit--Charged on exempt income--Challenged order for assessment--Determination of income--Jurisdiction--Notices were issued--Order attained finality, cannot be reopened--Tenor of notices--Violation of order--Acknowledged finality of order--Validity-- No legal and moral justification exists to reopen the issue which has attained finality and is a past and closed transaction for all purposes--Once a controversy is finally and conclusively settled by a forum of competent jurisdiction, the same cannot be restarted or reactivated on its own--If the notice is palpably unlawful, ultra vires, without jurisdiction or with mala fide intent, such action is to be nipped in the bud.

[Pp. 508 & 509] B & C

2007 SCMR 1698; 1999 SCMR 705; 2011 PTD 2260 & 2015 LHC 3623 ref.

Mr. Sajid Ijaz Hotiana, Advocate for Petitioner.

Ch. Muhammad Yasin Zahid, Advocate for Resondents.

Date of hearing: 20.11.2015.

Judgment

Brief facts, as stated in the instant writ petition, are that the petitioner company set up a new industry unit/Textile Mill with effect from 1.04.1994. The petitioner was granted exemption from Income Tax under Clause 118-D of Second Schedule to the Income Tax Ordinance, 1979 (the repealed Ordinance), for a period of 5 years up to 01.03.1999. Its first assessment was made for the assessment year 1995-96 at nil taxable income and identical treatment was followed in assessments for the subsequent assessment years 1996-97 and 1997-98. For all the three years Income Tax Return accompanied by audited accounts were filed declaring losses (including depreciation loss) of Rs. 18,936,270/-, Rs. 76,328,025/-, and Rs. 110,704,425/- respectively, which was accepted as declared. The assessments for the years 1998-99 and 1999-2000 were again made as nil taxable income, however, tax under Section 80-D of the repealed Ordinance was charged on exempt income under Clause 118-D. The petitioner company challenged the order for the assessment years 1998-99 and 1999-2000, before the learned Commissioner of Income Tax (Appeals), Lahore [hereinafter “Commissioner (Appeals)”], who,vide appellate order dated 19.09.2000, deleted the charge of tax under Clause 118-D, and on the issue of determination of income/loss, remanded the case to the Assessing Officer for determination after proper examination of books of accounts. Consequently, fresh assessments were made for the said period at loss of Rs. 25,197,134 and Rs. 23,162,875/- respectively. Depreciation relating to the said two years was also allowed, however, the unabsorbed depreciation relating to the preceding assessment years 1995-96, 1996-97 and 1997-98 was omitted to be added to the depreciation for the assessment year 1998-99 and 1999-2000 for the purpose of carry forward. The petitioner company filed fresh appeals before Commissioner (Appeals), against the fresh assessment orders, who, on the issue of unabsorbed depreciation, again remanded the case to the Assessing Officer for re-examination. The petitioner company challenged the remand order on the issue of unabsorbed depreciation, before the learned Income Tax Appellate Tribunal (hereinafter “Appellate Tribunal”), however, during the proceedings, the petitioner company did not press this issue and consequently the remand order of the Commissioner (Appeals) remained intact. Assessing Officer concluded the re-assessment order dated 30.06.2006 with the following observations:

“It is found from the perusal of records that the determined losses including unabsorbed depreciation in respect of the assessment years 1998-00 & 1999-2000 were duly carried forward to the subsequent year. Assessment of 2000-2001 also resulted into loss after set off of losses of the said preceding two years. Therefore, there is still no room for the set-off of losses of the earlier years 1995-96 to 1997-98. Since the unabsorbed depreciation does not expire and the set off of the same has to be taken account last under the provisions of Section 38(7) of the repealed Ordinance and corresponding Section 57(5) of the Income Tax Ordinance, 2001, the set off of the unabsorbed depreciation in respect of the assessment years, 1995-96 to 1997-98 falls for consideration in the years under consideration. Hence, no change is required in the assessments of 1998-99 and1999-2000 and assessment in the circumstances is made by repeating the loss assessed at Rs. (25,197,134) and Rs. (23,162,875) respectively.”

Despite giving the above clear cut findings, the Assessing Officer repeated the losses of Rs. 25,197,134/- and Rs. 23,162875/- for the assessment years 1998-99 and 1999-2000, and the unabsorbed depreciation aggregating to Rs. 61,479,955/- for the assessment years 1995-96 to 1997-98 was omitted to be clubbed with the losses for the proceeding two years, allegedly in violation of the provisions of Sections 35 and 38 (6) of the repealed Ordinance and sub-rule (3-A) Rule 1 of the Third Schedule thereto and Para 22 of the Federal Board of Revenue Circular No. 7 of 2003. Considering it a mistake apparent from the record, the petitioner company moved an application under sub-section (1-A) of Section 221 of the Income Tax Ordinance, 2001 (the new Ordinance), for rectification of the above referred mistake of not carrying forward the loss of unabsorbed depreciation for the assessment years 1995-96 to 1997-98. This application was allowed by the Taxation Officer after due deliberation and consideration,vide order dated 14.09.2006, under Section 221 of the new Ordinance. On 19.01.2009, the petitioner company received the impugned Notice No. 136/Audit-13 dated 16.01.2009 under Section 221 of the new Ordinance, showing intention to cancel the previous order dated 14.09.2006 in purported exercise of jurisdiction under Section 221. This jurisdiction is sought to be exercised on the basis of the order under Section 122 dated 30.07.2005 for the tax year 2004 passed by the Taxation Officer in the case of petitioner, which has already been annulled vide order dated 13.12.2006 passed by the Commissioner (Appeals). Although the petitioner company replied to the said notice yet another Notice No. 241/Audit-13 dated 19.03.2009 was received from the respondents, which is just a repetition of the earlier notice. Through the instant petition, the aforesaid notices have been assailed before this Court by making the following prayer:-

“Under the circumstances it is respectfully prayed:-

(a) that this Hon’ble Court may be pleased to declare the impugned notices No. 136/Audit-13 and No. 241/Audit-13 dated 16.01.2009 and 19.03.2009 respectively as illegal and without lawful authority;

(b) that the Respondent No. 2 may be directed to give effect to the consolidated rectification application of the petitioner dated 15.02.2006 for the Assessment years 1995-96, 1996-97 and 1997-98 which are deemed to be accepted under Section 122 (3) of the new Ordinance;

(c) that the Respondent No. 2 may also be directed to provide to the petitioner company certified copies of the audit paras/observations through which he is being asked to rectify the alleged mistake;

(d) that during the pendency of this writ petition the operation of the impugned notices may graciously be suspended;

(e) any other relief which this Hon’ble Court may consider appropriate in law, justice and equity; and

(f) Cost of the petition.”

1. Learned counsel for petitioner submits that the impugned notices were issued on the sole ground of another order dated 30.07.2005 under Section 221, which was annulled by the learned first appellate forum and the respondent department did not challenge the said annulment order before the Appellate Tribunal, therefore, the said order has attained finality, and the same cannot be reopened. He adds that the impugned proceedings are absolutely illegal and without lawful authority.

2. On the other hand, learned counsel for respondents submits that the impugned proceedings can be taken up at any time within the statutory time limit as provided in the new Ordinance, thus, contention of the petitioner is not tenable. He adds that the earlier proceedings under Section 221, which were cancelled by the Commissioner (Appeals), have no bearing on the present action under Section 221 of the Income Tax Ordinance, 2001. He further submits that mistake apparent from the record can be rectified by the Commissioner (Appeals) as well as Appellate Tribunal under the law. In the end, he contends that writ petition is not maintainable against the impugned notices.

3. Arguments heard. Record perused.

4. Perusal of the record shows that the impugned notices have been issued on the basis of order dated 30.07.2005, passed by the Taxation Officer under Section 221 of the new Ordinance, for the Tax Year 2004. This order was annulled by Commissioner (Appeals) vide Order No. 8 dated 13.12.2006, thus, jurisdiction in this case is sought to be assumed under Section 221 on the sole ground of another order under Section 221, which was annulled by the learned first appellate forum, and respondent department did not challenge the annulment before learned Appellate Tribunal.

5. It is well settled law that rectification jurisdiction is a very limited jurisdiction, which can only be exercised for rectifying the mistake, which is apparent on record or which is floating on the surface of record. This jurisdiction cannot be assumed to set aside a well reasoned order which is passed after due deliberation, application of mind and due consideration of relevant provisions of law and the applicable case law. This proposition of law is supported by the case reported as Commissioner of Income-Tax, East Pakistan v. Fazlur Rahman (PLD 1964 Supreme Court 410), Commissioner of Income Tax, Karachi v. Messrs Shadman Cotton Mills Ltd., Karachi through Director (2008 PTD 253) and Commissioner of Income-Tax Company’s II, Karachi v. Messrs National Food Laboratories (1992 SCMR 687). The operative part of the case of Messrs National Food Laboratories supra is reproduced hereunder:-

“Section 35 of the repealed Income-tax Act, 1922, hereinafter referred to as ‘The Act’ confers a power to rectify any mistake in the order which is apparent from the record. Such power can be exercised Suo Motu or if it is brought to the notice by an assessee. Therefore, essential condition for exercise of such power is that the mistake should be apparent on the face of record; mistake which may be seen floating on the surface and does not require investigation or further evidence. The mistake should be so obvious that on mere reading the order it may immediately strike on the face of it. Where an officer exercising power under Section 35 enters into the controversy, investigates into the matter, reassesses the evidence or takes into consideration additional evidence and on that basis interprets the provision of law and forms an opinion different from the order, then it will not amount to ‘rectification’ of the order. Any mistake which is not patent and obvious on the record, cannot be termed to be an order which can be corrected by exercising power under Section 35. In this regard reference can be made to Shaikh Muhammad Iftikharul Haq v. Income-tax Officer, Bahawalpur, PLD 1966 SC 524 and Pakistan River Steamer Limited v. Commissioner of Income-tax, 1971 PTD 204. In the present case the mistake pointed out by the petitioner was not of a nature to attract Section 35 and, therefore, the High Court has correctly answered the first question in the negative.”

1. Admittedly, the respondent-department has not assailed the aforesaid order dated 13.12.2006, passed by Respondent No. 2/Commissioner (Appeals), which has attained finality and now the respondents cannot deviate from the aforesaid order. Reference in this regard can be made to Arshad Hussain v. Collector of Customs and others (PTD 2010 Karachi 104). In that case, Appellate Tribunal dismissed the appeal for non-prosecution and the order of the Tribunal was not challenged before the High Court, therefore, the learned Division Bench of the Hon’ble Sindh High Court observed as under:

“9. …… Without going into the legality or otherwise of the order of the Tribunal dismissing the appeal for non-prosecution and the Order-in-Original as the same have not been challenged before us, we may observe that under the theory of merger the Order-in-Original had merged in the order of the Tribunal and has become a past and closed transaction.”

In presence of aforesaid order passed by Respondent No. 2, the Respondent No. 3 was not justified to issue impugned notices. The tenor of the notices itself shows that they have been issued in violation of the order of Commissioner (Appeals), which has already set the controversy between the parties at naught and the order has, admittedly, remained unchallenged till to date. Respondents, for all intents and purposes, have accepted and acknowledged the finality of order dated 13.12.2006 passed by the Commissioner (Appeals) in favour of petitioner. No legal and moral justification exists to reopen the issue which has attained finality and is a past and closed transaction for all purposes. In this regard, reliance can also be placed on Zarai Taraqiati Bank Limited and others v. Mushtaq Ahmed Korai (2007 SCMR 1698) and Noor Muhammad and others v. Ghulam Rasul and others (1999 SCMR 705).

1. The argument of learned counsel for the respondents is that writ is not maintainable against impugned notices which are assailable before higher adjudicating authorities. This argument also is not of much substance for the reason that once a controversy is finally and

conclusively settled by a forum of competent jurisdiction, the same cannot be restarted or reactivated on its own. Superior Courts of the country have already held that if the notice is palpably unlawful, ultra vires, without jurisdiction or with mala fide intent, such action is to be nipped in the bud. Reference, in this regard, can be made to Mughal-E-Azam Banquet Complex v. Federation of Pakistan and others (2011 PTD 2260) and Northern Power Generation Company Ltd. v. Federation of Pakistan etc. (2015 LHC 3623). Since, the impugned notices are not legally justified, therefore, the objection of maintainability of petition raised by learned counsel for the respondents is overruled and the constitutional petition is held to be maintainable.

1. In view of the above discussion, impugned notices are held to be illegal and without lawful authority. The writ petition is allowed in the above terms.

(R.A.)

PLJ 2016 Lahore 509 [Bahawalpur Bench Bahawalpur]

Present: Zafarullah Khan Khakwani, J.

Mst. SUMERA BANO--Petitioner

versus

ADDITIONAL DISTRICT & SESSIONS JUDGE/APPELLATE AUTHORITY etc.--Respondents

W.P. No. 8771 of 2015, decided on 24.11.2015.

Punjab Local Government Act, 2013--

----S. 27(2)--Disqualification--Joint candidature--Nomination papers were filed after signature--Avoid unnecessary details--If law does not allow any person to file nomination papers to contest election individually at any one seat of chairman or vice chairman because of joint candidature, it does not appear that legislature would intend to allow any member of a panel to withdraw his nomination papers individually from any one seat of joint candidature. [P. 514] A

Interpretation of Law--

----Scope of--Basic principle of interpretation of statute--Be read as a whole--Court should adopt an interpretation, which may give meanings to each word of an enactment taking into consideration spirit of such piece of legislation. [P. 514] B

Punjab Local Government (Conduct of Elections) Rules, 2013--

----R. 12--Constitution of Pakistan, 1973, Art. 199--Nomination papers--Joint candidature--One of candidate request for withdrawal of his nomination paper--Question of--Whether single member of panel for joint candidature was competent to withdraw nomination papers on behalf of whole panel--Notice of withdrawal--Validity--Authorizing only one member of a panel to withdraw nomination papers without consent or even signatures of other member would mean to allow even an unscrupulous person, with connivance of opponent, to singly file an application for withdrawal of nomination papers to detriment of other member of his panel, who does not wish to withdraw from election--Such would run counter to concept of joint candidacy and would also amount to condemn other person unheard which is against fundamental principle of `audi alteram partem’--Member of panel who submitted joint nomination papers in panel along with other members as joint candidature cannot withdraw nomination papers at his own without consent or signature of other members of his panel. [Pp. 514 & 515] C, D & E

Constitution of Pakistan, 1973--

----Art. 199--Punjab Local Government Act, 2013, S. 14(7)--Constitutional petition--Joint candidature--Withdrawal of nomination by single candidate--Deficiency--Declaration of assets--Signatures of candidate--Validity--Whether omission of signatures of candidate on declaration of assets appended with nomination papers is a substantial defect or such deficiency can be allowed by R.O. to be cured under powers provided in S. 14(7)--Power of R.O. has been controlled for not rejecting nomination papers on any defect which is not of substantial nature and he has been empowered to allow a candidate to remove a defect of procedural nature such as an error--Candidate for seat of chairman of put her signatures at some places and omitted to sign other--Such an omission was a clerical mistake which was condonable--However, if one of candidates had not signed nomination papers, position would have been different--Nomination papers filed by panel of joint candidature of chairman and vice chairman cannot be withdrawn by a single member of panel and resultantly R.O. misconstrued relevant law by allowing such withdrawal--Since omission of non-signing a part of nomination paper was curable and such defect can be remedied under law being clerical mistake as such appellate authority rightly allowed appeal--Petition was dismissed.

[Pp. 515 & 516] F, G, H & I

Mr. A. R. Aurang Zeb, Advocate for Petitioner as also for Respondent No. 5 (in Writ Petition No. 8571 of 2015).

Mr. Zafar Iqbal Awan, Advocate for Respondents No. 13 and 14 in instant petition as also for Petitioners (in W.P. No. 8571 of 2015).

Ch. Abdul Jabbar, Standing Counsel with Dr. Ghulam Hussain, Returning Officer of U.C. No. 1 to 7 City Bahawalpur.

Date of hearing: 24.11.2015.

Order

Nomination papers of Mst. Sumera Bano, petitioner and Yasir Ali Bajwa, (Respondents No. 5 and 6 in W. P. No. 8571 of 2015) for the joint candidature of Chairman and Vice Chairman of Union Council No. 5, City, Bahawalpur were rejected by the Returning Officer/Respondent No. 2 vide order dated 11.10.2015 on the ground that certain parts of Declaration of Assets appended with the nomination papers for the seat of Chairman were not signed. However, appeal filed by the petitioner was accepted by the appellate authority/ Respondent No. 1 vide order dated 27.10.2015 and the nomination papers were accepted. It so happened that counterpart of Mst. Sumera Bano petitioner, namely, Yasir Ali Bajwa, Respondent No. 15/candidate for the seat of Vice Chairman in the panel of the petitioner, submitted an application before the Returning Officer/ Respondent No. 2 for withdrawal of his nomination papers on 6.11.2015 which was allowed by the Returning Officer on the same day and his nomination paper for the seat of Vice Chairman was withdrawn. On the same day the petitioner also filed an application submitting that she does not want to withdraw her nomination paper. On 7.11.2015 the petitioner filed an application before Respondent No. 2 for allotment of symbol which was rejected same day on the ground that her counterpart i.e. candidate for the seat of Vice Chairman had withdrawn the nomination papers. By not accepting said order the petitioner approached Distt. Returning Officer/ Respondent No. 3 by way of an appeal in which said respondent vide order dated 7.11.2015 directed Respondent No. 2 to allot the symbol to the petitioner as per rules maintaining that nomination papers for the joint candidature of Chairman and Vice Chairman could not be withdrawn by only one member of the panel. Resultantly, Respondent No. 2 allotted symbol to the petitioner but in the list of contesting candidate he did not show name of her counterpart i.e. candidate for the seat of Vice Chairman. Feeling dissatisfied with this act of Respondent No. 2 the petitioner has filed instant petition challenging the legality of order of withdrawal of nomination paper dated 6.11.2015.

1. Malik Jaffar Mahmood (brother of the petitioner) and Syed Mazhar Abbas Bukhari, Respondents No. 13 and 14, being rival candidates of the petitioner have also knocked the door of this Court by way of Writ Petition No. 8571 of 2015 calling in question the above mentioned order dated 27.10.2015 whereby appeal of the petitioner was accepted by the appellate authority and the order dated 7.11.2015 passed by the Distt. Returning Officer/ Respondent No. 3 whereby the Returning Officer/Respondent No. 2 was directed to allot symbol to the petitioner.

2. Since both these writ petitions are inter-connected and common questions of law and fact are involved in them, therefore, the same are being disposed of together through this single order.

3. Arguments on behalf of the parties have been heard at length and record perused with the assistance of learned counsel for the parties.

4. Moot point to be resolved by this Court is as to whether single member of a panel for the joint candidature is competent to withdraw nomination papers on behalf of whole panel without obtaining consent/signatures of other members of his panel or the whole panel has to give notice for the said purpose after signing the same by each member as is the procedure for filing of nomination papers?

5. The other question is as to whether non signing of any part of the declaration of assets appended with the nomination papers is fatal leading to rejection of the nomination papers or is a defect not substantial in nature and is condonable considering the same being clerical mistake.

6. Rule 12 of the Punjab Local Governments (Conduct of Elections) Rules 2013 (hereinafter to be called the Rules) deals with nomination of Election. Since these petitions relate to the joint candidature of Chairman and Vice Chairman of Union Council as such in order to avoid unnecessary details, I would like to refer the provisions of law only relating to said joint candidature. The candidates for the seats of Chairman and Vice Chairman file their nomination papers under Rule 12(3)(i) as joint candidates. Since said provision is of much relevance as such the same is reproduced hereunder:

“12. Nomination for elections.--(3) Every nomination shall be made by separate nomination paper which shall be signed both by the proposer and seconder and shall, on solemn affirmation made and signed by the candidate or, as the case may be, the candidates for an election of:

(i) the Chairman and the Vice Chairman of a Union Council as joint candidates in Form-II(A)”

(underlining and emphasis are mine)

This Rule says that every nomination shall be made by separate nomination papers which shall be signed by both the proposer and seconder and shall, on solemn affirmation made and signed by the candidates for an election of the Chairman and the Vice Chairman of a union council as joint candidate in Form-II(A). Sub-Rule (4) envisages that every nomination paper made under Sub-Rule (3) shall be accompanied by the declarations, signed by the candidates that they have consented to the nomination and they fulfill the qualification specified in Section 27(1) of the Act and are not subject to any of the disqualifications specified in Section 27 (2) of the Act or any other law for being elected as member.

1. Rule 16 deals with the withdrawal and retirement of candidates. Sub-Rule (1) says:-

“Any validly nominated candidate, or as the case may be, joint candidates may, by notice in writing signed by the candidate(s) and delivered to the Returning Officer on or before the withdrawal day, either by the candidate in person or by an agent, duly authorized in this behalf in writing by such candidate(s), withdraw his candidature, as the case may be, and such notice shall not be open to recall or cancellation.” (underlining and emphasis are mine)

Since fate of these petitions hinges on interpretation of these Rules in the light of word “joint candidates/candidature” as such with the assistance of learned counsel for the parties I have microscopically examined this provision of law.

Needless to mention that basic principle of interpretation of Statute is that the same is to be read as a whole and while interpreting the same Courts are expected to keep in mind intention of legislature to promulgate said law. A careful perusal of sub-rule (1) supra would demonstrate that it simultaneously deals with two categories: One, the cases of candidate for seat meant for single person e.g. Ward, and the other with Seats of joint candidature consisting of more than one member comprising a panel e.g. Chairman and the Vice Chairman. Where this provision deals with the seat meant for single person e.g. Ward, the words, by notice in writing signed by the candidate(s)’ are to be read as, by notice in writing signed by the candidate’ and where it deals with the case of joint candidature, one candidate/member of the panel being only spur, words “by notice in writing signed by the candidates” have to be read. This inference of mine gets support from the fact that in the later part of the provision it has again been reiterated while authorizing an agent to withdraw on their behalf that, “duly authorized in this behalf in writing by such candidate(s)”. If only one member of the panel was sufficient to withdraw the nomination papers on behalf of the whole panel then such member alone could have been empowered to authorize an agent to withdraw and there was no need to repeat letter (s) with candidate by making the same to read as candidate(s). Relying on the principle that various provisions of Act have to be read together and not in isolation thereof and that even no part of a section of a statute should be read in isolation without making reference to other parts of same section, I am of the view that this provision of law has to be read in conjunction with Rule 12(3)(i) where it is made incumbent upon the candidates for the election of the Chairman and the Vice Chairman of a Union Council to file nomination papers after signing by both of them after making affirmation. Likewise sub-section (4) postulates that every nomination paper made under sub-Rule (3) shall be accompanied by the declaration signed by both the candidates that they have consented to the nomination and that they fulfill the qualifications and are not subject to any of the disqualifications enumerated in Section 27(2) of the Punjab Local Government Act, 2013. If law does not allow any person to file nomination papers to contest election individually at any one seat of Chairman or the Vice Chairman because of joint candidature, it does not appear that the legislature would intend to allow any member of a panel to withdraw his nomination papers individually from any one seat of the said joint candidature. While interpreting above provision I am mindful of the principle of Interpreting the Statute which is the formal expression in writing of the will of legislature that Interpretation of a provision of law should be harmonious. I am also aware that the Court should adopt an interpretation, which may give meanings to each word of an enactment taking into consideration the spirit of such piece of legislation. An interpretation, whereby any portion of an enactment is rendered ineffective is not to be adopted when clear meanings can be given to various provisions of an enactment in a harmonious manner. Authorizing only one member of a panel to withdraw nomination papers without consent or even signatures of other member would mean to allow even an unscrupulous person, with the connivance of the opponent, to singly file an application for the withdrawal of the nomination papers to the detriment of the other member of his panel, who does not wish to withdraw from the election. This would run counter to the concept of joint candidacy and would also amount to condemn the other person unheard which is against the fundamental principle of `audi alteram partem’. Such an eventuality is ridiculous and superfluous and does not appear to be the intention of law makers. Needless to mention that an interpretation should not lead to contradictory or derisive consequences and a provision of law has to be interpreted in a manner more conducive to the interest of justice and practically possible.

1. Therefore, the notice of withdrawal ought to have been sent by both the candidates after signing and not by any one of them. It seems that the Returning Officer has not adhered to the Rule in letter and spirit and he has put the other candidate at risk of withdrawal of the nomination papers by one candidate without any notice to him. In my humble view, to cater for such a situation the legislature has inserted “joint candidates” and letter (s) with the word ‘candidate’ in case of a panel basing on the premises that all members of a panel have to swim or drown together as a result of the election.

2. So this Court is of the considered view that a single member of the panel who submitted joint nomination papers in the panel along with other members as joint candidature for Chairman and Vice Chairman cannot withdraw the nomination papers at his own without consent or signature of the other members of his panel. In the present case the respondent-Returning Officer appears to have acted in a very hasty manner inasmuch as neither he bothered to note that notice of withdrawal (application submitted by Yasir Ali Bajwa, candidate for the Seat of Vice Chairman in the panel of the petitioner) did not carry signature of other member of the panel as mandated by sub-rule (3) of Rule 16 ibid nor caused a copy of the notice to be affixed at a conspicuous place in his office. This act of Respondent No. 2 is, therefore, not sustainable in the eye of law.

3. So far as other question relating to Writ Petition No. 8571 of 2015 is concerned that as to whether omission of signatures of the candidate on the Declaration of Assets appended with the nomination papers is a substantial defect or this deficiency can be allowed by the Returning Officer to be cured under the powers provided in sub-rule (7) of Section 14. For facility of reference said provision may also be reproduced which runs as under:

“14(7). The Returning officer shall not reject a nomination paper on the ground of any defect which is not of a substantial nature and may allow such defect to be remedied forthwith, including an error with regard to the name, serial number in the electoral roll or other particulars of the candidate or his proposer or seconder so as to bring them in conformity with the corresponding entries in the electoral rolls.”

Bare reading of this rule would reveal that the power of the Returning Officer has been controlled for not rejecting the nomination papers on any defect which is not of substantial nature and he has been empowered to allow a candidate to remove a defect of procedural nature such as an error. In the present case the candidates signed their nomination papers. However, one of them i.e. the candidate for the seat of Chairman of the Union Council put her signatures at some places and omitted to sign the other. Such an omission was a clerical mistake which was condonable. However, if one of the candidates had not signed the nomination papers, the position would have been different. The Appellate Authority had, therefore, rightly accepted the nomination papers of Mst. Sumera Bano’s panel.

1. Net result of above discussions and observations is that nomination papers filed by the panel of joint candidature of Chairman and Vice Chairman cannot be withdrawn by a single member of the panel and resultantly Returning Officer misconstrued the relevant law by allowing such withdrawal. Consequently, Writ Petition No. 8771 of 2015 is allowed, the order dated 7.11.2015 allowing withdrawal of nomination papers on the application of Yasir Ali Bajwa, alone candidate for the Seat of Vice Chairman of Union Council are set aside being not sustainable in the eye of law and the respondent-Returning Officer is directed to issue revised list of contesting candidates inserting name of said Yasir Ali Bajwa as candidate for the Seat of Vice Chairman of Union Council No. 05 of Municipal Corporation, Bahawalpur.

2. Since the omission of non-signing a part of Nomination Paper was curable and such defect can be remedied under the law being clerical mistake as such the appellate authority rightly allowed the appeal filed by Mst. Sumera Bano vide order dated 27.10.2015. Writ Petition No. 8571 of 2015 is, therefore, dismissed being devoid of merits.

(R.A.) Petition dismissed

PLJ 2016 Lahore 517 [Bahawalpur Bench Bahawalpur]

Present: Zafarullah Khan Khakwani, J.

MUHAMMAD JAMIL--Petitioner

versus

APPELLATE AUTHORITY, etc.--Respondents

W.P. No. 7415 of 2015, decided on 19.10.2015.

PunjabLocal Government Act, 2013--

----S. 27(1)(c)--Constitution of Pakistan, Art. 199--Constitutional petition--Nomination papers to contest election for member of ward--Qualification and disqualification for candidates and elected member--Question of--Whether a person contesting election of general member of ward must be a voter of said ward or he can be of voter of any other ward of same U.C./municipal committee--To qualify to be elected as a member of a ward a person must be enrolled as a voter in electoral rolls of said ward from which he is contesting election--In order to qualify to contest election of a ward but word used is that in order to qualify for candidate of a member of ward person must be voter of said ward of which he intends to contest election. [Pp. 522, 523 & 524] A, B & C

PunjabLocal Government Act, 2013--

----Preamble--Law is to establish an elected local Government system in order to promote good governance, effective delivery of services and transparent decision making through institutionalized participation of people at local level and to deal with their ancillary matters, therefore, it is necessary that their representative must be amongst them. [P. 525] D

PunjabLocal Government Act, 2013--

----S. 8(3)--Ward of municipal committee and ward of U.C.--Distinction--No distinction between ward of a municipal committee and a ward of U.C. so far as it relates to qualification of a candidate to become member separate mentioning of U.C. and ward as used in Section 8(3) of Act are only for purposes of delimitation by election commission and that in order to qualify to be a member of a ward a candidate must be registered as a voter in same ward.

[P. 525] E

Mr. Ghazanfar Ali Khan, Advocate for Petitioner.

Mr.S.D. Shad, Advocate for Petitioner (in W.P. Nos. 7304/2015 and 7349/2015).

Mr. Muhammad Jaffar, Advocate for Petitioner (in W.P. Nos. 7355/2015 and 7363/2015).

Mirza Muhammad Azam, Advocate for Petitioner (in W.P. Nos. 7416/2015 and 7480 of 2015).

Mirza Muhammad Nadeem Asif, Advocate (in W.P. No. 7470 of 2015).

Ch. Abdul Jabbar, Standing Counsel for Federation and Mehar Muhammad Iqbal, A.A.G.

M/s. Ijaz Ahmad Ansari, Qazi Bilal Ahmad and Mr. Nadeem Iqbal Chaudhry, Amicus Curiae.

Date of hearing: 6.10.2015.

Order

By way of this common order, I intend to decide instant constitutional petition bearing W. P. No. 7415 of 2015 (Muhammad Jamil v. Appellate Authority etc.) and also Writ Petitions No. 7304 of 2015 (Bakhtawar Khan v. Appellate Authority etc.), 7349 of 2015 (Muhammad Rafiq v. Appellate Authority etc.), 7355 of 2015 (Muhammad Rizwan v. Additional Sessions Judge etc.), 7416 of 2015 (Rana Ehsan Dilber v. Appellate Authority etc.), 7470 of 2015 (Khalil Ahmad v. Election Commission of Pakistan, etc.), 7480 of 2015 (Sajjad Haider v. Appellate Authority etc.) and 7363 of 2015 (Adnan Asghar Bodhla v. Appellate Authority etc.) as issue involved in all these constitutional petitions is interpretation of Section 27(1)(c) of the Punjab Local Government Act, 2013.

1. Since interpretation of Section 27(1)(c) of the Punjab Local Government Act, 2013 is involved as such Mehar Muhammad Iqbal, Asstt. Advocate General present in Court accepts notice under Order XXVII-A Rule 1, C.P.C. As noted above, since interpretation of question of law is involved as such I do not consider it imperative to give facts of individual case. Suffice it to say that the petitioners in all these petitions except Writ Petition No. 7470 of 2015 (Khalil Ahmad v. Election Commission of Pakistan etc.) filed nomination papers to contest elections for the Member of Ward in the Municipal Committee whereas the petitioner in W.P. No. 7470 of 2015 filed nomination papers to contest election of the Member of Ward in the Union Council. Their nomination papers were rejected by the respondent-Returning Officer on the ground that they were not the voters of Ward for which they had filed nomination papers to contest election of member. By not accepting the decision of said respondent, the petitioners approached the Appellate Authority by way of appeals as provided under Section 14(10) of the Punjab Local Government (Conduct of Elections) Rules, 2013. Their appeals were, however, dismissed by the appellate authority. Hence these Constitutional petitions.

2. So the issue sought to be resolved through these petitions is whether a person qualifies to contest election to be a member of a Ward only if he is a voter of the same Ward or he is eligible to contest election of any Ward falling in the same Municipal Committee/Union Council/Constituency in which his vote is registered. As the issue involved in this matter relates to interpretation of Section 27 of the Punjab Local Government Act, 2013 which deals with qualification and disqualification for candidates to be elected as member of the ward and local Government, which appears to be of question of first impression, as such this Court vide order dated 2.10.2015 appointed Mr. Ijaz Ahmad Ansari, Qazi Bilal Ahmad and Mr. Nadeem Iqbal Chaudhry, Advocates as Amicus Curiae to assist the Court on this issue.

