PLJ 2017 Judgments

PLJ 2017 Karachi 1 (DB)

Present: Muhammad Ali Mazhar & Abdul Maalik Gaddi, JJ.

MUHAMMAD AYUB FAZLANI, DIRECTOR (CO-ORDINATION) MDA, KARACHI--Petitioner

versus

PROVINCE OF SINDH through Chief Secretary and others--Respondents

C.P. No. D-2941 of 2016, decided on 11.11.2016.

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

----R. 9-A--Constitution of Pakistan, 1973, Art. 199--Services were absorbed--Notification--Posting order was withdrawn and repatriated--Directed to report parent department--Challenge to--Right sizing policy of Sindh Govt.--Validity--Sindh Government can only appoint a person by absorption by resorting to Rule 9-A of A.P.T. Rules, 1974 u/R. 9-A a person who has been rendered surplus on account of abolition of his post, in any office or department or autonomous body and or on account of permanently taking over of administration of such autonomous body wholly or partially by Government, can be appointed by transfer to any post in a department subject to his eligibility and qualifications for appointment to such office--It is totally unjustified to repatriate petitioner to corporation where petitioner was already declared surplus along with 229 officers--Petitioner has been repatriated from his parent department in violation of judgments of Supreme Court--One more crucial fact cannot be ignored that Secretary to Government of Sindh, vide notification dated 4.10.2016 has already cancelled impugned notification dated 29.1.2016 with approval of competent authority and allowed to continue petitioner his duties as Director M.D.A but despite that petitioner is not being allowed to continue--Petition is disposed of along with pending applications with directions to allow petitioner to join and perform his duties in M.D.A. [Pp. 5, 6 & 7] A, B, C, E & F

Constitution of Pakistan, 1973--

----Art. 189--Principle of law--Any decision of Supreme Court to extent that it decides question of law or enunciates a principle of law is binding on all other Courts in Pakistan. [P. 6] D

PLD 2010 SC 483, ref.

Petitioner in person.

Mr. Munir-ur-Rahman, Advocate for M.D.A.

Mr. Abdul Jalil Zubedi, A.A.G. for Respondents.

Mr. Ghulam Ali Brehmani,Addl. Secretary (Services) SGA&CD, Government of Sindh.

Date of hearing: 11.11.2016

Order

Muhammad Ali Mazhar, J.--The petitioner has challenged the Notification dated 29.01.2016 by means of which his posting order dated 27.04.2001 as Deputy Director, MDA was withdrawn and he was repatriated and directed to report his parent department i.e. Sindh Small Industries Corporation.

1. The petitioner argued that vide Notification dated 14.04.2001 issued by the Services General Administration & Coordination Department, Government of Sindh with the approval of competent authority, he was absorbed in the MDA against an existing vacancy as earlier he was performing his duties in the Sindh Small Industries Corporation. But when he was declared surplus, he was posted and permanently absorbed in MDA in terms of Rule 9-A of Sindh Civil Servant (Appointment, Promotion & Transfer) Rules, 1974. The copy of his Notification is available at page 27 of the case file and apparently he has rightly argued that his services were absorbed in MDA under Rule 9-A of Sindh Civil Servant (Appointment, Promotion & Transfer) Rules, 1974. Subsequently, the Section Officer, Housing and Town Planning Department, Government of Sindh issued an Office Order on 27.04.2001 with reference of earlier notification (supra) dated 14.04.2001 to show the petitioner’s posting as Deputy Director (L&M) BS-18, MDA against an existing vacancy.

2. In the comments filed by Respondent Nos. 1 & 2, the response to paragraph seven of the petition is quite significant which is for the ease of reference reproduced as under:

“7. The Honourable Supreme Court of Pakistan in its judgment passed in Cr.O.P. No. 89/2011 and C.R.P. No. 193/2013, dated 12.06.2013 and 05.01.2015, respectively has clearly and categorically stated that the Sindh Govt. can only appoint a person by absorption by resorting to Rule 9(A) of Sindh Civil Servants (Appointment, Promotion & Transfer) Rules, 1974. The Advocate General has also opined that Rule 9-A of SCS, APT Rules, 1974 is intact under the law and its scope has been further elaborated. The surplus employees absorbed strictly under this rule could not be repatriated as they were absorbed on the ground that their organizations were taken over by Provincial Government or institutions/ organizations were closed in the process of administrative restructuring by the province”.

1. The learned A.A.G firstly referred to the judgment of the hon’ble Supreme Court passed in the contempt proceedings against the Chief Secretary, Sindh and others reported in 2013 S.C.M.R 1752 in which the hon’ble Supreme Court while dealing with and striking down various legislative instruments settled various guidelines and parameters for civil servants service structure. The relevant directions or guidelines with regard to permanent absorption are positioned in clause (i) of Para-126 which are reproduced as under:--

“126 ………………….:--

(i) That the Sindh Government can only appoint a person by absorption by resorting to Rule 9-A of the Rules of 1974”.

1. The learned A.A.G also referred to a judgment passed in Review Petition No. 193 of 2013 titled as Ali Azhar Khan Baloch vs. Province of Sindh and others, reported in SBLR 2015 S.C. 15. In this judgment too, the hon’ble Supreme Court has deliberated and propounded the scope of Rule 9-A of the A.P.T., Rules, 1974. Paragraph 117 of the judgment (supra) is envisioned as under:

“117. We have heard the learned Counsel representing beneficiaries on the scope of Rule 9-A of the Rules. Under Rule 9-A, a person who has been rendered surplus on account of abolition of his post, in any Office or Department of the Government or autonomous body and/or on account of permanently taking over of the administration of such autonomous body wholly or partially by the Government, can be appointed by transfer to any post in a Department or Office in the Government subject to his eligibility and qualifications as laid down under Rule 3(2) for appointment to such Office. It is further provided under Rule 9-A of the Rules that such person shall be appointed to a post of equivalent or comparable basic scale and, in case such post is not available, then to a post of lower Basic Scale. Rule 9-A of the Rules provides further restriction to the seniority of such person to the post by reckoning his seniority at the bottom of the seniority list from the date of such appointment, with a further rider that his previous service, if not pensionable, shall not be counted towards pension and gratuity. We have dealt with the aforesaid issue in Para 116 of the judgment under review and have set parameters of Rule 9-A of the Rules in Para 126 of the judgment under review.”

1. The learned AAG with the assistance of the Ghulam Ali Brehmani, Additional Secretary, SGA&CD contended that in terms of the judgment passed by hon’ble Supreme Court, the absorption of the petitioner in MDA cannot be declared unlawful as on being found him surplus in the Sindh Small Industries Corporation, he was absorbed under Rule 9-A of the A.P.T., Rules, 1974 in the M.D.A. on 14.04.2001.

2. We have also seen the comments of Respondent No. 5(Sindh Small Industries Corporation) duly signed by its Director Administration in which also it has been reiterated that the petitioner was absorbed as Deputy Director in MDA under Rule 9-A of the A.P.T., Rules, 1974 and the matter has no concern with the Corporation (Respondent No. 5). The petitioner was relieved with other officers keeping in view the rightsizing policy of the Sindh Government.

3. The Respondent No. 4 (M.D.A) in its comments admitted that the petitioner was absorbed in the MDA vide Notification dated 14.04.2001. However, they also mentioned that subsequently, in 2006 he was posted in LDA and then reverted back to MDA and finally he was repatriated to his parent department vide Notification dated 29.01.2016. The learned counsel for the MDA argued that if the petitioner is aggrieved, he may file the review petition in the Supreme Court but this Court has no jurisdiction to entertain this petition.

4. The permanent absorption of the petitioner in MDA vide Notification dated 14.01.2001 is not disputed rather SGA&CD has overwhelmingly and devastatingly supported this order. It is also an admitted fact that the petitioner was performing his duties in Sindh Small Industries Corporation and the comments of Director Administration, Sindh Small Industries Corporation (Respondent No. 5) do show that the services of 229 officers of Sindh Small Industries Corporation were declared surplus by the corporation with effect from 01.07.2000 keeping in view the rightsizing policy of the Sindh Government including the petitioner and their services were placed at the disposal of SGA&CD, Government of Sindh for their adjustment and absorption in Government departments and later on the petitioner was absorbed in the MDA in accordance with Rule 9-A of the A.P.T., Rules, 1974.

5. We have conscientiously delved into Para-126 of the judgment passed by the hon’ble Supreme Court in contempt proceedings against the Chief Secretary, Sindh. The Apex Court has explicitly held that the Sindh Government can only appoint a person by absorption by resorting to Rule 9-A of the APT Rules 1974 while in judgment passed in review petition in the case of Ali Azhar Khan Baloch (supra) it was held that under Rule 9-A a person who has been rendered surplus on account of abolition of his post, in any Office or Department of the Government or autonomous body and or on account of permanently taking over of the administration of such autonomous body wholly or partially by the Government, can be appointed by transfer to any post in a Department or Office in the Government subject to his eligibility and qualifications as laid down under Rule 3(2) for appointment to such Office.

6. It is not the case here that the petitioner was not eligible or qualified to be absorbed in the year 2001 nor any such issue has been raised by the MDA in their comments except that the review should be filed before the Apex Court. In fact the repatriation order issued by the MDA is against the dictum laid down by the hon’ble Supreme Court where a variety of guidelines have already been provided to deal with innumerable issues including absorption and the SGA&CD has also reaffirmed that the absorption was made properly. It is totally unjustified to repatriate the petitioner to Sindh Small Industries Corporation where the petitioner was already declared surplus along with 229 officers in the year 2001 thereafter he was absorbed in MDA consistent with Rule 9-A of A.P.T. Rules 1974 which fact is obviously manifesting from the record. The learned counsel for the M.D.A argued that though the petitioner was absorbed in M.D.A but subsequently in the year 2006 he was posted in L.D.A and reverted back to M.D.A. In our understanding of law when the petitioner was permanently absorbed in M.D.A then his subsequent posting in L.D.A was in fact against the dictum of the apex Court. Indeed we have no reluctance to hold that presently the petitioner has been repatriated from his parent department in violation of aforesaid judgments of the Supreme Court. The binding effect of the judgment of honorable Supreme Court is well known. Under Article 189 of the Constitution, any decision of the Supreme Court to the extent that it decides question of law or enunciates a principle of law is binding on all other Courts in Pakistan. In the case of Justice Khurshid Anwar Bhinder versus Federation of Pakistan, reported in PLD 2010 SC 483, it was held that “where the Supreme Court deliberately and with the intention of settling the law, pronounces upon a question, such pronouncement is the law declared by the Supreme Court within the meaning of this Article and is binding on all Courts in Pakistan. It cannot be treated as mere obiter dictum. Even obiter dictum of the Supreme Court, due to high place which the Court holds in the hierarchy of Courts in the country, enjoy a highly respected position as if it contains a definite expression of the Court’s view on a legal principle or the meaning of law”.

7. One more crucial fact cannot be ignored that Secretary to Government of Sindh, Local Government & Housing Town Planningvide Notification dated 4.10.2016 has already cancelled the impugned Notification dated 29.1.2016 with the approval of competent authority and allowed to continue the petitioner his duties as Director M.D.A but

despite that the petitioner is not being allowed to continue. The Notification is reproduced as under:

“GOVERNMENT OF SINDH LOCAL GOVERNMENT & HOUSING TOWN PLANNING, DEPARTMENT

Karachi, dated the 04 October, 2016

ORDER

NO.SO(G)/HTP/MDA/2-112/2016:--The name of Mr. Muhammad Ayub Fazlani, Director (BS-19) Malir Development Authority having been absorbed under Rule 9-A of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, in this Department’s vide Notification No. SO(G)/HTP/MDA/1-20/ 2001 dated 27.04.2001.

1. The Notification No. SO(G)/HTP/MDA/1-20/2001 dated 29.01.2016 is hereby cancelled/withdrawn with the approval of Competent Authority with Secretary, Local Government, Government of Sindh.

2. He is allowed to continue as Director (BS-19) in Malir Development Authority with immediate effect.

SECRETARY TO GOVT. OF SINDH”

1. As a result of above discussion, the petition is disposed of along with pending applications with the directions to the Respondent No. 4 to allow the petitioner to join and perform his duties in the M.D.A. The petitioner has also complained that salary has been stopped. The Director General, M.D.A is directed to ensure the payment of unpaid salaries of the petitioner within fifteen days’ time.

(R.A.) Petition disposed of

PLJ 2017 Karachi 7 (DB)

Present: Muhammad Ali Mazhar & Abdul Maalik Gaddi, JJ.

SOHAIL AHMED & others--Petitioners

versus

PROVINCE OF SINDH & others--Respondents

C.P. No. D-4679 of 2016, decided on 1.12.2016.

Sindh Judicial Service Rules, 1994--

----R. 8(1)(d)--Sindh Civil Servants Act, 1973, S. 26--Constitution of Pakistan, 1973--Art. 199(5) Constitutional petition--Rejection of candidature to take part in competitive selection process for appointment to post of ADJ--Declared not eligible being judicial officers in view of amendment--Question of maintainability--When advertisement was published, Rules were not amended and allowed serving judicial officers to apply for post of ADJ through initial recruitment--Notification of amendment--Question of--Whether amendment get done in pursuance of recommendation of Court judges meeting will be effective or operative as of moment it was proposed or will take effect from date of publication in official gazette--Determination--Amendment is reckoned from date of notification and not from date its publication in official gazette, even then, petitioners were not debarred from participating in competitive process--If Court decides a point of law which covers not only case of civil servant who litigated, but also of other civil servants, who may have not taken any legal proceedings; dictates of justice and rule of good governance demand that benefit of judgment be extended to other civil servants, who may not be parties to litigation instead of compelling them to approach legal forum--Registrar alluded to a judicial precedent vis-a-vis well-established norms of judicial review to interfere in policy making domain of executive authority and grounds upon which an administrative action is subject to control by judicial review--Notification published in official gazette cannot be given retrospective effect. [Pp. 22 & 23] A, C, D & E

1983 SCMR 785, ref.

Constitution of Pakistan, 1973--

----Art. 199(5)--Scope of--Judicial order or judgment--Provisions of Art. 199(5) would bar writ against High Court if issue is relatable to judicial order or judgment whereas a writ may lie against an administrative, consultative and executive order involving any violation of Rules framed under Art. 208, causing infringement of fundamental rights of a citizen. [P. 22] B

M/s. Abid S. Zuberi, Ayan Mustafa Memon, Muhammad Saad Siddiqui, & Atta H. Khoso, Advocates for Petitioners.

M/s. Abdul Jalil Zubedi and Abdul Jabbar Qureshi, AAG.

Mr. Ghulam Mustafa Memon,Registrar of this Court alongwith Mr. Asif Majeed, Addl. Registrar (Research) and Mr. Ashraf Memon, Addl. MIT-I for Respondents.

Dates of hearing: 17, 24.10.2016, 10, 25.11.2016.

Order

Muhammad Ali Mazhar, J.--This petition has been brought to encounter the rejection of candidature of petitioners to take part in the competitive selection process for the appointment to the post of “Additional District and Sessions Judge”.

1. The evanescent facts of this legal action are that the Sindh High Court Establishment invited applications for the appointment of “Additional District & Sessions Judge” on 10.6.2016 through publication in the newspapers and High Court Website. The petitioners being judicial officers governed under the provisions of Sindh Judicial Service Rules, 1994 after satisfying formal procedure applied for the post before the cutoff date i.e. 15.7.2016. The Respondent No. 2 issued provisional list of candidates in which the petitioners were declared not eligible being judicial officers in view of amendment made in Rule 8, sub-rule (1); clause (d) of Rules, 1994.

2. The learned counsel for the petitioner argued that the Sindh Judicial Service Rules, 1994 have been enacted taking into account Section 26 of the Sindh Civil Servants Act, 1973. The competent authority to ordain the rules is Government of Sindh. At the time when the advertisement was published, the said Rules were not amended and they expressly allowed serving judicial officers to apply for the post of ADJ through initial recruitment. It was further contended that the Notification of amendment in Rule 8 was issued by the Government of Sindh on 26.7.2016 [Notification No. SOR (SGA&CD) 2-3/93 (P-III)]. The advertisement was published on 10.6.2016 prior to the issuance of the notification of the amendment therefore the amendment cannot apply with retrospective effect. It was further accentuated that the petitioners who applied for the post of ADJ before the cut-off date i.e. 15.7.2016 had legitimate expectation to apply and join the process. The amendment brought to Rule 8 of the Rules, 1994 vide Notification dated 26.7.2016 but it was published in the official gazette on 22.9.2016.

3. To meet up the disquiet of maintainability, the learned counsel referred to the most recent unreported judgment of the apex Court rendered on 26.9.2016 in the case of Muhammad Akram v. Registrar, Islamabad High Court and others in C.P. No. 3/2014 and C.M.A. No. 8540 of 2015. The honorable Supreme Court has settled the law with regard to the complexities of Article 199(5) of the Constitution of Pakistan. In the enlightened guidance and dictum, the apex Court held that the judgment rendered in the case of Muhammad Iqbal Jan approving the case of Asif Saeed being against the provisions of the Constitution is per incuriam and is not a good law. The apex Court also concluded that the provisions of Article 199(5) would bar a writ against a High Court if the issue is relatable to judicial order or judgment whereas a writ may lie against an administrative/ consultative/executive order passed by the Chief Justice or the Administration committee involving any violation of the Rules framed under Article 208 causing infringement of the fundamental rights of a citizen.

4. The learned Registrar of Sindh High Court Establishment filed his comments. He maintained that in the advertisement published for inviting applications, the judicial officers were precluded from applying to the posts of Additional District & Sessions Judges. The word “otherwise qualified in accordance with law” mentioned in the advertisement referring to the candidates from the Bar or Sindh Prosecution Service possessing the requisite qualifications. The petitioners had knowledge of the amendment made in Rule 8(1)(d) of the Sindh Judicial Service Rules, 1994. The amendment in Rule 8(1)(d) of the Sindh Judicial Service Rules, 1994 was unanimously approved by the Full Court Judges Meeting convened six (06) months prior to the advertisement published in daily newspapers. The above amendment stood promulgated on the very day i.e. 19th December, 2015 when it was approved by the Full Court Judges Meeting. The criteria laid down in Rule 5(3) of Sindh Judicial Service Rules has been followed by filling two third posts of existing vacancies of the Additional District & Sessions Judges firstly by promoting Senior Civil Judges and the remaining one third posts were advertised on 10.06.2016 to fill by initial appointment. The amendment in question has not been made retrospectively but it stands promulgated with effect from 19.12.2015. The hon’ble Full Court decision cannot be called in question under Article 199 of the Constitution. He further argued that the petition is not maintainable. It is bad in law for non-joinder of proper parties inasmuch as the Registrar of this Court has not been impleaded. The eligibility of judicial officers to be aspirant for the post of Additional District & Sessions Judge by way of initial appointment ceased to have effect immediately after the hon’ble Full Court Judges meeting. It was further contended that even in view of the previous posture of Rule 8(1)(d) of Sindh Judicial Service Rules, 1994 the petitioners cannot be admitted as eligible candidates for initial appointment as none of the petitioners have applied to the competent authority for grant of NOC to contest for the advertised posts.

5. The learned A.A.G argued that mere submission of application in respect of recruitment for the post of Additional District & Sessions Judge does not create any vested right. The petitioners are in judicial service and by way of promotion, they are entitled to become Additional Sessions Judge. The impugned amendment made by the Government of Sindh is based on the recommendation of Full Court. The Government of Sindh made the amendment in the Sindh Judicial Service Rules, 1994 by which only practicing advocate of High Court and the Sub-Ordinate Courts with the minimum practice of 06 years is entitled to participate in the Recruitment process for Additional District & Sessions Judge. The impugned action is neither suffer from any illegality nor lack of jurisdiction or the excess of jurisdiction nor in disregard of any law. Being judicial officers, the petitioners are not eligible to apply and participate in the Recruitment Process for the post of ADJ.

Judicial Precedents:

(1) 1992 SCMR 1652 (Messrs Army Welfare Sugar Mills Ltd. & others vs. Federation of Pakistan & others). It seems to be well-settled proposition of law that a notification which purports to impair an existing or vested right or imposes a new liability or obligation, cannot operate retrospectively in the absence of legal sanction, but, the converse i.e. a notification which confers benefit cannot operate retrospectively, does not seem to be correct proposition of law.

(2) 2008 SCMR 1717 (Chief Administrator Auqaf vs. Mst. Amna Bibi). It has been laid down by the superior Courts that a notification which curtails or extends rights of citizens will take effect from date of its publication in Gazette and not from any prior date. Reference in this context can be made to the cases of Abdul Wajid and others v. Aftab Ahmad Khan, Deputy Registrar and others NLR 1992 CLJ 247 and Muhammad Suleman and others v. Abdul Ghani PLD 1978 SC 190 wherein it has been observed that word “notification” according to Section 2(41) of the West Pakistan General Clauses Act (VI of 1956), shall mean a notification published under proper Authority in the official Gazette. Further reliance can be placed on case of Sh. Rahmatullah v. The Deputy Settlement Commissioner PLD 1963 SC 633 and Muhammad Ishaq v. Chief Administrator of Auqaf, Punjab PLD 1977 SC 639 wherein the Honourable Judges of the Supreme Court have laid down that the clause “within 30 days of such notification under Section 7 of West Pakistan Waqf Properties Ordinance, 1961”, would mean within 30 days time when notification was brought to the notice of general public by normal mode.

(3) 2008 SCMR 1148 (Government of the Punjab, Food Department through Secretary Food and another vs. Messrs United Sugar Mills Ltd. and another). West Pakistan Foodstuffs (Control) Act (XX of 1958), S. 3(1). West Pakistan General Clauses Act (VI of 1956), S.2(41). Control, Notified order would mean notification through publication in official Gazette and not by passing an order and keeping same in office of department concerned. Notification not published in official Gazette would be invalid. Notified declaration could take effect from date of publication in Gazette and not from any prior date.

(4) PLD 1978 Supreme Court 190 (Muhammad Suleman etc. vs. Abdul Ghani). Notifications which curtail or extend rights of the citizens, cannot be retrospective and this is all the more so in such cases when a state of things is to take place by publication of a notification which means from the date of its publication in the Gazette and not from any prior date or to be more precise, not from the date of the notification itself if it is prior to the actual date of the publication in the Gazette, because then it will tantamount to giving that notification a retrospective effect not from its publication but from a date prior thereto which as explained above is not permissible according to the relevant law.

(5) PLD 2011 Supreme Court 347 (Government of Sindh & others vs. Messrs Khan Ginners (Private) Limited & 57 others). The case of Muhammad Suleman and others v. Abdul Ghani PLD 1978 SC 190 throws sufficient light on the legal position that issuance of a Notification is not of any significance or legal importance till it is published in an official Gazette. According to Section 2(41) of the General Clauses Act, 1956 a ‘Notification’ means a Notification published under proper authority in an official Gazette. In this view of the matter before its publication in the official Gazette the Notification relevant to the present appeals could not even be lawfully termed as a Notification. In these peculiar circumstances of this case we have not been able to take any legitimate exception to the declaration made by the learned Division Bench of the High Court of Sindh, Karachi that notices of demand issued against the respondents on 2-10-1998 were without lawful authority and of no legal effect.

(6) 1983 SCMR 785(Muhammad Siddque vs. The Market Committee, Thandlianwala). Punjab Agricultural Produce Markets Act (V of 1939), S.27. Notification: On the 30th July, 1975 a Notification No. SO(S&M)-X-53/72 was issued by the Provincial Government prohibiting the establishment of any market within the market area of any Market Committee unless the site for the same had been approved by the Provincial Government. This notification was published in the official Gazette on the 20th November, 1975. A plain reading of the section will make it clear that the condition of previous publication in the official Gazette is confined to bye-laws only and not to the rules or any notification issued thereunder. In the instant case the mere fact that the publication of notification was delayed until the 20th November, 1975 will not invalidate or otherwise make its operation retrospective from any date prior to the 30th July, 1975 when it was actually signed though not published in the official Gazette.

(7) 2012 SCMR 455(Dr. Akhtar Hassan Khan & others vs. Federation of Pakistan & others). Art. 184(3). Judicial review of Executive’s authority. Scope and limitations. Once the competent authority in the Government has taken a decision backed by law, it would not be in consonance with the well-established norms of judicial review to interfere in policy making domain of the executive authority. Grounds upon which an administrative action is subject to control by judicial review, includes, illegality, which means the decision-maker must understand the law correctly that regulates his decision-making power and must give effect to it. Not every wandering from the precise paths of best practice, lend fuel to a claim for judicial review.

(8) 1996 SCMR 1185(Hameed Akhtar Niazi vs. The Secretary, Establishment Division, Government of Pakistan & others). Sections 8 and 23 of Civil Servants Act, 1973. Seniority--Merger of C.S.P and P.S.P cadres and creation of APUG. In this case the apex Court remanded the case to the Tribunal with the direction to re-examine the above case after notice to the affected persons and to decide the same afresh in the light of above observations. We may observe that if the Tribunal or this Court decides a point of law relating to the terms of service of a civil servant which covers not only the case of the civil servant who litigated, but also of other civil servants, who may have not taken any legal proceedings; in such a case, the dictates of justice and rule of good governance demand that the benefit of the above judgment be extended to other civil servants, who may not be parties to the above litigation instead of compelling them to approach the Tribunal or any other legal forum.

1. Heard the arguments. In the beginning, let us first converge that the learned counsel for the petitioner remained self-confined to the solitary vantage point that petitioners applied before the cutoff date so their applications could not be rejected due to the amendment notified on 26th July 2016 and published in the official gazette on 22.9.2016. However, he renounced and part with all other grounds raised in the memo of petition to challenge and or contest the legitimacy or lawfulness of the amendment made in the rules. So in all fairness, at this moment in time the amendment made by the Full Court is not under challenge otherwise we could have recused to entertain this petition being privy to the Full Court judges meeting and decision. We are also sanguine that the Full Court has absolute powers and prerogative to suggest and proposed any amendment in the Sindh Judicial Service Rules 1994 on all-encompassing legal principles and philosophy sagacious to meet any state of affairs and exigency but virtually amendment in the rules is to be notified by the Government of Sindh. At this juncture, the decisive and pivotal facet is only the effective date of amendment brought in the statute and not the decision of full Court.

2. With the aim and object of regulating the recruitment to the Sindh Judicial Service and prescribing conditions of service for the persons appointed, the Government of Sindh in exercise of powers conferred by Section 26 of the Sindh Civil Servants Act, 1973, enacted Sindh Judicial Service Rules, 1994. Under Rule 8, Sub-Rule--(1) Clause (d), the appointment of Additional District & Sessions Judge has been dealt with. For the ease of reference, the text of relevant Clause (d) is replicated as under:

“(d) In case of appointment to a post of Additional District and Sessions Judge, he, apart from possessing the qualifications in clause (a), is also a practicing Advocate of High Court and the Courts subordinate thereto with minimum practice of six years [or he has for a period of not less than six years, held a Judicial office with clean record of service]”. [Emphasis applied].