3. By opening arguments, learned counsel for the petitioners submit that there is no restriction in the Punjab Local Government Act, 2013 (hereinafter to be called as the Act) to contest an election only from the Ward in which the candidate is registered as a voter and as such the impugned orders of the respondents are liable to be set aside being not sustainable in the eye of law. Learned counsel submits that Section 271(c) of the Act mandates that a person qualifies to be elected as a member of a ward or the local Government, if he is enrolled as a voter in the electoral rolls of the ward or the local Government from which he is contesting the election and since the petitioners are voters of the local Government from which they are contesting election as such they are eligible to contest election from the wards of the said local Government. Further contends that Section 2(v) of the Act defines the word ‘local Government’ which means a Union Council, a Municipal Committee, a Municipal Corporation, the Metropolitan Corporation, a District Council or an Authority and since the ward is a limb/unit of a Union Council or a Municipal Committee which is a local Government as such the petitioners are eligible to contest election of the Ward being voters of the same constituency/local Government in which said Ward falls. Learned counsel for the petitioner in Writ Petition No. 7470 of 2015 supplements the arguments by submitting that for the construction of Municipal Committee a Ward is a complete and independent constituency whereas for the purpose of Zila Council, Union Councils are made Constituencies and Ward in the system of Union Council is merely a unit and not a constituency and with this backdrop the legislature has bifurcated Union Council and Ward in Section 8(3) of the Act otherwise there was no justification for incorporating both of them. So the condition imposed through 27(1)(c) of the Act is not attracted to the cases where a candidate contests election of Member of Ward of a Union Council and not of Municipal Committee and the impugned orders are liable to be set aside.

4. Conversely, learned Law Officers while adopting the arguments of learned amicus curiae have submitted that under the Law a candidate must be a voter of the same Ward/Union Council from which he intends to contest election and since the petitioners are not voters of the wards from which they are contesting election as such they have rightly been ousted to contest elections.

5. Learned amicus curiae have very aptly assisted the Court while interpreting the relevant provisions of law maintaining that the Ward is a basic constituency for the purposes of the election of general members and it is smallest unit in the entire delimitation process and is an important building block in the constituencies so delimited and that if the arguments of learned counsel for the petitioners are accepted the very concept of delimitation of Constituencies undertaking the delimitation shall be defeated. By referring to different provisions of the Act and also the Punjab Local Government Rules 2013 the learned amicus curiae have argued that there is no distinction between a Ward in a Union Council and a Ward in Municipal Committee. They have further assisted the Court referring the very preamble of the Local Government Act, 2013 that keeping in view the very purpose to promulgate the Act it can safely be inferred that intent of the legislature is that the candidate to be elected as member of the Ward must be from the same ward of which he is contesting election.

6. Before proceeding in the matter it may be mentioned that in a Democratic System of Government which is based on the internationally acknowledged Motto: Government by the people, on the people, for the people, the Punjab Local Government Act, 2013 is one of the attempts in this field. After the birth of Pakistan the system of Basic Democracies was introduced by the General Ayub Khan in 1959. Under this system two laws i.e. the Basic Democracies Ordinance, 1959 and the Municipal Administration Ordinance, 1960 were promulgated. However, the system of Basic Democracy stood discredited and a new law known as the Punjab Peoples Act, 1972 was promulgated. Thereafter the Punjab Local Government Act, 1975 was passed which was substituted by the Punjab Local Government Act, 1979 and so on. The latest in these series is the Punjab Local Government Act, 2013. Preamble of this Act manifests that main theme to promulgate this law is to establish an elected local Government system to devolve political, administrative and financial responsibility and authority to the elected representatives of the local Governments in order to promote good governance, effective delivery of services and transparent decision making through institutionalized participation of the people at local level and to deal with their ancillary matters. Needless to mention that a preamble of a Statute serves as an introductory statement of the document’s fundamental purposes and guiding principles. With this background now we proceed ahead.

7. For the purpose of conduct of local Government elections under the Act, territory of the District has been disseminated into local areas: i.e. Urban Area and the Rural Area. Section 6 of the Act defines the Local Areas according to which the Government shall, divide a District into urban area and rural area. Sub-section (2) provides that the Government shall, by notification, demarcate and declare a local area consisting of:--

(a) Lahore District as the Metropolitan Corporation.

(b) rural area in a District, other than Lahore District, as District Council;

(c) urban area in a District, other than the area of a Municipal Committee, as Municipal Corporation; and

(d) urban area in a District, other than the area of a Municipal Corporation, as Municipal Committee.

Section 8 provides that the Government shall determine the number of Union Councils in the metropolitan Corporation, a Municipal Corporation and a District Council and Wards for a Municipal Committee.

Section 9 describes delimitation of Union Councils. According to it a union council shall be an area consisting of one or more revenue estates or, in the case of an area where revision of settlement under the law has not taken place, one or more census villages or in the case of an urban area, a census block or blocks and a revenue estate or revenue estates, delimited and notified as such by the Election Commission. Sub-section (3) of Section 9 provides that the Election Commission shall delimit a Union Council into six wards for the election of members on general seats. Sub-section (4) provides delimitation of Ward of a Union Council and according to clause (a) a ward shall consist of a village, one or more adjoining villages, or in case of an urban area, a census block or adjoining census blocks.

Section 10 provides delimitation of Wards in Municipal Committees. Sub-section (1) says that the Election Commission shall delimit a Municipal Committee into wards for election of members of the Municipal Committee on general seats. Clause (a) to sub-section (2) says that for the purposes of delimitation of a Municipal Committee a ward shall consist of a census block or adjoining census blocks.

1. The picture which thus emerges in one’s mind after going through the above provisions of the Act would be that the territorial area in a District other than the District of Lahore shall either consist of Municipal Corporation/Municipal Committee and the Distt. Council. The Municipal Corporation in case of urban area and District Council in case of rural area shall consist of union councils. These union councils (irrespective of fact whether constituting Municipal Corporation or District Council) shall comprise the Wards which shall consist of a village, one or more adjoining villages (in case of rural area) and a census block or adjoining census blocks (in case of urban area. (Section 9(4)(a). Likewise the Municipal Committees shall be delimited into Wards (Sec.10) and each of such wards shall consist of a census block or adjoining census blocks (Section 10(2)(a). A combine study when made of these provisions of the Act would make it clear that there is no distinction between Wards of a Union Council and the Wards of a Municipal Committee as defined in Section 2 (III-a) of the Act so far as the qualification of a candidate for member of a Ward is concerned.

2. Now we come to the question whether a person contesting election of general member of the Ward must be a voter of said Ward or he can be of voter of any other ward of the same Union Council/Municipal Committee. As noted above, Section 27 deals with qualifications and disqualifications for candidates and elected members. For the purposes of present issue only qualifications for candidates are relevant as such only the same may be reproduced hereunder:

“27. Qualifications and disqualifications for candidates and elected members.--(1) A person shall qualify to be elected as a member or to hold an elected office of a local Government, if he:

a) is a citizen of Pakistan;

b) except the youth member, is not less than twenty five years of age on the last day fixed for filing the nomination papers; and

c) is enrolled as a voter in the electoral rolls of the ward or the local Government from which he is contesting the election. (emphasis and underlining is mine)

The confusion seems to have crept into one’s mind because in original Statue clause (c) of sub section (2) of Section 27 of the Act was a bit different and was as under:

(c) is enrolled as a voter in the electoral rolls of the Union Council or the ward.

It was through the Punjab Local Government (Amendment) Act, (Act XXIII of 2013) dated 13.12.2013 that the original clause (c) of Section 27(1) was substituted as quoted earlier. A bare perusal of the above explicit substituted provision of Section (27)(1)(c) of the Act would reveal that to qualify to be elected as a member of a Ward a person must be enrolled as a voter in the electoral rolls of the said Ward from which he is contesting the election. Keeping the contention of learned counsel for the petitioners in mind I have microscopically analyzed this provision of law. The legislature in its wisdom has added article “the” before the word “Ward” which conveys the intention of legislature. The question is whether addition of word “the” is just a paint to look at or it has been used with all seriousness because if it has been used to give stress, it would have meanings to it and would leave little to imagination. Exact answer to this query may put to rest the controversy. According to Oxford Advanced Learner’s Dictionary of Current English A S Hornby 7th Edition “the” has been elaborated upon in the following manner:

The. 1. Used to refer to that has already been mentioned or is easily understood: 2. used to refer to that is the only, normal or obvious one of their kind: 3. used when explaining which person or thing you mean: 4. used to refer to a thing in general rather than a particular example: 5. used with adjectives to refer to a thing or a group of people described by the adjective: 6. used before the plural or last name to refer to a whole family or a married couple: 7. enough for a particular purpose: 8. used with a unit of measurement to mean ‘every: 9. used with a unit of time to mean: 10. used, stressing the, to show that the person or thing referred to is famous or important.

According to Cassell Concise English Dictionary updated edition 1995:

The. A. applied to a person or thing or persons or things already mentioned, implied, or definitely understood; used before a singular noun to denote a species; prefixed to adjectives used absolutely, giving them the force of a substantive; before nouns expressing a unit to give distributive force (as ‘90p. the pint’); emphatically to express uniqueness, used before adjectives and adverbs in the comparative degree.

The A Z Collins English Dictionary 12th Edition defines word ‘the’ to mean:

1. used preceding a noun that has been previously specified; 2.used with a qualifying word or phrase to indicate a particular person, object, etc. as distinct from others; 3.used preceding certain nouns associated with one’s culture, society, or community: 4. used preceding present participles and adjectives when they function as nouns; 5. Used preceding titles and certain uniquely specific or proper nouns. 6.used preceding a qualifying adjective or noun in certain names or titles: 7.used preceding a noun to make it refer to its class generaically. 8. used instead of my, you etc. with parts of the body. 9. (usually stressed) the best, only, or most remarkable; 10.used with proper nouns when qualify. 11. another word for per, esp with nouns or noun phrases of cost: 12.Often facetious or derogatory my; our: 13. Used preceding a unit of time in phrases or titles indicating an outstanding person, event, etc:.

What is derived from the above elaboration of exact uses of “the” is that use of ‘the’before ‘Ward’ is clearly intended to specify a particular ward identified by itself and, therefore, it cannot be meant or substituted to ‘a Ward’ or ‘any Ward’. It is also indicative of the clear intention of the legislature that the indication of the particular Ward means the Ward from which the person intends to contest election to become a member. It further lends assurance to the view that it excludes the possibility of any ambiguity in the expression and refers to a particular Ward. It need not be over- emphasized that the function of Court is to interpret and not to legislate. The language employed to express the intention is not that the person may be a voter of a/any Ward of the same Union Council or the Municipal Committee, as the case may be, in order to qualify to contest election of a ward but the word used is that in order to qualify for the candidate of a member of Ward the person must be voter of the said ward of which he intends to contest election. Much emphasis appears to have been laid by the legislature on the word ‘the’ and in this case word ‘the’ which according to grammar is ‘article’ is used with possessive case. Therefore the contention of learned counsel for the petitioner that the same means any ward of the constituency is unworthy of consideration.

1. Preamble of the Punjab Local Government Act, 2013 may be reproduced hereunder:

“Whereas it is expedient to establish an elected local Government system to devolve political, administrative and financial responsibility and authority to the elected representatives of the local Governments; to promote good governance, effective delivery of services and transparent decision making through institutionalized participation of the people at local level; and, to deal with the ancillary matters; It is enacted as follows:-”

If one keeps in mind the intent of very promulgation of the Act as would appear from the Preamble of this Act, main theme to promulgate this law is to establish an elected local Government system in order to promote good governance, effective delivery of services and transparent decision making through institutionalized participation of the people at local level and to deal with their ancillary matters, therefore, it is necessary that their representative must be amongst them. Perhaps in this backdrop of the matter, clause (c) to sub-section (1) of Section 27 has been added by way of the Punjab Local Government (Amendment) Act, (Act XXIII of 2013) dated 13.12.2013 which was not part of the original Statute i.e. The Punjab Local Government Act, 2013 (Act XVIII of 2013) brought on the book on 23.8.2013. I am, therefore, clear in my mind that these provisions are explicit in nature and have determinative effect and no other view can be taken other than what has been expressed by the same.

1. The crux of the above discussions and observations is that there is no distinction between Ward of a Municipal Committee and a Ward of Union Council so far as it relates to qualification of a candidate to become member is concerned; separate mentioning of Union Council and ward as used in Section 8(3) of the Act are only for the purposes of delimitation by the Election Commission and that in order to qualify to be a member of a Ward a candidate must be registered as a voter in the same Ward and I hold accordingly.

2. In culmination of the discussion referred supra, I find no merit in these petitions which are hereby dismissed.

3. Before I part with the judgment, I must appreciate and admire all the learned counsel and learned Law Officers for their able assistance and particularly Mr. Ijaz Ahmad Ansari, Qazi Bilal Ahmad and Mr. Nadeem Iqbal Chaudhry, Advocates who rendered assistance and their valuable views as Amicus Curiae and facilitated the Court to resolve the above issue.

(R.A.) Petitions dismissed

PLJ 2016 Lahore 526

Present: Syed Mansoor Ali Shah, J.

PUNJAB HEALTHCARE COMMISSION--Petitioner

versus

MUSHTAQ AHMED CH., etc.--Respondents

W.P. 32150 of 2015, decided on 3.2.2016.

Punjab Health Care Commission Act, 2010--

----Ss. 30 & 31(1)(cc)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Sealed establishment of health service--No provision to seal premises--Validity--Passing reference of an order closing down healthcare establishment in Section 31 is of no consequence as there is no substantive power under Act whereunder such an order can be passed--Absence of requisite statutory provisions or Rules and Regulations cannot be filled through administrative Standing Orders--The action of sealing healthcare establishment is, therefore, without backing of law, hence, without lawful authority--Commission or Board do not enjoy any power to seal any healthcare establishment or set up any AQC that can deal with third party complaints--In interest of public health and safety and in order to safeguard and protect fundamental right to life of people at large, respondent healthcare provider and healthcare establishment will not render healthcare services unless and until commission registers healthcare provider and issues license to healthcare establishment.

[Pp. 533 & 534] A, B, C & D

Mr. Shakil-ur-Rehman Khan, Advocate for Petitioner (in W.P. No. 32150/2015).

Mr. Muhammad Ahmad Qayyum, Advocate for Petitioner (in W.P. No. 31831/2015) and for Respondent No. 1 (in W.P. No. 32150/2015).

Mr. Anwaar Hussain and Mr. Jamal Mamdot, Assistant Advocate Generals, Punjab for Respondents.

Date of hearing: 20.11.2015.

Judgment

Brief facts of the case are that petitioner Commission initiated proceedings against Respondent No. 1 (a health service provider/health service establishment) and also sealed the establishment of the said respondent. The said action was challenged before District & Sessions Judge, Toba Tek Singh under Section 30 of the Punjab Healthcare Commission Act, 2010 (“Act”) who vide impugned order dated 16.10.2015 set aside the sealing of the premises on the ground that there was no provision under the Act to seal the premises of Respondent No. 1 and directed the Commission to decide the matter regarding notice dated 03.09.2015 issued to the said respondent.

1. Learned counsel for the petitioner Commission, inter alia, submits that Standing Orders issued by the Commission under Section 9(1)(i) of the Act provide for sealing of the healthcare establishment, therefore, the impugned order passed by the learned District and Sessions Judge Toba Tek Singh, is without lawful authority. He further submits that Respondent No. 1 has failed to approach the Anti-Quackery Cell constituted under the Standing Orders as a consequence he could not have approached the learned District & Sessions Judge directly under Section 30 of the Act.

2. Learned counsel for Respondent No. 1 argued that the Act does not authorize sealing of the premises of Respondent No. 1 and therefore the same cannot be sealed under the Standing Orders of the Commission. He adds that Standing Orders [under Section 9(1)(i)] and Instructions or Directives [under Section 4(2)(o)] have no binding force on an individual or a third party and are non-binding instrument for the internal governance of the Commission. He submitted that Standing Orders or the Instructions and Directives cannot assume the same statutory status as that of subordinate legislation in the shape of Rules and Regulations under the Act.

3. Arguments of the opposing parties have been heard and the relevant law has been examined. In order to appreciate the contention raised in this petition, it is necessary to visit the legal architecture of the Act, the extent of the powers and functions of the Punjab Healthcare Commission (“Commission”) and the Board under the Act, the nature and scope of subordinate legislation under the Act and the difference between subordinate legislation and executive directions/orders issued by the Commission.

4. Careful review of the Act reveals that the prime purpose of establishing the Commission under the Act is to improve the quality of healthcare services and to ban quackery in Punjab in all its forms and manifestations.[1] The Commission is established through a notification under the Act and is a body corporate with all its allied attributes. The functions and powers of the Commission under Section 4 of the Act are focused towards improving the quality of healthcare services, clinical governance and to ban quackery. Clinical governance, under the Act, is a systematic approach to maintaining and improving quality of patient care.[2] The functions and powers of the Commission, inter alia, include the power to: impose and collect penalties on violations, breach or non-compliance of the provisions of the rules, regulations, standing orders and instructions issued under this Act. or issue regulations, guidelines, instructions and directives to persons involved in the provision of Healthcare Services and to take necessary steps to ban quackery [Section 4(2) (g), (o) & (q)]. Commission is to take into consideration the policy advice of the Technical Advisory Committee and also coordinate with the Government.[3] The Commission may undertake investigation into allegations of maladministration, malpractice, or failure on the part of healthcare service provider or any employee of the healthcare service provider on a complaint of an aggrieved party or an aggrieved healthcare service provider or on a reference by the Government or the Provincial Assembly of Punjab or on the motion of the Supreme Court of Pakistan or the Lahore High Court, made during the course of any proceedings before it.[4] The Commission for the purposes of investigation enjoys the powers vested in a civil Court under the Code of Civil Procedure, 1908 in respect of summoning and enforcing the attendance of any person and examining him on oath, compelling the production of documents, receiving evidence on affidavits and issuing Commission for the examination of witnesses.[5] Procedure of investigation is provided under Section 23 of the Act.

5. The general superintendence, direction and management of the affairs of the Commission and overall policy making in respect of its operation shall vest in the Board which may exercise all such powers and do all such acts deeds and things that may be exercised or done by the Commission under the Act. Functions and powers of the Board, for the purposes of this case, inter alia, include the powers to approve the standing orders of the Commission.[6] The Board shall consist of nine Commissioners notified by the Government, who shall hold office for a term of three years.

6. A healthcare service provider shall not provide healthcare services unless registered with the Commission. An existing healthcare service provider shall within a period of 90 days of the coming into force of the Act apply for registration. A healthcare provider shall not provide healthcare services without being registered under this section and the regulations. The Commission shall issue a Certificate of Registration within 14 days or else the applicant shall be considered as having been provisionally registered.[7] In addition to the registration of the healthcare service provider, the healthcare establishment has to be licensed and the establishment cannot be used except in accordance with the terms and conditions of the license.[8]

7. The Commission may by order appoint an inspection team to inspect any healthcare establishment at the time of issuance or renewal of license or on receipt of a complaint. The inspection team can also inspect any apparatus, appliance, equipment, etc. or any practice or procedure being carried out at the healthcare establishment and may also enquire if there has been any instance of maladministration or malpractice or failure in the healthcare services in a healthcare establishment. The Commission may impose fine upon a healthcare service provider for the contravention of the provisions of the Act which may extend to fifty thousand rupees. Where, in the opinion of the inspection team, the use of any apparatus, etc. or the carrying out of any practice or procedure in a healthcare establishment is dangerous or detrimental to any person therein or otherwise unsuitable for the purpose for which it is used or carried out, he shall immediately report the matter, in writing, to the Commission. On receipt of the report the Commission may act according to the rules, regulations and the procedure prescribed by the Government. Notwithstanding any other provision of law, the Commission may for contravention of the provision of the Act, rules or regulations impose fine which may extend to five hundred thousand rupees.[9]

8. The Court of District and Sessions Judge shall have exclusive jurisdiction to question the validity of any action taken or intended to be taken or order made or anything done or purporting to have been taken, made or done under this Act or the for the grant of an injunction or stay or to make an interim order in relation to any proceeding before, or anything done or intended to be done or purporting to have been done by, or under the orders or at the instance of the Commission. In addition, any order of the Commission can be challenged within thirty days of the date of Communication of the order, through an appeal before the Court of the District and Sessions Judge and no other Court shall enjoy the jurisdiction to question the order or action of the Commission.[10] The Commission is empowered to make Regulations for the Commission, while the Government may make Rules to give effect to the Act.[11]

9. In addition to this statutory framework, the Commission under Sections 4(2)(q) and 9(1)(i) has issued “Standing Orders of the Punjab Healthcare Commission for banning quackery in all its forms and manifestations and for dealing with quacks.” Some of the salient features of these Standing Orders are that they create an Anti-Quackery Cell (Standing Order No. 2) and empower the officers of the Commission to seal the healthcare establishment if it does not have a valid registration to render the healthcare service (Standing Order No. 6).

10. Architecture of the Act reveals that the stewardship of the Commission is in the hands of the Board as it exercises all the functions and powers of the Commission. Commission is, therefore, the legal entity which is run and managed by the Board. The Act only provides for penalties in the shape of monetary fine and there is no provision for sealing or passing an order for closing down a healthcare establishment under the Act. There are no Rules and Regulations in the field as yet, hence the current legislative landscape is bereft of any such powers.

11. Before examining the legal status of the Standing Orders, it is important to understand the scope and meaning of delegated legislation and the difference between a legislative and an executive or an administrative instrument. Delegated legislation according to Salmond is “that which proceeds from any authority other than sovereign power and is therefore dependent for its continued existence and validity on some superior or supreme authority”.[12] Delegated legislation is also referred to as secondary legislation or subordinate legislation or subsidiary legislation and is law made by an executive authority under powers given to them by primary legislation in order to implement and administer the requirements of that primary legislation. It is law made by a person or body other than the legislature but with the legislature's authority.[13] There is a difference between administrative direction and delegated legislation. Delegated legislation is binding on both the administration and the individual and is enforceable through a Court of law but a direction is not so binding and enforceable on an individual or third party.[14] The foundational feature of subordinate legislation is that its source of power is the legislature itself, while the source of any administrative direction is the statutory authority or agency, established by the same legislature. Parent statute must clearly delegate the power of legislation to the authority in order to carry out the purposes of the Act.

12. Section 9(1)(i) states that the Board will approve the Standing Orders of the Commission. As the Board runs and operates the Commission, the Standing Orders are infact framed and approved by the Board. The source of the Standing Orders is, therefore, the Board or the Commission, and in the absence of any specific power of delegation authorizing the Commission or the Board to issue Standing Orders in order to give effect to the purposes of the Act, the Standing Orders shall pass for administrative directions of the Commission which are not enforceable against an individual or third party. They, however, may deal with internal governance of the Commission or at best regulate the internal working of the Commission. Subordinate or delegated legislation, on the other hand, is authorized by the parent legislation and simply advances the purpose of primary legislation and, therefore, enjoys the force of law.

13. Article 4 of the Constitution states that to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, in particular, no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law and no person shall be prevented from or be hindered in doing that which is not prohibited by the law. Standing Orders do not pass for the law while Rules and Regulations under the Act do. The distinction between law passed by the legislature or passed through delegation by the legislature and administrative or internal orders or directions issued by a statutory body or authority i.e., the Commission or the Board, has to be kept in mind. Under the Act, Regulations and the Rules under Sections 40 and 41 of the Act pass for subordinate legislation. The delegation is clear and explicit in Sections 40 and 41, which are reproduced hereunder for reference:

“Section 40 Regulations.--(1) The Commission may, by notification in the official Gazette, make regulations for carrying out the purposes of this Act.

(2) Without prejudice to the generality of sub-section (1), the Commission may make regulations with respect to all or any of the following matters:-

(a) the forms, fees and registers for the purposes of this Act;

(b) the records of patients treated in a healthcare establishment are provided;

(c) the records of the staff of a healthcare establishment;

(d) the requirements as to the number and qualifications of nursing and other staff in a healthcare establishment;

(e) the apparatus, appliances, equipment and instruments to be provided and maintained in a healthcare establishment;

(f) the ambulances to be provided and maintained by a healthcare establishment;

(g) the standards of accommodation, sanitation, and other amenities in a healthcare establishment;

(h) fix penalties according to offence;

(i) the cleanliness and hygiene in a healthcare establishment;

(j) the safety and welfare of patients in a healthcare establishment are provided;

(k) the management, control, superintendence and care of a healthcare establishment;

(l) the composition, procedures, duties and responsibilities of quality assurance committees of healthcare establishments; and

(m) the regulation and control of prices of the healthcare services.

(3) The power to make regulations conferred by this section shall be subject to the condition of previous publication and, before making any regulations, the draft thereof shall be published, in the official Gazette, two newspapers of wide circulation and on the website of the Commission, for eliciting public opinion thereon within a period of not less than fifteen days from the date of publication.

Rule 41 Rules.--(1) The Government may, by notification in the official Gazette, make rules for giving effect to the provisions of this Act.

(2) The power to make rules conferred by this section shall be subject to the condition of previous publication and, before making any rule, the draft thereof shall be published in the official Gazette for eliciting public opinion thereon within a period of not less than fifteen days from the date of publication.”

Both Rules and Regulations advance and carry out the purposes of the Act. They also undergo a legislative process of previous publication with draft thereof to be published in the official gazette for eliciting public opinion. Subordinate legislation like legislation must entail public participation and official publication through gazette notification. Administrative orders or directives of any authority including the Commission, on the other hand, are passed internally by the authority and, therefore, have an internal application. They, at best, constitute guidelines or directions for the Commission itself but do not bind any individual or any third party, as they do not pass for a “law.” Therefore, Standing Orders laying down the process of sealing healthcare establishments and providing for the setting up of an Anti Quackery Cell have no legal force and cannot be pressed against any individual or third party.

1. Section 4(2)(q) states that the Commission shall take necessary steps to ban quackery. It has been argued that this authorizes the setting up of the Anti-Quackery Cell under the Standing Orders. The “necessary steps” can only be through subordinate or delegated legislation. The above section does not authorize the Commission to legislate a new regime to deal with quackery e.g. setting up an Anti-Quackery Cell. Such an exercise can only be through a legislative instrument as explained above. Similarly, it has been argued by the learned Law Officers that Section 13 read with Section 31(1)(c) of the Act authorizes the Commission to seal or close down healthcare establishments. This argument is misconceived inasmuch as Section 13 does not authorize sealing or closing down of healthcare establishment. Passing reference of an order closing down healthcare establishment in Section 31 is of no consequence as there is no substantive power under the Act whereunder such an order can be passed. Infact Section 31(1)(c) of the Act reflects poor legislative drafting.

2. While the Court appreciates and acknowledges the good intentions and noble purpose of the Act, it is also true that road to hell is paved with good intentions. The absence of requisite statutory provisions or Rules and Regulations cannot be filled through administrative Standing Orders. The action of sealing the healthcare establishment of Respondent No. 1 is, therefore, without the backing of law, hence, without lawful authority. Impugned order passed by the learned District & Sessions Judge, Toba Tek Singh dated 16.10.2015 whereby the act of sealing was set aside is, therefore, upheld.

3. The Commission may explore the possibility of proposing amendments in the Act or framing necessary Rules and Regulations under the Act to achieve what has been provided in the Standing

Orders. However, until such an exercise is completed, the Commission or the Board do not enjoy any power to seal any healthcare establishment or set up any Anti Quackery Cell that can deal with third party complaints.

1. Admittedly, notices issued to the respondent healthcare provider/establishment under the Act are still pending. It is also admitted position that the respondent healthcare provider/healthcare establishment has not yet been registered or licensed under the Act. In the interest of public health and safety and in order to safeguard and protect the fundamental right to life of the people at large, the respondent healthcare provider and healthcare establishment (Respondent No. 1) will not render healthcare services unless and until the Commission registers the healthcare provider and issues license to the healthcare establishment. The Commission is directed to decide the notices regarding registration and license of Respondent No. 1 within a fortnight from the receipt of this judgment through a speaking order after granting a hearing to the respondent healthcare provider/establishment. This writ petition is decided in the above terms. Impugned order passed by the learned District & Sessions Judge, Toba Tek Singh dated 16.10.2015 is upheld and shall remain subject to the directions and observations made in this judgment.

2. This judgment will decide the instant petition, as well as, connected Writ Petition No. 31831/2015 as both these cases raise common questions of law and facts.

(R.A.) Order accordingly

[1]. Preamble to the Act.

[2]. Section 2(vi).

[3]. Section 4(4).

[4]. Section 4(7).

[5]. Section 4(10).

[6]. Section 9(1)(i).

[7]. Section 13.

[8]. Section 14.

[9]. Chapter V Sections 22-28.

[10]. Sections 30 & 31.

[11]. Sections 40 & 41.

[12]. M.P.Jain and S.N.Jain, Principles of Administrative Law 6th ed p.42.

[13]. The Free Dictionary by Farlex.

[14]. Ref: M.P.Jain and S.N.Jain, Principles of Administrative Law 6th ed p.189.

PLJ 2016 Lahore 534

Present: Abid Aziz Sheikh, J.

SyedRAZA MEHDI BAQARI--Petitioner

versus

PROVINCE OF PUNJAB etc.--Respondents

W.P. No. 39142 of 2015, heard on 2.2.2016.

Punjab Employees Efficiency and Accountability Act, 2006 (XII of 2006)--

----S. 4(1)(b)(i)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Employees of Punjab Local Government Board--Major penalty--Retired employees--Object of power is to effectuate legal right--Validity--It is also settled law that where a time frame is prescribed to do certain act by public functionaries, same is directory if such act is not likely to effect rights of any person, however, where public functionary is empowered to create liability, or imposed penalties against any person within prescribed time, then time so prescribed is not merely directory but mandatory--Every person in execution of law should follow strictly law and should not exceed limit of law for any reasons--Order of major penalty was passed after prescribed period of two years limitation under Section 21 of PEEDA from date of petitioner’s retirement--Once two years period was lapsed and no final order was passed, provisions of PEEDA were not applicable to petitioner any further in view of Section 1(4)(iii) read with Section 21 of PEEDA. [Pp. 538 & 541] A & B

Mr. Junaid Jabbar Khan, Advocate for Petitioner.

Mr. Muhammad Naeem Khan, Advocate for Respondent No. 3.

Barrister Khalid Waheed Khan, Assistant Advocate General for Respondents.

Date of hearing: 2.2.2016.

Judgment

This constitutional petition is directed against the order dated 09.02.2015 passed by Respondent No. 1 whereby major penalty u/S. 4(1)(b)(i) of Punjab Employees Efficiency, Discipline and Accountability Act, 2006 (“PEEDA”) was imposed and order dated 26.10.2015 passed by Respondent No. 2 whereby departmental appeal of the petitioner was dismissed.

1. Brief facts are that petitioner was performing his duties with Punjab Local Government Board (“Board”) as Tehsil Municipal Officer (“TMO”) and was compulsorily retired on 05.01.2013. After his retirement, petitioner was served with a charge sheet dated 28.01.2013 under provisions of PEEDA. The said charge sheet was replied in which allegations were denied, however, after inquiry and show cause notice, major penalty was finally imposed upon the petitioner on 09.02.2015 for recovery of equal share out of total loss of Rs. 3,21,90,809/- u/S. 4(1)(b)(i) of PEEDA. The appeal filed by the petitioner was also dismissed on 26.10.2015, hence this constitutional petition.

2. Learned counsel for the petitioner argued that petitioner is employee of the Board and was proceeded under PEEDA, therefore, in view of law laid down by august Supreme Court in Muhammad Amin and another vs. Government of Punjab and others (2015 PLC (CS) 1082), this constitutional petition is maintainable. He further argued that petitioner stood retired on 05.01.2013 and was charge sheeted after his retirement on 28.01.2013 and the impugned major penalty was imposed after expiry of two years of his retirement on 09.02.2015. He submits that under proviso to Section 21 of PEEDA, the proceedings were to be finalized within two years of retirement and after two years, the proceedings stood abated and the competent authority also became functus officio, therefore, no order could be passed against the petitioner under PEEDA. On merits, he argued that none of the allegations against the petitioner were proved and the petitioner was only found negligent by the inquiry officer, however, the major penalty was imposed on the petitioner for recovery of equal share of total loss of Rs. 3,21,90,809/-. He submits that even otherwise, the loss calculated was not actual loss suffered by department but was based on presumptions and guess work to the effect that this much amount would have been recovered from the cattle market, therefore, the said recovery being based on presumptions and surmises could not be imposed on the petitioner, especially after his retirement and lapse of statutory period prescribed u/S. 21 of PEEDA. He further contends that impugned order dated 09.02.2015 was passed u/S. 4(1)(b)(i) of PEEDA which is only applicable to in- service employees and regarding retired employees, the provision applicable was Section 4(1)(c) of PEEDA which was never invoked against the petitioner. He concluded that petitioner has also been treated discriminately as the inquiry officer held both the petitioner (TMO) and then Administrator being negligent but no action whatsoever has been taken against the Administrator whereas major penalty has been imposed on the petitioner.