1. A Full Court Judges Meeting of this Court was convened on 19.12.2015 to discuss the following agenda:

“05/2015(FC). To consider the question for approval of prescribed criteria and mode of appointment of Additional District & Sessions Judges.”

After due contemplation and rumination, the Full Court resolved as under:

“It was unanimously resolved that in Rule-8(d) of Sindh Judicial Service Rules 1994, after the words six years, the phrase [or he has for a period of not less than six years, held a Judicial Office with clean record of service.] be deleted. and the Government of Sindh may be moved for such amendment in the rules”. [Emphasis applied].

1. The Sindh High Court Establishment invited applications on 10.06.2016 for the appointment of Additional District & Sessions Judge (BS-20) through newspapers and High Court official website against some vacant posts with the following eligibility criteria:--

“(i) He/She shall have a Degree in Law from a recognized University or a Barrister of Law from England or Ireland or is a Member of the Faculty of Advocates of Scotland.

(ii) Six (6) years’ experience as practicing Advocate of High Court and the Courts subordinate thereto.

(iii) He is otherwise also qualified in accordance with the law”. [Emphasis applied]

1. The bone of contention between the parties is whether the amendment get done in pursuance of recommendation of Full Court Judges meeting will be effective or operative as of the moment it was proposed/recommended or this will take effect from the date of its publication in the official gazette?. Quite the reverse, the learned Registrar and the learned A.A.G. articulated that the amendment was made effective the moment it was passed by the Full Court. However it is an admitted position that the cutoff date for filing applications to join this competitive process was 15.07.2016 and the petitioners submitted that applications but their applications were rejected on the sole ground i.e. “Not Eligible Being Judicial Officer” while the Notification of amendment was issued by the Sindh Government on 26.7.2016 which is reproduced as under:--

“GOVERNMENT OF SINDH SERVICES, GENERAL ADMINISTRATION & COORDINATION DEPARTMENT (REGULATION WING)

Karachi, dated the 26th July, 2016

NOTIFICATION

No. SORI(SGA&CD)2-3/93(P-III):--In exercise of the powers conferred by Section 26 of the Sindh Civil Servants Act, 1973, the Government of Sindh are pleased to make the following amendment in the Sindh Judicial Service Rules, 1994:--

AMENDMENT

In Rule 8, in sub-rule (1), for clause (d) the following shall be substituted:--

“(d) in case of appointment to a post of Additional District and Sessions Judge, he, apart from possessing qualifications in clause (a), is also a practicing Advocate of High Court and the Courts subordinate thereto with minimum practice of six years.”

MUHAMMAD SIDDIQUE MEMON CHIEF SECRETARY SINDH

No. SORI(SGA&CD)2-3/93(P-III) Karachi, dated the 26th July, 2016

A copy is forwarded to the Superintendent, Sindh Government Printing Press, Karachi with a request to publish the same in the next issue of the Sindh Government Gazette and supply 300 copies thereof to this Department.

(MUSADDIQUE MEMON) SECTION OFFICER (REGULATION-I)”

1. It is a matter of record that Sindh Government issued Notification of Amendment on 26th July 2016 which was published in the Official Gazette on 22.9.2016 while the cutoff date to join the competitive process in the advertisement was 15.7.2016. The Full Court Meeting was convened on 19.12.2015 but till the cutoff/closing date, no amendment was notified. With regard to the condition No-iii published in the advertisement “He is otherwise also qualified in accordance with the law”, we are not persuaded to subscribe the solicitation of the learned Registrar that the word “otherwise qualified in accordance with law” mentioned in the advertisement referring to the candidates from the Bar or Sindh Prosecution Service possessing the requisite qualifications only. On the contrary the aforesaid expression has widespread and broad spectrum which cannot be restricted or circumscribed to a particular mannerism or characteristic. The acid test is to get the drift of original conditions to apply embedded under the Rule 8, sub-rule (1); clause (d) of Sindh Judicial Service Rules, 1994. Before amendment, the petitioners were entitled to apply under the original rules so they could not be excluded from the process rather than to be more precise they were abundantly shielded and covered within the phrase “otherwise qualified in accordance with law”, provided they fulfill other canons. The learned Registrar also referred to the advertisements of previous process to draw some comparison that in the advertisement of present competitive process, he deleted the condition “or he has for a period of not less than six years, held a Judicial office with clean record of service”. Mere deletion of this condition without amendment in rules has no significant effect when the petitioners were otherwise qualified in accordance with law and their right to apply continued up to the date of amendment notified by the Government of Sindh. To meet up the merger of past experience of advocacy for considering the proficiency and excellence, the learned counsel for the petitioners argued that the Administration Committee of this Court in its meeting held on 14.2.2009 had already resolved that those judicial officers who have some period of practice as advocates prior to their joining as judicial officers their such period of practice should be counted towards the period of service. He placed on record a copy of counter affidavit filed by learned Registrar of this Court in C.P.No. D-4066/2013 (Tariq Ali Jakhrani vs. Province of Sindh & others). The learned Registrar of this Court did not controvert or deny this document. The relevant portion is reproduced as under:

“As regard the contents of Ground No. 2, it is submitted that the requirement for appointment to the post of Additional District & Sessions Judge is that the candidate should either be an advocate having not less than six (6) years of practice as advocate of subordinate Courts and High Court, or he should be a judicial officer having six (6) years service as such judicial officer. The Respondents No. 4 and 5 were working as judicial officers since 2006 and 2007 respectively and they had also period of practice as advocates prior to their appointment as Civil Judges. It is submitted that the Administration Committee of this Court in its meeting held on 14.2.2009 had resolved that those judicial officers who have some period of practice as advocates prior to their joining as judicial officers their such period of practice should be counted towards the period of service. [Emphasis applied]. It is further submitted that the Hon’ble Supreme Court of Pakistan in its judgment dated 21.12.2010, passed in CPLA Nos. 394-K and 395-K of 2010 (The Administrative Committee vs. Mohammad Wasim Abid & others) has been pleased to hold that the Administration Committee of the Sindh High Court had absolute discretion and vast powers to follow any equitable procedure....”

1. According to Sindh General Clauses Act, 1956, notification means a notification published under proper authority in the official Gazette and rules. The notification, orders, regulations and circulars having the effect of law made or issued under any enactment are required to be published in the official Gazette. The relatable excerpt of law is copied as under:--

Sindh General Clauses Act, 1956

2(41). Notification, “notification” shall mean a notification published under proper authority in the official Gazette.

19-A. Rules and orders, etc. to be published.--All rules, notification, orders, regulations and circulars having the effect of law made or issued under any enactment shall be published in the official Gazette.

General Clauses Act, 1897

20-A. Rules and Order, etc., to be published.--All rules, Orders, regulations and circulars having the effect of law made or issued under any enactment shall be published in the official Gazette.

1. The learned Registrar referred to the order dated 01.11.2012 passed by Hon’ble Supreme Court in C.P. No. 258-K and 259-K of 2012. The Sindh High Court advertised the post of Additional & District Sessions Judge (BS-20). The petitioners before the Apex Court had also applied but they were not found eligible. They had filed constitution petition in this Court but the same was dismissed vide judgment dated 16.08.2012. The petitioner Faisal Noor Junejo claimed that he is employed as Junior Assistant (BS-17) in the Supreme Court while Petitioner Nasir Ali Noor Qureshi as Senior Translator (BS-17) in the High Court of Sindh so according to them they had more than six years’ service which make them eligible to participate in the selection process. The Apex Court while dilating upon qualification/eligibility for the appointment of Additional District & Sessions Judge contained in the Sindh Judicial Service Rules, 1994 held that the office of Judicial Assistant and Senior Translator do not come at par with Judicial Office consequently both the petitions were dismissed. The facts and circumstances of this case are distinguishable where no issue of amendment in the rules or issue of notification and its effect was involved.

2. He further referred to the judgment of Hon’ble Supreme Court rendered in the Constitution Petitions No. 37 and 40 of 2015 and Civil Petition No. 2197/2015 on 08.10.2015 in the case of “Muhammad Afzal Majoka & others versus Registrar Lahore High Court”. In this judgment the Apex Court alluded to Punjab Judicial Service Rules, 1994. In the original rules of 1994 notified on 31.03.1994, 60% quota was reserved for filling up the vacancies of Additional District & Sessions Judge through promotion amongst the serving Civil Judges/Senior Civil Judges on seniority-cum-fitness basis and remaining 40% quota was reserved for direct recruitment from the members of Bar as per eligibility criteria specified under the rules. However, vide Notification dated 09.05.2014, a path was created through which Senior Civil Judges and Civil Judges-cum-Magistrates having ten years’ service experience could have applied. However, another notification was issued on 13.05.2015 whereby the Judicial Officers in the Province of Punjab those were earlier qualified to participate against the 40% reserved quota for the members of Bar for the vacancies of Additional District & Sessions Judge were excluded and relegated to their position prior to the notification dated 09.05.2014. Before the apex Court, the petitioners took the plea that in view of the amendment, vacancies were advertised and as per requirement of Rules some of them also obtained requisite-permission from Lahore High Court for their eligibility to participate in such examination but due to the impugned notification dated 13.05.2015 the process was scrapped and the subsequent advertisement dated 22.05.2015 debarred them from their participation in their selection process. The apex Court in Paragraph 11 of the judgment held as under:

“11. The bare reading of the original text of the Rules of 1994 dated 31.3.1994 shows the scheme of Policy Makers about the equitable distribution of such vacancies amongst the serving Senior Civil Judges and Civil Judges-cum-Magistrates in the Province of Punjab and the members of the Bar on basis of seniority-cum-fitness and direct recruitment respectively in the ratio already discussed above i.e. sixty percent and 40 percent. These rules before any amendment remained effectively in force for a period of more than 20 years to cater the need of District Judiciary for the purpose of appointment of Additional District & Sessions Judges. However, the competent authority having power to amend the rules vide notification dated 09.5.2014 amended it in the manner that the 60 percent reserved quota meant for promotion of serving Civil and Senior Civil Judges to the post of Additional District and Sessions Judges, on the criteria of seniority-cum-fitness remained intact, but the remaining 40 percent quota reserved for direct recruitment from the members of the Bar was disturbed in the manner that as per the qualification criteria provided under the amended rules, the serving Senior Civil Judges and Civil Judges-cum-Magistrates were also made eligible to apply for the post of Additional District & Sessions Judges through the process of direct recruitment, thereby encroaching upon the exclusive 40 percent share of members of the Bar in the process of filling up the vacancies of Additional District & Sessions Judge. Without commenting upon such amendment, we may say that probably the policy laid down by the competent authority for appointment of Additional District & Sessions Judges prima facie did not work effectively; failed to achieve the desired results and consequently through impugned notification dated 13.5.2015 the rules were again amended in order to dilute the effect of earlier notification dated 09.5.2014. With the result, the original position as provided under the Rules of 1994 was restored. None of the learned ASCs for the Petitioners has questioned the jurisdiction or competence of the authority which had issued the notification dated 13.5.2015, and rightly so as this notification was issued by the competent authority under the same statutory power, which had issued the earlier notification dated 09.05.2014, therefore, any challenge to the jurisdiction or competence of the authority to issue such notification would have entirely displaced the claim of the petitioners based on the notification dated 09.5.2014 ... The other important feature of the case which cannot be lost sight of is the fact that if any Senior Civil Judge and Civil Judge-cum-Magistrate is confident enough about his skills and qualification to hold the post of Additional District & Sessions Judge, but not willing to wait for his turn of promotion against the reserved quota of 60 percent meant for him on the principle of seniority-cum-fitness, then there is no hurdle in his way to avail the chance of direct appointment as Additional District & Sessions Judge against the 40 percent reserved quota for the members of the Bar, by tendering his resignation from the judicial post and getting himself again enrolled with the concerned Bar Council. All these facts go a long way to show that in fact the impugned notification is based on reasonable and rational classification and in no manner it is violative of any fundamental right or any other statutory provision.”

Note: The aforesaid judgment of Honourable Supreme Court explicitly demonstrates that the controversy moved around was altogether different. No issue relating to the date of amendment or signing of notification or its publication in the official gazette and or its effective date was involved so in our humble view it is distinguishable on all fours.

1. An exhaustive and all-embracing survey of judicial precedents quoted by the parties ensuing to the ratio and legal values as under:--

(i) Notification which purports to impair an existing or vested right or imposes a new liability cannot operate retrospectively.

(ii) Notification which curtails or extends rights will take effect from date of its publication in the Gazette and not from any prior date.

(iii) A notification which confers benefit cannot operate retrospectively does not seem to be correct proposition of law.

(iv) The word notification shall mean a notification published under proper Authority in the official Gazette.

(v) Notified order would mean notification through publication in official Gazette and not by passing an order and keeping same in office of department concerned.

(vi) When a state of things is to take place by publication of a notification which means from the date of its publication in the Gazette and not from any prior date. If it is prior to the date of the publication in the Gazette, it will tantamount to give a retrospective effect.

(vii) Issuance of a Notification is not of any significance or legal importance till it is published in an official Gazette.

(viii) Once the competent authority in the Government has taken a decision backed by law, it would not be in consonance with the well-established norms of judicial review to interfere in policy making domain of the executive authority.

(ix) Grounds upon which an administrative action is subject to control by judicial review, includes, illegality, which means the decision-maker must understand the law correctly that regulates his decision-making power and must give effect to it.

(x) If the Court decides a point of law which covers not only the case of the civil servant who litigated, but also of other civil servants, the dictates of justice demand that the benefit of the judgment be extended to other civil servants also who may not be parties to the litigation.

(xi) Even the plain reading of Article 199(5) leads to the conclusion that by excluding a High Court and Supreme Court from the definition of person, the framers of the Constitution envisaged judicial jurisdiction and not the extraneous administrative/executive/ consultative matters pertaining to the Establishment of Courts. [Ref. latest judgment of Apex Court in C.P.No. 03/2014].

(xii) The apex Court concluded that provisions of Article 199(5) would bar a writ against High Court if the issue is relatable to judicial order or judgment; whereas a writ may lie against an administrative/consultative/executive order passed by the Chief Justice or the Administration Committee, involving any violation of the Rules framed under Article 208, causing infringement of the fundamental rights of the citizen. [Ref. latest judgment of Apex Court in C.P.No. 03/2014].

1. We would like to discuss the case of Muhammad Siddque [1983 SCMR 785] separately for the reason that in this case on 30th July, 1975 a notification was issued by the Provincial Government prohibiting the establishment of any market within the market area. This notification was published in the official Gazette on 20th November, 1975. Apex Court held that under the relevant Section of Punjab Agricultural Produce Markets Act (V of 1939), it is clear that the condition of previous publication in the official Gazette was confined to bye-laws only and not to the rules or any notification issued thereunder. So it was held that the publication of notification was delayed until the 20th November, 1975 will not invalidate or otherwise make its operation retrospective from any date prior to the 30th July, 1975 when it was actually signed though not published in the official Gazette. If we apply this dictum in the case in hand and amendment is reckoned from the date of Notification i.e. 26.7.2016 and not from the date its publication in the Official Gazette, (i.e. 22.9.2016) even then, the petitioners were not debarred from participating in the competitive process in which last date to apply was 15.7.2016.

2. The Apex Court recently concluded that provisions of Article 199(5) would bar a writ against High Court if the issue is relatable to judicial order or judgment; whereas a writ may lie against an administrative, consultative and executive order involving any violation of the Rules framed under Article 208, causing infringement of the fundamental rights of a citizen. However, the issue in hand has already been dealt with in detail and the controversy involved here has otherwise nothing to do with the rigors and exactitudes of Article 199(5) of the Constitution as the matter is confined to the effective date of amendment and not to the powers of Full Court to suggest or proposed the amendment in the rules.

3. Though only eight petitioners have filed this petition but it was brought in our knowledge that some more similarly placed persons had also applied and their applications were rejected on the same ground therefore being fortified by the dictum laid down in case of Hameed Akhtar Niazi case (supra) in which apex Court held that if the Court decides a point of law which covers not only the case of the civil servant who litigated, but also of other civil servants, who may have not taken any legal proceedings; the dictates of justice and rule of good governance demand that the benefit of the above judgment be extended to other civil servants, who may not be parties to the above litigation instead of compelling them to approach the legal forum, therefore, in our short order we allowed all such candidates who applied to take part in the process before the cutoff date.

4. The learned Registrar alluded to a judicial precedent vis-a-vis well-established norms of judicial review to interfere in the policy making domain of the executive authority and grounds upon which an administrative action is subject to control by judicial review. Here no matter of any judicial review is involved nor are we going to disturb any policy decision.

5. The whys and wherefores lead us to a firm conclusion that the Notification dated 26th July 2016 published in the Official Gazette on 22.9.2016 cannot be given retrospective effect.) This petition was disposed of vide our short order dated 25.11.2016 in the following terms:--

(i) “Since the petitioners had applied before the cutoff date mentioned in the advertisement and till such time no amendment was notified creating any embargo against them being judicial officers hence they were eligible and qualified to join the competitive process and their applications were wrongly rejected.

(ii) The learned Registrar informed us that the selection process in response to the same advertisement in which the petitioners had applied is likely to be completed soon. The interviews of successful candidates appeared in the NTS and subsequent written test are being conducted to complete the selection process. In our considerate outlook at this stage there is no rational to scrap the entire process. However, with the concurrence of the Honourable Chief Justice and Honourable Members of Administration Committee (SHC), the learned Registrar shall arrange the prequalification test (NTS) and then written test of the petitioners and other

applicants who had submitted their applications in the same competitive process before the cutoff date but their applications were also rejected for the reason of being judicial officers. (Ref: Hameed Akhtar Niazi vs. Secretary Establishment Division Pakistan, reported in 1996 SCMR 1185).

(iii) The learned Registrar will also make a request to the honourable Chief Justice and honourable members of Administration Committee to withhold the result of interview for ongoing selection process till such time the competitive selection process of the petitioners and similarly placed candidates is completed so that the consolidated merit list of entire selection process may be issued by the learned competent Authority for the appointment of Additional District & Sessions Judges.

(iv) At this juncture, the learned Registrar submits that only those applications will be considered which were submitted through proper channel which means forwarded by the learned District and Sessions Judge of concerned candidate. Obviously this is the lookout of the learned Registrar to scrutinize the applications whether submitted through proper channel or not”.

Above are the reasons of our short order.

(R.A.) Petition disposed of

PLJ 2017 Karachi 24 (DB)

Present: Muhammad Ali Mazhar and Abdul Ghani Soomro, JJ.

AHMED NAWAZ JAGIRANI--Appellant

versus

SINDH INDUSTRIAL TRADING ESTATE LTD. (S.I.T.E.) through Managing Director--Respondent

H.C.A. No. 333 of 2015, decided on 9.9.2016.

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

----VII, R. 11--Rejection of plaint--Non-existence of cause of action--No other remedy except to file civil suit--Validity--Accrual of cause of action or suit is barred by law are two distinct attributes and characteristics--Non-existence of cause of action concomitantly means that suit is also barred by law--Court has to catch sight of component discretely as envisaged under Order 7 Rule 11 C.P.C--A suitor claiming relief was required to prove for obtaining judgment--Lack of proof or weakness of proof in case cannot furnish any justification for coming to conclusion that there is no cause of action shown in plaint. [P. ] A, B & C

SBLR 2010 Sindh 1680 & 2011 CLC 88 ref.

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

----O. VII, R. 11--Rejection of plaint--Cause of action--It is well settled exposition of law that for rejection of plaint, only averments made in plaint are to be looked into--Plaint amply demonstrates cause of action and relief claimed by appellant including damages cannot be considered barred by law. [P. ] D

Unlawful Actions--

----No statutory rules of service--Master and servant--A person who is covered under definition of workman, he may move to labour Court and or NIRC to seek redress of his grievance but a person employed in such an organization” which has no statutory rules of service or even in a statutory organization or institution having no statutory rules of service, he may file suit for his redress as obviously his relationship with his employer may be classified and categorized as of master and servant. [P. ] E

M/s. Malik Naeem Iqbal and Faizan Memon, Advocates for Appellant.

Mr. Samiullah Soomro, Advocate for Respondent.

Date of hearing: 9.9.2016.

Order

Muhammad Ali Mazhar, J.--This appeal has been brought to challenge an order passed by the learned Single Judge of this Court in Civil Suit No. 2127 of 2015 on 20.11.2015 by dint of which the plaint was rejected.

1. The brief facts of the case are that the appellant filed the suit against the respondent for declaration, injunction and damages with the following prayers:--

“(a) Declare that the office order dated 05.11.2015 illegally demoting the plaintiff is without lawful authority, void ab initio, of no legal effect and a nullity in the eyes of the law;

(b) Declare that the plaintiff was validly promoted from BS-19 to BS-20 on regular basis;

(c) Permanently restrain the defendant, its officer, agents or any of its instrumentalities, from demoting the plaintiff from BS-20 or from withholding any benefits accruing to him by virtue of his grade;

(d) Permanently restrain the defendant from appointing any person on the posts held by the plaintiff as of 05.11.2015;

(e) Grant damages of Rs. 50 million against the defendant for wrongful demotions along with such further sums as may be determined at the time of hearing/disposal”.

1. The learned counsel for the appellant argued that impugned order shows complete departure from the well settled proposition of law. The learned Single Judge erred while holding that the appellant is a civil servant. The Court miserably failed to differentiate between the phrases “Service of Pakistan”, “Public Servant” “Civil Servant” and “the employees of state owned Companies/Corporations”. The appellant was declared civil servant under some misconception of law. Mere control of the Government could not bring a company within the sphere of functions in relation to the affairs of Federation/Province and its status cannot be changed. No forum is provided to the employees of the Government controlled corporations except a remedy to file a civil suit as admittedly the relationship between the employer and employee is of master and servant. Learned Single Judge committed a serious irregularity while holding that the jurisdiction of the Court was barred under Article 212 of the Constitution of Pakistan, 1973. The Civil Servant Act, 1973 has no application over the case of the appellant who is an employee of a state owned company. He further argued that for rejecting the plaint only the contents of the plaint are to be looked into. The appellant had also claimed the damages besides other allowable relief(s) but the plaint was wrongly rejected by holding that the appellant had no cause of action and suit is barred by law. The Respondent establishment has no statutory rules of service hence they are not amenable to the writ jurisdiction nor their employees are civil servant. The appellant was left with no other remedy except to file a civil suit including the claim of damages against the wrong done to him.

2. The respondent filed the comments in which they have almost admitted contents of various paragraphs incorporated in the memo of appeal. The learned counsel for the respondent straightforwardly admitted that the relationship of appellant and respondent is of master and servant. The respondent has no statutory rules of service nor their employees are civil servant. He did not support the impugned order predominantly the findings that the employees of respondent are civil servants. The respondent with their reply also attached a copy of corrigendum dated 2.6.2016, which reads as under:--

“CORRIGENDUM

In partial modification of this office Order No. 10580, dated 05.11.2015, the name of Mr. Ahmed Nawaz Jagirani, appearing at Sr. No. 1, is hereby omitted and he is restored to his previous position as Deputy Managing Director (BS-20), S.I.T.E Limited, as it is evident from the office record that his case does not fall in the category of Out of Turn Promotion.

Sd/- (GHULAM MUJTABA JOYO) MANAGING DIRECTOR”

1. Heard the arguments. The accrual of cause of action or the suit is barred by law are two distinct attributes and characteristics. It is not necessarily meant that non-existence of cause of action concomitantly means that the suit is also barred by law. The Court has to catch sight of both the component discretely as envisaged under Order VII Rule 11 C.P.C. The expression cause of action means a bundle of facts which if traversed, a suitor claiming relief was required to prove for obtaining judgment. Nevertheless, it does not mean that even if one such fact, a constituent of cause of action was in existence the claim could succeed. The totality of facts must co-exist and if anything was wanting the claim would be incompetent. A part was included in whole but whole could never be equated to the part. It is also well understood that not only the party seeking relief should have a cause of action when the transaction or the alleged act was done but also at the time of the institution of the claim. A suitor was required to show that not only a right had been infringed in a manner to entitle him to a relief but also that when he approached the Court the right to seek relief was in existence. Cause of action means every fact which would be necessary for plaintiff to prove and it has no relation to the defence that may be setup nor does it depend upon the character of the relief prayed. No doubt still born suit should be buried at its inception to save the time of Court on a fruitless litigation but for the purposes of rejection of plaint, the material other than contents of the plaint may also be looked into. The averments contained in the plaint are presumed to be correct for the purposes of application under Order VII, Rule 11, CPC. Lack of proof or weakness of proof in the circumstances of case cannot furnish any justification for coming to the conclusion that there is no cause of action shown in the plaint. Reference can be made to the orders passed by one of us (Muhammad Ali Mazhar, J.) in the case of Badal & another v. Mansoor Ahmed Awan & others (SBLR 2010 Sindh 1680) and Mst. Bano alias Gul Bano & others v. Begum Dilshad Alam and others. (2011 CLC 88).

2. It is an admitted position that respondent (SITE) has no statutory rules of service but it is a Company limited by Guarantee which is clearly reflecting from its Memorandum and Articles of Association, (available at page-35 of the Court file). The learned counsel for the respondent fairly conceded to that the SITE has no statutory rules of service nor their employees are civil servants. The relationship between the employer and employees is of master and servant. He further argued that a corrigendum has been issued according to which the appellant has been restored to his previous position as Deputy Managing Director, SITE.

3. A scant view to the averments of the plaint unequivocally demonstrate that the appellant invoked the jurisdiction of this Court in a civil suit for challenging his demotion order being without lawful authority and he also sought declaration that he was validly promoted from BS-19 to BS-20 on regular basis. He also prayed for injunctive relief against the respondent not to demote him from BS-20 or withholding any benefits. In addition thereto, the appellant had also prayed for damages in the sum of Rs. 50 million against his wrongful demotion. At this moment, we cannot dispense with a significant element that the appellant was not a dismissed, terminated or retired employee but being in job, he considered some actions against him unlawful or some injustice was allegedly done to him therefore, he preferred to file the suit to save his promotion and question his demotion. It is well settled exposition of law that for the rejection of plaint, only the averments made in the plaint are to be looked into. We have no demur to hold that the plaint amply demonstrates the cause of action and relief claimed by the appellant including damages cannot be considered barred by law.

4. Being aggrieved against some unlawful actions, the civil servants after completing departmental formalities may move to the Services Tribunal likewise, a person who is covered under the definition of workman, he may move to Labour Court and or NIRC as the case may be to seek redress of his grievance but a person employed in such an organization which has no statutory rules of service or even in a statutory organization or institution having no statutory rules of service, he may file the suit for his redress as obviously his relationship with his employer may be classified and categorized as of master and servant. Reference may be given to the case of Sadiq Amin Rehman versus PIAC (2016 PLC 335) authored by one of us (Muhammad Ali Mazhar, J) in which the niceties and exactitudes of relationship of master and servant have been discussed in detail. In our considerate outlook, the impugned order is primarily rudiment by two judgments that is to say PLD 1975 Karachi 128 which was affirmed by the apex Court in its judgment reported in PLD 1985 SC 97. The Courts held that Government may discharge its functions through a corporation but corporation may still in substance operate as a department of Government. The apex Court against the judgment of this Court granted leave to appeal to examine whether profits of a company were to be regarded as income of Provincial Government and thus exempt from tax under provisions of Constitution. In nutshell the aforesaid controversy was only confined to the issue of exemption from Federal Taxation in which the point of view of respondent (SITE) was approved but both the judgments referred to above did not declare that employees of SITE Limited are Civil Servants so that they may invoke the jurisdiction of Services Tribunal to safeguard and protect the infringement and transgression of their terms and conditions of service. At this juncture, we would like to annotate that if the view expressed in the impugned order is endorsed then the employees of PIA and other Government owned organizations incorporated under the Companies Ordinance may also be regarded as civil servants which in our considered viewpoint would not be correct exposition and elucidation of law and this will also create multiplicity of proceedings.