3. Learned counsel for Respondent No. 3 does not deny that petitioner being employee of Board is not a civil servant, therefore, this constitutional petition is maintainable. He however contends that there were serious allegations against the petitioner which also stood proved in inquiry proceedings, therefore, major penalty was lawfully imposed on the petitioner. On the question of limitation prescribed u/S. 21 of PEEDA, he submits that after compulsory retirement on 05.01.2013, the inquiry proceedings were initiated on 28.01.2013, which were though finally concluded on 09.02.2015 after lapse of two years from the date of petitioner’s retirement, however, the delay was only of few days which was also not attributable to the department. He further submits that the time limit prescribed u/S. 21 of PEEDA being directory and not mandatory, impugned orders are valid and legal.

4. Learned Assistant Advocate General (Punjab) in principal supported the arguments of learned counsel for Respondent No. 3, however, contends that petitioner has remedy before Service Tribunal. Further submits that the provisions of Section 21 of PEEDA are directory in nature as the word “shall” and not the word “must” has been used by legislation in said provision.

5. I have heard learned counsel for the parties and perused the record with their able assistance.

6. It is admitted position between the petitioners learned counsel and learned counsel for the Board that petitioner was employee of the Board and as per provision of Section 2(h)(i) read with Section 19(1) of PEEDA, the jurisdiction of Service Tribunal is not available to such employees. In the circumstances, the constitutional jurisdiction is the only adequate remedy available as per law laid down by the august Supreme Court in Muhammad Amin and another vs. Government of Punjab and others supra, therefore, this constitutional petition is maintainable.

7. The primary legal question involved in this case is whether after lapse of two years from date of petitioner’s retirement on 05.01.2013, major penalty could be imposed on 09.02.2015 under PEEDA, notwithstanding the proviso to Section 21 of the PEEDA. It is not disputed that petitioner stood retired on 05.01.2013 and inquiry was initiated against him on 28.01.2013 and final order of major penalty was passed on 09.02.2015, which was almost 40 days beyond limitation period of two years prescribed under proviso to Section 21 of the PEEDA. The contention of the petitioner is that the provision of Section 21 of PEEDA being mandatory, after two years the proceedings were abated and competent authority also became functus officio. Whereas respondents are claiming that provision of Section 21 of PEEDA is only directory in nature and does not affect the final order passed beyond period of two years of petitioner’s retirement. In order to better appreciate respective contentions of the parties and to resolve this legal issue, it is expedient to reproduce Sections 1(4)(iii) and 21 of PEEDA as under:-

8. Short title, extent, commencement and application.

This may be called the Punjab Employees, Efficiency, Discipline and Accountability Act, 2006.

(4) It shall apply to--

(iii) retired employees of Government and corporation service; provided that proceedings under this Act are initiated against them during their service or within one year of their retirement.

1. Proceedings under this Act.--Subject to this Act, all proceedings initiated against the employees having retired or in service, shall be governed by the provisions of this Act and the rules made thereunder:

Provided that in case of retired employee, the proceedings so initiated against him shall be finalized not later than two years of his retirement.

(2) The competent authority may, by an order in writing, impose one or more penalties specified in clause (c) of Section 4, if the charge or charges are proved against the retired employee.

1. Bare perusal of Section 1(4)(iii) of PEEDA shows that PEEDA will apply, if proceedings under it are initiated against retired employees of Government and Corporation during their service or within one year of their retirement. Whereas proviso to Section 21 of PEEDA postulates that in case of retired employee, the proceedings so initiated “shall” be finalized not later than two years of his retirement. The word “shall” used in proviso to Section 21 PEEDA is a term of art which when appears in a statute, it makes provisions mandatory. It is repeatedly held by apex Court that word “may” involve a choice and “shall” an order. Sometime even an enabling word like “may” become mandatory, when the object of the power is to effectuate a legal right. It is also settled law that where a time frame is prescribed to do certain act by public functionaries, the same is directory if such act is not likely to effect the rights of any person, however, where public functionary is empowered to create liability, or imposed penalties against any person within prescribed time as in present case, then the time so prescribed is not merely directory but mandatory. In this regard, reliance is placed on (PLD 1996 SC 182) and M/s. Super Asia Muhammad Din Sons Pvt. Limited through Chief Executive vs. Collector of Sales Tax Gujranwala and another (2008 PTD 60). For above reasons, I have no manner of doubt that time prescribed in proviso to Section 21 of PEEDA is mandatory. It is also mandatory for the reason that it intends to safeguard the interest of retired employees and pensioners, so that the sword of Damocles should not hang upon them for an indefinite period.

2. Besides PEEDA, various other service laws also prescribe time limit for initiating and conclusion of disciplinary proceedings against employees who are either on verge of retirement or already stood retired. The consistent view of apex Court and this Court is that time limit so prescribed under those laws are mandatory. It is expedient to cite some of such precedents and law laid down therein as under:-

i) Secretary Education (Schools), Government of Punjab Lahore vs. Muhammad Akhtar, Ex-Head Master (2006 SCMR 600) where it is held by apex Court as under:-

“The Department has failed to examine as to whether such a disciplinary inquiry could have been initiated after a lapse of one year of the retirement of the respondent and if so under what circumstances in view of the relevant pension rules.”

ii) Sami-ur-Rehman vs. Chief Secretary Government of Sindh and two others (1983 PLC (CS) 832) where it is held as under:-

“If a Government servant who has been suspended pending inquiry into his conduct attain 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 benefit and period of suspension shall be treated as period spent on duty.”

iii) Parveen Javaid vs. Chairman WAPDA and 5 others (2011 PLC (CS) 1527) where it is held as under:-

“It is settled law that an employee cannot be penalized for any action which is subject-matter of an inquiry which was not completed before his retirement. Reference in this regard may also be made to Rule 54-A of the Fundamental Rules of Service which provides that on attaining the age of superannuation, disciplinary proceedings which have not been completed, automatically abate and the civil servant is entitled to receive all pensionary benefits. In this regard, reference may usefully be made to the cases of Muhammad Anwar Bajwa, Executive Director, Agricultural Development Bank of Pakistan, 1- Faisal Avenue, Zero Point, Islamabad v. Chairman, Agricultural Development Bank of Pakistan, Faisal Avenue, Zero Point, Islamabad (2001 PLC (C.S) 336), Bilquis Nargis v. Secretary to Government of the Punjab, Education Department (1983 PLC (C.S) 1141), Syed Abdus Salam Kazmi v. Managing Director WASA, Multan and another (2005 PLC (C.S) 244), Haji Muhammad Ismail Memon Advocate Complainant’s case (PLD 2007 SC 35) and Muhammad Zaheer Khan v. Government of Pakistan through Secretary, Establishment and others (2010 PLC (C.S) 559), in which it has been held that the disciplinary proceedings against an employee must be completed before his date of retirement. An employee cannot be penalized for an action which was subject matter of an inquiry and was not completed before his retirement. Reference may also be usefully made to Muhammad Zaheer Khan v. Government of Pakistan through Secretary Establishment and others (2010 PLC (C.S.) 559).

iv) Roshan Dani and 11 others vs. WAPDA through Chairman and 3 others (2015 PLC (CS)263) where it is held as under:-

“In view of the above all pending inquiries against an officer abates on retirement of the said Officer. This principle has been repeatedly re-affirmed by the superior Courts of our jurisdiction in NoorAhmad Shah ’s case (2003 PLC (C.S.) 1400), Muhammad Anwar Bajwa’s case (2001 PLC (C.S.) 336) and finally by the apex Court in Muhammad Zaheer Khan’s case (2010 SCMR 1554).”

v) Muhammad Siddique vs. Division Forest Officer Okara (2014 PLC (CS) 253). In this case while interpreting provision of PEEDA, it is held as under:-

“The afore-cited provisions evince that proceedings under PEEDA may be initiated against a retired employee of Government provided the same are: (i) initiated against him during his service or within one year of his retirement; and, (ii) finalized not later than two years of his retirement. The time lag inserted in the above referred provision of law is manifestly intended to safeguard the interest of the pensioners so that the sword of Damocles should not hang upon them for an indefinite period. It is an admitted fact that the petitioner stood retired as Forest Guard on 14.5.2004; the pension was sanctioned on 11.6.2004; and, the proceedings under PEEDA were initiated after a lapse of about four years, from the date of retirement, against the petitioner. In these attending circumstances the provisions of PEEDA were not applicable to the petitioner as neither the proceedings under PEEDA were initiated against him during his service nor within one year of his retirement. Thus, due to lapse of time the proceedings under the PEEDA could not be initiated against the petitioner and resultantly no punishment could be inflicted thereunder”.

1. The rule of law requires that things should be done as they are required to be done or not at all. Every person in execution of law should follow strictly the law as laid down and should not exceed the limit of law for any reasons whatsoever. Admittedly in this case, the impugned order of major penalty dated 09.02.2015 was passed after prescribed period of two years limitation under Section 21 of PEEDA from the date of petitioner’s retirement. Once two years period was lapsed and no final order was passed, the provisions of PEEDA were not applicable to the petitioner any further in view of Section 1(4)(iii) read with Section 21 of PEEDA. The legal consequence was that after two years, the proceedings initiated under PEEDA stood abated and competent authority under PEEDA also became functus officio and could not pass the impugned orders.

2. In view of above discussion, the writ petition is allowed and the impugned orders are set aside being passed without lawful authority and of no legal effect. Consequently respondents are also directed to release all retirement benefits of the petitioner.

(R.A.) Petition allowed

PLJ 2016 Lahore 541

Present: Shahid Karim, J.

D.G. KHAN CEMENT CO. LTD. etc.--Petitioners

versus

FEDERATION OF PAKISTAN, etc.--Respondents

W.P. No. 38612 of 2015 and C.M. No. 2 of 2015, decided on 22.12.2015.

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

----S. 4-B--Civil Procedure Code, (V of 1908), O.XXXIX, Rr. 1 & 2--Super tax--Power to tax is sovereign power--Grant of interim relief--Question of constitutionality of S. 4-B of Ordinance--Balance of convenience or inconvenience cause to company--Any order in nature of interim relief at that stage would mean that tax imposed by Section 4-B will not be deposited by petitioner company and by other companies in similar position for an order of that nature in the instant case will spawn a series of litigation by other companies similarly placed and the effect would be that the entire revenue to be collected by Government and FBR under the head of ‘super tax’ will go abegging--Valid ground for grant of injunction and does not tilt balance of convenience in favour of petitioner--If these scales are to be balanced then more inconvenience will be caused to Government than to petitioner and inconvenience to petitioner can be dealt with and taken care of at time of passing of final judgment in case petitioner does succeed in challenge--Interim relief which amounts to grant of final relief cannot be granted by Courts--By way of interim relief, no concession can be granted which will result in suspension of operation of a provision of law--Application for grant of interim relief is without any merit and is, therefore, dismissed. [Pp. 544 & 545] A, B, E, F & G

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

----O.XXXIX, Rr. 1 & 2--Income Tax Ordinance, 2001, S. 4-B--Super tax--Sovereign power--Grant of interim relief--Ingredient--Irreparable loss is not attracted--Petitioners will be entitled to refund of tax deposited in terms of Section 4-B of the Ordinance, 2001 and, therefore, nothing turns on that aspect as well. [P. 544] C

Maxim--

---What cannot be done directly cannot also be done indirectly is fully applicable in this case. [P. 544] D

Mr. Imtiaz Rasheed Siddiqui and Mr. Shehryar Kasuri, Advocates for the Petitioners/Applicants.

Mr. Nasar Ahmad, D.A.G.

Mr. Sarfraz Ahmad Cheema, Advocate for FBR.

Date of hearing: 22.12.2015.

Order

C.M. No. 2 of 2015

This is an application for the grant of interim relief pendente lite.

1. The main petition lays a challenge to the insertion of Section 4-B in the Income Tax Ordinance, 2001 by the Finance Act, 2015. Section 4-B is an imposition in the nature of ‘super tax’ for rehabilitation of temporarily displaced persons.

2. The learned counsel for the applicant submits that the power to tax is a sovereign power and the Government is well within its right to levy taxes to raise revenue for general purposes and the power to tax is within the Federal Government’s enumerated powers. However, according to the learned counsel, the Federal Government possesses only limited powers and cannot travel beyond the mandate given to it under the Constitution of Islamic Republic of Pakistan, 1973. In a nub, the learned counsel submits that when a tax is levied for a particular purpose, it becomes a Cess for all intents and purposes and is not part of the federal consolidated fund but the revenue from that tax is to be kept in a separate account. The learned counsel contends that the petitioner has a good prima facie case and the petitioner is likely to succeed in the challenge which has been laid in the instant petition. He also states that it would cause a great deal of inconvenience for the petitioner to seek a refund in case the petition succeeds and, therefore, it would be expedient and more convenient that the recovery of the tax as an interim measure ought to be stayed.

3. The learned D.A.G as well as learned counsel for Federal Board of Revenue (FBR) have strenuously opposed the grant of the interim relief pending the determination of the question of constitutionality of Section 4-B of the Ordinance, 2001. The primary submission of the learned D.A.G is predicated on the general principle that a provision of a statute would remain valid until it is struck down.

4. On the threshold, it may be stated that the learned counsel for the applicant has relied upon the ingredients vouched by respectable authority with regard to the grant of temporary injunction in support of the instant application. These are prima facie case, balance of convenience and irreparable loss. Having relied upon these ingredients, the onus clearly lies with the petitioner to justify the grant of the interim relief.

5. To begin the discussion, it will be borne in mind that we are here concerned that the constitutionality of Section 4-B of the Ordinance, 2001. The provision of a statute will remain valid for all intents and purposes unless “the lack of constitutional authority to pass the act in question is clearly demonstrated”. United States v. Harris, 106 US 629, 635 (1883). It is also equally well established that “there can be no question that it is the responsibility of this Court to enforce the limits on federal power by striking down acts of Congress that transgress those limits”. Marbury v. Madison, I Cranch 137, 176 (1803). The principle that up till a law is finally held to be ultra vires for any reason, it should have its normal operation has been settled by the superior Courts of our country. If any authority is required, refer to Federation of Pakistan v. Aitezaz Ahsan (PLD 1989 Supreme Court 61). Therefore, there is a strong presumption of constitutionality of an act of the parliament until it is struck down by the Courts. It inevitably follows that prima facie case does not exist in favour of the petitioner at the present moment. It may be that the petitioner company may have a better reading of the law in question ultimately but that stage has yet to arrive and until the matter is heard fully and a determination is handed down by this Court, the law remains in operation and is applicable for all purposes.

6. The next aspect is with regard to the balance of convenience or inconvenience caused to the petitioner company. In this regard, it will be pertinent to state that the annual income tax returns are due to be filed by 31.12.2015. Any order in the nature of interim relief at this stage would mean that the tax imposed by Section 4-B will not be deposited by the petitioner company and by other companies in similar position for an order of this nature in the instant case will spawn a series of litigation by other companies similarly placed and the effect would be that the entire revenue to be collected by the Government and the FBR under the head of ‘super tax’ will go abegging. The learned counsel for the applicant submits that it is expedient for the levy to be stayed at this stage rather than for the petitioner to run through the vortex of seeking refunds. However, this can hardly form a valid ground for the grant of injunction and does not tilt the balance of convenience in favour of the petitioner. If these scales are to be balanced then more inconvenience will be caused to the Government than to the petitioner and the inconvenience to the petitioner can be dealt with and taken care of at the time of the passing of the final judgment in case the petitioner does succeed in the challenge. However, the entire budgetary allocation and other financial and revenue matters of the Federal Government will fall into disarray in case an interim relief is granted.

7. The third ingredient regarding the irreparable loss is also not attracted in the present case. Clearly, in case the petitions succeed, the petitioners will be entitled to refund of the tax deposited in terms of Section 4-B of the Ordinance, 2001 and, therefore, nothing turns on this aspect as well.

8. Another aspect which is at the heart of the determination to be made on the issue of interim relief is that it has been settled and vouched by the superior Courts that a provision remains valid and operative until it is struck down finally by the Courts. In case an interim relief in any form is granted at this stage, that will be tantamount to circumventing the mandate of the principle laid down by the superior Courts. This cannot be countenanced. Two principles would come into play. Firstly, the maxim that what cannot be done directly cannot also be done indirectly is fully applicable in this case. Also it has consistently been held by the superior Courts that an interim relief which amounts to the grant of the final relief cannot be granted by the Courts. However, the primary basis for the refusal of the relief remains the same. It is that by way of interim relief, no concession can be granted which will result in the suspension of the operation of a provision of law.

9. The learned counsel for the applicant has relied upon the order passed by the High Court of Sindh in Suits No. 2211, 2181, 2182 and 2183 of 2005 in which the following relief has been granted:

“In view of the above, the plaintiff may file its tax return manually within the due date. In case of any deficiency in the said tax return, the defendants will be at liberty to act strictly in accordance with law. However, in case of any deficiency therein on account of non-payment of the impugned super tax, no coercive action shall be taken against the plaintiff till the next date. By consent, adjourned to 04.12.2015.”

1. The learned counsel for the petitioner requests that the same relief be granted to the petitioner company as this would promote consistency and comity in the decisions rendered by the different High Courts. However, I am not inclined to follow the view taken by the High Court of Sindh for the reasons which have been spelt out hereinabove. The relief granted by the High Court of Sindh effectively renders the provisions of Section 4-B of the Ordinance, 2001 as redundant and inoperative. These shall run counter to the rule laid down by the superior Courts.

2. The learned D.A.G has brought to the notice of this Court an interim order passed by the Supreme Court of Pakistan in C.P. No. 1796 of 2013. The Supreme Court of Pakistan suspended the operation of the interim order passed by the High Court of Sindh in a matter laying a challenge to the provisions of Income Support Levy Act, 2013. The High Court of Sindh had in its order passed a similar order as has been passed in the order relied upon by the learned counsel for the petitioner and had permitted the filing of the returns of income manually.

3. In view of the above, this application for the grant of interim relief is without any merit and is, therefore, dismissed.

Main Case

1. The reply to the petition has not been filed by the Federal Government or by the other respondents including the FBR. It is directed that the reply be filed before the next date of hearing with an advance copy to the learned counsel for the petitioner. The matter is now adjourned for final hearing for 27.01.2016.

(R.A.) Application dismissed

PLJ 2016 Lahore 546 (DB) [Rawalpindi Bench Rawalpindi]

Present: Ibad-ur-Rehman Lodhi and Raja Shahid Mehmood Abbasi, JJ.

EX-BRIGADIER ALI KHAN--Petitioner

versus

SECRETARY, HOME DEPARTMENT GOVERNMENT OF PUNJAB and another--Respondents

W.P. No. 2983 of 2015, decided on 21.12.2015.

PakistanArmy Act, 1952--

----Ss. 31(d) & 59--Anti-Terrorism Act, 1997, S. 11-F(2)--Pakistan Military Rules, R. 54--Convicted and sentenced by Field General Court Martial--Warrant of commitment was issued--Question of--Whether remissions can be refused to a person convicted by Field General Court and sentence under three charges--One sentence of five years was imposed in addition to dismissal from service--Whether length of one sentence of five years can be presumed validity--If remissions are refused on account of conviction under ATA, 1997, effect of such refusal must not be taken beyond period of maximum conviction provided for such offence, as such, principle of refusal of remission, it must not be extended for remaining period of conviction i.e. 4½ years after exclusion of period of maximum sentence of six months provided under Section 11-F(2) of ATA--Remissions can only be refused to a person convicted and sentenced for any offence under such Act, as such, petitioner can be refused remissions with regard to period of conviction of six months, which is maximum period of conviction under Section 11-F(1) of ATA, 1997--Refusal to grant remission to petitioner is violative to Pakistan Prison Rules, 1978 at least for period of conviction of petitioner to extent of four years and six moths after exclusion of period of maximum six months conviction under Section 11-F(2) Anti-Terrorism Act, 1997. [Pp. 549 & 551] A & D

PakistanPrison Rules, 1978--

----R. 199--Sentence to imprisonment--Question of--Whether by one sentence or by consecutive sentence for period of four months or more may be good conduct and industry, become eligible for release when position of sentence ordinarily not exceeding one third of whole sentence has yet to run--Validity--No person, who is convicted for espionage or anti-state activities shall be entitled to ordinary or special remission, unless otherwise directed by provincial Government--Petitioner was never convicted and sentenced for any such offence resulting into refusal of remission under Pakistan Prison Rules, 1978. [P. 550] B

PakistanPrison Rules, 1978--

----R. 214-A--Sentence--Criminal conspiracy--Attempting to reduce person in military force--Remission-- To grant remission is an extra judicial power of prison managers to shorten sentence in a judicial manner to make criminal minds sane citizen and it should have been in exclusive domain of prison authorities to deal with such matters in post conviction period--No unjustified restrictions are to be imposed upon prison authorities either in order to pre-empt their such jurisdiction or to overawe their such statutory right--It is only for prison authorities in view of conduct of prisoner in post conviction period, either to grant or refuse remission and no other authority is competent to even comment upon conduct of prisoner to which only prison authorities are supposed to be direct witness.

[P. 550] C

Mr. Tanveer Iqbal Khan, Advocate for Petitioner.

Malik Feisel Rfique, Deputy Attorney General for Pakistan with Raja Abdul Qayyum, Law Officer, Col. Shamsher Ali and Barrister Qasim Ali Chohan, Assistant Advocate General Punjab for Respondents.

Date of hearing: 21.12.2015.

Judgment

Ibad-ur-Rehman Lodhi, J.--The petitioner was convicted and sentenced by a Field General Court Martial. When to serve out the sentence, the person of the petitioner was handed over initially to the Superintendent, District Jail, Sialkot, a warrant of commitment was issued to the said jail authority, wherein the details of the conviction and sentence on three charges were provided to the following effect:--

(i) First charge under Section 59 of Pakistan Army Act read with Section 11-F(2) of Anti-Terrorism Act, 1997 for professing to belong a proscribed organization.

(ii) Second charge was laid under Section 31(d) of Pakistan Army Act, for attempting to seduce a person in the military forces of Pakistan from his allegiance to the Government of Pakistan.

(iii) Third charge was laid again under Section 59 of Pakistan Army Act for being party to a criminal conspiracy to commit an offence punishable with death under Section 120-B read with Section 302 of the Pakistan Penal Code.

and by means of one sentence of all such offences, the petitioner was sentenced to suffer Rigorous Imprisonment for five years and also dismissal from service. The sentence was made effective w.e.f. 20.06.2012 and warrant of commitment so issued carried a date of issuance as 03.08.2012. Subsequently, on 12.08.2012 the petitioner was shifted to Central Jail Adyala, Rawalpindi, where still he is lodged.

1. On behalf of the petitioner, his wife moved the Home Department in Government of the Punjab, by means of a representation seeking remissions and other facilities admissible under Prison Rules. Such representation was declined by the Home Department, Government of the Punjab and such refusal was communicated to the wife of the petitioner through letter dated 31.08.2015 intimating that since the petitioner was sentenced under Section 11(F)(2) of the Anti-Terrorism Act, 1997, therefore, he is not entitled to any kind of remission in view of the provisions of Section 21-F of the said Act.

2. Such refusal has been called in question by the petitioner through this Constitutional petition being an aggrieved person of passage of the impugned order by the Home Department, Government of the Punjab.

3. The report and parawise comments from the respondents side did contain the same position as has been pleaded in the impugned refusal mainly on the strength of the provisions of Section 21-F of the Anti-Terrorism Act, 1997 as well as Rule 214-A of Pakistan Prison Rules, 1978.

Home Department, Government of the Punjab in its report and parawise comments has additionally placed reliance on two judgments of the Hon’ble Supreme Court of Pakistan reported as Shah Hussain versus The State (PLD 2009 SC 460) and Nazar Hussain and another versus The State (PLD 2010 SC 1021) with the contention that no remission to a convict under Anti-Terrorism Act is available.

1. The parties have been arguing mainly on the concept of a relief available under Section 382-B Cr.P.C. and for that purpose from both the sides, the above referred law laid down by the Hon’ble Supreme Court of Pakistan was referred. In Shah Hussain’s case, it was the conclusion that benefit of Section 382-B, Cr.P.C. is available to all the prisoners irrespective of the fact under which penal clauses, they have been convicted, but benefit of said Section was not available to the convicts of offences under the National Accountability Ordinance, 1999, Anti-Terrorism Act, 1997, and the offence of Karo Kari and where the law applicable, prohibits itself to such relief, whereas, in Nazar Hussain’s case mainly the powers of the President of Pakistan under Article 45 of the Constitution of the Islamic Republic of Pakistan, 1973, are discussed, which both have no nexus with the point involved in the present petition.

2. Both the sides have never addressed the Court on the real question involved as to whether remissions in view of Pakistan Prison Rules, 1978 can be refused to a person convicted by a Field General Court Martial and sentenced under three charges including the one under Anti-Terrorism Act, 1997.

3. The petitioner was convicted under Sections 31(d) and 59 of Pakistan Army Act read with Section 11-F(2) of the Anti-Terrorism Act, 1997 and in compliance of the requirements of Rule 54 of Pakistan Military Rules one sentence of five years was imposed in addition to dismissal from service. The effect of one sentence for all the offences is to be analysed and also it is to be looked into as to whether if under one offence remissions are not permissible to a prisoner, whether such restraint would equally be applicable for offences under other laws, where such restriction is not imposed in that other law.

4. In the present case, remissions have been denied to the petitioner simply for the reason that he has been convicted for an offence under Section 11-F(2) of Anti Terrorism Act, 1997 and in view of the barring clause i.e. Section 21-F of the same Act, a convict under any provision of Anti Terrorism Act would not be entitled to get any remission. The important fact to be noted is that maximum sentence for an offence under Section 11-F(2) of Anti Terrorism Act, 1997 is six months. Now it is to be seen as to whether length of the “one sentence” of five years can be presumed for the offence under Section 11-F(2) also despite the fact that for such offence maximum sentence available under the law is six months and further that whether a barring clause refusing remission to a convict under any provisions of Anti-Terrorism Act, 1997 can be made applicable in case of a prisoner convicted and sentenced by Field General Court Martial against whom one accumulative sentence has been imposed under Anti-Terrorism Act, 1997 and also Pakistan Army Act. Even if the remissions are refused on account of conviction under Anti-Terrorism Act, 1997, the effect of such refusal must not be taken beyond the period of maximum conviction provided for such offence, as such, the principle of refusal of remission even if applied in this case, it must not be extended for remaining period of conviction i.e. 4 ½ years after exclusion of the period of maximum sentence of six months provided under Section 11-F(2) of Anti-Terrorism Act, 1997. Section 21-F of the said Act, do suggest that the remissions can only be refused to a person convicted and sentenced for any offence under such Act, as such, the petitioner can be refused remissions with regard to the period of conviction of six months, which is maximum period of conviction under Section 11-F(1) of Anti-Terrorism Act, 1997.

5. Chapter 8 of Pakistan Prison Rules, 1978 provides Remission System, which in view of Rule 199 is an arrangement by which a prisoner sentenced to imprisonment, whether by one sentence or by consecutive sentences, for a period of four months or more may by good conduct and industry, become eligible for release when a portion of his sentence ordinarily not exceeding one-third of the whole sentence has yet to run. Such rules contained a prohibition in themselves by means of Rule 214-A, which provides that no person, who is convicted for espionage or anti-state activities shall be entitled to ordinary or special remission, unless otherwise directed by the Provincial Government. The petitioner was never convicted and sentenced for any such offence resulting into refusal of remission under Pakistan Prison Rules, 1978, rather in view of the warrant of commitment on account of his first charge, he was sentenced for alleged professing to belong a proscribed organization, whereas, in view of the second charge, he was sentenced for attempting to seduce a person in the military force of Pakistan from his allegiance to the Government of Pakistan and in view of third charge, he was sentenced for being party to a criminal conspiracy. Even such barring clause provided under Rule 214-A of Pakistan Prison Rules, 1978, would not be applicable in case of the petitioner.

6. To grant remission is an extra judicial power of prison managers to shorten the sentence in a judicial manner to make the criminal minds sane citizen and it should have been in the exclusive domain of prison authorities to deal with such matters in post conviction period. No unjustified restrictions are to be imposed upon the prison authorities either in order to pre-empt their such jurisdiction or to overawe their such statutory right. It is only for the prison authorities in view of the conduct of the prisoner in post conviction period, either to grant or refuse remission and no other authority is competent to even comment upon conduct of the prisoner to which only prison authorities are supposed to be the direct witness.

7. In view of what has been discussed above, we have reached to the conclusion that the impugned refusal to grant remission to the petitioner is violative to the Pakistan Prison Rules, 1978 at least for the period of conviction of the petitioner to the extent of four years and six moths after exclusion of the period of maximum six months conviction under Section 11-F(2) Anti-Terrorism Act, 1997. The present writ petition is, therefore, allowed and the jail authorities are directed to grant remissions to the petitioner available under Pakistan Prison Rules, 1978 by excluding the period of conviction of six months provided under Section 11-F(1) of Anti-Terrorism Act, 1997.

(R.A.) Petition allowed

PLJ 2016 Lahore 551

Present: Mrs. Erum Sajad Gull, J.

BASIT NADEEM--Petitioner

versus

ADDITIONAL SESSIONS JUDGE, etc.--Respondents

W.P. No. 5568 of 2014, decided on 8.2.2016.

Anti-Corruption Establishment Rules, 1985--

----Rr. 6, 7 & 8--Pakistan Penal Code, (XLV of 1860), S. 21(10)--Criminal Procedure Code, (V of 1898), Ss. 22-A, 22-B & 154--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Tenants and shares--Accused was patwari public servants--Registration of criminal case--Challenge to--When a public servant is alleged to have committed a scheduled offence jointly with other private persons then a criminal case against them could be registered only under orders of officers--Before registering a case Anti-Corruption Department has right to first make a thorough inquiry as prescribed in Ant-Corruption Establishment Rules 1985--Public servants should be given some protection from false and frivolous cases registered against them as it is a general trend of society to register false cases. [Pp. 554, 555 & 556] A & B

Ch. Aish Muhammad Khan Sra, Advocate for Petitioner.

RanaKamran, Assistant Advocate General for Respondents.

Date of hearing: 8.2.2016.

Order

Through this writ petition, the petitioner has prayed that the Respondent No. 2 (Circle Officer, Anti-Corruption Establishment, Pakpattan Sharif), Respondent No. 3 (Director Anti-Corruption Establishment, Sahiwal) and Respondent No. 4 (Director General Anti-Corruption Establishment, Punjab, Lahore) be directed to register a criminal case against the proposed accused persons in accordance with law and then investigate the matter fairly, honestly and without being influenced by the previous inquiry conducted by the respondents under Rules 6 and 7 of the Anti-Corruption Establishment Rules, 1985.

1. The brief facts giving rise to filing this writ petition are that the petitioner’s mother owned agricultural land in Mauza Mari Hazara Tehsil Arifwala District Pakpattan Sharif which was being cultivated by Akhtar Rasool and Safdar Rasool as tenants and share of the produce was paid to the mother of the petitioner. After the death of the mother of the petitioner Akhtar Rasool and others remained tenants and started giving share of the produce to the petitioner but after lapse of three years they refused to give the share of the produce to the petitioner and declared themselves owners of the land belonging to the petitioner. The petitioner contacted the concerned Patwari who informed him that the land had been alienated in the name of Akhtar Rasool etc. through Mutation No. 516 dated 02.01.1993. The petitioner then moved an application under Section 154 Cr.P.C. to the Anti-Corruption Establishment for the registration of a criminal case against the proposed accused i.e. Akhtar Rasool, Safdar Rasool and Patwari Muhammad Ahmad but did not succeed. After that the petitioner moved an application under Sections 22-A and 22-B Cr.P.C. before the learned Additional Sessions Judge/Ex-Officio Justice of Peace, Arifwala/Respondent No. 1 for registration of a case against the proposed accused which was accepted vide order dated 04.01.2014. Thereafter, the petitioner approached the Circle Officer/Respondent No. 2 to register a case against the proposed accused in compliance to the order of the Justice of Peace but he refused. The petitioner then moved an application before the learned Ex-Officio Justice of Peace, Arifwala for compliance of the said order. During pendency of the compliance application of the petitioner the Respondent No. 2/Circle Officer appeared before the learned Justice of Peace and made a statement that version of the petitioner had been recorded and the order of the learned Justice of Peace had been complied with. On the statement of the Respondent No. 2 the said compliance petition of the petitioner was disposed of by the learned Justice of Peace.

2. Learned counsel for the petitioner has argued that the petitioner moved an application before the learned Justice of Peace on 21.12.2013 which was accepted vide order dated 04.01.2014; that the Anti-Corruption authorities were under an obligation to register a FIR under Section 154 Cr.P.C. and an inquiry prior to the registration of the FIR was illegal. Hence, this writ petition be accepted and a criminal case be registered against the proposed accused.

3. The learned Law Officer has stated that after passing of the order dated 04.01.2014 by the learned Justice of Peace, the petitioner had moved an application for compliance of the said order before the learned Justice of Peace in which an order was passed on 23.01.2015 by the learned Justice of Peace stating that statement of the petitioner had been recorded and order passed by the learned Justice of Peace had been complied with; that as the grievance of the petitioner has been redressed hence this writ petition has become infructuous and be dismissed.