5. As a result of above discussion, the impugned order is set aside and this is a fit case to remand the matter back to its original position. Since the appellant has been restored to his previous position as Deputy Managing Director (BS-20) in view of the corrigendum dated 2.6.2016, therefore, both the learned counsel agreed that this High Court appeal may be disposed of in terms of aforesaid corrigendum and for the reason that the controversy has been resolved between the parties congenially thus no useful purpose would be served to proceed the suit on merits before the learned single judge. The appeal is disposed of along with pending applications accordingly.

(R.A.) Appeal disposed of

PLJ 2017 Karachi 30 (DB)

Present: Muhammad Ali Mazhar and Abdul Maalik Gaddi, JJ.

AYAZ AHMED MEMON--Petitioner

versus

PAKISTAN RAILWAYS, MINISTRY OF RAILWAYS ISLAMABAD through Chairman and others--Respondents

C.P. No. D-4546 of 2012, decided on 18.10.2016.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Non regularization of service amounts to exploitation on part of departmental authority--Contract employment--Legitimate right and expectation to be regularized--Validity--On contrary continued extension of contract by Pakistan Railways is nothing but a sword of damocles that can be used as tool or weapon to determine contract at their whims or leisure without due process of law at any time--To enjoy protection of law and to be treated in accordance with law is inalienable right of every citizen--Where a post was of a permanent nature, same had to be filled in through permanent appointment--Petitioners, who had been satisfactorily working on permanent posts for past more than three years on contract basis were directed to be absorbed in service first. [Pp. 34 & 35] A & B

Petitioner appeared in person.

Syed Samiullah Shah, Advocate for Respondents No. 1 to 4.

Non-present for Respondents No. 5 to 9.

Sheikh Liaquat Hussain, Standing Counsel.

Date of hearing: 18.10.2016.

Order

Muhammad Ali Mazhar, J.--This petition has been brought to achieve directions against the Respondent No. 1 to 4 to regularize the services of the petitioner.

1. The ephemeral of the case are that the petitioner was appointed vide Employment Contract dated 03.4.2004 to the post of Assistant Programmer (BPS-16) in the office of Divisional Superintendent, Karachi. Despite lapse of considerable period he was not regularized therefore he filed Constitutional Petition No. D-983 of 2007 on the premise that the span of his contractual engagement unequivocally shows that he has been appointed against a permanent post and non-regularization of his service amounts to exploitation on the part of the departmental authority to keep a permanent post vacant and continue to employee on contract basis. The earlier petition of the same Petitioner (C.P.No. D-983 of 2007) was disposed of vide judgment dated 14.10.2010 and for the case of reference, Paragraph 9 and 10 of the judgment are reproduced as under:

“9. It is one of the most nefarious kinds of exploitation that a person is recruited on contract for a post of permanent nature and is continued as such from year to year keeping that person on the tenterhooks of uncertainty with the sword of termination of contract permanently hanging over his head by nothing but the most fragile thread of one knotted eyebrow of a superior. Such a situation cannot be, and indeed should not be allowed to be countenanced.”

1. Thus it appeared that the post is permanent in nature; there are no rules making it a post to be filled through promotion and the petitioner has worked on the post, though on contract basis, for a number of years. Being conscious of the fact that this Court cannot assume to itself jurisdiction of Selection Authority as that role must be left to the departmental authorities to perform, we direct the Respondent No. 2 to, within a period of two months, assess the suitability of petitioner for permanent absorption on the post and thereafter take action in accordance with the law and submit report to this Court. This Constitution Petition is disposed of in the above terms. Listed application is also disposed of.”

(The judgment is reported in 2011 PLC (C.S) 281)

1. The petitioner argued in person that he applied for the post of Assistant Programmer through proper channel and was initially appointed on contract basis for 02 years. Consequent upon his appointment, the petitioner was relieved by the learned District Judge, Hyderabad through office Order No. 36 dated 22.4.2004 subject to lien of the petitioner to be maintained for two years. After relieving from his parent department, the petitioner joined Respondent No. 1. He successfully completed his two years contract and throughout his incumbency no chance of complaint was given to the respondents. After completion of contract, the petitioner was not relieved but verbally directed to continue his job. Subsequently he was directed to perform his duties through a letter dated 02.10.2006 which was followed by another letter dated 01.11.2006. The petitioner was given an understanding that the cases of contractual staff working in IT Department of Pakistan Railways have been strongly recommended to the Ministry of Railways as such the said staff was directed to continue their job till the decision is arrived. Since the petitioner was not relieved by the respondents therefore he applied for extension of his lien to the learned District Judge, Hyderabad but the same was declined and since then he is no more employee of the District Court, Hyderabad and he lost his permanent employment. He further argued that after rendering services for a considerable period of time, he has a legitimate right and expectation to be regularized but the respondents are avoiding regularization on different pretexts.

2. The learned counsel for the Respondent No. 1 to 4 argued that no assurance for permanent absorption was given to the appellant. The contractual employment is valid only for the time frame stipulated therein. The contractual appointment cannot be converted into permanent employment without completing the formalities and approval of the competent authority. Working on permanent post does not accrue right to consider a contract employee as permanent. He further argued that the post of assistant programmer (BS-16) is a permanent post but the petitioner was appointed on contract basis hence he cannot be regularized on the basis of his qualification unless codal formalities are complied with in respect of his regularization.

3. Heard the arguments. It is distinctively emerging from the record that in the earlier petition, the Respondent No. 2 was directed to consider and assess the suitability of the Petitioner for his permanent absorption within two months and submit the report to this Court. Seemingly this order was not complied with therefore the petitioner filed this fresh petition rather than putting forward a contempt application in his earlier petition for implementation of order in its true perspective.

4. In this ensuing petition too, his prayer is identical. Petitioner has also pointed out Page 97, which is an Office Memorandum conveyed by the Deputy Director, Admn.II, Pakistan Railways, Government of Pakistan in the year 2010 to the Establishment Division with reference to the minutes of meeting of Cabinet Sub-Committee of Regularization of Contract/Daily Wages Employees in the Ministries/Divisions/Attach Departments/ Autonomous Bodies/Organizations etc. and since the Petitioner is performing his duties in the Information and Technology Department, therefore, at Serial No. 7 his name was also mentioned with designation as Assistant Programmer (BS-16). In the concluding paragraph of this letter, request was made to the Establishment Division to convey approval of the Sub-Committee of the Cabinet for regularization of the services of employees mentioned in the letter.

5. The learned counsel for the Respondent No. 1 to 4 could not controvert the judgment passed by this Court. No rational or any other lucid reason was shown for non-compliance of the earlier order, however, learned counsel for Respondents referred to a letter of Deputy Director sent to the Secretary, Federal Public Service Commission on 25.5.2016 with reference to the present Petition. In the concluding paragraph of this letter request was made to the Federal Public Service Commission to examine the recommendations of the Sub-Committee of the Cabinet in respect of officers on contract basis and tender advice regarding the regularization of the Petitioner.

6. Since in the earlier round, this Court has already passed the order and held that for last considerable period of time the petitioner is performing his duties against a permanent post and also issued directions for regularization and absorption. Not only this, the Railway Department had itself engaged in the communication with the Secretary Establishment for regularization of various employees mentioned in the letter. So far as the Federal Public Service Commission is concerned, this is not the case of initial appointment, but the regularization is to be based in terms of the order passed by this Court and minutes of meeting of Cabinet Sub-Committee of Regularization of Contract/Daily Wages Employees in the Ministries / Divisions / Attach Departments / Autonomous Bodies/Organizations hence there was no justification to seek advice of the Federal Public Service Commission after passing order by this Court in Constitutional Petition No. D-983 of 2007, which was not challenged in the apex Court and so the matter attained finality.

7. No doubt that the petitioner is continuously performing his duties since 2004 but on contract basis against a permanent post which fact has not been denied by the official respondents. It is worst kind of exploitation to retain an employee on contract against a permanent post for such a considerable time. It is also obvious that the management has no issue against his performance or working otherwise there was no rational or logic to extend period of contract from time to time since 2004. After performing duties for sixteen years what due process is expected at this stage. On the contrary the continued extension of contract by the respondents is nothing but a sword of Damocles that can be used as tool or weapon to determine the contract at their whims or leisure without due process of law at any time. To enjoy the protection of law and to be treated in accordance with law is inalienable right of every citizen. Reading of Article 4 of the Constitution of Islamic Republic of Pakistan shows that it incorporates the doctrine of equality before law or equal protection of law and no action detrimental to the life, liberty, body, reputation or property of any person can be taken except in accordance with law. Public functionaries are supposed to function in good faith honestly and within the precincts of his power so that person concerned should be treated in accordance with law. Article 3 of the Constitution makes its incumbent upon the state to ensure elimination of all forms of exploitation. Reference can be made to the judgment authored by one of us (Muhammad Ali Mazhar-J) which is reported in 2013 PLC (C.S) 121 (Muhammad Akram Solangi & others v. D.C.O. Khairpur & others). The Honourable Supreme Court in the case of Ikram Bari, reported in 2005 SCMR 100 held that Islamic welfare state is under obligation to establish a society, which is free from exploitation wherein social and economic justice is guaranteed to its citizens. Objectives Resolution by virtue of Art.2-A of the Constitution, has been made substantive part of the Constitution which unequivocally enjoined that in State of Pakistan the principles of equality, social and economic justice as enunciated by Islam would be fully observed which would be guaranteed as fundamental rights. Principles of policy contained in Article 38 of the Constitution also provide that the State should secure the well-being of the people by raising their standards of living and by ensuring equitable adjustment of rights between employer and employees and provide for all citizens, within the available resources of the Country, facilities for work and adequate livelihood and reduce disparity in income and earnings of individuals. State is obliged under Article 3 of the Constitution, to ensure the elimination of all forms of exploitation and gradual fulfilment of the fundamental principle from each according to his ability, to each according to his work.

8. In the case of Ejaz Akbar Kasi v. Ministry of Information and Broadcasting. (2011 PLC (C.S.) 367) The petitioners pleaded that they are serving PTV in different positions on contract basis and successfully completed period of more than ten years. The apex Court in this case held that “we are of the opinion that the Board of Directors may have not declined the petitioners’ regularization, however, it is a fact that regularization of contract employees, if at all is to be made is to depend upon the performance. The petitioners who have appeared in person state that they have qualified the test and their performance as well is up to mark which is evident that for the last more than ten years they have been allowed to continue work against the vacancies which they are holding without any interference and there is, now, no question of performance at all as they have already shown their performance”. In the case of Chairman, Pakistan Railways vs. Arif Hussain and others, (2008 PLC (C.S.) 240), the apex held that posts against which respondents were appointed and had been continuously performing their duties as temporary labour on yearly basis were permanent. Respondents having rendered continuous service for considerable period are entitled to claim regularization of their services. In the case of Hakim Ali Ujjan v. Province of Sindh (2012 PLC (C.S.) 127), the Court held that petitioners were employed on contract basis in the year 2007 on vacancies which were of permanent nature. Where a post was of a permanent nature, the same had to be filled in through permanent appointment. The petitioners, who had been satisfactorily working on permanent posts for the past more than three years on contract basis were directed to be absorbed in service first.

9. As a result of above discussion, this petition is admitted to regular hearing and disposed of with the directions to the Respondent No. 1 to 4 to Issue Notification of petitioner’s regularization in service within fifteen days and submit compliance report through MIT-II of this Court.

(R.A.) Petition accepted

PLJ 2017 Karachi 36

Present: Muhammad Saleem Jessar, J.

DAWOOD BALOCH--Petitioner

versus

MUHAMMAD SALEEM and 2 others--Respondents

Const. Petition No. S-1250 and C.M.A. No. 5460 of 2016, decided on 23.12.2016.

Cantonments Rent Restriction Act, 1963 (XI of 1963)--

----S. 24--Civil Procedure Code, (V of 1908), O. XLVII, R. 1 & S. 151--Appeal--Remedy of appeal against an order of controller but it does not include “an interim order” which (interim) is normally passed on interlocutory application. [Pp. 41 & 42] A & B

Cantonments Rent Restriction Act, 1963 (XI of 1963)--

----S. 24(w)--Appeal--No order of controller or appellate Court shall be called in any Court by suit, appeal or other legal proceedings--Constitutional petition will stand included in term “Legal Proceeding”--Interim order passed under Cantonments Rent Restriction Act, cannot be challenged in a constitutional petition.

[Pp. 42, 43 & 44] C, D & F

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

----O. XXXIX, Rr. 1 & 2--Rent proceedings before a controller is an independent proceedings which are controlled by special law while proceedings before a Civil Court is altogether different from that (rent proceedings) hence filing of civil suit before or after rent proceedings shall not prejudice competence of such independent legal forums--Civil Court legally cannot pass an order staying the judicial proceedings pending before Rent Controller. [Pp. 43 & 44] E

Mr. Muhammad Saleem, Advocate for Petitioner.