4. The officer representing the Anti-Corruption Establishment has stated that the matter was inquired into and vide Zimni No. 465-CO-ACE dated 26.08.2015, it has been declared that the allegations levelled by the petitioner have been found to be false.

5. Arguments have been heard and the available record has been perused.

6. In the case in hand the learned Justice of Peace in his order dated 23.01.2014 has mentioned that the Circle Officer, Anti-Corruption Establishment had recorded the statement of the petitioner and the application of the petitioner was disposed of by the Justice of Peace to which the petitioner did not object. Before this Court the petitioner has not challenged the order of the learned Justice of Peace disposing of the compliance petition of the petitioner admittedly at that time FIR had not been registered and only statement of the petitioner was recorded in compliance to the order of the Justice of Peace but the petitioner remained satisfied that his statement was recorded.

7. The Circle Officer, Anti-Corruption Establishment appeared before this Court and stated that after recording of the statement of the petitioner, the matter was inquired into as per The Anti-Corruption Establishment Rules, 1985 and the allegations levelled by the petitioner were found to be false hence no FIR was registered against the proposed accused Patwari and the other private persons.

8. Admittedly, one of the proposed accused is a Revenue Patwari hence is a Public Servant as envisaged in Section 21(10) of The Pakistan Penal Code, 1860 and Section 2 of The Prevention of Corruption Act, 1947 which are reproduced as under:

SECTION 21(10) OF THE PAKISTAN PENAL CODE, 1860.

“Every officer whose duty it is, as such officer, to take, receive, keep or expend any property, to make any survey or assessment or to levy any rate of tax for any secular common purpose of any village, town or district, or to make, authenticate or keep any document for the ascertaining of the rights of the people of any village, town or district;”

SECTION 2 OF THE PREVENTION OF CORRUPTION ACT, 1947.

“Interpretation. For the purpose of this Act, “Public Servant” means a public servant as defined in Section 21 of the Pakistan Penal Code [and includes an employee of any corporation or other body or organization “set up controlled or administered by, or under the authority of]” the Central Government].”

1. When a public servant is alleged to have committed a scheduled offence jointly with other private persons then a criminal case against them could be registered only under the orders of the officers mentioned in Rule 8 of the Punjab Anti-Corruption Establishment Rules, 1985, which is reproduced as under:

2. Registration of cases.--(1) Criminal cases shall be registered by the Establishment under Prevention of Corruption Act, 1947 and under such Sections of the Pakistan Penal Code, as have been set forth in the Schedule to the Ordinance.

(2) Criminal cases shall be registered against accused public servants under the written orders of officers of Establishment mentioned below:--

| | | | | --- | --- | --- | | (a) | Public Servants in BPS 1-16 | No below a Deputy Director | | (b) | Public Servants in BPS-17 and 18 | Not below an Additional Director | | (c) | Public Servants in BPS-19 and above. | Director. |

Provided that no case shall however be registered by the Director against public servants of the status of commissioner, Secretary to Provincial Government, Heads of Attached Departments and, other officers of BPS-20 and above without the prior permission of the Governor:

Provided further that for those public servants mentioned in the first proviso who are in BPS-19, such permission shall be accorded by the Chief Secretary:

Provided further that no prior permission shall be required for registration of a case against a public servant caught as a result of trap arranged by the Establishment under the supervision of a Magistrate, in the act of committing an offence specified in the Schedule to the Ordinance. In such a case, a report shall immediately be made to the Chief Secretary, the Administrative Secretary and immediate superior of the public servant concerned if he is in BPS-16 and above and to the appointing authority and immediate superior if the public servant is in BPS-1S and below.

(3). If the competent authority under sub-rule (2) decides not to register a case, he shall record reasons therefor.

Reliance is placed upon “Muhammad Afzal and 2 others versus Muhammad Siddique Girwa, Additional Sessions Judge, Gujranwala and 3 others” (1992 MLD 311), “Muhammad Hafeez and 2 others versus The State and another”(1999 MLD 1174), “Riaz Ahmad Tahir versus State and others” (PLJ 1996 Cr. C. (Lah.) 80) and “Mehboob Ali versus The State and 3 others” (PLD 1996 Lahore 454).

1. In a recent judgment of the Hon’ble Supreme Court of Pakistan reported as “Saleem Ullah Khan versus The State” (2008 S C M R 1465), it has been held that:

“The mere non-recovery of bribe money would not be of any consequence in the facts and circumstances of the case. The case was registered against the petitioner after thorough inquiry by the Anti-Corruption Department. The impugned judgment of the Lahore High Court does not suffer from any legal infirmity so as to warrant interference by this Court.

For the foregoing reasons, we do not find any merit in this petition which is dismissed and leave to appeal is refused accordingly.

Leave refused.”

Hence, it is now settled by the Hon’ble Supreme Court of Pakistan in the aforementioned case that before registering a case the Anti-Corruption Department has the right to first make a thorough inquiry as prescribed in the Ant-Corruption Establishment Rules 1985. The

wisdom behind this is that public servants should be given some protection from false and frivolous cases registered against them as it is a general trend of our society to register false cases.

1. As reiterated above, this writ petition has no merits and resultantly, it is dismissed.

(R.A.) Petition dismissed

PLJ 2016 Lahore 556

Present: Mirza Viqas Rauf, J.

PUNJAB PRIVATIZATION BOARD through its Secretary, National Tower, Lahore--Petitioner

versus

TAHIR AZAM and 4 others--Respondents

W.P. No. 13810 of 2013, decided on 28.1.2016.

Punjab Privatization Board Act, 2010 (IV of 2010)--

----S. 32--Civil Procedure Code, 1908 (V of 1908), S. 115 & O.VII R. 11--Lack jurisdiction of Civil Court--Property was purchased in auction proceedings--Petitioner being one of defendant entered appearance and submitted an application for rejection of plaint--Wrongly dismissed application--Revisional Court was bound to exercise jurisdiction--Validity--There is no cavil that alleged right of respondent hinges upon purchase of property which was auctioned by Pb.P.B.--Petitioner was justified to move an application under Order VII Rule 11 of CPC--Revision petition filed by petitioner was though brought before ASJ beyond ninety days as prescribed by Section 115 of CPC but it was not expected from revisional Court to shut its eyes on such a glaring illegality and perpetuate a wrong only on account of limitation. [Pp. 558 & 560 ] A, C & D

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

----S. 9--Scope--Plenary jurisdiction--Civil Court is Court of plenary jurisdiction and scope of Section 9 of CPC can be extended to claims of all civil nature except where jurisdiction is expressly or impliedly barred. [Pp. 559 & 560] B

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

----S. 115--Constitution of Pakistan, 1973, Art. 199--Civil revision--Lack jurisdiction--Constitutional jurisdiction--Constitutional jurisdiction is not for purpose to perpetuate a wrong but it is to be exercised in order to correct and rectify illegalities committed by Courts, tribunals or executive while performing their functions--High Court while exercising constitutional jurisdiction cannot sit as a mere spectator and to shut its eyes even after observing legal infirmities--Order of revisional Court is not a sacrosanct which cannot be interfered with in any of circumstances--Whenever it is established that revisional Court has committed some illegality resulting into passing of an order which is perverse and per-functionary, High Court is competent to interfere with revisional order in exercise of its constitutional jurisdiction. [P. 562] E & F

Mr. Sarfraz Muhammad Bargatt, Advocate for Petitioner.

Mr. Mohammad Ijaz Lashari, Advocate for the Respondent No. 1.

Date of hearing: 28.1.2016.

Judgment

The instant petition is directed against the order dated 01st of April, 2013, whereby the learned Additional District Judge, Kasur, while dismissing the revision petition filed by the petitioner affirmed the order dated 10th of December, 2011 passed by learned Civil Judge 1st Class, Kasur.

1. The facts in precision necessary for adjudication of instant petition are that Respondent No. 1/plaintiff filed a suit for declaration and permanent injunction claiming therein that he is owner in possession of the suit property which was purchased in the auction proceedings and the defendants/petitioner have no right or interest in the same. The petitioner being one of defendant entered appearance and submitted an application under Order VII Rule 11 of The Code of Civil Procedure (V of 1908) for rejection of plaint. The application was resisted by Respondent No. 1 and the same was resultantly dismissed on 10th of December, 2011. The petitioner, feeling aggrieved from the said order filed revision petition in terms of Section 115 of The Code of Civil Procedure (V of 1908), however the same was also dismissedvide order dated 01st of April, 2013 by the learned Additional District Judge, Kasur being barred by time, hence this petition.

2. Learned counsel for the petitioner submitted that the suit was not competent before the Civil Court as the matter in issue arose from the proceedings conducted under The Punjab Privatization Board Act, 2010. He added that the Civil Court was not vested with jurisdiction to entertain the suit in view of Section 32 of the said Act. Learned counsel contended that the application filed by the petitioner for rejection of plaint was wrongly dismissed and the learned revisional Court has failed to exercise its lawful jurisdiction and dismissed the revision petition solely on the ground of limitation. He maintained that revisional Court was bound to exercise the jurisdiction in terms of Section 115 of The Code of Civil Procedure (V of 1908) when once it has come in the record that the Civil Court has wrongly assumed the jurisdiction.

3. Conversely, learned counsel for Respondent No. 1 defended the orders passed by the Courts below. He submitted that the Civil Court was competent to adjudicate the suit in the light of provisions contained in Section 9 of The Code of Civil Procedure (V of 1908). Learned counsel argued that the revision petition was barred by time and it was rightly dismissed by the learned Additional District Judge.

4. I have heard the learned counsels for both the sides and also perused the record with their assistance.

5. The instant petition was admitted for regular hearing vide order dated 04th of June, 2013 on the sole ground that whether in terms of Section 32 of The Punjab Privatization Board Act (IV of 2010) (hereinafter referred as “The Act, 2010”), the Civil Court lacks jurisdiction and the matter in issue is exclusively triable by High Court. Before dilating upon the impact of Section 32 of Act ibid, it is necessary to have a glance on the resume of facts. The Respondent No. 1 purchased 33 Kanal 08 Marla of land from Khasra No. 2808 alongwith old banglow and quarters of village Katlohi Tehsil and District Kasur in an auction proceedings held by the Punjab Privatization Board in pursuance to which rights were transferred to Respondent No. 1 by way of Sale-Deed No. 4846 dated 13th of June, 2005. The Respondent No. 1 started claiming the proprietary rights in the property bearing Khasra No. 115 measuring 23 Kanal 12 Marla situated in Mauza Gaddoke Tehsil and District Kasur which is adjacent to the property purchased by him in open auction, being part of said property. Without commenting upon the right of Respondent No. 1 qua suit property, it is observed that at present this Court is to see as to whether the Civil Court is vested with the jurisdiction to entertain the suit.

6. There is no cavil that the alleged right of Respondent No. 1 hinges upon the purchase of property which was auctioned by the Punjab Privatization Board in pursuance to the provisions of “The Act, 2010”. The said Act was promulgated in order to carry out a competitive, fair and transparent process for effecting privatization of the properties of the Government and to provide for an expeditious mechanism to resolve disputes relating to privatization and to provide for ancillary matters. In view of its special status adjudication of matters arising therefrom was given special preference and Chapter VII was specially inserted in “The Act, 2010” which deals with the matter of adjudication. Section 32 of “The Act, 2010” confers exclusive original civil and criminal jurisdiction to High Court to adjudicate and settle all matters related to arising from or under or in connection with the Act ibid. The same is reproduced below for ready reference and convenience:-

“32. Jurisdiction of High Court.--Notwithstanding anything contained in any other law for the time being in force, the Lahore High Court shall exercise exclusive original civil and criminal jurisdiction–

(a) to adjudicate and settle all matters related to, arising from or under or in connection with this Act;

(b) to adjudicate and settle all matters transferred to it pursuant to Section 35; and

(c) to try offences punishable under this Act.”

It is clearly evident from the above quoted provision that for the adjudication of all the matters arising from the proceedings conducted under “The Act, 2010”, it is only the High Court which is vested with exclusive original civil as well as criminal jurisdiction. Section 35 of “The Act, 2010” further provides that all legal proceedings whatsoever and matters related to or under or in connection with or arising from privatization, the privatization process or privatization programme pending on the commencement of this Act before any forum, tribunal or Court other than the Federal Shariat Court or Supreme Court of Pakistan, shall stand transferred to the Lahore High Court. The transfer of pending proceedings is thus automatic as per mandate of Section 35 of “The Act, 2010”. The assumption of jurisdiction by the learned Civil Court was thus not warranted under the law.

1. The exercise of jurisdiction by the Civil Court in the garb of provisions contained in Section 9 of The Code of Civil Procedure (V of 1908) is even not tenable from the plenary interpretation of the said provision which reads as under:

“9. Courts to try all Civil Suits unless barred.--The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature expecting suits of which their cognizance is either expressly or impliedly barred.”

It is manifestly clear from the above that the Civil Court is the Court of plenary jurisdiction and scope of Section 9 of The Code of Civil Procedure (V of 1908) can be extended to the claims of all civil nature except where the jurisdiction is expressly or impliedly barred. As already observed, the matter in issue arises out of the proceedings conducted under “The Act, 2010” and being special law it bestows the original jurisdiction to the High Court exclusively so, I am of the considered view that under the circumstances, the petitioner was justified to move an application under Order VII Rule 11 of The Code of Civil Procedure (V of 1908).

1. The revision petition filed by the petitioner was though brought before the learned Additional District Judge beyond ninety days as prescribed by Section 115 of The Code of Civil Procedure (V of 1908) but it was not expected from the revisional Court to shut its eyes on such a glaring illegality and perpetuate a wrong only on account of limitation. The jurisdiction in terms of Section 115 of The Code of Civil Procedure (V of 1908) is ordinarily circumscribed and limited only to the matters strictly falling under the circumstances narrated in the said provision but when once it comes to light that the case before the revisional Court is the outcome of illegalities and material irregularities envisaged in Section 115 of The Code ibid then the jurisdiction of the revisional Court becomes wider and it is then paramount duty of such Court to come in the aid of justice rather to add a step for injustice. In such an eventuality even bar of limitation cannot be pleaded as a hurdle. Guidance in this respect can be sought from “Haji Rehmdil versus The Province Of Balochistan and another” (1999 SCMR 1060) wherein the Honourable Supreme Court of Pakistan held as under:

“The High Court correctly found that the appeal taken by the official functionaries was inexplicably barred by time and so also the revision brought to itself. Now, Section 115(1), C.P.C. confers two distinct kinds of jurisdictions: one, the normal, where the revisional powers are invoked by an aggrieved party, and the other, where the Court may act suo motu. These jurisdictions, distinct and independent, were, inter alia, recognized in Manager, Jammu and Kashmir, State Property v. Khuda Yar, PLD 1975 SC 678. Relevantly, the following was observed:--

“The scope of the revisional powers of the High Court though circumscribed by conditions of excess of jurisdiction, failure to exercise jurisdiction, illegal exercise of jurisdiction, is nevertheless very vast and corresponds to a remedy of certiorari and in fact goes beyond that at least in two respects inasmuch as:

Firstly, its discretionary jurisdiction may be invoked by the Court suo motu, and secondly, the Court 'may make such order in the case if it thinks fit'.

In Rangrao v. Pandurang and another (AIR 1924 Naq. 154), it was held that under Section 115 of the, C.P.C., the High Court could and might deal with a case under that section without there being any application by any of the parties and may in the special circumstances pass such orders as it thinks fit. In this case the Small Causes Court passed a decree against Defendant No. 2 and exonerated Defendant No. l and on revision the High Court exonerated Defendant No. 2. It was held that despite the fact that the plaintiff had not appeared in revision, he could still be given a decree against Defendant No. 1.

In M.H. Saya & Co. v. Wazir Ali Industries Ltd. the view taken by this Court was that it was competent for a stranger to a suit or proceedings to file an appeal, if he was adversely affected by the order passed in such suit or proceeding.”

It seems to us that in cases, involving patent abuse of jurisdiction and injustice, the Court, exercising powers under Section 115, C.P.C. even where the revision petition, brought by an aggrieved party, is bared by time, still has a discretion to invoke its own suo motu revisional authority to advance justice and to suppress mischief, albeit only when a jurisdictional error, in contemplation of the section, is encountered. It need hardly be reiterated that technicalities, unless resorted to in aid of justice and fair play, have little room in the wide field occupied by judicial dispensations. Deviating from the earlier rule that where jurisdiction vests in a Tribunal to decide, the Tribunal can decide rightly as well as wrongly, the current view of this Court, as, inter alia, reflected in U.S. Corporation of Pakistan Ltd. v. L.A.T., PLD 1987 SC 447, is that where jurisdiction vests to decide a controversy, such can only be decided rightly and not otherwise. Further, where a Tribunal goes wrong in law, it also goes outside the jurisdiction conferred on it by law.”

The same view was further reiterated by the Hon’ble Apex Court in the case of “Raja Hamayun Sarfraz Khan and others versus Noor Muhammad” (2007 SCMR 307). Even this Court in the case of “Ilam Din versus Hassan Din and others” (PLD 2006 Lahore 121) has adopted the same principles. The relevant extract from the judgment supra is reproduced below:

“3. Learned counsel for the petitioner however, contends that in view of the circumstances of the present case, as noted in the admitting order dated 22-6-2004, this is a fit case in which suo motu jurisdiction of the Court under Section 115, C.P.C. should be exercised. He has also cited the case titled Haji Rehmdil v. The Province of Balochistan and another (1999 SCMR 1960). Considering the said precedent and also the circumstances of the case noted in the admitting order, it does appear to me that the learned Courts below fell into material error while decreeing the declaratory suit filed by the respondents and granting the permanent injunction prayed for by them. If this error does in fact exist and is not rectified, it will result in grave miscarriage of justice.

1. In these circumstances, the suo motu revisional jurisdiction of the Court is available and must be exercised to ensure that the ends of justice are met. Failure to do so would constitute 'abdication of the important supervisory function with which the High Court is invested. In the admitting order. I have noted some of the material errors in the judgments of the learned Courts below. I, therefore, intend to examine the matter in detail and, if material error in the exercise of jurisdiction by the Courts below is established, to correct such error.”

In view of well recognized principles laid down in the judgments supra, the impugned judgment of the learned Additional District Judge cannot sustain. The learned Additional District Judge being equipped with revisional powers was supposed to exercise its jurisdiction for the advancement of ends of justice when it comes to his notice that the lower Court has committed any illegality or material irregularity which comes within the ambit of Section 115 of The Code of Civil Procedure (V of 1908). The Constitutional jurisdiction is not for the purpose to perpetuate a wrong but it is to be exercised in order to correct and rectify the illegalities committed by the Courts, Tribunals or the Executive while performing their functions. This Court while exercising Constitutional jurisdiction cannot sit as a mere spectator and to shut its eyes even after observing legal infirmities.

1. The order of revisional Court is not a sacrosanct which cannot be interfered with in any of the circumstances. Whenever it is established that the revisional Court has committed some illegality resulting into passing of an order which is perverse and per-functionary, this Court is competent to interfere with the revisional order in exercise of its Constitutional jurisdiction as ordained in Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973. Guidance in this respect can be sought from “Muhammad Anwar and others versus Mst. Ilyas Begum and others” (PLD 2013 Supreme Court 255) wherein the Hon’ble Supreme Court of Pakistan held as under:

“12. The argument of the learned counsel for the petitioner that the order of the Revisional Court could not be interfered in the constitutional jurisdiction, because a Court having the jurisdiction to decide the matter, has the jurisdiction to decide it rightly or wrongly, and reliance having been placed upon the two judgments noted above; suffice it to say that in the noted dicta, the provisions of Article 4 of the Constitution of the Islamic Republic of Pakistan, 1973 have not been taken into consideration, which reads as:--

“4. (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.”

Article 4 (ibid) mandates that it is the inalienable right of every citizen to enjoy the protection of law and to be treated in accordance with law and thus where an order has been passed by any forum or Court, including the Revisional Court, which is patently illegal and violative of law, especially the express provisions and the spirit of law, which (order) if allowed to stay intact tantamount to, and shall cause serious breach to the legal rights of the litigants and shall cause prejudice to them, the learned High Court in appropriate cases while exercising its constitutional jurisdiction can ratify the illegality and violation of law, and undo the harm caused by the order of such (revisional) Court………”

Even this Court in the case of “Muhammad Akbar versus Muhammad Malik and another” (PLD 2005 Lahore 1) while dealing with similar preposition has held that:

“7. Anyhow, as regards the objections of the learned counsel for the respondent, suffice it to say that, it is not an absolute rule that an order passed in revision, cannot at all be interfered in the Constitutional jurisdiction. In my view, where the justice demands, an exception can be taken thereto and the High Court besides Article 199 of the Constitution, can invoke its supervisory jurisdiction under Article 203 of the Constitution, to correct the orders, when are perverse, fraudulent, erroneous and have been passed either by express violation or the ignorance of any provision of law. Because the order of the learned revisional Court is of the above nature, therefore, I deem it proper to correct it in my Constitutional jurisdiction …………..”

1. In view of above discussion no room for any other inference is left except that the learned Civil Judge, while rejecting the application of the petitioner under Order VII Rule 11 of the Code of Civil Procedure (V of 1908) has completely ignored the provisions of Sections 32 and 35 of “The Act, 2010” and the learned Additional District Judge was oblivion of its revisional powers as ordained in Section 115 of the Code of Civil Procedure (V of 1908).

2. For the foregoing reasons, the instant petition is allowed, consequently the order dated 01st of April, 2013 passed by the learned Additional District Judge, Kasur as well as order dated 10th of December, 2011 passed by the learned Civil Judge 1st Class, Kasur are set aside being illegal and unlawful. As a sequel thereof, the suit pending before the learned Civil Court stands transferred to this Court by virtue of Section 35 of “The Act, 2010”. Office to transmit the copy of this judgment to the learned District Judge, Kasur, who shall immediately make arrangements for transmission of record of suit titled “Tahir Azam versus Province of Punjab etc.” Office is further directed that on receipt of record, to assign a fresh number to the said suit and place the same before the Court as a regular suit to be tried on original civil jurisdiction side.

(R.A.) Petition allowed

PLJ 2016 Lahore 565

Present: Mrs. Eram Sajad Gull, J.

MUHAMMAD ALI--Petitioner

versus

SPECIAL JUDGE, CENTRAL, FAISALABAD etc.--Respondents

W.P. No. 17818 of 2009, decided on 14.1.2016.

Emigration Ordinance, 1979--

----Ss. 17 & 22, 24(6)--Pakistan Penal Code, (V of 1860), Ss. 420 & 406--Constitution of Pakistan, 1973, Art. 199--Cancellation of FIR--Allegation of fraudulently receiving money from someone with promise to provide employment abroad--Nominated in FIR--Ingredients of criminal breach of trust or fraud--Order impugned is a short order and has given no reasons as to why cancellation report filed by I.F.T.A. has not been agreed with. [P. 567] A

Mr. Ameer Akbar Ali Qureshi, Advocate for Petitioner.

Mr. Muhammad Naeem Bhatti, Advocate for Respondent No. 5.

SyedAkmal Hussain Shah, Standing Counsel for Federal Government.

Date of hearing: 14.1.2016.

Order

Through this writ petition, petitioner has impugned the order dated 26.08.2009 passed by the learned Special Judge Central, Faisalabad whereby the cancelation report moved by the FIA in case FIR No. 65 dated 07.05.2007 registered under Sections 17/22 of the Emigration Ordinance, 1979 at Police Station FIA, Faisalabad was not agreed upon. It has been further prayed in this writ petition that the aforementioned FIR may also be quashed.

1. Learned counsel for the petitioner has argued that the said order is illegal and be set-aside; that the FIR is a counterblast to the application filed by the petitioner against the brother of Respondent No. 5 who is an Ahlmad in the Civil Courts; that Respondent No. 5 himself travelled to Malaysia on 08.06.2003 and returned back to Pakistan on 22.11.2005; that the petitioner since 21.11.2002 resided in Malaysia and returned to Pakistan on 26.03.2005 when his father fell unwell; that the petitioner was declared innocent in this case by the police; that as it is case of no evidence therefore a cancellation report was prepared in this case; that continuing with trial would be a futile exercise hence this writ petition be accepted.

2. The learned counsel for Respondent No. 5 has argued that after formal inquiry by the FIA, the FIR was registered and subsequently the report under Section 173 Cr.P.C. was submitted before the learned trial Court on 20.05.2009; that there is no illegality in the order impugned and the same be upheld.

3. The learned Standing Counsel has argued that the order impugned is a legal order hence, this writ petition be dismissed.

4. Arguments have been heard and the available record has been perused.

5. The petitioner is the nominated accused in the FIR No. 65 dated 07-05-2007 whereas Respondent No. 5 Ghulam Hussain Bukhari is the complainant of the said FIR. The Inspector, Federal Investigation Agency Police Station SIU Islamabad on 20-05-09 submitted a report under Section 173 Cr.P.C. before the Respondent No. 1, learned Special Judge Central, Faisalabad for the cancellation of the aforementioned FIR but the learned Special Judge, Faisalabad did not agree with the said cancellation report and ordered on 26.08.2009 that the trial should be proceeded with. The order impugned is reproduced as under:

1. The offences under which the FIR has been registered are Section 17 and Section 22 of The Emigration Ordinance 1979. The offences under this Ordinance are included in the Schedule of the FIA Act, 1974, therefore only the FIA is authorized to conduct an inquiry in these cases. On perusal of Section 22 of The Emigration Ordinance, 1979 it is evident that only an allegation of fraudulently receiving money from someone with a promise to provide him employment abroad will not attract the offence under Section 22 of The Emigration Ordinance 1979, in the absence of substantive evidence that the proposed accused is in the business of overseas employment. This could at the most attract the offences under Section 420 PPC or Section 406 PPC, triable by a Magistrate but not triable by the Special Judge. And if the ingredients of the criminal breach of trust or fraud are not proved then a civil liability would be created. Reliance is placed upon “Mrs. Surayya Farman versus The State” [1998 PCr.LJ 958 (Lahore)].

2. The law as laid down under Section 24(6) of The Emigration Ordinance, 1979 creates a bar on the Special Court for taking cognizance of a case when final report is submitted in the Court by the FIA after completion of the investigation. The cognizance in these cases can only be taken by the Special Court when the complaint is accompanied by the previous sanction of the Federal Government. Section 24(6) of The Emigration Ordinance 1979 is reproduced as under:

“Sec. 24(6). A Special Court shall take cognizance of, and have jurisdiction to try, an offence punishable under this Ordinance only upon a complaint in writing which is accompanied by the previous sanction of the Federal Government:

Provided that, in a case in which the complaint is not accompanied by such sanction, the Special Court shall, immediately on its receipt, refer the matter to the Federal Government; and, if the required sanction is neither received nor refused within sixty days of the receipt of the reference by the Federal Government, such sanction shall be deemed to have been duly accorded.”

1. The order impugned of the learned Special Judge is a short order and has given no reasons as to why the cancellation report filed by the Inspector Federal Investigation Agency has not been agreed with. Also the order impugned is silent as to if the requirements of the mandatory provision as laid down in Section 24(6) of The Emigration Ordinance 1979 have been complied with.

2. As reiterated above the instant writ petition is disposed of and the order impugned dated 26-08-2009 passed by the Special Judge, Faisalabad is set aside and the case is remanded to the Special Judge Central, Faisalabad to pass a speaking Order.

(R.A.) Petition disposed of

PLJ 2016 Lahore 568 [Multan Bench Multan]

Present: Ali Akbar Qureshi, J.

SULEMAN (deceased) through Legal Heirs--Appellant

versus

MUHAMMAD ALI, etc.--Respondents

R.S.A. No. 29 of 2008, decided on 15.1.2016.

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

----Art. 79--Gift-deed--Product of fraud and misrepresentation by playing fraud got thumb-impression on blank papers--Mandatory requirement of law--Second attesting witness could not be produced--Scribe of gift-deed can be substituted for attesting witness-- Respondents who were bound to prove gift deed in terms of Art. 79 of Q.S.O., could not offer any explanation that why other attesting witness was not produced, therefore, respondents intentionally and deliberately withheld evidence and failed to meet with test of article--Predecessor of appellants, even admitted by respondent side, was an illiterate person of advance age, who himself appeared and denied execution of gift deed stated, that respondents got his thumb impression on blank papers, on pretext to purchase a tractor--Predecessor of petitioners/real father himself filed suit for cancellation of gift deed alleged to have been executed by him in favour of respondents--Therefore, predecessor of parties had no intention to deprive petitioners (real daughters) from their right of inheritance which is secured and guaranteed by Allah Almighty--Thus, gift deed of suit land claimed to have been executed by predecessor of petitioners in favour of respondents is product of fraud and misrepresentation and is nullity in eye of law.

[Pp. 571, 572 & 573] A, B & C

Mr. Taffazul H. Rizvi, Advocate for Appellant.

Mr. Khalid Saleem Akhtar Awan, Advocate for Respondents No. 2 and 3.

M. Zulfiqar Ali Khan, Advocate for Respondent No. 13.

Nemo for Respondents No. 1 and 4 to 12.

Date of hearing: 15.1.2016.

Judgment

This regular second appeal is directed against the judgment and decree dated 01.02.2008 passed by the learned appellate Court whereby the appeal filed by the respondent was accepted and judgment and decree dated 24.02.2005 was set aside.

1. The predecessor of the appellants instituted a suit for declaration contending therein, that he is the owner of the suit property and the gift deed made by the respondents is product of fraud and misrepresentation as the respondents by playing fraud got his thumb impression on blank papers on the pretext to obtain a tractor but subsequently it was made a gift and by this way usurped the suit land owned by him. Lastly prayed that the Gift Deed No. 129 dated 10.04.1999 be declared illegal/unlawful, product of fraud and misrepresentation.

2. The respondents who are legal heirs of the predeceased son of the predecessor of the appellants appeared before the learned trial Court, controverted the averment of the plaint on the ground, that the suit land, after the death of their father was transferred in their names in the presence of witnesses, the gift deed is registered one and no fraud has been committed.

3. The learned trial Court framed necessary issues out of the controversial pleadings of the parties, recorded the evidence and finally decreed the suit, against which an appeal was filed by the respondents, which was allowed and the suit filed by the appellants was dismissed. Hence this Civil revision.

4. Learned counsel for the appellants has mainly questioned the propriety and validity of the judgment and decree passed by the learned appellate Court on the ground that the respondents in order to prove the alleged gift deed, allegedly executed by the predecessor of the appellants produced only one marginal/attesting witness and by this way has failed to prove the gift deed (Ex.D-4) as required by Article 79 of Qanun-e-Shahadat Order, 1984. Learned counsel in support of his arguments has referred the findings recorded by the learned appellate Court in Para-11 of the judgment impugned herein. Reliance is placed FarzandAli and another v. Khuda Bakhsh and others (PLD 2015 SC 187), Farid Bakhsh v. Jind Wadda and others (2015 SCMR 1044) and Muhammad Abaidullah v. Ijaz Ahmed (2015 SCMR 394).

5. When it was confronted to the learned counsel appearing on behalf of the purchaser of 24-Kanal out of the total land (Respondent No. 13), the learned counsel submitted, that although the second attesting witness could not be produced by the respondents but the respondents produced the scribe and Sub-Registrar, therefore, the scribe is in fact the substitute of the attesting witness. Reliance is placed upon (2013 SCMR 1351).

Respondents No. 1 and 4 to 12 have already been proceeded against ex-parte.

1. Heard. Record perused.

2. It is not denied as evident from record of the case, the predecessor of the appellants namely Suleman was the owner of the suit land. To prove this fact the predecessor of the appellants himself appeared in the witness-box and proved his title through reliable documentary evidence and denied the execution of any gift deed in favour of the respondents. As regards the gift deed, allegedly made by the predecessor of the appellants, the respondents were required by law to prove the same in accordance with the terms of Article 79 of the Qanun-e-Shahadat Order, 1984. It is mandatory requirement of law as enunciated, that to prove a document at least the evidence of two marginal/ attesting witnesses is required. For ready reference, Article 79 of the Qanun-e-Shahadat Order, 1984 is reproduced as under:

“79. Proof of execution of document required by law to be attested. If a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses at least have been called for the purpose of proving its execution, if there be two attesting witnesses alive, and subject to the process of the Court and capable of giving evidence:

Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provision of the Registration Act, 1908, (XVI of 1908) unless its execution by the person by whom it purports to have been executed is specifically denied.”

Admittedly, the respondents could not produce the second attesting witness despite the fact, the alleged executant had denied the execution of the same, therefore, the document (Ex-D-4) is not admissible in evidence. I am afraid the arguments advanced by the learned counsel for the respondents that the scribe of the gift deed can be substituted for an attesting witness, has any substance or force in view of the law laid down by the Hon’ble Supreme Court of Pakistan in a recent esteemed judgment cited as Farzand Ali and another v. Khuda Bakhsh and others (PLD 2015 SC 187) and Farid Bakhsh v. Jind Wadda and others (2015 SCMR 1044). In this judgment the Hon’ble Supreme Court of Pakistan has also interpreted Articles 17(2) and 79 of the Qanun-e-Shahadat Order, 1984. The relevant part of the esteemed judgment (PLD 2015 SC 187-Supra) thereof is reproduced as under:-

“10. Considering the proposition if the agreement of the appellants was required to be proved by the examination of two attesting witnesses, it is settled law that an agreement to sell an immovable property squarely falls within the purview of the provisions of Article 17(2) of the Qanun-e-Shahadat Order, 1984 and has to be compulsorily attested by the two witnesses and this is sine qua non for the validity of the agreement. For the purposes of proof of such agreement it is mandatory that two attesting must be examined by the party to the lis as per Article 79 of the Order ibid. In this case, the respondent had unequivocally denied the execution of the said agreement and it is on account of the above that Issue No. 11 was also framed requiring, the appellants to prove their agreement; the appellants never objected to the issue or sought to get it struck off; thus for all intents and purposes they accepted the responsibility of proving the same, despite the fact that according to their stance now the said agreement was admitted by the vendors in their written statement. However, the appellants for this purpose produced P.W.1 who is the scribe of the document, but admittedly is not the attesting witness and in number of judgments of this Court it has been clearly held, that a scribe of an agreement to sell immovable property is not a substitute for an attesting witness, and does not legally qualify to be so, therefore, his evidence may have a supportive value, but is neither in line with the mandate of law nor does it meet the test of Article 79 ibid. the only attesting witness examined by the appellants id D.W.2, namely, Muhammad Hanif, whereas the other attesting witness, Aftab has not been examined, and no explanation has been given by the appellants for this vital omission which was essential for proving their agreement to sell. This is fatal to the case of the appellants as per the law laid down in Hafiz Tassaduq Hussain v. Muhammad din through Legal Heirs and others (PLD 2011 SC 241). The repeated argument to overcome this legal impediment is that the vendors have accepted and acknowledged the agreement to sell in the written statement; in this context the constant answer is that an admission of a co-defendant is not binding upon the other co-defendant and as the respondent had denied the agreement to sell of the appellants and issue was also framed, therefore, the appellants were duty bound to prove the same in terms of the law enunciated in the judgment (supra) and Article 79 ibid.”

1. The record further revealed, that the respondents who were bound to prove the gift deed (Ex.D-4) in terms of Article 79 of the Qanun-e-Shahadat Order, 1984, could not offer any explanation that why the other attesting witness was not produced, therefore, by this way the respondents intentionally and deliberately withheld the evidence and failed to meet with the test of aforesaid Article.

2. Learned appellate Court, who was hearing the first appeal, should have carefully perused, examined and appreciated the record instead of taking the matter, wherein the valuable rights of the parties are involved, leisurely. The learned appellate Court in a very novel way dealt with the mandatory requirement of Article 79 of the Qanun-e-Shahadat Order, 1984. It is necessary to reproduce the relevant finding recorded by the learned appellate Court while accepting the appeal of the respondents, which is as under:

“Thus, it is clear that evidence produced on record by the defendants (respondents) is sufficient and confidence inspiring that Hibba-Deed (Ex-D-4) is a genuine document. After placing the evidence of the plaintiff and defendants-appellants (respondents) in juxtaposition, it would appear that evidence produced by the defendants has ring of truth. So far as the argument of learned counsel for the respondents that Iqbal Hussain marginal witness has been produced but other marginal witness Muhammad Hussain has not been produced so the document Ex.D-4 does not stand proved in accordance with law as at-least two witnesses should have been produced to prove it and in this view of the matter Hibba-Deed has no legal sanctity, is concerned, the evidence is silent as to why Muhammad Hussain has not been produced as witness. Non production of this witness appears to be due to the fact that legal assistance of the lawyers at Mufasil Courts is not proper and some-times very important documents or piece of evidence does not come on the record due to professional incompetence. Same situation appears to be here. It would have been much better if Muhammad Hussain marginal witness of Ex.D.4 had also appeared. However, it is understandable that Muhammad Hussain had not come forward to deny the execution of this document. The genuineness of the Hiba-deed stands proved from the mouth of Sub-Registrar and the other witnesses. Mere on the basis of technicalities, the justice cannot be frustrated.”

1. The aforesaid findings recorded by the learned appellate Court are not only violative of the mandatory command of the law but also against the canon of fairness and justice. Courts are required to dispense the justice in accordance with law and it has wrongly been observed by the learned appellate Court that non-producing the two attesting witnesses is a technicality. This type of the observation, in the presence of the mandatory provisions of the statute and the principle laid down by the Hon’ble Supreme Court of Pakistan should not remain in the field. Perhaps, it appears, that the learned Judge has not even bothered to consult the basic law and what about the law declared by the Hon’ble Supreme Court of Pakistan. In these circumstances, the afore-referred findings record by learned appellate Court are liable to be set aside.

2. There is another aspect of the case that the predecessor of the appellants, even admitted by the respondent side, was an illiterate person of advance age, who himself appeared and denied the execution of the gift deed stated, that the respondents got his thumb impression on blank papers, on the pretext to purchase a tractor. Respondent No. 1 who appeared as DW-3, during cross-examination almost admitted the stance taken by the predecessor of the appellants. The same is as under:-

1. It appears from the record, that in fact the respondents took the benefit of the illiteracy and simpleness of the predecessor of the appellants and succeeded to transfer the whole land in their name. Although it is noticed in many cases, that the daughters or sisters are being denied and deprived form their right of inheritance and this practice has constantly been deprecated by the Courts, but in this case, the predecessor of the petitioners/real father himself filed the suit for cancellation of the gift deed alleged to have been executed by him in favour of the respondents. Therefore, it appears that the predecessor of the parties to the case had no intention to deprive the petitioners (real daughters) from their right of inheritance which is secured and guaranteed by the Allah Almighty. Thus, the gift deed of the suit land claimed to have been executed by the predecessor of the petitioners in favour of the respondents is product of fraud and misrepresentation and is nullity in the eye of law.

2. Resultantly, this second appeal is allowed, the judgment and decree passed by the learned appellate Court is set aside and that of the learned trial Court is upheld. No order as to cost.

(R.A.) Appeal allowed

PLJ 2016 Lahore 574

Present: MuhammadSajid Mehmood Sethi, J.

PAKISTAN MINERAL DEVELOPMENT CORPORATION through Project Manager--Petitioner

versus

DIRECTOR GENERAL MINES & MINERAL PUNJAB LICENSING AUTHORITY, LAHORE and 2 others--Respondents

W.P. No. 28579 of 2015, decided on 30.12.2015.

Punjab Mining Concession Rules, 2002--

----R. 76-- Land Revenue Act, 1967, S. 49--General Clauses Act, 1897, S. 24-A--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Cancellation of exploration license--Excavate rock salt for selling in local as well as foreign market--Exploration license cannot be allotted for proved area--Value of unauthorizedly excavated rock salt--Validity--License or lease of mines and minerals could only be given through public auction, and any allotment or assignment of exploration or lease as case may be, without public auction, is absolutely illegal and without lawful authority and same is not sustainable in eye of law--Petitioner was found involved in unauthorized excavation of rock salt from licensed area of company--Petitioner, has been condemned unheard, thus it is an aggrieved person within contemplation of Art. 199 of Constitution--Impugned order is not sustainable within contemplation of provisions of Section 24-A of General Clauses Act, 1897.

[Pp. 579 & 581] A, B & C

M/s.Fakhar-ul-Zaman Akhtar Tarar, Ghulam Farid Sanotra,Advocates for Petitioner (in W.P. No. 33103 of 2015).

M/s. MuhammadEjaz, Assistant Advocate General, along with M. Saeed Anjum Khokhar, Advocate for Respondents.

Date of hearing: 23.11.2015.

Judgment

This consolidated judgment shall dispose of instant writ petition along with following connected writ petition as common questions of law and facts are involved in these cases:

1. W. P. No. 33103 of 2015. Haji Muhammad Nazir v. Province of Punjab through Secretary, Mines & Minerals, Punjab, Lahore, etc.

2. Brief facts, as stated in the writ petition, are that an Exploration License for rock salt, over an area of 501.13 acres near Dullewali in District Khushab, was granted to M/s. Pak Hamalia Salt Impex (Pvt.) Limited/Respondent No. 2 under the Punjab Mining Concession Rules, 2002(hereinafter “PMC Rules”), for a period of three years w.e.f. 18.12.2006, for establishing a Sodium Sulphate chemical plant by using rock salt as raw material. As per terms and conditions of the Exploration License, the licensee was not permitted to sell the rock salt in the open market. After completing the codal formalities, Respondent No. 2 was permitted to start Exploration Work on 15.01.2007. Respondent No. 2 complained on 17.01.2007 & 26.01.2007 to Respondent No. 1/Director General, Mines and Mineral, Punjab Licensing Authority, Lahore, that adjoining lessee i.e. petitioner was working in its licensed area. After demarcation of the area, Respondent No. 1 issued a registered Show Cause Notice (“SCN”) to the petitioner on 03.02.2007. In response, petitioner submitted an application dated 26.01.2007 to Secretary, Mines & Minerals, Punjab, Lahore/Respondent No. 3 requesting for cancellation of Exploration License of Respondent No. 2. Petitioner also submitted reply to the SCN of Respondent No. 1 on 19.02.2007, however, petitioner without awaiting any decision from Respondent No. 1 on the SCN, preferred an appeal before Respondent No. 3, against the issuance of SCN. Meanwhile, on 26.04.2007, Respondent No. 2 applied to Respondent No. 1 for permission to access from petitioner’s area. Respondent No. 1 heard the concerned parties on 28.05.2007 and directed Deputy Director Mines & Minerals, Khushab, to stop the illegal work of petitioner. Against the said order of Respondent No. 1, petitioner filed a petition before Respondent No. 3, which was remanded to Respondent No. 1 for hearing the case afresh. The Respondent No. 1 after obtaining written agreements from concerned parties passed a detailed order on 21.07.2007, against petitioner, which was again challenged before Respondent No. 3 on 28.08.2007. The appeal was finally heard on 06.09.2008, wherein Respondent No. 1 was directed to assess the quantity of rock salt unauthorizedly excavated by petitioner and to take action under the PMC Rules. Respondent No. 2 submitted an application on 09.02.2008 requesting Respondent No. 3 that they might be allowed to excavate rock salt for selling in local as well as in the foreign market. Respondent No. 3 held a meeting in this regard with Respondent No. 1 and Chief Inspector of Mines on 23.06.2008, and decided to call some technical expert from PCSIR for assistance in the matter. Accordingly, Principal Engineer, PCSIR Laboratory, attended the meeting on 14.10.2008, and it was decided that Respondent No. 2 might be allowed to excavate 3000 tons rock salt in total for analysis from Laboratory and feeding to pilot plant installed abroad, therefore, Respondent No. 1 allowed Respondent No. 2 to excavate 3000 tons of rock salt for sample testing abroad under Rule 21(d) of PMC Rules ibid, vide letter dated 18.10.2008. However, Respondent No. 2 was not allowed to sell the rock salt in local as well as foreign markets. Deputy Director, Mines & Minerals, Khushab, inspected the area on 30.06.2009, 10.09.2009, 09.01.2010, 11.06.2011 & 18.04.2012 and noticed that Respondent No. 2 committed the following violations:--

i) The Respondent No. 2 was excavating and selling the rock salt in the open market.

ii) The Respondent No. 2 had not made any arrangement for installation of industrial plant at site so far.

iii) Respondent No. 2 had sublet the area and did not issue any MD-8 challan (meant for keeping record of dispatched mineral).

iv) The Respondent No. 2 indulged in unauthorized mining of rock salt and sold 14197 tons of rock salt from the area illegally.

Therefore, SCNs were issued to Respondent No. 2 on 27.06.2009, 03.07.2009 and 16.11.2009. The replies submitted by Respondent No. 2 were thoroughly examined and found unsatisfactory, therefore, Respondent No. 2 was called upon for personal hearing before Respondent No. 1, who heard the case on 18.05.2012 and observed violations of the allotment letter dated 18.12.2006 as well as PMC Rules. Moreover, Respondent No. 2 excavated and sold 14197 tons of rock salt from the area, which was duly verified from the reported drivage of mines and seams reported by Respondent No. 2 through Monthly Production Returns/Quarterly Reports upto 31.10.2010. As Respondent No. 2 had already availed 06-Years period of the Exploration License and had not made alleged payment amounting to Rs. 1,00,116/- and Rs. 76,66,380/- despite demand notice issued to them on 10.04.2012, therefore, Respondent No. 1 rejected the application for renewal of Exploration License and cancellation letter was issued on 13.07.2012, whereas possession of the area was assumed by the Regional Office, Khushab, on the same day, in favour of the Government. The said order was assailed before Respondent No. 3, who, vide order dated 09.07.2015, accepted the appeal. Petitioner has assailed the said order with the following prayer:

“Under the circumstances, it is very humbly prayed that the impugned order dated 09.07.2015 may kindly be set aside being without lawful authority and jurisdiction.

It is further prayed this being a fit case may be remanded to the Respondent No. 3 for decision afresh along with revision petition of the petitioner.”

1. Learned counsel for petitioner submits that the area in question is already a proved area which cannot be allotted on Exploration License. He has referred to Rule 76 of the PMC Rules, to submit that the proved area can only be allotted by auction. He further submits that according to the decision dated 18.05.2012, passed by Respondent No. 1, Respondent No. 2 is a defaulter. He adds that petitioner is owner of private land and it is already working (excavating and developing) in the disputed area. He further submits that petitioner has cleared its defaulter position in the year 2003 by decision of the Cabinet Division and thereafter, started the ventilation tunnel for quality and quantity of fresh air for safe working environment. He contends that the impugned order, even otherwise, is not sustainable for the reason that the point raised by Respondent No. 1 in his order dated 18.05.2012, has not been dealt with or touched by Respondent No. 3, thus the impugned order is not sustainable in the eye of law. In support of his submissions, learned counsel for petitioner has placed reliance upon Maulana Abdul Haque Baloch and others v. Government of Balochistan through Secretary Industries and Mineral Development and others (PLD 2013 Supreme Court 641).

2. On the other hand, learned counsel for Respondent No. 2 contends that Respondent No. 2 applied for the grant of Exploration License on 20.03.2006. After inspection of the area and submission of inspection report of the area on 27.04.2006, the Exploration License was granted to Respondent No. 2 on 18.12.2006 for three years. He adds that Respondent No. 2 started its working in the area and explored the mineral (Rock Salt) and submitted report of discovery of mineral with the department on 27.06.2007. After discovery of the mineral, Respondent No. 2 was about to submit the application for grant of mining lease (conversion of license into lease) under Rule 48(1) PMC Rules, but the petitioner started creating hurdles in the smooth working of Respondent No. 2 and started unauthorized mining in the granted area of Respondent No. 2 in the garb of their unauthorizedly installed ventilation tunnel by encroaching the area granted to Respondent No.

3. He further adds that Respondent No. 2 filed a complaint before Respondent No. 1, who passed an order dated 28.05.2007, against the petitioner, after hearing the parties. Petitioner preferred an appeal before Respondent No. 3, who, vide order dated 21.07.2007, remanded the case back to Respondent No. 1. He further submits that petitioner does not have any locus standi to file the petition, neither it is aggrieved nor it was party to the appeal nor the order dated 09.07.2015, has been passed against it. He further submits that the area granted to Respondent No. 2 is not to be dealt with in terms of Rule 76 of PMC Rules, but with Rule 48 of the said Rules.

4. Arguments heard. Record perused.

5. In order to better appreciate the comparative arguments of learned counsel for the parties, it would be beneficial to reproduce the following provisions of the PMC Rules, and Section 49 of the West Pakistan Land Revenue Act, 1967:--

“48. Exercise of power to grant or refuse application for mining lease.--(1) Subject to these rules, where an application for the grant of a mining lease is made by the holder of an exploration license or a mineral deposit retention license, and the application.

a) relates to an area of land in, or which constitutes, the exploration area or, as the case may be, the retention area; and

b) is in respect of any mineral or group of minerals:

(i) to which such exploration license relates;

(ii) to which such mineral deposit retention license relates, the Licensing Authority shall grant the application.”

“76. Competitive bids.--The Licensing Authority may, when required by the Government to do so, invite competitive bids for the issue of an exploration license or a mining lease in respect of any area of land which is not subject to:--

a) a reconnaissance license which gives the holder an exclusive right such as is referred to in Rule 14(3).

b) an exploration license, a mining lease or a mineral deposit retention license or a prospecting license or a mining lease under small scale mining, or

c) an application for any such license or lease, and may, in accordance with these rules, issue the appropriate mineral title to the successful bidder.”

“49. Notwithstanding anything to the contrary in any other law, or in any order or decree of Court or other authority, or in any rule of custom or usage, or in any contract, instrument, deed or other document, all mines and minerals shall be and shall always be deemed to have been the property of Government, and Government shall have all powers necessary for the proper enjoyment of its rights thereto.”

1. The combined reading of the aforesaid provisions of law shows that the mines and minerals wherever they may be, belong to the Government and it constitutes a Government property as per the provisions of the Constitution, West Pakistan Land Revenue Act, 1967, and the PMC Rules ibid, therefore, the license or lease of the mines and minerals could only be given through public auction, and any allotment or assignment of exploration or lease as the case may be, without public auction, is absolutely illegal and without lawful authority and same is not sustainable in the eye of law. Reliance can be placed upon Syeda Shahida Tasleem v. The Province of Punjab and others (PLD 1995 Lahore 110). Shaukat Ali v. Secretary, Industries and Mineral Development, Government of Punjab, Lahore and 3 others (1995 MLD 123) Khalid Hassan v. Secretary to the Government of Balochistan and others (2001 YLR 2724), Malik Habibullah v. Province of the Punjab through Secretary Mines and Mineral Department, Lahore and 7 others (2006 CLC 1723), Haji Faiz Muhammad v. Mines Labour Welfare Commissioner and 5 others (2007 MLD 423), Ilyas Ali v. Secretary Mines and Minerals Punjab, Lahore and 4 others (2011 YLR 186), Malik Sarfraz Khan v. Secretary Government of the Punjab Mines and Mineral Department and 2 others (2011 YLR 2268), Messrs Ghani Corporation through Chief Executive v. Government of N.-W.F.P. through Secretary Industries Commerce, Mineral Development and 5 others (PLD 2011 Peshawar 1), Major (Rtd.) Baseer Ahmad Khattak v. Government of Khyber Pakhtunkhwa through Secretary Mineral Development Department, Peshawar and 2 others (2013 CLC 1108) and Fateh-ul-Mulk Ali Nasir and 4 others v. Government of Khyber Pakhtunkhwa through Secretary Mines and Minerals and 6 others (2015 CLC 1762).

2. Perusal of record also shows that Respondent No. 1, vide order dated 18.05.2012, cancelled the Exploration License of Respondent No. 2 on the ground that pit mouth value of un- authorizedly excavated rock salt to the tune of 14197 metric tons at the rate of Rs. 540/- per ton is liable to be recovered from Respondent No. 2 under the PMC Rules. It was also held by Respondent No. 1 that the area is proved, therefore, transparency required that the same should be granted through open auction under Rule 76 of the PMC Rules. The relevant observations of Respondent No. 1 in order dated 18.05.2012, read as under:--

1) Request of M/s. Pak Hamalia Salt Impex (Pvt) Ltd for further renewal of the Exploration License is rejected under Rule 27 (4-a & b) and cancel the Exploration License with immediate effect. The possession of the area shall be taken over by the Department with immediate effect.

2) The pit mouth value of un-authorizedly excavated Rock Salt to the tune of 14197 metric tons at the rate of Rs. 540/- per ton be recovered from the licensee under the rules, ibid.

3) The Guarantee worth Rs. 5,00,000/- [Rupees Five Lakh only] is forfeited under clause xxiv of the allotment letter.

4) The area is proved and therefore be transparently granted through open auction under Rule 76 of the Punjab Mining Concession Rules, 2002.”

1. Respondent No. 2 filed an appeal before Respondent No. 3 against the orders dated 18.05.2012 of Respondent No. 1. The appeal was heard by Respondent No. 3 on 09.07.2015 who accepted the appeal. The operative part of the order dated 09.07.2015 is reproduced hereunder:

“Arguments heard and record perused. It is observed that industrial production on any mineral/establishment of industrial plant cannot be achieved without stable mining operations, which in itself cannot achieve without authentic resource estimation leading to mine planning designing. It is also on record that M/s. PMDC (adjacent lessee) created hurdles in the exploration work of the appellant company during most of the exploration license period. As the Government is trying to facilitate investment in the mining sector, however the same time Mines and Minerals Department being the regulatory authority can only facilitate serious investors, therefore, the appellant company was advised vide this Court order dated 21.04.2014 to submit a time based schedule alongwith irrevocable performance guarantee, which have already been duly submitted by appellant company, as admitted by departmental representative present in the Court. Therefore, in view, what has been discussed, I feel it appropriate in the interest of justice, to give another opportunity to the appellant company to complete the exploration work and meanwhile structure investment for the installation of chemical plant. Accordingly, the exploration license of the appellant company hereby stands restored for a further period of three years. However the exploration license will stand cancelled on the first breach of committed time base schedule and the performance guarantee will stand forfeited in favour of the department. Consequently the request of Olympia Chemicals to allow the excavation of rock salt on the royalty basis from the cancelled area of appellant company is also hereby turned down, as the same is not possible under any provision of the Punjab Mining Concession Rule, 2002. Regarding the assessment made against the appellant company on account of unauthorized excavation rock salt, the matter is referred to Licensing Authority for decision afresh, keeping in view fact that PMDC was found involved in the unauthorized excavation of rock salt from the licensed area of the appellant company.”

1. Examination of the impugned order indicates that Respondent No. 3 gave another opportunity to Respondent No. 2 to complete the exploration work and structure investment for installation of chemical plant and consequently, the Exploration License of Respondent No. 2 was restored for a further period of three years without holding public auction and without asking it to deposit the assessed amount, which was referred back to the Licensing Authority for decision afresh. It has also been noted that without affording an opportunity to the petitioner, it was held that petitioner was found involved in unauthorized excavation of the rock salt from the licensed area of the respondent-company. Petitioner, in circumstances, has been condemned unheard, thus it is an aggrieved person within the contemplation of Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (“Constitution”).

2. It is also relevant to observe here that Respondent No. 3 has absolutely ignored the noted Sections of law and the findings recorded by Respondent No. 1 in the order impugned before him. Therefore, impugned order is not sustainable within the contemplation of the provisions of the Section 24-A of the General Clauses Act, 1897, Articles 4 & 5 of the Constitution, as it failed to attend to the reasoning of the forum below i.e. Respondent No. 1. Reliance in this regard is placed upon Adamjee Jute Mills Ltd. v. The Province of East Pakistan and others (PLD 1959 SC (Pak.) 272), Gouranga Mohan Sikdar v. The Controller, Import and Export and 2 others (PLD 1970 SC 158), Mollah Ejahar Ali v. Government of East Pakistan and others (PLD 1970 SC 173), Muhammad Ibrahim Khan v. Secretary, Ministry

of Labour and others (1984 SCMR 1014), Al-Hadayat Textile through Proprietor v. Soneri Bank Limited (2003 CLD 105) and Waqar Alam Saeed v. District Coordination Officer/Chairman and 3 others (2005 YLR 1742).

1. Resultantly, instant writ petition is allowed. The impugned order dated 09.07.2015 passed by Respondent No. 3 is declared to be illegal and without lawful authority, and matter is remitted to Respondent No. 3 to re-decide the same after hearing the petitioner and all concerned, through a speaking order, strictly in accordance with law, within a period of four weeks, under intimation to Deputy Registrar (Judl.) of this Court.

(R.A.) Petition allowed

PLJ 2016 Lahore 582 [Multan Bench Multan]

Present: Shahid Mubeen, J.

GHULAM NAZIK etc.--Petitioners

versus

ZTBL etc.--Respondents

W.P. No. 15956 of 2014, decided on 25.2.2016.

Constitution of Pakistan, 1973--

----Art. 199--Qanun-e-Shahadat Order, (10 of 1984), Art. 114--Constitutional petition--Voluntary Golden Handshake Scheme--Availed VGHS by filing option--Option cannot be withdrawn--Voluntary and eligible employees were at liberty to make decisions--Validity--Option once exercised within prescribed period shall be irrevocable and cannot be withdrawn--As petitioners had submitted options within prescribed period voluntarily, therefore, under V.G.H.S. it will be irrevocable and petitioners were debarred to withdraw same, even if they withdrew their option before its acceptance--Petition was also liable to be failed on principle enshrined in Art. 114 of QSO. [Pp. 584 & 586] A

Mr. Muhammad AliSiddiqui, Advocate for Petitioners.

Ch.Saleem Akhtar Warraich, Advocate for Respondents.

Date of hearing: 25.2.2016.

Order

Through this writ petition, the petitioners have called into question the legality and validity of impugned orders dated 02.01.2003, 26.03.2003, 25.04.2003 and 28.07.2003 passed by the respondents-bank and also sought direction that proceedings taken thereunder may also be quashed and the petitioners be reinstated in service with full back benefits with effect from the date of passing of impugned orders.

1. Briefly stated the facts of the case are that the respondent-bank floated a Voluntary Golden Handshake Scheme wherein the last date for exercising option was given as 05.09.2002, which was subsequently extended to 12.09.2002. Petitioners opted for the said scheme as the Authority was putting pressure on them and they were also subjected to frequent discriminatory behavior of the respondent-bank. However, after passing by considerable time when the respondent bank did not respond to the options exercised by the petitioners and no intimation to this effect was given, the petitioners opted to withdraw the same by filing applications. Despite the in-time withdrawal of the said applications, respondent-bank accepted the options and directed the petitioners to be relieved without payment of any dues. The petitioners assailed the said impugned orders before Federal Service Tribunal who vide a consolidated judgment dated 15.08.2005 partially accepted the appeal by holding that the petitioners are entitled to be reinstated and would not be relieved till all their dues under the said scheme. Feeling aggrieved by the said consolidated judgment of the Federal Service Tribunal, the petitioners assailed the same before Hon’ble Supreme Court of Pakistan by filing CPs Nos. 2558/2005, 2489/2005, 2491/2005, 2492/2005 and 2493/2005. The said petitions were held to be abated and the decision of Federal Service Tribunal was held to be ineffective vide order dated 09.08.2006. Later on by filing CM. in the CPs. the Hon’ble Supreme Court of Pakistan directed the petitioners to avail remedy against the impugned orders issued by the respondent bank by way of filing writ petitions before the Hon’ble High Court. Hence, this writ petition.

2. It is contended by learned counsel for the petitioners that they opted to avail Voluntary Golden Handshake Scheme by filing option Form No. PD/30/2002 dated 19.08.2002, however, before acceptance by the respondents, same was withdrawn vide letters dated 18.11.2002, 12.12.2002, 07.01.2003 and 08.01.2003, however, the respondents have illegally and unlawfully accepted the options under the said scheme vide impugned letters. He further submits that they be reinstated with full back benefits. Learned counsel for the petitioners further submits that options were given under pressure.

3. On the other hand, learned counsel for the respondents contended that scheme ibid was voluntary and without putting any pressure on its employees. He further states that under Sub Para (vii) of Para-4 of the scheme options once exercised within prescribed period cannot be withdrawn, later on.

4. Heard. Record perused.

5. From careful perusal of voluntary Golden Handshake Scheme dated 19.08.2002, it appears that the same is purely voluntary and eligible employees are at liberty to make their decisions, which is also discernable from sub-para (vii) of Para-4 of the scheme ibid, which is reproduced herein below:-

“The option once exercised within prescribed period shall be irrevocable and cannot be withdrawn.”

It is an admitted fact that the petitioners opted the scheme videoption Form No. PD/30/2002 dated 19.08.2002 which was accepted by the respondent-austerities on 28.07.2003. The bare perusal of sub-para (vii) of Para-4 of the scheme ibid shows that the option once exercised within the prescribed period shall be irrevocable and cannot be withdrawn. As the petitioners have submitted the options within the prescribed period voluntarily, therefore, under the said Sub Para (vii) of Para-4 of the Scheme ibid it will be irrevocable and the petitioners are debarred to withdraw the same, even if they withdrew their option before its acceptance.

1. The petitioners availed remedy before the learned Federal Service Tribunal alongwith others by assailing the impugned orders which was dismissed vide judgment dated 15.08.2005. The respondent-authorities assailed the judgment dated 15.08.2005 handed down by the learned Federal Service Tribunal, Islamabad by filing Civil Petitions No. 2810 to 2827 of 2005, which were dismissed and the Hon’ble Supreme Court of Pakistan held as under:

“We have heard the learned counsel and. have perused the record of the case. There is no cavil to the proposition that the option once exercised of Golden Handshake Scheme within the prescribed period would be irrevocable and could not be withdrawn. The learned Federal Service Tribunal has held so and dismissed the appeals of the respondents through Para-18 of the impugned judgment.

The Hon’ble Supreme Court of Pakistan further held as under:--

“As far as directions in Para 19 of the impugned judgment are concerned, these are based, on equity and fair play, without infringing any rule or statue.

These directions have been passed in the interest of justice and do not cause prejudice either to the petitioner or to the respondent. The case law cited by the learned counsel is distinguishable. It is paramount duty of this Court to do complete justice. As already noted above, in our opinion the directions given in Para 19 of the impugned judgment were given to ensure fair play between the parties and need no interference.”

Reference may further be made to a case titled “National Bank of Pakistan through Chairman v. Nasim Arif Abbasi and others” (2011 SCMR 446), the relevant portion of which is reproduced herein below:

“13. In the above background, writ petitions were filed in the High Court of Sindh and the Lahore High Court, which were allowed by the impugned judgments. But the fact of the matter is that the respondents, having exercised the option to retire under the GHS, were deemed to be retired from service on and from the cut-off date. On that score, they could not be treated at par with those employees who had not exercised such an option and were still continuing in service. A reasonable classification in terms of the law laid down by this Court in I.A. Sharwani v. Government of Pakistan (1991 SCMR 1041) did exist between the two categories of employees, i.e. those who had exercised the option and those who had not exercised the option. As such, the learned counsel for the respondents failed to point out discrimination prohibited under Article 25 of the Constitution. The learned counsel for the appellant-Bank has rightly contended that at the time of receiving the pensionary benefits worked out under the GHS, none of the respondents had raised the issue of admissibility of the ad hoc relief granted subsequently. Rather, all of them had received the said dues without any objection on that score. Thus, they could not have competently resorted to legal proceedings, either before the Service Tribunal or before the High Court, that too after efflux of a long time in many of the cases, for the purpose of getting such ad hoc relief or other emoluments, such as annual increments etc., taken into consideration and getting the retirement benefits recalculated. In this view of the matter, no valid grievance could be made on account of the fact that they were actually relieved from service on a subsequent date. The fact remains that they were paid emoluments in full for the period they worked after they had opted for retirement under the GHS and had received the retirement benefits accordingly. Thus, on merits no case is made out in favour of the respondents.”

Further reference may be made to case tilled “State Bank of Pakistan v. Khyber Zaman and others” (2005 AC 479). The relevant portion of judgment is reproduced herein below:

“A careful perusal of the GHSS as reproduced herein above would reveal that it was totally “voluntary” in nature and it was optional for the employees of the State Bank of Pakistan to accept it or otherwise. It was, however, made clear in the GHSS that option once exercised would be irrevocable. There was no element of inducement or compulsion and by no stretch of imagination it can be said that they were trapped to opt GHSS which was to be opted or otherwise by an employee “freely” and “voluntary”.

1. The contention of the petitioners that the options were exercised by them under coercion and pressure has been vehemently denied by the respondent-authorities which brings the case of the petitioners within the area of disputed question of fact which does not fall within the domain of this Court while exercising the constitutional jurisdiction under Article 199 of Constitution of the Islamic Republic of Pakistan, 1973, as the same requires evidence.

2. This petition is also liable to be failed on the principle enshrined in Article 114 of Qanun-e-Shahadat Order, 1984, which is reproduced herein below:

3. Estoppel.--When one person has by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.

Illustration

A intentionally and falsely leads B to believe that certain land belongs to A, and thereby induces B to buy and pay for it.

The land afterwards becomes the property of A, and A seeks to set aside the sale on the ground that, at the time of the sale, he had no title. He must not be allowed to prove his want of title.

1. Sequel to the above, this writ petition is dismissed, however, the respondent-authorities are directed to proceed with the case of the petitioners under Para-19 of the judgment of the learned Federal Service Tribunal which was upheld by the Hon’ble Supreme Court of Pakistan. No order as to cost.

(R.A.) Petition dismissed

PLJ 2016 Lahore 587

Present: Syed Muhammad Kazim Raza Shamsi, J.