None present for Respondent No. 1.

Mr. Samsam Ali Khan Raza, Advocate for Respondent No. 2.

Date of hearing: 23.12.2016.

Order

Through instant petition the petitioner (tenant), has assailed the order dated 28.12.2015 and 20.06.2016 passed by learned Controller of Rents Clifton Cantonment Karachi (hereinafter to be referred as the Contoller of Rents) in Rent Case No. 32/2013 re “Moosa Habib (Respondent No. 2) vs. Dawood Baloch (the petitioner) whereby learned Controller of Rents has declined his respective application(s), moved u/S. 151, CPC and review application U/o 47 rule 1, CPC.

1. Per case of petitioner, the petitioner entered into rent agreement-dated 20.01.2012 with Respondent No. 1 (son of the Respondent No. 2) for the property/premises bearing Flat No. -B 1st Floor, Building No. 1-C, Zamzama Commercial Lane No. 3, D.H.A. Karachi (hereinafter to be referred as rented primises). Photostat copy of tenancy agreement dated 20.01.2012 executed by the petitioner and the Respondent No. 1 through Respondent No. 2 as Annexure “A” available at page 19 of the petition. The said agreement was executed for 11 months commenced from 25.01.2012 to 30.11.2012 at the rate of Rs. 35000/- per month and shall be increased at 10% on prevailing rent and the rent agreement will be renewed with mutual consent of either party. As per terms and conditions of the agreement, the tenant shall pay Rs. 3,15,000/- (Three Lac, fifteen thousands) to the owner/landlord at the time of signing Tenancy Agreement out of which Rs. 2,10,000/- would be the advance rent for six months and Rs. 1,05,000/ shall be the three months advance rent as security deposit which was refundable at the time of vacating the premises after deducting of all outstanding dues.

2. The petitioner after occupying the rented premises paid rent to the landlord/Respondent No. 2 upto June, 2012 and thereafter the cheques, issued by the petitioner /tenant, were bounced. The five cheques dated 20.07.2012, 20.08.2012, 20.09.2012, 20.10.2012, 20.11.2012, issued by the petitioner stood bounced and therefore, Respondent No. 2 issued legal notices to the petitioner on 22.11.2012 and 20.03.2013 asking the petitioner to vacate the rented premises but the petitioner flately refused. The rent agreement executed by the petitioner and Respondent No. 2 had also expired on 19.12.2012 but the same had not been renewed nor the petitioner has vacated the premises.

3. Facing the above situation, the Respondent No. 2 had filed Rent Case No. 32/2013 before Controller of Rents, U/S. 17 of the Cantonment Rent Restriction Act, 1963 seeking vacation of the rented premises on two grounds i.e. default in payment of rent and personal bonafide use with following prayers;

(a) It is respectfully prayed on behalf on behalf of the above named applicant that this Honourable Court (Controller) may kindly be pleased to pass the ejectment Order against the opponent (petitioner), his agent or any other person claiming or in occupation on his behalf to vacate and deliver the vacant and peaceful possession of Flat No. B 1st Floor, Building No. 16-C Zamzama Commercial Lane No. 3, D.H.A. Karachi to the applicant with costs.

1. The record further reflects that after admission of the application, notices were issued to the opponent/petitioner who however instead of filing objections filed F.C. Suit No. 915/2013 before the Court of 1st Senior Civil Judge, Karachi (South) for specific performance of contract against Respondent No. 1 (who is son of the Respondent No. 2 and is not owner of the retried premises) with reference to some sale agreement but in such civil suit the petitioner / opponent has not arrayed the Respondent No. 2 as one of the parties who (Respondent No. 2) otherwise is landlord and owner of the rented premises. The petitioner/opponent in such civil suit inter alia prayed as under:--

(a) To declare that the plaintiff having bona-fide purchaser of the suit property viz. Flat No. B, 1st Floor, Building 16-C, Zam Zama Commerical Line No. 5, DHA, Karachi, admeasuring 1200 Sq. Yds from the defendant under the sale agreement dated 28.02.2013;

(b) To direct the defendant to execute sale-deed in favour of the plaintiff after receiving the balance sale consideration failure which the nazir of this Hon’ble Court direct to execute the sale-deed in favour of the plaintiff;

(c) Pass the restraining order whereby direct the defendant to not dispossess the plaintiff from the suit property without due course of law;

(d) Cost of the suit;

(e) Any other relief and relieves, which this Hon’ble Court may deemed fit and proper in the circumstances of the case.

1. Since prima facie the Respondent No. 2 is not made as one of the parties in the civil Suit No. 915/2013 but only Respondent No. 1 was made party who was/is out of country. The Court of Senior Civil Judge, on non-appearance of Respondent No. 1 despite issuance of process, treated him (Respondent No. 1) as exparte and passed permanent status quo ordervide order dated 07.05.2014. The learned Civil Court without applying its judicious mind directed the Respondent No. 1 (in his absence) not to create third party interest.

2. The petitioner, having obtained status quo order, filed an application U/S. 151, CPC before the Controller of Rents praying therein that rent proceedings be stopped as the petitioner had filed civil suit No. 915/2013 before learned 1st Senior Civil Judge Karachi South against the rented premises; as after execution of alleged sale agreement by Respondent No. 1, the relationship between petitioner and Respondent No. 1 as that of ‘tenant’ had seized. The said application was however declained by Controller of Rents in terms of impugned order dated 28.12.2015. Later instead of challenging the said order, the petitioner moved review application U/O, XLVII Rule 1, CPC before the Rent Controller which too was dismissed by second impugned order dated 20.06.2016. Hence this petition.

3. Since no notice was issued to respondents yet the Respondent No. 2 put himself in appearance through his counsel on 24.10.2016 and sought time to file parawise comments/ objections in rebuttal of the petition. Consequently the matter was fixed before the Court on 23.11.2016 as to the maintainability of the petition.

4. The counsel for the petitioner has mainly argued that after execution of tenancy agreement, the Respondent No. 1 had sold out the rented premises to the petitioner in the sum of Rs. 80,00,000/- (Eighty Lacs only) by executing Sale Agreement dated on 28.02.2013 his (petitioner’s) status stood changed from ‘tenant’ to ‘bonafide purchaser’ particularly with reference to second condition/para of the sale agreement hence rent proceedings were illegal nor he (petitioner) can be ejected through such proceedings.

5. On the other hand, counsel for Respondent No. 2 argued that the petitioner has not come with clean hands as he, being defaulter, has no right to retain the demised premises. Per his contention, the rent proceedings cannot be stopped and the status quo obtained by the petitioner is also an exparte order as the petitioner willfully and intentionally has not made the Respondent No. 2 as a party, who in fact is real owner and landlord of the property in dispute but has made the Respondent No. 1 as defendant in the suit, who is neither owner nor was competent to sell out the rented premises as property mutated in the name of Respondent No. 2. He further submitted that the learned Controller of Rents has directed the petitioner /tenant/ opponent in rented proceedings in terms of his order dated 23.10.2016 that petitioner should deposit Rs. 15,40,000/- being rent amount at the rate of Rs. 35,000/- per month from March 2013 to October, 2016 upto 21.11.2016. He further contended that Cantonment Rent Restriction Act, 1963 is an special law therefore, application u/S. 151, CPC, being not maintainable, was rightly rejected by the Controller of Rents. He finally submitted that petition being frivolous may be dismissed with throughout costs.

6. I have heard the arguments of either party.

7. Before examining the respective contentions of the learned counsel and the impugned order(s) in this constitutional petition, I would like to examine the question of its maintainability against the findings of the Controller of Rents whereby the application u/S. 151, CPC r/w Order XLVII Rule 1, CPC, filed by the petitioner, have been dismissed on the ground that the relationship as tenant and landlord has been admitted by the petitioner in para 5 of his written statement, therefore, I have framed following proposition(s):--

(i) Whether petition in hand is maintainable against the interlocutory/interim order passed by Controller of Rent?

(ii) Whether provision of Section 151, CPC is applicable in Rent Laws?

(iii) Whether judicial proceedings, pending before Rent Controller, can be stayed on the basis of interlocutory order passed u/Order XXXIX Rules 1 & 2, CPC by a Civil Court?

To respond the first provision, it will be essential to refer relevant provisions of Cantonment Rent Restriction Act, 1963. Section 5 thereof reads as under:

“5. Act to override other laws:--The provisions of this Act and any rule or order made thereunder shall have effect notwithstanding any thing inconsistent therewith contained in any other law for the time being in force, or any instrument or document.”

The above provision is clear in its language whereby the Act has been given over-riding effect upon any thing inconsistent ‘in any other law for the time being in force’, therefore, it should need no much debate that proceedings under this Act shall require to be given due meaning and weight without much making any scholar attempt upon ‘words’. A reference to case of Mumtaz Hussain v. Nasir Khan (2010 SCMR 1254) can well be made wherein it is held that:

“9. Legislature intents can always be gathered either from the express language of the statute or by necessary implications. If the words of the Statute are themselves clear and unambiguous , no more is necessary to expound those words in their natural and ordinary sense, the words themselves in such a case best declare the intentions of legislature.

1. It is cardinal rule of interpretation that objects made Reasons of a Statute is to be looked into as an extrinsic aid to find out legislative intent only when the meaning of the Statute by its ordinary language is obscure or ambiguous. But if the words used in a statue are clear and unambiguous then the Statute itself declares the intention of the Legislature and in such a case it would not be permissible for a Court to interpret the statute by examining the object and reasons for the Statute question.”

Thus, it can safely concluded that whenever a question with regard to the Act comes or is raised first thing shall be to refer the Act itself to see whether the Act itself provides an answer to such question or otherwise.

Since, first proposition revolves with regard to competency of Constitutional Jurisdiction of this Court against an interlocutory order therefore, it would be appropriate to first go through the Act itself as to what it (Act) provides for ‘interlocutory order’. A touch to the Act in search of above, took me to Section 24 of the Act which reads as:

“24. Appeal.--(1) Any party aggrieved by an order, not being an interim order, made by the Controller may, within thirty days of such order, prefer an appeal to the high Court.

(2) The High Court may, pending the final disposal of the appeal, make an order staying further proceedings or action on the order of the Controller:

Provided that no such order shall be made if the appeal has been preferred from an order made under sub-section (6) of Section 17A.

(3) The High Court shall, after perusing the record of the case and giving the parties an opportunity of being heard and, if necessary, after making such further enquiry either by itself or by the Controller as it may deem fit, make an appropriate order which shall be final.

(4) No order of the Controller except by an appeal under this section and no order of the Appellate Court made under this Act shall be called in question in any Court by any suit, appeal or other legal proceedings.”

From above, it is quite evident that the Act has provided remedy of an appeal against an order of Controller but it does not include ‘an interim order’ which (interim) is normally passed on interlocutory application(s). The sub-section (4) of Section 24 of the Act further makes it clear that no order of Controller or appellate Court shall be called in question in any Court by suit, appeal other legal proceedings. I have no hesitation in saying that a constitutional petition will stand included in term ‘legal proceedings’ hence I shall answer the proposition-1 as ‘negative’ while placing reliance on the case of Iqbal Ahmed vs. Muhammad Nasir & another(2016 MLD 624 (Sindh)) too, whereby the Bench of this Court had dismissed the petition treating it as not maintainable. The relevant para 8 from the case of Iqbal Ahmed (supra) reads as under:--

“A perusal of the above provisons of law clearly indicates that the legislature has specifically prohibited filing of an appeal against interim order. Thus, I am of the view that the legislature did not intend to make the interim order challengeable. Interim order is to merge in the final verdict which shall be appealable and going against that arrangement by exercising writ jurisdiction would not be proper because in that case the object of legislature: shall be frustrated. This dictum is laid down in the case of Mrs. Syeda Tahira Mubashar (supra) and Abdul Farooq and another v. Maqsood Ahmed and another, reported as 2015 CLC 663.

1. Now, I would take up the second proposition. Before saying any thing further I without having any hesitation will say that departure from normal procedure shall always be permitted only if it is required to ‘meet ends of justice’ or to ‘prevent abuse of the process of the Court’ even if it is not provided in procedural law because the procedural law is always meant to ‘meet ends of justice’. However since proposition is with specific reference to Section 151, CPC therefore, I, without any prejudice to above, would say that since the Act does provide procedure to control proceedings hence the Section 151, CPC shall have no applicability in proceedings, being conducted under this Act particularly when per settled law ‘special law excludes application of general, law in the contest in which the former provision has been enacted. Reliance is placed on the case law, reported as 2012 SCMR 669.

2. While attending the proposition-3, it woule be relevant and proper to have a direct reference to Section 56 of Specific Relief Act, 1877, having direct nexus with the proposition under discussion. Same reads as under;--

“56. Injunction when refused.--An injunction cannot be granted:

(a) to stay a judicial proceeding pending at the institution of the suit which the injunction is sought, unless such restraint is necessary to prevent a multiplicity of proceedings;

(b) to stay proceedings in a Court not subordinate to that from which the injunction is sought;

(c) to restraint persons from applying to any legislative body;

(d) ……

(e) ……

(f) ……

(g) ……

(h) ……

(i) ……

(j) ……

(k) ……

From reading of the above, it is quite obvious that proviso is not permitting one but has been worded thereby restricting the Courts from staying a judicial proceeding. However, since Administration of justice shall fail if one is allowed to abuse process of law therefore, an injunction can well be granted by Court thereby ‘staying a judicial proceeding, pending at the institution of the suit, but only if two, condition (s) co-exists i.e.:

(i) such restrain is necessary to ‘prevent a multiplicity of proceedings’;

(ii) and the proceeding, pending at institution of such suit, must before a subordinate forum;

In short, such stay should not be to prejudice lawful proceedings pending before a lawful forum but must be with an object to ‘prevent multiplicity of proceedings’. Further, the forum where proceedings are pending must be ‘subordinate’ to the Court granting such stay.