MUHAMMAD TAHIR--Petitioner

versus

ADDITIONAL SESSIONS JUDGE, (JUSTICE OF PEACE), FAISALABAD and 3 others--Respondents

W.P. No. 6123 of 2014, decided on 22.5.2014.

Constitution of Pakistan, 1973--

----Art. 199--Criminal Procedure Code, (V of 1898), S. 22-A--Constitutional petitions--Common allegation of demolition of houses and removing debris--Assailants were fugitive from law--Validity--If assailants were behind bars but due to their abscondence, no one can dare to cause any damage to their residences and taking away of their household articles--In order to pressurize petitioner’s side who are complainant of FIR an attempt has been made by respondents for A.S.J. of criminal case against him. [P. 588] A

Mr.Munir Hussain Bhatti, Advocate for Petitioners.

Mr. Khawar Ikram Bhatti, Addl. Advocate General for Respondents.

RanaGhulam Dastgir, Advocate for Respondents.

Date of hearing: 22.5.2014.

Order

By this single order, I propose to decide W.P. No. 6080/2014, W.P. No. 6081/2014 and W.P. No. 6123/2014, for the reasons that a person against whom an FIR is to be lodged is common in all the three petitions, but the applications under Section 22-A, Cr.P.C. were filed by different persons namely Mst.Ghulshan Bibi, Muhammad Anwar and Mst. Mumtaz Yaqoob.

1. The learned Ex-Officio Justice of Peace has also decided the three applications of the above-said persons through an order dated 26.2.2014.

2. Through all these three constitutional petitions Muhammad Tahir has assailed the legality of the above-said orders passed by the learned Ex-OfficioJustice of Peace, Faisalabad whereby the concerned SHO of the police station was directed to record the versions of the three persons and to proceed with it in accordance with law. In all the three petitions, the applicants made a common allegation of demolition of their houses and removing the debris alongwith threats extended for murdering the applicants and their close relatives. In view of these allegations, the learned Ex-Officio Justice of Peace requisitioned the report from the SHO of the police station concerned who reported that Sikandar, Muhammad Qamar, Muhammad Qayyum and Muhammad Usman, the sons of the applicant Mst. Mumtaz Yaqoob, are accused of case FIR No. 17/2013 registered for the murder of three persons from the family of Muhammad Tahir’s party (now petitioner) in these cases and that Yaqoob’s family abandoned the village whereas Tahir’s party has been confined to their houses due to the fact that all the assailants are fugitive from law and Tahir’s party apprehended danger to their lives at their hands. It is further reported by the SHO that the household articles of Yaqoob’s family have been kept in the house of his brother-in-law Sultan Yaqoob by the Yaqoob’s party and in the garb of this, the applicants want to lodge an FIR against the complainant of case FIR No. 17/2013. The learned trial Court without looking into the report of the police has issued direction for recording the version of Yaqoob’s party.

3. Parties heard. Record perused.

4. As per report of the concerned SHO of the police station, the sons of the respondents in these petitions are at large and could not be arrested by the police. In this state of affair, the allegation of demolishing the houses of those assailants and taking away household articles and debris of the houses by the complainant of that case, does not appeal to a prudent mind. This could happen if the assailants were behind the bars but due to their abscondence, no one can dare to cause any damage to their residences and taking away of their household articles. It is further evident that in order to pressurize the petitioner’s side who are the complainant of FIR No. 17/2013, an attempt has been made by the respondents for registration of criminal case against him. It is further very astonishing that all the three respondents have made similar allegation against the present petitioner and the Court has also issued direction on all the three applications without applying its mind that regarding the same occurrence three FIRs cannot be registered at a police station. In this manner, the order passed by the learned Ex-OfficioJustice of Peace is not sustainable in the eyes of law and is liable to be set aside.

5. For the foregoing reasons, all the three petitions are allowed and the order dated 26.2.2014 passed in each petition is set aside resulting into the dismissal of the applications filed by Respondent No. 3 in each petitions under Section 22-A, Cr.P.C.

(R.A.) Petition allowed

PLJ 2016 Lahore 589

Present: Ali AkbarQureshi, J.

MUHAMMAD ILYAS (deceased) through his Legal Heirs--Petitioners

versus

HADAYATULLAH (deceased) through his Legal Heirs etc.--Respondents

C.R. No. 1062 of 2004, heard on 29.6.2015.

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

----O.XXI R. 103 & S. 12(2)--Consequential relief--Suit was filed prior to insertion of Section 12(2), CPC--Validity of judgment--Warrant dakhal--Execution petition for getting possession--Respondent/plaintiff did not avail the further remedy, therefore, order of became final, hence, suit filed by respondents/plaintiffs was incompetent and barred in view of Rule 103 of Order 21, C.P.C. as amended by Law Reforms Ordinance, 1972. [P. 591] A

Messrs Ch. Muhammad Anwar-ul-Haq and Muhammad Hussain Chaudhary,Advocates for Petitioners.

Mian Sohail Anwar, Advocate for Respondents.

Date of hearing: 29.6.2015.

Judgment

This civil revision is directed against the judgment and decree dated 07.01.2004, passed by the learned appellate Court, whereby the appeal filed by the respondents was accepted and suit was decreed.

1. The respondents/plaintiffs instituted a suit for declaration on the ground, that the judgments and decrees dated 18.10.1975, 12.11.1976 and 28.02.1977 obtained by the petitioner/defendant against the respondent namely, Mst. Hanifan Bibi, were illegal and ineffective qua the rights of the respondents. As a consequential relief, the respondents/plaintiffs prayed for permanent injunction to restrain the petitioner/defendant for dispossessing the respondents from the suit land on the basis of aforesaid impugned decrees. Further contended, that the respondents/plaintiffs had become owner in possession of the disputed property measuring 185 Kanal 1 Marla by virtue of the exchange Mutation No. 14 dated 15.01.1974 and the petitioner, through the afore-mentioned judgments and decrees, intended to deprive the respondents from their entitlement and further, the petitioner had also forged a fictitious compromise deed dated 18.10.1975.

2. The suit was contested by the Petitioner No. 1/defendant Muhammad Ilyas mainly on the ground, that the afore-mentioned judgments and decrees sought to be annulled, were obtained by him strictly in accordance with law and there is no fraud or misrepresentation, as alleged in the suit. Also contended in the written statement, that the exchange Mutation No. 14 dated 15.01.1974, was obtained by the petitioner during the proceedings of the suit titled 'Muhammad Ilyas vs. Hanifan Bibi' which was filed on 11.06.1970 and dismissed on 18.10.1975.

3. The learned trial Court, out of the pleadings of the parties, framed as many as seven issues, recorded evidence of the respective parties and finally dismissed the suit vide judgment and decree dated 22.07.1987. Against which an appeal was filed which was dismissed on 24.04.1995 by the learned Additional District Judge, Sialkot, mainly on the technical ground, that after the insertion of Section 12(2), C.P.C., the suit to challenge the judgment and decree, was no more competent.

4. The case was finally remanded by this Court on 26.12.2001 on the ground, that the suit had been filed prior to the insertion of Section 12(2), C.P.C., therefore, the appeal should be decided afresh.

5. Learned counsel for the petitioners has questioned the validity of the judgment and decree passed by the learned appellate Court on the ground, that the second suit filed by the petitioner for setting aside the order dated 18.10.1975 was not a new suit but was in continuation of the first suit filed on 11.06.1970 and the judgment dated 12.11.1976, passed in favour of the petitioner, only corrected the fraudulently obtained order dated 18.10.1975 and on the same date, the suit was decreed in favour of the petitioner Muhammad Ilyas, which was pending since 11.06.1970. Further contended, that the petitioner filed an execution petition for getting possession under the aforesaid decree; in the execution petition, the respondent/plaintiff filed objections on the ground, that they were in possession of the disputed land but were not party in the suit finally decided on 12.11.1976, therefore, the warrant Dakhal for their dispossession in favour of the petitioner be restrained; the objection petition filed by the respondents was dismissed on 13.12.1977 against which a civil revision was filed by the respondents which was dismissed by the learned Additional District Judge on 11.03.1980 and consequently, the petitioner was put in possession of the suit land on 07.12.1980. Also contended, that as the respondent/plaintiff did not avail the further remedy, therefore, the order of the learned Additional District Judge became final, hence, the suit filed by the respondents/plaintiffs was incompetent and barred in view of Rule 103 of Order XXI, C.P.C. as amended by Law Reforms Ordinance, 1972.

6. When this legal proposition was confronted to the learned counsel for the respondents, the learned counsel submits, that the suit was rightly decreed in favour of the respondents/plaintiffs, but no answer or explanation was offered by the learned counsel for the respondents.

7. At this stage, the judgment delivered by the learned appellate Court was examined with the assistance of learned counsel for the parties in order to ascertain as to whether the learned appellate Court, while recording the findings, has discussed this legal aspect of the case but it is found, that this aspect has neither been attended nor decided by the learned appellate Court.

8. Learned counsel for the respondents also perused the record and the findings but could not refer anything in support of his contention and lastly had no option but to say, that this legal aspect of the case should have been decided by the first appellate Court.

9. Without further commenting upon the facts of the case, which has a long history, the instant case, with the concurrence of the learned counsel for the parties, is remanded to the learned appellate Court to decide the case afresh on merits and in the light of Rule 103 Order XXI, C.P.C.

10. Resultantly, in view of above, this civil revision is allowed, the judgment and decree passed by the learned appellate Court is set aside, the case is remanded to the learned appellate Court to re-decide the same afresh in the light of observation made above. No order as to cost.

11. Parting with the judgment since it is an old matter, therefore, the parties to the case shall appear before the learned District Judge, Sialkot on 20.08.2015 who may hear the case himself or entrust to any other competent Court for its disposal positively within a period of one month thereafter. Till the decision of the appeal, both the parties shall maintain status qua the suit land.

(R.A.) Revision allowed

PLJ 2016 Lahore 592

Present:MuhammadQasim Khan, J.

Mst. NAGHMA ZAFAR--Petitioner

versus

EXECUTIVE DISTRICT OFFICER (EDUCATION) SIALKOT and others--Respondents

W.P. No. 9006 of 2015, decided on 8.4.2015.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Recruitment process--Appointment letter was withdrawn on grounds that documents were found fake and difference between marks in certificate/degree and appointment letter--Photo copies of educational degrees were got verified--Validity--Application of petitioner correct marks of graduation were mentioned; hence, if any wrong marks were mentioned in appointment letter of petitioner then it is not his fault rather it is fault on part of appointing authority and petitioner cannot be penalized for same when documents appended with application of petitioner was proved to be correct; therefore, by no stretch of meanings said documents cannot be declared bogus.

[P. 595] A

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Appointment letter was withdrawn--Fake documents--Filing of domicile and nikah nama after cut date--Not carry any weight--Validity--Stance regarding filing of domicile and nikah nama after due date, also does not carry any weight; even if nikah nama, kept aside with domicile copy of which is available on file of respondent, is sufficient to prove residence of petitioner--Petitioner has produced bogus documents during process of recruitment has no force at all as record shows that nikah of petitioner was performed prior to preparation and issuance of appointment, letter. [P. 595] B

Mr. MuhammadIqbal Mohal,Advocate for Petitioner.

Mr. Imtiaz Ahmad Kaifee,Additional Advocate General with Ms. Farida Khawar/Respondent No. 2.

Date of hearing: 8.4.2015.

Order

Brief facts of the case are that petitioner applied for the post of SESE (A); he appeared in the whole recruitment process and ultimately appointment letter on contract basis was issued to her vide order dated 26-01-2010; petitioner accepted the same; joined her place of posting and started performing duty but suddenly without issuing to the petitioner any show-cause notice and providing opportunity of hearing her appointment letter earlier issued in her favour was withdrawn vide order dated 11-12-2010, on the grounds that her documents were found fake and difference between marks mentioned in certificates/degree and appointment letter; and also filing of domicile and Nikah Nama after cut date as per report of the Deputy District Education Officer (W), Tehsil Pasrur. Feeling aggrieved by the impugned order dated 11-12-2010, the petitioner approached this Court by filing Writ Petition No. 32566 of 2014, which was disposed of vide order dated 09-12-2014 by my learned brother Faisal Zaman Khan, J. in the following terms:

“After hearing the learned counsel for the petitioner, I am inclined to send a copy of this petition alongwith its annexures to Respondent No. 2, who while treating the same as part of the pending application of the petitioner shall decide the same in accordance with law through a speaking order after hearing the parties within a period of one month from the receipt of certified copy of this order.''

After receiving this order Respondent No. 2 decide representation of the petitioner vide Order No. 4112/Lit(W) dated 22.12.2014 in the following terms:

“In compliance with orders passed by His Lordship Mr. Justice Faisal Zaman Khan, Judge Lahore High Court Lahore dated 09-12-2014 in Writ Petition No. 32566/2014, the SESE GGES, Adilpur Tehsil Pasrur District (Sialkot) against the termination orders issued by this office vide No. 2174/E-I(w) dated 11.12.2010 was correct as the documents of the petitioner were found fake/difference between obtaining marks of BA degree and her Nikkah Nama was also issued after due date.

In view of the above perspective, and judgment dated 27.10.2010 passed by Punjab Service Tribunal Lahore in Appeal No. 10322/2010 titled as Shamila Inayat Ex: SESE vs. Education the relevant Para is as under:

“According to Section 2(b) of Punjab Service Tribunal Act, 1974, “Civil Servant” means a person who is or who has been member of civil service of the province or who holds or has held a civil post in connection with the affairs of the province. Section 2(b)(ii) of the Act ibid speaks that it does not include a person who is or who has employed on contract. So the appellant cannot file an appeal to the Tribunal as he was neither a civil servant. As such this appeal is not maintainable.

I undersigned hereby reject the representation filed by petitioner heaving no merit.”

1. Learned counsel for petitioner submits that in compliance with this Court’s order dated 09-12-2014, the petitioner filed application before District Education Officer/Respondent No. 2 by appending all the educational certificates/degrees, and all the photocopies of said educational certificates/degrees were got verified by the department from the concerned quarters but the highhandedness on the part of departmental authority is apparent from the impugned order which has been passed without providing opportunity of hearing to the petitioner although directed by this Court; hence, petitioner filed this petition assailing both the impugned orders dated 11-12-2010 and 22-12-2014. Further submits that petitioner produced copy of domicile and Nikah Nama before preparation of merit list and also provided true copies of her academic certificates/degrees, which were got verified by the concerned Institutions/ University, thus, passing of impugned order is illegal and liable to be set aside.

2. On the other hand, learned Law Officer submits that petitioner has provided bogus educational certificates; domicile was issued after the last date of filing of application forms and for the same reason petitioner was not entitled to be appointed on the bases of bogus documents; hence, this writ petition is liable to be dismissed.

3. Arguments heard and record perused.

4. On Court’s query, Respondent No. 2 present in Court submits that petitioner had filed application by appending photocopies of her educational degrees and in the said application numbers of degree for Bachelor of Arts marks were written as 560/800 but actually she had obtained 460/800 marks. It is admitted correct that all these documents were got verified by the concerned departments, wherein numbers obtained by the petitioner were mentioned. This Court with the assistance of learned Law Officer has examined the photocopy of degree for Bachelor of Arts issued to the petitioner from the official file of respondents and are appended with application form of petitioner, wherein it has been clearly mentioned that the petitioner had obtained 460/800 marks. Furthermore, on the application of petitioner correct marks of graduation are mentioned as 460/800; hence, if any wrong marks are mentioned in the appointment letter of the petitioner then it is not his fault rather it is the fault on the part of appointing authority and petitioner cannot be penalized for the same when documents appended with application of the petitioner is proved to be correct; therefore, by no stretch of meanings said documents cannot be declared bogus.

5. The stance of respondent regarding filing of domicile and Nikah Nama after due date, also does not carry any weight; even if Nikah Nama, kept aside with domicile copy of which is available on the file of respondent, is sufficient to prove the residence of the petitioner. The stance of respondents that the petitioner has produced bogus documents during the process of recruitment has no force at all as the record shows that Nikah of the petitioner was performed on 09.11.2008 prior to preparation and issuance of appointment, letter. This fact is not denied that the same was provided before the preparation of merit list; hence, if a proof of residence has been provided before preparation of merit list and this document establishes that the petitioner was resident of locality; thus, she cannot be ignored. Even domicile, which is also a proof of residence, establishes that the petitioner was resident of “Jhatokey Thesil Pasrur District Sialkot” since birth.

6. For what has been discussed above, it appears that Respondent No. 2 has proceeded against the petitioner due to some bias and mala fide and stigmatized the character of the petitioner without considering the consequences of allegation that “the petitioner has provided bogus documents”. Bias of Respondent No. 2 further establishes from order dated 22-12-2014, which has not been passed in letter and spirit of order dated 09-12-2014 passed by this Court in Writ Petition No. 32566 of 2014, wherein it has been categorically directed the Respondent No. 2 that he shall decide the application of petitioner in accordance with law through a speaking order after hearing the parties but while deciding application of petitioner, Respondent No. 2 did not provided any opportunity of hearing to the petitioner and passed the impugned order with mala fide; hence, in this regard specific question was put to Respondent No. 2 why she should not be burdened with heavy costs for not obeying the direction of this Court but Respondent No. 2 put herself on the mercy of this Court and learned Law Officer also submits that costs may not be imposed upon the respondent, first being lady and secondly she might have not understand the orders of this Court; thus, the respondent is directed to remain careful in future while implementing orders of the Courts.

7. In view of the above discussion, this petition is accepted and impugned orders dated 11-12-2010 and 22-12-2014 are hereby set aside. The petitioner is reinstated in service from the date of issuance of order dated 11-12-2010 and interregnum period will be considered as extraordinary leave without pay. The petitioner shall be entitled to all the other service benefits i.e. seniority, regularization and promotion etc. excluding financial benefits. However, it is made clear that if any other candidate is appointed against the post of petitioner, he shall not be disturbed and as admitted by Respondent No. 2 that some vacant posts are available, the petitioner shall be readjusted against the same in the school where she was earlier appointed or in any nearby school.

(R.A.) Petition allowed

PLJ 2016 Lahore 596

Present: Shahid Mubeen, J.

MUKHTAR AHMAD SHAHEEN--Petitioner

versus

DIRECTOR OF NATIONAL SAVINGS, etc.--Respondents

W.P. No. 10255 of 2012, decided on 8.2.2016.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Appointment as gunman--Allegation of willful absence from duty--Dismissal from service is a major penalty--Validity--It is an established principle of law that major penalty of dismissal of service cannot be imposed without holding regular inquiry--Petitioner was issued show cause notice and service of petitioner was regulated by statutory rules which required regular inquiry before imposing major penalty--After issuance of show-cause notice, civil servants was dismissed from service--Petition was allowed. [P. 597] A

PLD 2008 SC 451, 2009 SCMR 339 ref.

Ch.SaleemAkhtar Warraich,Advocate for Petitioner.

Mr.Shaukat Bilal Bangish,Standing Counsel for Pakistan for Respondents.

Date of hearing: 8.2.2016.

Order

Through the instant writ petition under Article 199 of Constitution of Islamic Republic of Pakistan, 1973 the petitioner has called into question the legality and validity of impugned order dated 18.07.2012 whereby the petitioner was dismissed from his service and impugned order 02.05.2012 whereby departmental appeal of the petitioner was also dismissed.

1. Briefly the facts of the case are that the petitioner was appointed as Gunman Multan Region on 22.09.2003 in respondents’ department. Thereafter, Respondent No. 3 issued a show-cause notice dated 22.03.2012 on the false allegation of willful absence from duty at National Savings Centre Vehari from 11.05.2011 to 13.05.2011. The petitioner denied the said allegation levelled against him. Vide order dated 02.05.2012 without providing the opportunity of defence, the respondents dismissed the petitioner from his service. Petitioner preferred a departmental appeal dated 25.05.2012 against the said order before Respondent No. 1 but the same was also dismissed vide order dated 18.07.2012. Hence, this writ petition.

2. It is contended by the learned counsel for the petitioner that the impugned orders dated 18.07.2012 and 02.05.2012 have been passed in violation of principle of natural justice. He further submits that dismissal from service is a major penalty, therefore, without holding regular inquiry such like order cannot be passed.

3. On the other hand learned Standing Counsel for Pakistan has supported the impugned order.

4. Heard. Record perused.

5. It is an established principle of law that major penalty of dismissal of service cannot be imposed without holding a regular inquiry. Admittedly, the petitioner was issued a show-cause notice dated 22.03.2012 and the service of the petitioner was regulated by the statutory rules i.e. Government Servants (Efficiency and Discipline) Rules, 1973 which required regular inquiry before imposing major penalty. In this case after issuance of show-cause notice, the petitioner was dismissed from service. Reference may be made to case titled Tariq Mahmood vs. District Police Officer T.T. Singh and another (PLD 2008 SC 451). Reference may also be made to case titled Muhammad Haleem and another vs. General Manager (Operation) Pakistan Railways Headquarter, Lahore and others (2009 SCMR 339). The relevant portion of the judgment is reproduced herein below:

“2. From a bare perusal of aforementioned show-cause notice and statements of allegations it is noted that they are verbatim. It is also that the allegations levelled against them were with regard to the illegal supply of electricity and water belonging to railway to the resident of Muchar Colony including one Sultan Hotel. These charges could have been proved only by producing evidence showing that the petitioners were responsible for providing electricity and water belonging to the railways to the residents of Mucher Colony and Sultan Hotel but instead of doing so the respondents in their wisdom thought it fit that there was no need to hold an inquiry without specifying as to why there was no need for holding an inquiry and how the charges/misconduct which were questions of fact would be proved without holding an inquiry. In other words initiation of the proceedings against the petitioners was based on illegalities as the observation of doing away with the inquiry was contrary to the pronouncement made by this Court in a large number of cases that where the allegation/charge misconduct is of the nature requiring production of evidence to prove the same then holding of a departmental inquiry is a necessary condition and dispensation thereof cannot be made as in the first place there would be no evidence or material in possession of the department to establish and prove the charge/allegation of fact and, secondly that the civil servant proceeded against would be deprived of his right to defend, himself properly as it would not be possible for him to cross-examine the witnesses who would depose against him and from their cross-examination he could elicit favourable and beneficial statements. It is a settled principle of law that when the initial order or the very act which relates to the initiation of a proceeding is contrary to law and illegal then all subsequent proceedings and actions taken on the basis of such, illegal and unlawful action would have no basis and would fail. If any authority is required in support of the above the same is available form the case of MansabAli v. Amir and 3 others PLD 1971 SC 124. It also surprising that the Tribunal while hearing the appeals of the petitioner got involved and entangled itself in technicalities without taking into consideration the above illegalities. There is no doubt that the petitioners did not assail their orders of dismissal by filing the departmental appeals and instead they submitted legal notices through their advocates which, could not be equated or treated as appeal under the Removal from Service (Special Powers) Ordinance, 2000 but completely ignored the illegalities and shortcoming committed by the Railway Authorities and on the basis of the failure of the petitioners to comply with the provisions of law penalized them while completely ignoring and overlooking the respondent/Railway Department’s illegal, unlawful actions, and contravention of law which resulted in illegal dismissal of the petitioners.”

1. Sequel to the above, this writ petition is accepted and the impugned orders are set aside. The petitioner is re-instated into service. The case of the petitioner is remanded to the respondent

authorities who shall hold regular inquiry by associating the petitioners and all other concerned and shall pass a speaking order within a period of 90-days after receipt of certified copy of this order under intimation to Deputy Registrar (Judicial) of this Court.

(R.A.) Petition accepted

PLJ 2016 Lahore 599 (DB)

Present:Mrs. Ayesha A.Malik and Faisal Zaman Khan, JJ.

MUHAMMAD ALI--Appellant

versus

ELECTION TRIBUNAL/APPELLATE AUTHORITY DISTRICT KASUR and 9 others--Respondents

I.C.A. No. 1671 of 2015, heard on 15.12.2015.

Punjab Local Government Act, 2013--

----S. 38--Punjab Local Government (Conduct of Elections) Rules, 2013, R. 36--Law Reforms Ordinance, 1972, S. 3--Intra Court Appeal--Election of Local Government for seat of general councilor--Application for recount was allowed--Procedure was not followed--No misrepresentation before Court as R.O. could have informed about consolidation of results--Valid votes to be included--Validity--Application for recount was allowed recount was undertaken in his presence and thereafter, result was consolidated--Once result was consolidated, any grievance may have had with announcement of result can be challenged before election tribunal in election petition--I.C.A. was allowed. [P. 601] A

Mr.Munir Hussain Bhatti,Advocate for Appellant.

Mr. MuhammadSaleem Malik,Advocate for Respondent No. 10.

Mr.Nasir Javed Ghumman,Advocate for ECP with Tariq Mehmood, RO and Najmul Arifeen, PO for Respondents.

Date of hearing: 15.12.2015.

Judgment

Mrs. Ayesha A. Malik, J.--Through this ICA, the Appellant has impugned the order dated 23.11.2015 passed by the learned Single Judge in WP Nos. 34418/2015.

1. The basic facts of the case are that the Appellant and Respondents No. 5 to 10 contested Local Government Election for the seat of General Councilor/General Member in Ward No. 4, U.C No. 26 Olakh Hathar Tehsil and District Kasur held on 31.10.2015. The Respondent No. 10 moved an application for recount of votes on 2.11.2015 which application was entertained by the Returning Officer (“RO”) in the presence of all the parties and an order was issued on 2.11.2015. Thereafter the result was consolidated on Form XIII on 3.11.2015. The Respondent No. 10 filed WP No. 34418/2015 praying therein that the RO to receive his application and decide the same as per law. On this writ petition, an order was issued on 23.11.2015 requiring the RO to announce the result of the U.C after hearing the application for recount and including the valid votes.

2. Learned counsel for the Appellant submitted that Respondent No. 10 filed W.P. No. 34418/2015 for an order on his application for recount which had already been allowed and was undertaken in his presence. Learned counsel submitted that Respondent No. 10 totally misled the Court by saying that his application had not been decided as the same was decided on 7.11.2015. Subsequently the result was consolidated and Form XIII was filed. Learned counsel argued that after issuance of Form XIII, the Respondent No. 10 could not have then called for a second recount of the votes after the consolidation of result.

3. Learned counsel for the Respondent No. 10 submitted that W.P. No. 34418/2015 was filed because Respondent No. 2 did not follow the procedure prescribed under Rule 36 of the Punjab Local Government (Conduct of Elections) Rules, 2013 (“Rules”). Learned counsel stated that Respondent No. 2 was bound to follow the law, hence the writ petition was filed. Further stated that the recount took place on 2.11.2015 which was not in accordance with law which the RO was obligated to follow. Learned counsel further stated that there was no misrepresentation before the Court as the R.O. could have also informed the Court about consolidation of results. He argued that in fact the result was never consolidated on 3.11.2015.

4. Learned counsel for the Respondent ECP produced the original record before us. In terms of the original record, the result was consolidated on 3.11.2015, Form XIII was filed along with Form XIV. Learned counsel for ECP stated that recount took place in presence of Respondent No. 10 which is evident from the attendance sheet of that day. In fact, Respondent No. 10 also gave a statement before the RO that the recount had taken place and that he had no grievance against the announced result.

5. We have heard the learned counsel for the parties and have gone through the original record. In terms of the original record, the consolidation of result took place on 3.11.2015. Prior to the consolidation of result, Respondent No. 10’s application for recount was allowed and recount was undertaken by the RO on 2.11.2015. The original attendance sheet produced before us confirms the presence of Respondent No. 10. Learned counsel for Respondent No. 10 does not deny this fact. Thereafter, Respondent No. 10 filed W.P. No. 34418/2015 on 9.11.2015. The prayer in the said writ petition was simply that the RO had not entertained his application for recount which he was obligated to do so. An order was passed on 23.11.2015 in the writ petition for the recount application to be decided as per law and all valid votes to be included. In terms of the original record, Respondent No. 10 could not have prayed for a second recount before the Court on the ground that his application had not been decided. In fact his application for recount was allowed, recount was undertaken in his presence and thereafter the result was consolidated. Once the result was consolidated, any grievance that the Respondent No. 10 may have had with the announcement of the result can be challenged before the Election Tribunal in an election petition under Section 38 of the Punjab Local Government Act, 2013 read with Rule 62 of the Rules. We note that the tribunals have been notified vide notification dated 4.12.2015 issued by the Addl: Director General (Legal), Election Commission of Pakistan, Islamabad.

6. Under the circumstances, the appeal is accepted and the impugned order dated 23.11.2015 passed by learned Single Judge is set aside.

(R.A.) Appeal accepted

PLJ 2016 Lahore 601

Present: Muhammad Sajid Mehmood Sethi, J.

PUNJAB BEVERAGES CO. (PVT.) LTD.--Petitioner

versus

FEDERATION OF PAKISTAN, etc.--Respondents

W.P. No. 16047 of 2010, heard on 11.12.2015.

Federal Excise Rules, 2005--

----R. 43-A--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Business of manufacturing and marketing of beverages--Procedure regarding payment of excise duty on franchise fee--No relationship of franchiser and franchise fee, royalty--Bottling agreement--No franchise fee--No federal excise can be demanded--Assessable value for purpose of levy of excise duty--Validity--Where remittance/royalty is being made by franchisee beverages company to the local or foreign franchiser under a proper agreement, the assessable value shall be the gross amount of fee or royalty remitted/paid to the franchiser on the amount laid down in agreement and, in cases where franchiser and franchisee are both locally based, then liability to deposit franchise fee or royalty shall be upon the franchiser. [P. 606] A

Federal Excise Act, 2005--

----S. 3(5)--Business of manufacturing and marketing of beverages--Federal excise duty--Franchise fee--Wherein liability to pay duty was shifted upon recipient in case where services had been rendered by a person outside Pakistan--Validity--No liability can be imposed on petitioners before June, 2008--In this background, different SCNs were issued to the petitioners to show as to why FED on franchise services, royalty or technical fee falling as levied at the rate of 5 % to Finance Act, 2006, and enhanced at the rate of 10 % through Finance Act, 2008, may not be recovered from the petitioners--Liability to pay the tax in case of services is on the person providing or rendering the services, would be, as per department’s stand, the franchiser who is rendering the franchise services--Show-cause notice issued by respondent without any lawful basis, hence, liable to be declared illegal and of no legal effect. [Pp. 607 & 614] B, D & E

Statute Law--

----It is an established principle of law that in case of conflict between a statute and instructions of Board of Revenue, instructions/orders of Board are to be ignored and statute law has to be followed. [P. 613] C

Mr. Ali Sibtain Fazli, Advocate for Petitioner.

M/s. Sarfraz Ahmad Cheema, Sultan Mehmood, Vice Counsel on behalf of Izhar-ul-Haque Sheikh, Agha Muhammad Akmal Khan and Tariq Manzoor Sial, Advocates for Respondents.

Date of hearing: 11.12.2015.

Judgment

This consolidated judgment shall dispose of instant writ petition along with following connected writ petitions as common questions of law and facts are involved in these cases:--

1. W. P. No. 18125 of 2010 titled Riaz Bottlers (Pvt.) Ltd. v. Federation of Pakistan, etc.

2. W. P. No. 766 of 2008 titled M/s. Riaz Bottlers (Pvt.) Ltd. v. Federation of Pakistan, etc.

3. W. P. No. 3717 of 2008 titled M/s. Punjab Beverages Co. (Pvt.) Ltd. v. Federation of Pakistan, etc.

4. W. P. No. 4754 of 2008 titled M/s. Shamim & Company v. Federation of Pakistan, etc.

5. Brief facts, as narrated in this writ petition, are that the petitioner is a private limited company, engaged in the business of manufacturing and marketing of beverages, namely, Pepsi, Teem, Mirinda, 7-Up and Mountain Dew, under an exclusive bottling agreement from M/s. Pepsico, Inc. U.S.A. (“Pepsico”). In the year 2006, through Finance Act, 2006, Item No. 11 was added to the First Schedule of the Federal Excise Act, 2005 (“Act”), whereby Federal Excise Duty (“FED”) at the rate of 5% of the charges is levied on the franchise services. On 05.06.2006, through S.R.O. 561(I)/2006, Rule 43-A was added to the Federal Excise Rules, 2005 (“Rules”), providing the detailed mechanism and procedure regarding payment of the FED on franchise fee. In this regard, Central Board of Revenue, as it then was, also issued a Federal Excise General Order (“FEGO”) No. 5/2006 after FEGO No. 4/2005 and FEGO No. 5/2005, however, petitioner and other beverage manufacturers did not pay the FED on franchise fee for the year 2007-08. Petitioner received a Show Cause Notice (“SCN”) dated 06.05.2010, containing certain allegations. Through instant writ petition, the aforesaid Item No. 11 of the First Schedule of Federal Excise Act, 2005, Rule 43-A of the Federal Excise Rules, 2005, FEGO No. 5/2006, and SCN dated 06.05.2010, have been challenged, with the following prayer:-

“In view of the above, it is, therefore, most respectfully prayed that Item No. 11 of the First Schedule of the Federal Excise Act, 2005, Rule 43-A of the Federal Excise Rules, 2005, the amendments made through the Finance Act, 2008, FEGO No. 5/2006 and Show Cause Notice dated 06.05.2010 may kindly be declared to be illegal, without lawful authority and of no legal effect.