1. Now, on said touch-stone I would proceed to answer the proposition. Since, there can be no denial to the legal position (s) that rent proceedings before a Controller’ is an independent proceedings which are controlled by the Special Law while the proceedings before a Civil Court is altogether different from that (rent proceedings) hence filing of the ‘Civil Suit’ before or after rent proceedings shall not prejudice competence of such independent legal forums’. Further, the ‘Rent Controller’, in law, is not subordinate to a Civil Court hence the Civil Court legally cannot pass an order of staying the judicial proceedings pending before the Rent Controller. The proposition is answered in negation.

Having answered the proposition, I would say that the present petitioner in civil suit had sought an injunction thereby seeking a restraining order to the effect that:

‘..direct the defendant (Respondent No. 1) to not dispossess the plaintiff from the suit property without due course of law’

which even was referred in the impugned order which for ease and clarity is reproduced hereunder:--

“By this order I will dispose of application under Order XXXIX Rules 1 & 2 read with Section 151, CPC alongwith affidavit filed by the advocate for the plaintiff on 3-10-2013 it was noticed by the link judge on the same date. The plaintiff requested for interim relief against the defendant from disturbing the peaceful possession of the plaintiff over the suit property and not to create third party interest except in due process of law till final disposal of the main suit.

To this the defendant failed to file the counter affidavit and he was debarred from filing the same on 19.3.2014 since then the plaintiff has argued his application several time but the defendant has failed to appear to argue the same. Since the suit is for specific performance of contract. Therefore the application of the plaintiff is hereby allowed. The defendant is directed to not to create third party interest in the suit property till pending disposal of the suit.

Order accordingly.

Sd/

Dr. Shahbana Waheed 1st Senior Civil Judge Karachi South 07.05.2014.

1. Thus, it is evident that even the petitioner himself never sought an injunction to prejudice his lawful eviction. Since, the rent proceedings before the Controller for eviction of the petitioner cannot be said to be ‘without due course of law or illegal’ hence even such stay was never of any help for the petitioner to seek stay of proceedings. Not only, this but it is also a matter of record that the petitioner never bothered to bring the true fact (s) before the Civil Court that he is seeking injunction for a purpose to defeat or delay a ‘specific lawful proceedings’ pending before a ‘lawful forum’ hence on this count too the petitioner cannot use or exploit the injunction order for the purpose which was never brought to light while seeking injunction. Further, the property in question is in name of the Respondent No. 2 while the civil suit was filed against the Respondent No. 1 (son of Respondent No. 2) hence in law an injunction obtained against a person cannot be used or exploited against an independent person particularly he (independent person) is not directly or indirectly claims under such person against whom injunction is obtained. On this count too the request of the petitioner, made before Controller, was not competent. Since, I am quite conscious that any comments on status of sale agreement may prejudice the pending proceedings, therefore, I deliberately avoid to make any comments onto competence of subsequent sale agreement from an incompetent person i.e Respondent No. 1.as the property in dispute is mutated in the name of his father viz. the Respondent No. 2.

Even otherwise, if the petitioner has a case, as alleged by him in the petition, even then he is required to pay entire default amount on account of rent to the landlord or may deposit the same before the Controller of Rents and question of title in terms of alleged sale agreement for specific performance of contract, he has to resort the same separately without exerting any pressure upon the Controller of Rents. This issue has been defined by the Honourable Supreme Court of Pakistan in case of Muhammad Nisar vs. Izhar Ahmed Shaikh & others reported as PLD 2014 SC 347. The relevant concluding para 6 of said Judgment is as under:--

1. It would be seem that in the Affidavit in evidence filed by the appellant before the learned Rent Controller, the father of the appellant viz. Nabi Bux was stated to be the tenant of the father of Respondent No. 1. In para 8 therefore it has been particularly averred that after the demise of Nabi bux the premises were in the possession of his family members other than the appellant when it was purchased by him. In our opinion such averment cannot displace the law itself since per Section 2(j) of the Sindh Rented Premises Ordinance, 1979 each legal heir of the tenant after his demise becomes a tenant and consequently the learned lower forums below have correctly held that there was a relationship of landlord and tenant between the parties. Per settled law in such circumstances when the tenant puts up a plea in an ejectment application that he had purchased the property then he has to file a suit for his remedies (which has already been done) and vacate the premises and thereafter if he

succeeds he would be entitled to take possession of the premises again. In this regard reference can be made to the cases cited at the bar by the learned Advocate Supreme Court appearing for the respondents. (Shamim Akhter vs. Muhammad Rashid PLD 1989 SC 575, Mst. Azeeman Nisar Begum vs. Mst: Rabia Bibi PLD 1991 SC 242, Muhammad Rafique vs. Messers Habib Bank Ltd. 1994 SCMR 1012 and Mst. Bore Bibi vs. Abdul Qadir 1996 SCMR 877)

In view of above legal position as well as citations (supra), instant petition is not maintainable which accordingly is dismissed in limine. The learned Controller of Rents is directed to decide the rent case in terms of Section 17 of the Act, 1963 within a period of two months. Perusal of impugned order shows that the petitioner/opponent / tenant has filed his written statement therefore, if the trial Court has not passed any appropriate order in terms of Section 17(8) of the Act, 1963 then shall pass such an order within a week but as strictly as per law.

(R.A.) Petition dismissed

PLJ 2017 Karachi 46

Present: Muhammad Shafi Siddiqui, J.

JUBILEE LIFE INSURANCE CO., LTD.--Plaintiff

versus

UNITED INSURANCE COMPANY OF PAKISTAN LTD. through Managing Director and others--Defendant

Suit No. 516 and C.M.A. No. 5248 of 2015, heard on 22.4.2015.

Trade Marks Ordinance, 2001--

----S. 39--A person shall infringe a registered trademark if person uses in course of a trade a mark, which is identical with, or deceptively similar to, trademark in relation to services of same description as that of service in respect of which a tradesmark is registered--Service, which is being dealt with by both parties whether is of same description parties or otherwise to attract provisions. [P. 49] A

Trade Marks Ordinance, 2001--

----S. 10--No reason plausible at law as to when they have chosen an invented word of plaintiff, which has gained popularity, which is not denied by company--Adoption of trademark, which is phonetically and visually similar and there is likelihood that it would create confusion and deception to customers of such class.

[P. 50] B

Mr. Kazim Raza Abbasi, Advocate for Plaintiff.

Mr. Zeeshan Abdullah, Advocate for Defendant.

Date of hearing: 22.4.2015.

Order

This suit has been filed by the plaintiff for permanent injunction against the defendants on account of infringement of trademark/service mark “Amaan Plan”.

Brief facts of the plaintiff’s case as contended are that they are insurance company incorporated on 29.6.1995 and was renamed as New Jubilee Life Insurance Company Limited in October 2004. Learned Counsel for the plaintiff submitted that in order to distinguish its high quality insurance services from other insurance companies they have adopted and coined number of distinctive service marks including the service mark “Amaan Plan” which are protected under the trademark laws in Pakistan. Such mark was registered on 24.7.2014 having Registration No. 338428 in class 36 for the services which include insurance, financial affairs, monetary affairs and real estate, affairs. It is contended that such service mark was adopted in the year 2007 for the insurance policies which were issued to different individuals which are available as annexure-G onwards. It is contended that with the passage of time such service mark has gained popularity and the number of policies were issued since 2007 and business gained momentum since then. The plaintiff has provided a chart to demonstrate the number of policies issued on the yearly basis which is reproduced as under:--

| | | | --- | --- | | YEAR | NUMBER OF POLICIES | | 2007 | 147 | | 2008 | 3326 | | 2009 | 7000 | | 2010 | 9345 | | 2011 | 18718 | | 2012 | 30800 | | 2013 | 39956 | | 2014 | 28201 |

Learned Counsel submitted that by virtue of continuous and extensive use the service mark has earned reputation and goodwill. He contended that by virtue of prior adoption and continuous use of the mark since 2007 the plaintiff has presented himself as bonafide proprietor and owner of the service mark. He further added that by virtue of advertisement flyers, telemarketing, brochures on internet, electronic media and print media throughout Pakistan it has become popular amongst general public, customers, companies and financial institutions. It is argued that for the first time in September 2014 it came in the knowledge of the plaintiff that the defendant started insurance policies under the plaintiff’s registration mark “Amaan Plan” hence formal letter was issued to them which was replied and they were subsequently informed that they have obtained registration of the trademark “Amaan Plan” in the form of logo. Learned Counsel submits that despite the notice/letters the defendant did not stop the infringement of the plaintiff’s registration and hence they have issued a legal notice. It is argued that the impugned mark is deceptively similar which is likely to mislead and cause confusion to the innocent customers and general public. He added that unauthorized adoption and use of the plaintiffs registered service mark is not honest and is indeed deliberate attempt in pursuit of their mala fide desires to catch the good will and reputation of the plaintiff’s mark. Thus learned Counsel submitted that the defendant be restrained from using plaintiff’s registered service mark “Amaan Plan” or “Amaan” and sought declaration that the service marls “Amaan” alone is deceptively similar and amounts to infringement of plaintiff’s registered service mark.

The defendants have filed their respective replies and at the very outset submitted that there is a mark distinction between the business that has been transacted by the plaintiff and that of defendants. Learned Counsel has taken me to a letter issued by the Securities & Exchange Commission of Pakistan wherein the SECP has allowed them to transact classes of window takaful business as specified. Learned Counsel has taken me to the definition of “insurance” and “takaful” and urged that there is huge difference between two services and hence there could not be a confusion in the minds of the customers since two products are different. Learned Counsel submitted that the plaintiff deals in the life insurance policies whereas the takaful is not at all meant for life insurance. Learned Counsel has relied upon the definition of conventional insurance business as provided under sub-Rule (iv) of Rule 2 of the Takaful Rules, 2012. Learned Counsel has added that they deals in all kinds of takaful other than life insurance such as fire takaful, marine takaful, motor takaful, engineering takaful and miscellaneous takaful and none of the above is a conventional insurance either life or non-life and hence they are neither identical nor similar services as compare to the plaintiffs service “Amaan Plan” and the question of infringement does not arise.

Heard the learned Counsels and perused the record.

At the very outset the Counsel for the defendant does not object to the similarity of the mark and the only reason assigned to the use of such registered trademark is that the services provided by the plaintiff is dissimilar to the services in question trademark provided by the defendant. It is the case of the defendant that they are dealing with takaful whereas the plaintiff’s service is limited to the extent of life insurance policies and hence the two customers are not common. The definition of “similar services” provided under the trademark laws are of importance while deciding the question under reference. Section 2 sub-section (xlv) of the Trade Marks Ordinance, 2001 provides definition of “similar service” which reads as under:

“S. 40 (xlv): “Similar services” included services which are of the same description; -”

Section 39 of the Trademark Ordinance, 2001 relates to the rights conferred by registration whereas Section 40 of the Ordinance deals with the infringement of the registered trademark. In terms of Section 40 sub-section 3(c) of the Ordinance a person shall infringe a registered trademark if the person uses in the course of a trade a mark which is identical with, or deceptively similar to, the trademark in relation to services of the same description as that of service in respect of which a trademark is registered. The proposition thus appears to be simple that service which is being dealt with by both the plaintiff and the defendant whether is of same description or otherwise to attract the provisions as referred above. I may refer to the international classification of goods and services and it seems that it is being dealt with by class-36 and there is no dispute in this regard as the defendant himself chooses to apply under the same class. The defence that they have been dealing with takaful business would not turn much as it is being dealt with by the same classification. There may not be any doubt that the takaful business may not be of conventional insurance but the question arises as to why a proprietary right for a registered mark could be allowed to infringe by the defendant who provide services of the same class i.e. class 36 which may cause confusion in the mind of the customers. Another answer to a question that the plaintiff is dealing with life insurance policies whereas defendant are not, the word “Amaan Plan” of the plaintiff has gained so much popularity that the customers who may wish to have other policies of the plaintiff could be deceived by the mark of the defendant as they would presume that the plaintiff, has also started dealing with other kinds of policies. The provisions of Section 40 of the Ordinance are thus clear insofar as the entitlement of the plaintiff is concerned. The defendant has not shown any reason plausible at law as to why they have chosen an invented word of the plaintiff which has gained popularity since 2007 which is not denied by the defendant. Considering the background of the plaintiff’s business, it seems that the adoption of the same trademark which is phonetically and visually similar and there is likelihood that it would create confusion and deception to the customers of such class. There is no specific provision available in the Trademark Ordinance for the registration of service mark as takaful service. The license obtained from SECP for takaful service does not meant for the infringement of the plaintiff’s Registered mark nor does it allow the defendant to act in such manner.

In my view the defendants have failed to justify bonafide Adoption of the word “Amaan Plan” and/or “Amaan” as they may have other choices instead, of plaintiff’s registered mark which has already gained popularity and enjoying a goodwill in the market, hence I am of the view that the plaintiff has presented a prima facie case, balance of inconvenience is also, in their favour and they would suffer irreparable loss unless the application is allowed as prayed. Accordingly the application is allowed.

(R.A.) Application allowed

PLJ 2017 Karachi 51

Present:Muhammad Ali Mazhar, J.

AL-TAMASH MEDICAL SOCIETY through Secretary--Plaintiff

Versus

Dr. ANWAR YE BIN JU and others--Defendants

Suit No. 2389 of 2014, decided on 16.12.2016.