Any other relief that this honourable Court deems fit and appropriate, in the facts and circumstances of the case, may also kindly be granted.”

1. Learned counsel for petitioner submits that the respondents have filed Exclusive Bottling Agreement along with parawise comments in one of the connected writ petitions, perusal of which shows that there is no element of any franchise, fee, royalty etc., and there is no relationship of franchiser and franchisee between the petitioner and Pepsico. While relying on the judgment dated 09.06.2014, passed by the learned Division Bench of Hon’ble Peshawar High Court in the case of M/s. Northern Bottling Company (Pvt.) Ltd. (Sales Tax Reference No. 5/2003), learned counsel for the petitioner submits that in the said reference one of the respondents had a bottling agreement, like the petitioner, with Pepsico, and the Hon’ble Peshawar High Court was pleased to hold that there is no identifiable link between them for any services rendered by Pepsico against a fee or consideration. Learned counsel further submits that the department went in appeal before the august Supreme Court of Pakistan against the said judgment of Hon’ble Peshawar High Court by filing Civil Petition Nos. 1742 & 1743 of 2014, and the Supreme Court of Pakistan dismissed the leave applications by holding that the mere fact that respondent in the said Civil Petitions buys concentrate from Pepsi Cola International (Pvt.) Limited, Hattar (“PCI”) and then bottle the same under a formula provided by Pepsico does not attract the charging provision of the Act, 2005. He further contends that Item No. 11 of the Table- II of the First Schedule was added through Finance Act, 2006, whereby FED at the rate of 5% was levied on the charges of franchise services. In the present case, as there is no franchise fee or charges, hence, no Federal Excise can be demanded on the same, and the FEGO No. 5/2006 has illegally levied excise duty on a criteria that is not provided in the law. Adds that FEGO No. 5/2006 is even violative of Rule 43-A of the Federal Excise Rules, 2005, and the same being in conflict with the Rules, is liable to be ignored. Learned counsel for petitioner has relied upon Nagina Silk Mill, Lyallpur v. The Income-Tax Officer, A-Ward Lyallpur and another (PLD 1963 Supreme Court 322), Edulji Dinshaw Limited v. Income-Tax Officer (PLD 1990 Supreme Court 399), Messrs Ulian Hoshang Dinshaw Trust and others v. Income-Tax Officer, Circle XVIII South Zone, Karachi and others (1992 SCMR 250), Al-Ahram Builders (Pvt.) Ltd. v. Income Tax Appellate Tribunal (1993 SCMR 29), Messrs Chenab Cement Product (Pvt.) Ltd. and others v, Banking Tribunal, Lahore and others (PLD 1996 Lahore 672), United Business Lines, S.I.E. Gujranwala and another v. Government of Punjab through Secretary, Local Government, Lahore and 5 others (PLD 1997 Lahore 456), Attock Cement Pakistan Ltd. v. Collector of Customs, Collectorate of Customs and Central Excise, Quetta and 4 others (1999 PTD 1892), Messrs Shamim & Co. v. Tehsil Municipal Administration, Multan City through Nazim and 2 others (2004 YLR 366), Commissioner of Income Tax v. Messrs Eli Lilly Pakistan (Pvt.) Ltd. (2009 PTD 1392), and Iqbal Hussain through authorized attorney v. Federation of Pakistan through The Secretary, Revenue Division and 2 others (2010 PTD 2338).

2. On the other hand, learned counsel for respondents contend that the procedure for collection of duty on such services has been laid downvide Rule 43-A of the Federal Excise Rules, 2005, with certain clarifications with special reference to local beverage companies vide FEGO No. 5/2006 dated 05.08.2006. They further contend that the FED is recoverable from the Franchisee i.e. the local beverage company, who claims to have no franchise agreement, because Rule 43-A and FEGO No. 5/2006 is covered in the manner as provided in Section 3 of the Federal Excise Act, 2005, therefore, the taxpayer is clearly liable to pay the duty. Learned counsel for respondents further submit that the Directorate of Intelligence & Investigation is a necessary party and instant writ petition is not maintainable without impleading the said Directorate as party to the petition. They have placed reliance upon Abbas Corporation v. Appellate Tribunal and another (2005 PTD 803). They further submit that factual controversy is involved and alternate remedy is available to the petitioner, therefore, writ petition is not maintainable. In this regard, they have placed reliance upon Deputy Commissioner of Income Tax/Wealth Tax, Faisalabad and others v. Messrs Punjab Beverage Company (Pvt.) Ltd. (2007 PTD 1347) and Mughal-e-Azam Banquet Complex through Managing Partner v. Federation of Pakistan through Secretary and 4 others (2011 PTD 2260). Regarding the judgment delivered by the Hon’ble Supreme Court in Civil Petition Nos. 1742 & 1743 of 2014, they submit that the august Court was not properly assisted and the main legal questions have not been raised deliberately, thus, the same does not constitute a binding precedent. In this regard, they have placed reliance upon Lone Cold Storage, Lahore v. Revenue Officers, Lahore Electric Power Co. and others (2010 PTD 2502). Learned counsel contend that perusal of business agreement between M/s. Pepsico, Inc. U.S.A. and the petitioner determines the relationship of franchiser and franchisee on the basis of definition as provided in Section 2(12a) of Federal Excise Act, 2005 read with sub-rule (1) of Rule 43-A of the Federal Excise Rules, 2005.

3. Arguments heard. Available record perused.

4. Through Finance Act, 2006, Item No. 11 was added to the First Schedule of the Act, 2005, whereby Federal Excise Duty at the rate of 5 % was levied on the charges of franchise services. On 05.06.2006, through SRO 561 (I)/2006, Rule 43 (A) was added to the Federal Excise Rules, 2005, wherein mechanism and procedure to pay the excide duty on franchise fee, was provided.

5. The Central Board of Revenue issued Federal Excise General Order 4/2005 which was later replaced by FEGO No. 5/2005, wherein it has been mentioned that in case where franchises are foreign or local beverage companies and there is no formal agreement between the franchiser and the franchisee, the assessable value for the purpose of levy of excise duty shall be 5 % of the value of concentrate supplied by the franchiser to the franchisee and, in case where remittance/royalty is being made by the franchisee beverages company to the local or foreign franchiser under a proper agreement, the assessable value shall be the gross amount of fee or royalty remitted/paid to the franchiser on the amount laid down in the agreement and, in cases where the franchiser and franchisee are both locally based, then liability to deposit franchise fee or royalty shall be upon the franchiser. In order to better appreciate the arguments of learned counsel for the parties, it would be beneficial to reproduce the relevant provisions of the Federal Excise Act, 2005, Federal Excise Rules, 2005 and FEGO No. 5/2006 dated 05.08.2006, which are as under:-

FEDERAL EXCISE ACT, 2005.

“2(23) “services” means services, facilities and utilities leviable to excise duty under this Act or as specified in the First Schedule read with Chapter 98 of the Pakistan Customs Tariff, including the services, facilities and utilities originating from Pakistan or its tariff area or terminating in Pakistan or its tariff area;

2(12a) “franchise” means an authority given by a franchiser under which the franchisee is contractually or otherwise granted any right to produce, manufacture, sell or trade in or do any other business activity in respect of goods or to provide service or to undertake any process identified with franchiser against a fee or consideration including royalty or technical fee, whether or not a trade mark, service mark, trade name, logo, brand name or any such representation or symbol, as the case may be, is involved;”

FEDERAL EXCISE RULES, 2005.

“43-A (2) The duty shall be paid by the franchisee or as the case may be, the head office of the franchisee at the rate of [ten] per cent of the value of taxable service, which shall be the gross amount or the franchise fee or the deemed franchise fee or technical fee or royalty charged by the franchiser from the franchisee for using the right to deal with the goods or services of the franchiser.”

FEDERAL EXCISE GENERAL ORDER NO. 5/2006.

“In supersession of the Federal Excise General Order No. 04/2006, the Central Board of Revenue, in order to streamline the levy and collection of excise duty on franchise services, is pleased to issue the following instructions:

(i) ………;

(ii) in case where franchisers are foreign or local beverage companies, if there is no formal agreement between the franchiser or franchisee, the assessable value for the purpose of levy of excise duty shall be 5 % of the value of concentrate supplied by the franchiser to the franchisee. However, in such cases where proper remittance/ payment of fee or royalty is being made by the franchisee beverage company to the local or foreign franchiser under a proper agreement, the assessable value shall be the gross amount of fee or royalty remitted/paid to the franchiser or the amount laid down in the agreement.

(iii) ………;

(iv) in case where the franchiser and franchisee are both locally based, the liability to deposit the franchise fee or royalty shall be upon the franchiser.”

1. Federal Excise Act, 2005, is applicable on manufacturing of goods as specified in Table-I of First Schedule to the Act, 2005, and services as provided in Table-II of First Schedule to the Act, 2005. Under Section 3(5), the liability to pay Federal Excise Duty is on the person manufacturing goods or providing services and not on the recipient of services. Section 3(5), whereby liability to pay duty on services was on the person providing such service, was only amended by proviso clause added in the Act, 2005, through Finance Act, 2008, wherein liability to pay duty was shifted upon the recipient in case where services have been rendered by a person outside Pakistan. Therefore, in any case, no liability can be imposed on the petitioners before June, 2008. In this background, different SCNs were issued to the petitioners to show as to why Federal Excise Duty on franchise services, royalty or technical fee falling under heading 9823.0000 of Table-II to First Schedule as levied at the rate of 5 % to Finance Act, 2006, and enhanced at the rate of 10 % through Finance Act, 2008, may not be recovered from the petitioners.

2. In W.P. No. 1812/2010 titled M/s. Riaz Bottlers v. Federation of Pakistan, one of the connected writ petitions, the Federation has filed Exclusive bottling agreement along with parawise comments. In the said bottling agreement, there is no element of any franchise fee, royalty etc. Learned counsel for respondents have referred to the following extracts of the business agreement between the parties to contend that the agreement clearly reveals the relationship of franchiser and franchisee between the petitioners and M/s. Pepsico, Inc. U.S.A., within the contemplation of Federal Excise Act read with the rules framed thereunder:--

“(a) The company will sell or cause to be sold by one of its subsidiaries (Company and/or such subsidiary hereinafter both called the “Seller”) to the Bottler, and the Bottler will buy only from the Seller, all Units of Pepsi-Cola concentrate (hereinafter called “Units) required for manufacture of the Beverage by the Bottler, at a price established by the Seller to be invoiced in United States Dollars, for collection from the Seller’s plant, with freight, insurance, and handling charges to be provided and paid for by the Bottler. Title to all Units shipped by the Seller to the Bottler shall remain in the Seller until collection from the Seller’s plant. Payment in full for each order shall be made by the Bottler immediately upon collection, in cash, demand draft or sight letter of credit. The Seller may change the price of the Unit at any time in its sole and absolute discretion. In the event of any such change, the Seller shall notify the Bottler in writing thereof.

(b) The decision of the Company on all matters concerning its Trademarks shall be final and conclusive on, and not subject to question by, the Bottler. The company will protect and defend the Trademarks at its sole cost and expense, but the Company shall not be liable to the Bottle for any loss or damage suffered by the Bottler by the Bottler’s use of the Trademarks or as a result of any litigation or proceeding involving the Trademarks. The Bottler will cooperate fully with the Company in the defense and protection of the Trademarks and will promptly and fully advise the Company of any use in the Territory of any mark infringing the Trademarks. The Bottler will at the request and cost of the Company join with the Company in making application to the Registrar of Trade Marks for registration of the Bottler as a Registered User of the Trademarks.

The Bottler recognizes the Company’s ownership of the Trademarks and will not take any action which will prejudice or harm said Trademarks, or the Company’s ownership thereof, in any way. Nothing herein contained shall be construed as conferring upon the Bottler any right or interest in the Trademarks, or in their registrations or in any designs, copyrights, patents, trade names, signs, emblems, insignia, symbols and slogans, or other marks, used in connection with the Beverages.

(c) The Bottler, in preparing, bottling, selling and distributing the Beverage will use only the Units purchased from the Seller, and all other materials, including bottles, cartons, cases and containers, specified by the Company from time to time. The Bottler will not use the said Units, bottles, cartons, cases, containers and other labeled materials, so purchased from the Seller or specified by the Company in any manner, directly or indirectly, for any purpose other than the bottling selling and distributing of the Beverage.

(d) The bottler will maintain and operate in the Territory one or more bottling plants, properly and adequately equipped and staffed to bottle, sell and distribute sufficient Beverage for complete and thorough coverage of the Territory. The Beverage will be bottled in the Territory only by the Bottler and only in plants operated by the Bottler and approved in writing by the Company. The Bottler will not authorize anyone else to bottle the Beverages in the Territory.

(e) The bottler will sell and distribute the Beverage under the Trademarks, and strictly on its own merits, and will make only such representations concerning the Beverage as shall have been previously authorized in writing by the Company. The Bottler will not bottle, distribute or sell, directly or indirectly (including through an affiliated or related entity or one under common ownership or control or one in which the Bottler has an interest or participation), any other cola beverage, any other beverage similar to a cola beverage, any other beverage having the word “cola” or “kola” as part of its name, or any other beverage which imitates or can be confused with the Beverage, nor will the Bottler use in connection with any beverage any trademark, designation or trade dress which imitates or is likely to be confused with the Company’s Trademarks, designations or trade dress.”

1. From perusal of the clauses of bottling agreement referred by learned counsel for respondents, it becomes an admitted position that there is no element of Franchise or relationship of Franchiser or Franchisee between that petitioner and Pepsico. Therefore, at the very outset, petitioners have relied upon Commissioner Inland Revenue Zone-III v. M/s. Northern Bottling Company (Pvt.) Ltd. and others, (STR No. 5 of 2013), decided on 09.06.2014 by the Hon’ble Division Bench of Peshawar High Court, Peshawar, the operative part of which reads as under:--

“9. No doubt, the charging Section 3 of the Act provides for payment of excise duty for “services” rendered, which includes the “franchise services” as provided in Item No. 11 of the First Schedule of the Act. However, the condition precedent for a franchise to be established as provided in the definition of the said term under sub-section (12a) of Section 2 of the Act is that there has to be a identifiable link between franchise and the subject company “against a fee or consideration”. Admittedly, there is no identifiable link between M/s. Pepsico, Inc. USA and the Company for any services to be rendered by the Company against a fee or consideration.

1. Even if, we review Rule-43-A of the Rules, it is noted that company is not availing any right under a franchise of M/s. Pepsico Inc. USA, as defined under the Act.

2. The crucial and essential fact remains that there is no agreement between the Company and the “Franchiser” and thus, the issue of payment of any fee or consideration would not arise. Having said that, this Court is not inconsonance with the finding of the Tribunal that there exists a relationship of a “franchise” and the “franchisee” between the Company and M/s. Pepsico Inc. USA (“Franchiser”). The finding appears to be speculative being devoid of any factual basis. Under the prevalent federal excise tax regime, the term “franchise” has a specific meaning its scope and cannot be extended or widen just because a foreign trademark is being used by local company to impose and charge the excise duties. The charging provisions of the Act have to be strictly construed in favour of the taxpayer.

3. Whereas, the conclusion drawn by the worthy Tribunal that there being no franchise agreement or consideration or fee received by the Company from the franchiser, the levy of excise duty was rightly declined.

4. Before parting with this opinion, it would be important to note that the judgment of apex Court in M/s. C.M. Pak Ltd’s case (C.P.No. 834/2011) decided on 26.9.2012, referred to by the Revenue is distinguishable from the facts of the present case. In the said case, the record clearly provided that the Company paid Rs. 166.479 million as “technical fee” to the “franchiser” which clearly established the identifiable link between the local company and with the foreign franchiser. It was this fact which prevailed and brought the local company to came within the purview of the enabling charging provisions of the Act and Rules and thereby liable to payment of excise duty. In the present case, facts are otherwise. Neither is there any admitted evidence to suggest that there is a “franchise agreement” or that the Company is making any payment to the “franchiser” for the services so rendered.

5. Accordingly, for the reasons stated hereinabove, the decision of the worthy Tribunal is maintained and the present Sale Tax References are answered in Negative.”

6. The department went in appeal before the august Supreme Court, and the Apex Court vide order dated 26.11.2014 passed in C.P. Nos. 1742 & 1743 of 2014, dismissed the leave application and upheld the said judgment passed by the Hon’ble Division Bench of Peshawar High Court, Peshawar, by holding the mere fact that respondent/purchaser buys concentrate from Pepsi Cola International and then bottle the same under a formula provided by Pepsi Co. Inc. USA does not attract the charging provision of the Act, 2005. The Hon’ble Apex Court, in C. P. Nos. 1742 & 1743 of 2014 titled Commissioner Inland Revenue, Peshawar v. M/s. Northern Bottling Company Pvt. Ltd. and another, observed as under:--

“We have heard this case for almost half an hour. Upon repeated questioning we have not been informed by learned counsel for the Commissioner Inland Revenue-petitioner as what services are rendered by the respondent on which excise duty is chargeable under section (1)(d) of the Federal Excise Act, 2005.

1. On the other hand, we have gone through the impugned judgment of the High Court and the judgment of the Tribunal which are well reasoned and do not require interference. We note that the Excise Act in Section 2(12a) defines the term ‘Franchise’ and the Section 2(23) defines the term “franchiser’. The charging section however, refers to services while the liability to pay excise duty is mentioned in Section 5 which, to the extent relevant, is reproduced as under:--

“5. The liability to pay duty shall be ……

(c) in case of services provided or rendered in Pakistan, of the person providing or rendering such service provided where services are rendered by the person out of Pakistan, the recipient of such service in Pakistan shall be liable to pay duty; and

(d) in case of goods produced or manufactured in non-tariff areas and brought to tariff areas for sale or consumption therein, of the person bringing or causing to bring such goods to tariff are;”

1. After hearing the learned counsel for the parties and going through the impugned judgments, it is clear to us that the Commissioner Inland Revenue has proceeded on some assumptions and those too, not well founded. There is nothing on record to show that the respondent pays for services either to Pepsi Cola International (Pvt) Ltd., Hattar which is a Pakistani incorporated company or to Pepsico, Inc. USA which is a company incorporated in America. In the absence of such payments, there is no question of any amount being payable by way of excise duty for ‘services’ rendered.

3. The mere fact that the respondent purchases concentrate from PCI, Hattar and then bottles the same under a formula provided by Pepsico, Inc. USA does not attract the charging provisions of the Excise Act. It is also important to bear in mind that the respondent is obliged to label the bottled water with the trademark/logo of Pepsi Cola because if this is not done there will be a misdescription of the product under the Trademarks Act. It is also relevant that the respondent pays excise duty on the concentrate which it purchases from PCI, Hattar and it also pays excise duty on each bottle of bottled drink produced by it. We fail to understand how, after such duty has been paid at the point of purchase from PCI, Hattar and the point of manufacture, the respondent is still obliged to make payment of some excise duty for any imaginary services provided or rendered by the respondent.

1. In view of the foregoing discussion, we find no merit in these petitions. The same are, therefore, dismissed with costs and leave to appeal is declined.”

2. The above mentioned judgments of Peshawar High Court and august Supreme Court are squarely and fully applicable to the case of present petitioners as the facts of these cases are identical for the reason that Northern Bottlers, like present petitioners, are bottlers under a bottling agreement with M/s. Pepsico. Inc., USA and are purchasing concentrate from M/s. Pepsi Cola International, Hattar, and in such circumstances, the Hon’ble Peshawar High Court and the august Supreme Court have laid down that bottling agreement is not covered under the term “franchise services” as given under the Act, 2005, and there is no element of fee, royalty etc. Needless to say that decisions rendered by the Apex Court are binding on this Court under Article 189 of the Constitution of the Islamic Republic of Pakistan, 1973. The facts of the present cases are not distinguishable.

3. It is an established principle of law that in case of conflict between a statute and instructions of Board of Revenue, the instructions/orders of the Board are to be ignored and statute law has to be followed. Reliance in this regard is placed on the esteemed judgment delivered by the Hon’ble Supreme Court in The Central Board of Revenue, Islamabad and others v. Sheikh Spinning Mills Limited, Lahore and others (1999 SCMR 1442), the relevant part of which reads as under:-

“For the reasons to be recorded later on, the above petitions are converted into appeals and are disposed of in terms that it will be open to the respondents to file appeals even now before the forum provided under the Sales Tax Act to agitate the question that they are entitled to the deduction of input tax in terms of Section 7 of the Sales Tax Act, 1990 in respect of the goods which have been used for manufacturing of taxable goods but they have not become integral part of the same. The forums provided under the Act will decide the controversy at issue with reference to the substantive provisions of the Act and SRO No. 1307(1)/97, dated 20.12.1997 and in case of any conflict between the two, the substantive provisions of the Act will prevail.”

1. In terms of Section 3(5)(c) of the Act, the liability to pay the tax in case of services is on the person providing or rendering the services, which in this case would be, as per department’s stand, the franchiser who is rendering the franchise services.

2. In order to attract the levy of FED for services rendered, which include franchise services within the contemplation of law reproduced above, respondents are under a legal duty to establish an identifiable link between petitioner and Pepsico or PCI of services rendered against a fee or consideration. It appears that the respondents have proceeded on ill-founded assumptions as there is nothing on record to prove that the petitioner pays for services either to PCI, Hattar or to Pepsico, Inc. USA. In the absence of such payments, as held by the Hon’ble Supreme Court of Pakistan, there is no question of any amount being payable by way of FED for ‘services’ rendered. Respondents have failed to bring on record any franchise agreement or any proof of payments for services rendered by Pepsico or PCI against a fee or consideration. Therefore, relying on the judgment passed by the Hon’ble Supreme Court of Pakistan in Civil Petitions Nos. 1742 & 1743 of 2014 and judgment passed by the Hon’ble Peshawar High Court in STR No. 05 of 2013, it can safely be held that the impugned Show Cause Notice dated 06.05.2010, has been issued by the Respondent No. 3 without any lawful basis, hence, liable to be declared illegal and of no legal effect.

3. So far as the question of maintainability of the writ petition is concerned, the Hon’ble Apex Court has already settled this issue that no purpose, thus, would be served in requiring the petitioner to pursue alternate remedies. Reliance in this regard is placed upon the case of Iqbal Hussain supra.

4. In view of the above discussion, instant writ petition is allowed to the extent that the impugned Show Cause Notice dated 06.05.2010 is declared to be illegal and without lawful authority, following the ratio settled in the case of M/s. Northern Bottling Company (Pvt.) Ltd., supra.

(R.A.) Petition allowed

PLJ 2016 Lahore 615

Present: Amin-ud-Din Khan, J.

Raja NAZAR HUSSAIN--Petitioners

versus

NAWAZISH ALI and another--Respondents

C.R. No. 495-D of 2009, decided on 19.1.2016.

Gift--

----Gift was forged and fictitious--Entitled to inherit property of donor--Question of--Whether any brother of donor was alive at time of attestation of mutation or at time of death of donor--Possession was not transferred--Validity--If any brother of the donor was alive, children of other brothers of donor were not entitled to inherit him or challenge the gift--Gift from joint khata has been made and no actual physical possession has been delivered, there was no need in such circumstances for transfer of actual physical possession.

[Pp. 618] A & B

2007 CLC 894, 2007 CLC 412, 2007 SCJ 1090 & 2005 SCMR 1344 ref.

Mr. Muhammad Amir Butt, Advocate for Petitioner.

Sh. Zamir Hussain, Advocate for Respondents.

Date of hearing: 19.01.2016.

Judgment

Through this civil revision petitioner has challenged the judgment & decree dated 16.4.2009 passed by the learned Additional District Judge, Chakwal whereby appeal filed by the respondent-plaintiff was accepted and the judgment & decree dated 18.10.2005 passed by learned Civil Judge Class-II, Chakwal dismissing the suit for declaration filed by the plaintiff-respondent was reversed.

1. Brief facts of the case are that plaintiff-respondent on 28.3.2000 filed a suit for declaration that plaintiff and Defendant No. 2 are entitled to inherit Ali Bahadur son of Muqarab Khan 2/9 share from his inheritance and challenged mutation of Gift No. 1672 attested on 7.1.1992 by the said Ali Bahadur in favour of Defendant No. 1. Written statement was filed. Suit was contested. The case as pleaded in the plaint is that the grandfather of the parties Muqarab Khan was having four sons namely Athar Khan father of Defendant No. 1, Singh Khan, Ali Bahadur and Ghulam Qadir. Ali Bahadur died issueless. As he was paternal uncle of the plaintiff and Defendant No. 2, therefore, they were entitled to inherit 2/9 share from his inheritance and Defendant No. 1 fraudulently got executed mutation of gift in his favour Bearing No. 1672 on 7.1.1992. The reasons for declaring the gift as null and void have been stated as the eyesight of Ali Bahadur was very weak, he was hard of hearing being of an advanced age. He was chronic patient and was unable to understand his rights and that the alleged gift was during “Marz-ul-Mout”. The gift is forged and fictitious and against the law. The possession has not been transferred. The share of the donor was 1/4th whereas 1/3rd share has been transferred.

In the written statement various preliminary objections with regard to maintainability of the suit were raised and on facts the pleadings were denied. Learned trial Court framed the issues and invited the parties to produce their evidence. Both the parties produced their respective oral as well as documentary evidence. Learned trial Courtvide judgment & decree dated 18.10.2005 dismissed the suit. Appeal was preferred which was accepted by the learned First Appellate Court vide judgment & decree dated 16.4.2009. Hence, this civil revision by the petitioner-defendant.

1. I have heard learned counsel for the parties at length, gone through the record, evidence oral as well as documentary produced by the parties, findings recorded by both the Courts below, relevant law and judgments of the august Supreme Court of Pakistan on the subject.

2. Plaintiff opted to appear as his own witness as PW-1 and produced no other witness. In the cross-examination PW-1 admits that Ali Bahadur died in the year 1994 and he has admitted that he died his natural death due to fever. He admitted that since attestation of mutation till the death of Ali Bahadur no one challenged the impugned mutation. The statement of Gul Zaman DW-2 that at the time of gift the possession was transferred to the defendant. This portion of statement of the said witness has not been challenged in the cross-examination. Defendant appeared as DW-1 to support his version and produced Gul Zaman DW-2 and states that he was present at the time of attestation of mutation and mutation which has been produced as Exh.P.3 as well as Exh.D.1 after attestation was incorporated in the revenue record i.e. Jamabandi which carries the presumption of correctness and requires strong rebuttal evidence. Reliance can be made on “Ikhtiar Muhammad and another versus Haji Abdullah Jan and 4 others” (PLD 2008 Quetta 07), “Abdul Ahad and others versus Roshan Din and 36 others” (PLD 1979 SC 890) and “Muhammad Amir and others versus Mst. Beevi and others” (2007 SCMR 614). Further attestation of gift mutation is dated 7.1.1992 whereas according to the entry of death of donor Ali Bahadur he died on 20.11.1994. He never disputed the impugned mutation of gift and challenged the same before any forum even the gift was never challenged till 2000 when the suit subject matter of this civil revision has been filed, which is certainly after the prescribed period of limitation and when the donor never disputed the gift plaintiff of the suit becomes the 3rd person. If the donor has never disputed the gift in his life time, therefore, plaintiff has no right to challenge that mutation. The judgment of learned Division Bench of this Court reported as “Muhammad Jalil and 4 others versus Muhammad Sami and 8 others” (PLD 2006 Lahore 619) can be safely relied. Relevant para is reproduced for guidance:

“For the arguments that Muhammad Rafi had never gifted the property, mentioned at Serial No. (iv), in favour of Mst. Razia Bibi, we do not find any illegality in the judgment and decree of the Court below, because the said gift was made as far back as in the year 1974; Muhammad Rafi was alive till 1992 and he had never challenged the gift in his lifetime. Besides, no evidence has been produced on the record to show that the gift of the suit property in favour of Mst. Razia Begum was invalid for any reason whatsoever. Therefore, to this extent this appeal (RFA.No. 301 of 1998) is dismissed.”

When respondent-plaintiff failed to produce any evidence to dispute the attestation of impugned mutation at public place, therefore, it cannot be said that the gift is invalid. Light can be taken from the judgment of august Supreme Court of Pakistan reported as “Abdul Mateen etc. versus Mst. Mustakhia” (2006 SCJ 664). Relevant paragraph is reproduced for ready reference:-

“The gift mutation was attested by the revenue officer on 2.5.1973 at a public place and the appellants neither could bring any convincing and reliable evidence in proof of lack of knowledge nor have been able to establish the invalidity of gift, therefore, the genuineness of gift could not be doubted merely on the basis of oral assertion.”

When plaintiff has challenged the gift after 8 years of attestation of the gift mutation and further there being fatal defects in the pleadings when case of the plaintiffs is that he is the nephew of the donor and the donor was having three brothers and donor died issueless two years after the attestation of mutation and plaintiff claiming 2/9 share in the suit land without stating that who are the other persons entitled to inherit the property of the donor. It is not pleaded in the suit whether any brother of the deceased donor was alive at the time of

attestation of impugned mutation or at the time of death of the donor. When such facts are not pleaded, it is a fatal defect in the plaint. If any brother of the donor was alive, the children of the other brothers of the donor were not entitled to inherit him or challenge the gift. In this view of the matter while relying upon “Fazal Hanan versus Mukaram Jan and others” (2007 CLC 894) it will not be out of place to observe that plaintiff of a suit has to stand on his own legs and the donor dying due to fever cannot be said to be suffering from “Marz-ul-mout”. In this regard judgment reported as “Mst. Khairan Bibi, etc. versus Ghulam Hussain, etc.” (2007 CLJ 412) can be relied. It is settled principle of law that burden of proof is on a party who alleges in the plaint or written statement its claim. Reliance can be placed on “Hakim-ud-Din (deceased) through LRs etc. versus Faiz Bakhsh, etc.” (2007 SCJ 1090).

1. So far as question that gift from joint khata has been made and no actual physical possession has been delivered, there was no need in such circumstances for transfer of actual physical possession. Light can be taken from “Muhammad Latif versus Ghulam Hussain and others” (2005 SCMR 1344).

2. In the above circumstances, when plaintiff-respondent has failed to plead a case in accordance with law and prove the same through reliable and confidence inspiring evidence, the findings of learned first appellate Court are not sustainable under the law, same are reversed and suit filed by the respondent-plaintiff stands dismissed. This civil revision is allowed and disposed of in the above terms.

(R.A.) Revision allowed

PLJ 2016 Lahore 618

Present: Aslam Javed Minhas, J.

Dr.Malik MUHAMMAD YASEEN--Petitioner

versus

JUSTICE OF PEACE etc.--Respondents

W.P. No. 14054 of 2015, decided on 28.1.2016.

Punjab Health Care Commission Act, 2010--

----Ss. 23, 26 & 29--Criminal Procedure Code, (V of 1898), S. 22-A--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Petitioner did not care of his wife--Procedure of investigation--Order was passed without jurisdiction--Negligence and misconduct of doctors--Validity--An aggrieved person within sixty days can lodged a complaint against a healthcare service provider through an application supported by an affidavit but petitioner has filed application under Section 22-A, Cr.P.C. after four months of incident--Where it appears to the Commission that the circumstances of a case warrant action under any other law the commission may refer such case to governmental authorities or law enforcement agencies for appropriate action under relevant laws, therefore, Justice of Peace is not the forum to agitate grievance in such circumstances--Complainant had exonerated co-petitioner from allegations, therefore, veracity of application filed by petitioner had become doubtful--Petition was allowed.

[Pp. 622] A, B & C

Mr. M.A.Hayat Hiraj, Advocate for Petitioner.

Mr.Mumtaz Hussain Malik, Advocate for Respondent No. 4.

Rana Muhammad Hussain,A.A.G. for Respondents.

Date of hearing: 28.1.2016.

Order

By this single order, I intend to dispose of Writ Petition No. 14054 of 2015 titled Dr. Malik Muhammad Yaseen vs. Justice of Peace, etc. and Writ Petition No. 15759 of 2015 titled Dr. Ammara Ali vs. Justice of Peace, etc. as both are outcome of the same impugned order dated 09.09.2015 passed by the learned Justice of Peace/ASJ, Kabirwala.

1. Through these petitions, the petitioners has called in question the order dated 09.09.2015 passed by the learned Justice of Peace/ASJ, Kabirwala whereby on the application filed by Respondent No. 4 under Section 22-A, Cr.P.C. Respondent No. 2 was directed to proceed in accordance with law against the petitioner. The facts of the case were that Respondent No. 4 filed petition under Section 22-A, Cr.P.C. to the learned Justice of Peace for registration of case against the petitioners and others with the allegation that on 30.1.2015 at about 10/11 p.m. he took her wife to Tehsil Headquarter Hospital, Kabirwala in emergency. He further alleged that since delivery of his son took place at his own house by untrained birth attendant and due to excessive bleedings his son died and after 3 to 4 hours he took his wife in emergency ward Tehsil Headquarter Hospital, Kabirwala where the petitioners being Doctors did not attend his wife as a result of which she died. The learned Justice of Peace called comments from Respondent No. 3/SHO who after inquiry submitted his report, appended with this file as Annex-A & B. Then the learned Justice of Peace through the impugned order dated 09.09.2015 issued direction to Respondent No. 3 to proceed in accordance with law by invoking the provisions of Section 154, Cr.P.C.

2-A. Learned counsel for the petitioner contends that the impugned order dated 09.09.2015 is illegal, void ab initio and against the law and facts without applying judicial mind. He further contended that the occurrence took place on 30.01.2015 whereas the application under Section 22-A, Cr.P.C. was filed on 16.5.2015 without any plausible explanation of delay and that through the contents of the petition under Section 22-A, Cr.P.C. Respondent No. 4 has not raised any allegation of negligence on the part of the petitioner. Further added that the learned Justice of Peace did not have jurisdiction to pass the impugned order in view of existence of Punjab Health Care Commission Act, 2010 which is a special law has given the remedies to the Respondent No. 4 to agitate the matter before the concerned authorities, as such, the learned Justice of Peace has illegally assumed the jurisdiction in the instant matter. Further added that under Section 29 of the said Act when the negligence and the other misconduct of the doctors as mentioned under Section 26, occurred then the matter can be agitated before the concerned authority but the learned Justice of Peace did not bother even to see the aforementioned Act, and passed the order without jurisdiction. He also referred Section 23 of the Act whereby an aggrieved person may, within sixty days from the date of knowledge of the cause of action, file a complaint against a healthcare service provider or healthcare establishment by submitting an application in writing supported by an affidavit of the aggrieved person but the Respondent No. 4 has filed the instant application after lapse of four months and that too at unconcerned forum. Further argued that Section 26 of the Act is very much clear that where any act in contravention of this act is committed by a body corporate and it is proved to have been committed with the consent or connivance of, or to be attributable to any director, manager, secretary or other officer or employee of the body corporate, or any person who purported to act in any such capacity, he as well as the body corporate shall be liable to pay fine for such violation and under sub-section (2) of Section 26 where it appears to the Commission that the circumstances of a case warrant action under any other law, the Commission may refer such case to the concerned governmental authority or law enforcement agencies for appropriate action under relevant laws. Further added that in view of the Full Bench judgment of this Court passed in the case of Khizar Hayat vs. I.G Police (PLD 2005 Lahore 470), it is not obligatory for the learned Justice of Peace to necessarily or blindfoldly issue direction regarding registration of criminal case whenever a complaint is filed before him, therefore, the order of the learned Justice of Peace is liable to be set aside. Lastly added that the Respondent No. 4 has submitted an affidavit exonerating Dr.Amara Ali, petitioner and stated that due to mis-understanding the application was filed against her, therefore, the allegations leveled by the Respondent No. 4 also doubtful against Dr. Malik Muhammad Yasin.

1. On the other hand learned A.A.G assisted by learned counsel for Respondent No. 4 opposed this petition and contended that prima facie cognizable offence was made out and the case can be registered directly against the petitioners. Learned counsel for the Respondent No. 4 further contended that applications were submitted to the higher authorities for taking action against the petitioners and in this regard receipts are available on record and when no action was taken by the higher authorities then the Respondent No. 4 filed instant application for registration of case against the petitioners.

2. I have heard the learned counsel for the parties and perused the record with their able assistance.

3. The perusal of record shows that Respondent No. 4 took her wife to Tehsil Headquarter Hospital, Kabirwala in emergency where the petitioners did not take care of his wife who ultimately died. In these circumstances, Punjab Health Care Commission Act, 2010 (hereinafter to be called as Act) has been promulgated. Section 23, 26 and 29 of the Act are reproduced as under:

“23. Procedure of investigation.--(1) The Commission shall prescribe the procedure for the conduct of investigation to be carried out by the Commission under this Act.

(2) An aggrieved person may, within sixty days from the date of knowledge of the cause of action, file a complaint against a healthcare service provider or healthcare establishment by submitting an application in writing supported by an affidavit of the aggrieved person.”

1. Violations by bodies corporate.--(1) Where any contravention of this Act is committed by a body corporate and it is proved to have been committed with the consent or connivance of, or to be attributable to any director, manager, secretary or other officer or employee of the body corporate, or any person who purported to act in any such capacity , he as well as the body corporate shall be liable to pay fine for the violation.

(2) Where it appears to the Commission that the circumstances of a case warrant action under any other law, the Commission may refer such case to the concerned governmental authorities or law enforcement agencies for appropriate action under relevant laws.

1. Immunity.--No suit, prosecution or other legal proceedings related to provision of healthcare services shall lie against a healthcare service provider except under this Act.

From the above, it is apparent that under Section 23 of the Act an aggrieved person within sixty days can lodged a complaint against a healthcare service provider through an application supported by an affidavit but in this case the petitioner has filed application under Section 22-A, Cr.P.C. after four months of the incident. The alleged receipts produced by the petitioner do not show that whether an application was submitted to the concerned authority or not. As far as Sections 26 and 29 of the Act are concerned, no suit, prosecution or other legal proceedings related to provision of healthcare services shall lie against a healthcare service provider except under this Act and where it appears to the Commission that the circumstances of a case warrant action under any other law, the Commission may refer such case to the concerned governmental authorities or law enforcement agencies for appropriate action under relevant laws, therefore, learned Justice of Peace is not the forum to agitate grievance in such circumstances. From the above, it is apparent that the learned Justice of Peace has exceeded his jurisdiction while passing the impugned order against the petitioner and as per dictum laid down in the case of KhizarHayat vs. I.G. Punjab (PLD 2005 Lahore 470), it is not obligatory for the learned Ex-Officio Justice of Peace to necessarily or blindfoldly issue direction regarding registration of criminal case whenever a complaint is filed before him. In the light of provisions of Section 29 of the Act, he also exceeded his jurisdiction. There is another important fact of the case that the complainant has exonerated Dr. Amara Ali, petitioner from the allegations, therefore, veracity of the application filed by the petitioner has become doubtful.

1. In the light of foregoing reasons, I am inclined to allow this writ petition and set aside the order dated 09.09.2015 passed by the learned Justice of Peace/ASJ, Kabirwala.

(R.A.) Petition allowed

PLJ 2016 Lahore 623

Present: Ali AkbarQureshi, J.

Mst. SHAMEEM AKHTAR--Appellant

versus

GOVERNMENT OF PUNJAB, etc.--Respondents

F.A.O. No. 272 of 2008, heard on 20.1.2016.

Temporary Powers Rules, 1962--

----R. 10--Settlement of compensation of property--Entitled to claim compensation only for period of three years--Limitation of filing suit and claiming compensation--Fixation--Validity--Limitation to file the petition/reference to arbitrator meaning thereby the statute has itself given the limitation to file the petition for fixation of compensation before forum available in law--Since the main question in this case revolved around the limitation which is mix question of law and facts and can only be decided by recording the evidence--Petition filed under W.P. Requisitioning of Immovable Property (Temporary Powers) Rules, 1962, is to be decided in terms thereof, therefore, without further commenting upon the facts of the case the matter is remanded to decide the case afresh strictly in accordance with law. [Pp. 626 & 627] A, B & C

Mr. MuhammadShehbaz Ahmad, Advocate for Appellant.

Mr. TariqMehmood Chaudhry, Assistant Advocate-General alongwith Shabnam Noor, Deputy Tehsil Shalimar for Respondents.

Date of hearing: 20.01.2016.

Judgment

This first appeal calls in question the validity and propriety of an order dated 01.08.2008, passed by the learned Addl. District Judge, Lahore, while exercising the powers conferred under Rules 10 of the West Pakistan Requisitioning of Immovable Property (Temporary Powers) Rules, 1962, on a petition filed before the learned District Judge, Lahore, by the appellant for settlement of the compensation of the property owned by the appellant and requisitioned by Respondent No. 1.

1. The appellant, being the owner of the suit property which was requisitioned by Respondent No. 1/Government of Punjab, through Secretary Education, Civil Secretariat, Lahore, filed a petition under Rule 10 of the West Pakistan Requisitioning of Immovable Property (Temporary Powers) Rules, 1962, for settlement of the compensation of requisitioned property (enhancement of compensation) on the ground, that the suit property owned by the appellant measuring 6 marlas, consisted of 8 rooms and open space was requisitioned by the Respondent No. 1 on 06.03.1978 for running a school namely M-B Islamia Girls Middle School, Mughalpura, Lahore and started depositing the compensation @ Rs. 450/- per month in favour of the owner, the compensation being deposited by the respondent-government was not just, fair and lastly prayed that the compensation (rent) be enhanced to Rs. 9,000/- from the date it was requisitioned.

The suit was contested by the respondents on the ground, that the claim is barred by time and the compensation being paid by Respondent No. 1 is just & fair and the appellant is not owner of the property.

Learned Additional District Judge to whom the case was entrusted framed the following issues:--

1. Whether the petitioner has no locus standi and cause of action? OPR

2. Whether the petition is not maintainable?

3. Whether the petitioner is entitled to assessment of fair compensation? If so, to what extent? OPP

4. Relief.

The learned Additional District Judge after recording the evidence decided Issue No. 1 against the respondents, Issue No. 2 which pertains to the limitation, in the manner, that the appellant is entitled to claim the compensation only for the period of three years and not beyond that. While deciding Issue No. 3 the learned Court enhanced the compensation from Rs. 450/- to Rs. 4000/- per month only for the period of three years.

1. Learned counsel for the appellant relied upon a judgment delivered by the Hon’ble Supreme Court of Pakistan i.e. “Government of the Punjab through Secretary Education, Lahore v. Shahida Begum” (1994 SCMR 1488) and concluded his arguments.

2. On the other hand, learned Assistant Advocate-General submitted, that the respondent-department has already paid an amount of Rs. 5,90,425+2,41,342= (Rs. 8,31,767/-), therefore, nothing is due against the respondent-department. As regard the enhancement of the compensation the learned Assistant Advocate-General relied upon two judgments of this Court titled “Azmatullah and another v. Secretary to Government of West Pakistan” (PLD 1978 Lahore 979) and “Home Department, Government of Punjab through Secretary and others v. Mian Irshad Hussain” (PLD 2010 Lahore 654).

3. Although both the learned counsel for the parties after submitting the aforesaid citations concluded their arguments but in order to decide the matter, the findings recorded by the learned Additional District Judge/trial Court and the record was perused carefully.

4. From the findings it is found, that the learned Additional District Judge decided Issue No. 2, which relates to the limitation of filling the suit and claiming the compensation/rent. Learned Additional District Judge while deciding the aforesaid issue stated as under:

“Onus to prove this issue was on the respondent. Contention of respondent in written reply is that petition was not maintainable as it was time barred. The property in question was admittedly requisitioned by Respondent No. 1 vide order dated 06.03.1978. The instant petition was filed on 05.09.1993 i.e. after about fifteen years from the date of requisition. Rate of rent cannot be enhanced beyond a period of three years, before institution of the instant petition, as per law. Hence, the contention of petitioner for enhancement of compensation can only be considered to the extent of past three years prior to the filing of this petition and claim prior to that period is time barred. This issue is thus decided accordingly.”

1. It is evident from the record, that this petition was filed under a special law pertaining to the requisition of the private property for public use. According to the provisions of the West Pakistan Requisitioning of Immovable Property (Temporary Powers) Rules, 1962, the owner of the property if not satisfied with the compensation fixed by the requisitioning authority, firstly will approach to the requisitioning authority and on its refusal after issuing the statement in writing will file a Reference to the Arbitrator within thirty days thereafter for fixation of the compensation. The relevant Rules are reproduced hereunder:--

2. Determination of Compensation.--(1) The owner of a requisitioned building shall, as soon as possible, after the requisitioning thereof, negotiate with the Requisitioning Authority or its representative for fixing, by agreement, the amount of compensation payable to the owner for the use and occupation of his property.

(2) If the owner does not within a fortnight of the Service on him of the order requisitioning his building, move the Requisitioning Authority for fixation of compensation for the use and occupation of the building, the Authority shall proceed to determine under Section 7 of the Act, the amount of compensation payable to him.

(3) An offer of the compensation assessed under sub-rule (2) shall be made to the person or persons interested in the property, and if not accepted within thirty days of the making thereof shall be deemed to have been refused;

Provided that the Requisitioning Authority may extend the period as it may deem fit where such person are persons show willingness to negotiate.

(4) Where possible refusal of the offer of compensation should be obtained in writing.

1. Requisitioning Authority’ s Statement.--(1) Within seven days of the refusal of the offer of compensation, the Requisitioning Authority, shall deliver to the person or persons interested in the property, a duly authenticated statement in writing setting forthwith:--

(a) Particulars of the property in such detail as the case may require;

(b) The amount of compensation assessed by the Requisitioning Authority;

(c) The grounds on which such amount was determined; and

(d) The date on which the period of limitation prescribed in the next succeeding rules expires.

(2) A written acknowledgment shall be taken of the delivery of such statement.

1. Reference to the Arbitrator about the fixation of the compensation.--(1) Within thirty days of the receipt of such statement, the party contesting the assessment may make an application to the arbitrator for assessing the proper compensation due to him and supply simultaneously a copy thereof to the Requisitioning Authority.

(2) Where no application is made within the prescribed time limit the compensation fixed under rule (2) of Rule 8 shall remain operative.

1. The afore-referred Rules made under Section 13 of the Act, have given the limitation to file the petition/Reference to the arbitrator

meaning thereby the statute has itself given the limitation to file the petition for fixation of the compensation before the forum available in the law. In this case the learned trial Court/Additional District Judge while deciding Issue No. 2 has neither consulted the law and discussed the relevant provisions which deal with the limitation. Thus the learned Additional District Judge seriously erred in law not to decide the Issue No. 2 as required by the law, therefore, the findings of Issue No. 2 are not sustainable and set aside.

1. Since the main question in this case revolved around the limitation which is mix question of law and facts and can only be decided by recording the evidence.

2. The ratio of the citations supra is, that the petition filed under the West Pakistan Requisitioning of Immovable Property (Temporary Powers) Rules, 1962, is to be decided in terms thereof, therefore, without further commenting upon the facts of the case the matter is remanded to the learned District Judge, Lahore, to decide the case afresh strictly in accordance with law.

3. Resultantly, this appeal is allowed, order 01.08.2008, passed by the learned Addl: District Judge, Lahore, is set aside and the case is remanded to the learned District Judge, Lahore, to decide the same afresh strictly in accordance with law.

4. Parting with the judgment, parties to the case shall appear before learned District Judge, Lahore, on 03.02.2016 and no notice for the service shall be issued to the parties by District Judge, Lahore. No order as to costs.

(R.A.) Appeal allowed

PLJ 2016 Lahore 627

Present: Shahid Jamil Khan, J.

M/s. KASHMIR SUGAR MILLS LTD.--Petitioner

versus

FEDERATION through Secretary Revenue, etc.--Respondents

W.P. No. 27266 of 2012, decided on 13.1.2016.

Federal Excise Act, 2005--

----Ss. 3 & 42--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Sales tax--Excise duty was leviable on goods produced or manufactured--Actual transaction--Show-cause notice and consequential orders in original as consequence of interpretation by FBR--Primary jurisdiction to interpret any provision is vested with quasi-judicial authorities under Act of 2005, which should not be by-passed, merely because taxpayer is offering another interpretation--Since no jurisdictional defect is found in issuance of impugned show-cause notices, therefore, no interference is warranted to that extent. [P. 633] A

M/s. Akhtar Ali and Sumair Saeed Ahmad, Advocates for Petitioner.

M/s. Sarfraz Ahmad Cheema, Ch. Zafar Iqbal and Tariq Saleem Sheikh, Advocates, Dr. Ishtiaq Ahmad Khan, Commissioner, Inland Revenue, LTU, Lahore for Respondents.

Date of hearing: 13.01.2016.

Judgment

This judgment shall also decide connected Writ Petition Nos. 27267 of 2012 and 32842 of 2013, as same legal issue under similar facts is involved.

Petitioner has challenged show-cause notices and consequential orders-in-original for having been passed as consequence of interpretation by Federal Board of Revenue (“FBR”) vide letter dated 06.08.2011, operative part of which is reproduced hereunder:

“I am directed to refer to your Letter No. NS/ED/GI/01/187 dated 18.07.2011 (copy enclosed) on the subject cited above and to say that prior to 04th June, 2011, sales tax @ 8% on the actual transactional value was chargeable on White Crystalline Sugar and w.e.f. 04th June, 2011 FED @ 8% in sales tax mode is chargeable on White Crystalline Sugar. It is clarified that the mode and manner of payment and collection of duty/tax on Sugar has not been changed. The FED @ 8% is, therefore, chargeable on the stocks lying with sugar mills on 04th June, 2011, as and when supply is made.

[emphasis supplied]

1. Learned counsel for petitioner submits that this letter was circulated to all the Chief Commissioners with the interpretation contained therein and there is no chance of decision in favour of petitioner by any of the authorities under FBR, hence this petition. In support, he has referred to impugned order-in-original dated 23.10.2012 passed by Respondent No. 5, who has followed the interpretation given in the impugned letter.

2. Mr. Sarfraz Ahmad Cheema, Advocate for respondents, submits that appeal is provided against the order-in-original, therefore, this petition is not maintainable. He has placed reliance on judgments in Deputy Commissioner of Income Tax/Wealth Tax, Faisalabad and others v. Messrs Punjab Beverage Company (Pvt.) Ltd. (2007 PTD 1347), Mughal-e-Azam Banquet Complex through Managing Partner v. Federation of Pakistan through Secretary and 4 others (2011 PTD 2260) and Northern Power Generation Company Limited v. Federation of Pakistan and others (2015 PTD 2052).

Replying to objection on maintainability, learned counsel for petitioner has placed reliance on judgment in Attock Cement Pakistan Ltd. v. Collector of Customs, Collectorate of Customs and Central Excise, Quetta and 4 others (PTCL 2001 CL 509), to contend that statutory authorities would follow the interpretation already given by FBR, therefore, this petition is maintainable.

1. On merits, learned counsel for petitioner submits that Sales Tax @ 8%, on the actual transaction value, was payable before 04.06.2011, however, w.e.f. said date Federal Excise Duty (“FED”) @ 8% in Sales Tax mode was made chargeable on White Crystalline Sugar. Argues that Federal Excise Duty is leviable on goods produced or manufactured in Pakistan under charging Section 3 of Federal Excise Act, 2005 (“Act of 2005”). Since, FED was levied w.e.f. 04.06.2011, therefore, production of sugar already made till this date was not chargeable retrospectively. He contends that interpretation made by FBR through letter dated 06.08.2011, ibid, is against the express provision of law.

2. Heard, record perused.

3. There is force in arguments by learned counsel for petitioner that interpretation by FBR should not and could not be followed by Quasi-Judicial Authorities, under the Act of 2005. His assertion finds support from record that Respondent No. 5 had followed the interpretation given by FBR. Relevant paragraph from Order-in-Original dated 23.10.2012 is reproduced hereunder:

“3. The above contention of the registered person has been found contrary to the law. Effective from 4th June 2011 while crystalline sugar has been made chargeable to Federal Excise Duty @ 8% under Federal Excise Act, 2005, through insertion of Serial No. 53 of Table-I of the First Schedule to the Federal Excise Act, 2005. FED on white crystalline sugar is collectable in ‘sales tax mode’ in view of insertion of Serial No. 3 in the Second Schedule to the Federal Excise Act, 2005 as warranted under Section 7 of Federal Excise Act, 2005 read with Section 2(21a) of Federal Excise Act, 2005. As the charging section i.e. 3 of the Federal Excise Act, 2005 is subservient to the other provisions of the Act, hence, FED in the instant case has to be collected and paid at the time of supply as warranted under Section 7 of Federal Excise Act, 2005 read with Section 2(21a) and clarification issued by Board vide letter C. No. 3(6)ST-L & P/2011 dated 06.08.2011.”

[emphasis supplied]

1. Hon’ble Supreme Court of Pakistan in Messrs Central Insurance Co. and others v. The Central Board of Revenue, Islamabad and others (1993 SCMR 1232), held that interpretation by CBR (now FBR) is not judicial interpretation. Relevant excerpt is reproduced for ease of reference:

“22. It is evident from the above provisions that though the Central Board of Revenue has administrative control over the functionaries discharging their functions under the Ordinance, but it does not figure in the hierarchy of the forums provided for adjudication of assessee’s liability as to the tax. In this view of the matter, any interpretation placed by the Central Board of Revenue, on a statutory provision cannot be treated as a pronouncement by a forum competent to adjudicate upon such a question judicially or quasi-judicially. We may point out that the Central Board of Revenue cannot issue any administrative direction of the nature which may interfere with the judicial or quasi-judicial functions entrusted to the various functionaries under a statute. The instructions and directions of the Central Board of Revenue are binding on the functionaries discharging their functions under the Ordinance in view of Section 8 so long as they are confined to the administrative matters. The interpretation of any provision of the Ordinance can be rendered judicially by the hierarchy of the forums provided for under the above provisions of the Ordinance, namely, the Income Tax Officer, Appellate Assistant Commissioner, Appellate Tribunal, the High Court and this Court and not by the Central Board of Revenue. In this view of the matter, the interpretation placed by the Central Board of Revenue on the relevant provisions of the Ordinance in the Circular, can be treated as administrative interpretation and not judicial interpretation.”

The principle enshrined by Apex Court, has now been codified by legislature in Section 42 of the Act of 2005, which is reproduced hereunder:

“42. Observance of Board’s order, directions and instructions.--All officers and persons employed in the execution of this Act and the rules made thereunder shall observe and follow the orders, directions and instructions of the Board provided that no such order, direction or instruction shall be given by the Board so as to interfere with the discretion of an officer in deciding the issues or matters brought before him for adjudication under this Act or rules made thereunder.”

[emphasis supplied]

In presence of the Section 42 any attempt on the part of FBR of giving judicial interpretation is against the law and any order based on FBR’s interpretation is not sustainable.

1. The interpretation offered by learned counsel for petitioner on merits is also examined. The arguments, noted above, itself show that the interpretation needs to be crystalized, after considering various provisions of the Act of 2005 as well as Sales Tax Act, 1990 (“Act of 1990”).

In Northern Power Generation Company’s case, (supra), this Court has already held that constitutional jurisdiction cannot be invoked merely because the petitioner pleads a different interpretation than the one made by department. Relevant paragraph from the judgment is reproduced hereunder:

“9. In light of various enunciations by Hon’ble Supreme Court of Pakistan it can safely be concluded that where alternate remedy is available, non exercise of jurisdiction under Article 199 of the Constitution by High Court, is a rule to be applied for regulating its constitutional jurisdiction. Exceptions to this rule are that the show-cause notice or order is ultra vires, palpably without jurisdiction or with mala- fide intent; availing of statutory remedy, against which, would be inefficacious because such action is to be nipped in the bud. In presence of the exceptions, the High Court should lean its discretion in favour of the petitioner to provide him speedy and efficacious justice by issuing writ of certiorari.

However, where petitioner approaches High Court for issuance of a writ of certiorari by pleading jurisdictional issue, on an interpretation of his choice and relevant provision is susceptible to various interpretations, the issuance of show-cause notice or an order cannot said to be palpably without jurisdiction or mala fide.

As pointed out, supra, the question of Additional Commissioner’s jurisdiction to invoke the provisions of sub-section (5-A), under delegation by Commissioner, has already reached this Court under Advisory jurisdiction through various Tax References, hence exercise of writ jurisdiction would amount to circumvent this Court’s jurisdiction under Section 133 of the Ordinance, which has to be exercised by two Judges. If matters of interpretation simplicitor are taken up in writ jurisdiction, on the pretext of inefficacious remedy, intent of Legislature, of vesting this Court with Advisory jurisdiction on questions of law, would be frustrated.

In Mughal-e-Azam Banquet Complex’s case, (supra), another Single Bench of this Court had declined to exercise constitutional jurisdiction against show-cause notice. Relevant excerpt is reproduced hereunder for ease of reference:

“6. Interference at the stage of issuance of Show-Cause Notice stultifies and retards the adjudicatory process provided under the relevant law, in this case Ordinance, 2000 read with Sales Tax Act, 1990. This unduly stalls the investigative machinery of the quasi judicial authorities and hampers discharge of their statutory duties which are to be done with a free hand independent from outside control. The petitioner has an opportunity to place its case before the concerned authority who is competent to look into the factual receipts besides there are elaborate procedures by way of appeal or revision against order passed in such proceedings. The petitioner has already filed its replies to the Show-Cause Notice and the matter is pending adjudication before the concerned authority.

Judgment in Attock Cement Pakistan’s case (supra), is examined. In that case exercise of constitutional jurisdiction by the High Court was affirmed also for the reason that Tribunal was not constituted and matter was to be heard by a Member of Central Board of Revenue, who has already given his point of view. Relevant paragraph is reproduced hereunder:

“12. It was argued on behalf of the respondents that the appellant ought to have recourse to the other remedy provided by law. It was urged that the remedy with the appellant was to invoke the jurisdiction of the Tribunal to be constituted under Section 46 of the Act. We have noticed that when this controversy was being agitated in the Balochistan High Court and at the leave granting stage, no such Tribunal had been constituted as envisaged by Section 46 of the Act. On the other hand, instead of a Tribunal, a Member of the Central Board of Revenue was performing these functions. In the background of these circumstances, it cannot be said that the appellant had the other adequate remedy. The view point of the Central Board of Revenue had become crystal clear when having opined that the accessories and spare parts were not the goods and the deduction of input tax could be made, yet the Central Board of Revenue in the same breath observed that in the past, such deduction had been made, but that was illegal. In these circumstances, how could a member in the Central Board of Revenue adjudicate upon the controversy. Thus, we are of the view that remedy by way of an appeal before the Member, Central Board of Revenue was not an adequate remedy as envisaged under Article 199 of the Constitution and, therefore, in our view the writ petition was maintainable.

[emphasis supplied]

1. Necessary corollary of what has been discussed hereinabove, is that primary jurisdiction to interpret any provision is vested with the Quasi-Judicial Authorities under the Act of 2005, which should not be by-passed, merely because taxpayer is offering another interpretation. Since no jurisdictional defect is found in issuance of impugned show-cause notices, therefore, no interference is warranted to this extent.

2. Nevertheless, contention of learned counsel for petitioner, that Respondent No. 5 has followed the interpretation made by FBR through impugned letter dated 06.08.2011, finds support from the reproduced part, ibid, which is against provision of Section 42 of the Act of 2005, as well as, judgment by Hon’ble Supreme Court of Pakistan in Central Insurance’s case (supra). The orders-in-original challenged in this and connected writ petitions are set aside, however, petitioners are directed to plead their cases, as well as, interpretation before the Adjudicating Authority by reply to the show-cause notices already issued. The Adjudicating Authority is directed to proceed in the matter with independent mind after addressing all the points raised or to be raised by the petitioners before it.

The petition is allowed to the extent of Order-in-Original, however, interference against the impugned show-cause notices is declined.

(R.A.) Petition allowed

PLJ 2016 Lahore 634

Present: Sardar Muhammad Sarfraz Dogar, J.

Mian MUHAMMAD KHALID--Petitioner

versus

S.H.O. POLICE STATION MANAWAN, LAHORE etc.--Respondents

W.P. No. 22591 of 2014, decided on 13.1.2016.

Constitution of Pakistan, 1973--

----Art. 199--Criminal Procedure Code, (V of 1898), Ss. 22-A & 22-B--Civil Procedure Code, (V of 1908), O.XXXVII, R. 2--Police report--Malicious and mala fide manner--Dispute regarding recovery of amount involving factual controversy--Object of mechanism--Validity--Though it was not obligatory for Justice of Peace to call for police report, but once police report is called for, the Justice of Peace cannot ordinarily brush it aside--And, in case the Justice of Peace who proposed to air an order contrary to police report, he was also supposed to furnish tangible reasons for not relying upon the solicited police report--Petition was allowed. [P. 636] A

1993 SCMR 618; PLD 2005 Lah. 470; 2013 PCr.LJ 684 & 2014 PCr.LJ 1146 ref.

Mr. C.M.Sarwar, Advocate for Petitioner.

Mr.Sittar Sahil, AAG for Respondents.

Nemo for Respondents No. 2 to 5.

Date of hearing: 13.1.2016.

Order

This petition is flagged hitting vires of the order dated 25.07.2014, whereby; the Ex-Officio Justice of Peace, Lahore disposed of the application diarized under Section 22-A & 22-B, Cr.P.C., by Respondent No. 2 leading the SHO concerned/Respondent No. 1 by nose to record the version of Respondent No. 2 while proceeding further strictly in accordance with law.

1. In pursuance of the direction tossed by the Ex-Officio Justice of Peace/Respondent No. 6, a report has been tendered by Respondent No. 1/S.H.O. In his report and comments, the concerned S.H.O categorically swept the allegations.

2. Learned counsel for the petitioner contended that Ex-Officio Justice of Peace has aired the impugned order arbitrarily without diagnosing the fact that petition under Section 22-A/22-B, Cr.P.C. was filed by Respondent No. 2 in a malicious and mala fide manner. Further argued that it was a civil dispute clothed by Respondent No. 2 into criminal litigation.

3. Learned AAG has supported the impugned order passed by the Ex-Officio Justice of Peace.

4. Heard, record perused.

5. Respondent No. 2, Mst. Saima Rani, in her application filed under Section 22-A/22-B, Cr.P.C. has withheld and concealed the true facts apparently with a view to obtain a favourable order on her end. The learned Ex-Officio Justice of Peace seized by the matter called for a Police Report, but did not rely on the same, and did not advance any cogent reasons while brushing aside the same. In Police Report as well as parawise comments, it is vividly stated that as a matter of fact, Mst. Saima Shahzadi/Respondent No. 3 and Mst. Saima Rani/Respondent No. 2 are wives of Muhammad Qasim Hameed/Respondent No. 4, the real owner of the house, who is living abroad.

6. The version of Mst. Saima Rani/Respondent No. 2 is that she, being special attorney of her husband, has sold out the house and received entire consideration amount, and she wants to handover the possession after vacating the house. Whereas, the version of Mst. Saima Shahzadi/Respondent No. 3, the first wife of Respondent No. 4, and the other members of locality is that she is owner of the said house and Mst. Saima Rani/Respondent No. 2 committed theft of her household articles.

7. As regards, Mian Muhammad Khalid/the petitioner was present at the spot, however, the allegations raised in the application were identified incorrect. It is further pointed out that the petitioner appeared before the police, whereas, the other side i.e. Respondents No. 2 to 6 did not bother to appear before the police in order to advance their version.

8. Perusal of record transpires that the petitioner had also filed civil suit under Order XXXVII Rule 2, CPC for recovery of amount against Respondents No. 2 to 4, which is pending adjudication before the learned Civil Court and the instant application filed by Respondent No. 2 is just a counterblast of said suit. Moreover, bare reading of contents of the application, it transpires that there is a dispute regarding recovery of amount involving factual controversy. It has been held in “Muhammad Younas Khan and 12 others v. Government of N.W.F.P through Secretary, Forest and Agriculture, Peshawar and others “ (1993 SCMR 618) that where factual

controversies are involved, Constitutional petition in the High Court is not the proper remedy. The Justice of Peace without applying his mind passed a mechanical order by not even considering the Police Report, which would encourage the trend already in vogue managing to get an order against the petitioner.

1. It has been held in “Khizer Hayat and others v. Inspector General of Police (Punjab) Lahore and others” (PLD 2005 Lahore 470) that it was emphasized that it was advisable for the Justice of Peace to call for the Police Report. The sole object of this mechanism is to bring the true facts on record. Though it was not obligatory for the Justice of Peace to call for the Police Report, but once the Police Report is called for, the Justice of Peace cannot ordinarily brush it aside. And, in case the Justice of Peace who proposed to air an order contrary to the Police Report, in addition, he was also supposed to furnish tangible reasons for not relying upon the solicited Police Report. Dictum of law as laid down by the aforesaid authoritative and celebrated judgment was followed in the cases report as “Khalid Anwar v. Ex Officio Justice of Peace Lahore and 3 others” (2013 P.Cr.L.J 684) and “Mureed Hussain v. Additional Sessions Judge/ Justice of Peace Jampur and 3 others” (2014 P.Cr.L.J 1146).

2. For the above dissected reasons, it is a fit case for interference and invalidation of the impugned order. Therefore, by allowing this petition, impugned order dated 25.07.2014 passed by the learned Ex-Officio Justice of Peace, Lahore is set-aside.

(R.A.) Petition allowed