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

----O. XXXIX, Rr. 1 & 2--Specific Relief Act, (I of 1877), Ss. 42 & 39--Temporary injunction--Sale deed--Cancellation of registered deed--Construction of medical institution--Violation of lease--Right of easement for allotment of plot--Amenities could not be leased, sub-leased, gains--Transferred to any person for personal convenants of lease--Violation of covenant of lease if any can only be challenged by lessor and not strangers--Injunction cannot be granted when conduct of plaintiff has been such as to disentitle him to assistance of Court--An injunction is an equitable relief based on well-known equitable principles--All presumptions and ambiguities are taken against party seeking to obtain temporary injunction--Balance of convenience and inconvenience being in favour of defendant i.e. greater damage would arise to defendant by granting injunction in event of its turning out afterwards to have been wrongly granted, than to plaintiff from withholding it, in event of legal right proving to be in his favour, injunction may not be granted--Plaintiff has failed to make out prima facie case and in fact balance of convenience lies in favour of private defendants--No question of sustaining any irreparable injury ascends to plaintiff in capacity and character of whistleblower--Lessor has not initiated any action against alleged violation of lease and another crucial factor is also significant to point out that if a later stage suit is decreed and lease of amenity plot is cancelled or any direction is issued to lessor to take action against alleged violation of lease that would not amount an outright transfer or allotment of plot to plaintiff as their vested or legitimate right but law will take its own course.

[Pp. 59, 67 & 70] A, C, D, E & F

Lease Deed of Amenity Plot--

----Scope of--Not entitled to sell plot--Violation lease--Convenants lease--Allotted amenity plot for construction of hospital, using as residence--Distinction between individual interest and interest of public at large--It is a well settled principle of law that individual interest yield to national and public interest and project of public interest must prevail. [P. 59] B

Khawaja Shams-ul-Islam, Mr. Imran Taj and Mr. Khalid Iqbal, Advocates for Plaintiff.

M/s. Arshad M. Tayebaly and Muhammad Shahzad Ashraf, Advocates for Defendant Nos. 1 and 2.

Mr.Muhammad Yousuf, Advocate for Defendant Nos. 8, 9 and 10.

Syed Iftikharul Hasan and Mr.Ghulam Mohiuddin, Advocates for KMC.

Ms.Nasreen Setho, State Counsel and Mr.Abdul Jabbar Qureshi, A.A.G.

Dates of hearing: 9, 15, 29.10.2015, 15.08.2016 and 25.11.2016.

Order

This is a suit for declaration, directions, cancellation and injunction. The declaration is beseeched in view of restrictive Clause No. 20 of the Lease Deed of Amenity Plot No. ST-2, that the Defendant No. 1 was not entitled to sell the plot to Defendant No. 2; the sale-deed executed by the Defendant No. 1 in favour of Defendant No. 2 is against the law hence it is liable to be cancelled. The plaintiff has also entreated for the directions against the Defendant No. 3 to resume the suit plot and allot the same to the plaintiff society for expansion of their hospital. Permanent injunction has been sought for restraining the defendants from raising any construction on the plot in question.

1. The trivia and or minutiae of interlocutory applications filed vice versa are as under:--

(1) CMA No. 16156/2014. The plaintiff has filed this application under Order XXXIX Rules 1 & 2, CPC for suspension of the operation of the lease deed and sale-deed as well as the demolition permission and approval of building plan with further prayer that Defendant Nos. 1, 2 and 4 be restrained from creating third party interest as well as raising any construction on the plot in question.

(2) CMA No. 1031/2015. The Defendant No. 1 has filed this application under Order VII Rule 11, CPC for rejection of the plaint on the premise that plaint does not disclose any cause of action and the plaintiff is stranger to the suit property. The suit is also barred under Section 42 of the Specific Relief Act.

(3) CMA No. 17996/2015. The plaintiff has moved this application under Order XXXIX Rule 2(3), CPC read with Article 204 of the Constitution and Sections 4, 5 & 6 of the Contempt of Court Ordinance, 2003 that despite status quo order dated 3.12.2014, the Contemnor No. 2 in connivance with Contemnor No. 1 fraudulently got the restoration of revised proposed building plan of the suit property.

(4) CMA No. 17997/2015. This is an application of the plaintiff under Section 94 read with Section 151, CPC moved to suspend revised proposed building plan allegedly issued in gross violation and disobedience of the order dated 3.12.2014.

(5) CMA No. 18253/2015. This application has been filed by Defendant No. 8 under Section 151, CPC for the reason that the above suit was partly heard, so this suit for hearing of interlocutory applications may be fixed before the same bench being a part heard matter.

(6) CMA No. 18326/2015. The Defendant No. 8 has moved this application under Section 151, CPC for converting this suit into fast track on the ground that the Defendant No. 8 is aged about 60 years and in view of notification issued by the Hon’ble Chief Justice this case may be fixed on weekly basis.

(7) CMA No. 18327/2015. The Defendant No. 8 has moved this application under Order XXXIX Rule 4, CPC to evacuate the status quo order dated 3.12.2014.

(8) CMA No. 18660/2015. The Defendant No. 3 (K.M.C) has moved this application under Order VII Rule 11, CPC for rejection of plaint with the plea that plaintiff has no cause of action against the Defendant No. 3.

1. The transient features of this law suit are that the plaintiff is a Society registered under the Societies Registration Act. An amenity Plot No. ST-2/B, Block-3, Clifton Karachi was allotted to the plaintiff for constructing medical and dental complex as well as medical and dental college known as “Al-Tamash Institute of Dental Medicine” established in 2001. The plaintiff paid huge consideration to KDA for buying the said plot. An amenity Plot No. St-2 which is adjacent to plaintiff’s plot was allotted to Defendant No. 1 who was rendering services in the field of Acupuncture and Physiotherapy. The bone of contention is Clause 20 of the lease deed executed in favour of the Defendant No. 1 which reads as under:

“20. The lessee will not sell, transfer or assign his rights in respect of demised premises in any manner. The plot premises should not be used for any purpose other than which it has been allotted. No commercialization of any portion/part of the allotted plot shall be allowed by the Lessor. The facilities and services provided would not be restricted to any single community.”

1. The plaintiff has shown much dismay and disquiet that regardless of unyielding caution against the sale of the plot in the indenture of lease, the Defendant No. 1 has sold out the plot vide conveyance deed dated 28.6.2013 to the Defendant No. 2. The plaintiff has avowed that the Defendant No. 1 has committed violation of lease so he lost the title. The plaintiff has also asserted right of easement for allotment of plot in question to them after its cancellation for the reason that they desperately need extra land to make some expansion in their present set up.

2. At some stage, three interveners Dr.Saadia Rasul Virk, Dr.Mumtaz Ahmed Mahar and Dr.Javaid Haider Rizvi filed C.M.A No. 1030/2015 under Order I Rule 10, CPC for impleading them as party in the suit. Quite the reverse, the plaintiff had also moved C.M.A No. 4125/2015 under Order VI Rule 17 and Order I Rule 10 read with Section 151, CPC for impleading Dr.Saadia Rasul Virk and Dr.Mumtaz Ahmed Mahar. Both the applications were allowed on 16.9.2015. Consequently, the plaintiff filed amended plaint and impleaded three aforesaid interveners as Defendant Nos. 8 to 10.

3. The Defendant Nos. 1 and 2 filed counter affidavit with the plea that the plaintiff is stranger to the property. The Defendant No. 1 constructed Chinese Acupuncture Centre on the suit property and practiced till 2012. He desired to enhance the centre to advance health care facility with wider spectrum, therefore, his attorney requested the Defendant No. 4 for the permission to construct state of the art facilities hospital and demolish the old structure. Since Defendant No. 1 was not financially sound therefore, in order to raise the funds, he decided to rent out the subject property to the Defendant No. 10 vide tenancy agreement dated 7.4.2013 but he could not achieve the desired results therefore, the Defendant Nos. 1 and 2, 8 and 9 entered into a joint venture and decided to establish liver transplant unit and general hospital in the larger public interest. In order to achieve the aforesaid objective, a conveyance deed was executed in favour of Defendant Nos. 8 and 9. Despite sale, they have no intention to change the use of land. The plaintiff wants to blackmail the Defendant Nos. 1 and 2 to obtain property in question and even before filing this suit the plaintiff’s representative approached the Defendant Nos. 1 and 2 for acquiring the suit property. The plaintiff is lessee of Plot No. ST-2/B Block-3, Clifton Karachi which was allotted to them as amenity plot for construction of hospital but major portion of the plot is being used for residence of the family members/office bearers of the plaintiff and also as private dental college campus which is evident from the Nazir’s reports dated 13.1.2014 and 22.1.2015 filed in C.P.No. D-6629 of 2014.

4. The Defendant No. 3 in its counter affidavit stated that the plaintiff is using the amenity plot as bungalow for residence over 2/3rd of their plot and on the remaining portion using it as dental health science teaching facility and small dental clinic. The plaintiff has itself violated the terms and conditions of the lease particularly Clause 20 of the lease deed and changed the usage. It is further stated that despite sale of the amenity plot, at least the private defendants have not changed its use to any commercial or residential purpose. It is further averred that the plaintiff has no legal right or title or legal character to sue hence plaint is liable to be rejected.

5. The Defendant No. 4 in their counter affidavit stated that the owner submitted application for demolition permission which was granted on 10.4.2013. The matter was also forwarded to Town Planning Section SBCA for their NOC, which was accorded to. There was no violation of law and regulation on the part of Defendant No. 1 and the subsequent owners.

6. The Defendant Nos. 8 and 9 have not filed any counter affidavit to the injunction application but they have filed application under Order XXXIX Rule 4, CPC for the vacation of status quo order dated 3.12.2014. They reiterated that Defendant No. 1 is original lessee of the suit property who desired to expand his Chinese Acupuncture Centre into a hospital but since he was not financially strong, therefore, he required financial assistance and also approached to the Defendant No. 9 to establish liver transplant unit and general hospital. The Defendant Nos. 8 and 9 acquired the plot by virtue of a conveyance deed for the purpose of hospital and they have no intention to change the land use.

7. The learned AAG submitted his written submission that there is no cause of action against the Defendant Nos. 6 and 7, however, he pointed out breach of the terms and conditions of indenture of lease dated 17.8.1992. At the same time, he asserted that the plaintiff has no right to seek declaration and or cancelation of registered sale-deed. He referred to the judgment authored by me in the case of Ilyas Ahmed v. Muhammad Munir reported in PLD 2012 Sindh 92.

8. The learned counsel for the plaintiff with the aforesaid backdrop argued that plaintiff Society has constructed a state of art medical and dental complex as well as medical and dental college which was founded in 2001. The adjacent Plot No. ST-2, measuring 1000 Sq. Yds., was allotted to Defendant No. 1. The existing structure standing on the suit Plot No. ST-2 was partly demolished and preparations were underway to construct a multi-storeyed building, therefore, the plaintiff Society made enquiries and came to know that the Defendant No. 1 in gross violation of the terms and conditions, more particularly the Condition No. 20 of lease deed dated 17.8.1992 has executed a sale-deed on 28.6.2013 in favour of Defendant No. 2 whereas the Defendant No. 6 by misusing his official status and authority as Sub-Registrar for corrupt motives registered the sale-deed on 28.6.2013 in favour of Defendant No. 2. It was further averred that during pendency of the suit, the plaintiff came to know that the Defendant No. 2 has sold out the plot to the Defendants No. 8 & 9 vide conveyance deed dated 9.9.2014. The Sindh Disposal of Urban Land Ordinance, 2002 specifically provides that amenity plots shall only be disposed of for the purpose the plot is reserved through a public auction at a price not less than the market price and no plot shall be converted for any other purpose except with prior approval of the prescribed authority. The lease specifically placed a clog on the transfer of the property thus the sale-deed cannot be treated lawful under the provisions of Section 23 & Section 56 of Contract Act, 1872. The Transfer of Property Act specifically provides that amenities could not be leased, sub-leased, sold or transferred to any person for personal gains. He further contended that the Defendant No. 5 being a public functionary was bound to deal with the public property strictly in accordance with the parameters laid down by the law. The plaintiff has approached this Court as whistle blower and need not be personally aggrieved in the strict sense. On the contrary, he argued that plaintiff has easement rights on the plot in question so after the cancellation of the lease deed and two sale-deeds, the plot in question be allotted to the plaintiff. The learned counsel cited following judicial precedents:

(1) 2010 CLC 1879 (Muhammad Sabir v. Maj. (Rtd.) Muhammad Khalid Naeem Cheema and others). Order VII, Rule 11. Rejection of plaint. Contents of plaint could only be looked into for such purpose. Court could reject plaint, when allegations made therein, if assumed as proved to be correct would not entitle plaintiff to get relief.

(2) 2015 YLR 550 [Sindh] (Naseem-Ul-Haq through Attorney and another v. Raes Aftab Ali Lashari through Guardian ad-litem and 5 others). Object of Section 42 of Specific Relief Act, 1877. Any man’s legal character is generally taken as the same thing as a man’s status. Words “right as to any property” are to be understood in a wider sense than “right to property” and words “interested to deny” denotes that defendant is interested in denying right of plaintiff or his legal character. Denial of right constitute a cause of action to maintain an action under Section 42 of Specific Relief Act, 1877. Relief of declaration is a discretionary relief and can be granted in the case where substantial injury is established and in absence of denial of right no relief of declaration can be granted. Provision of Section 42 of Specific Relief Act, 1877, is not exhaustive of circumstances in which declaration is to be given. Declaration can be given even in the circumstances not covered by Section 42 of Specific Relief Act, 1877, in which case general provision of law gives declaration sought.

(3) 2004 CLC 1029 (Arif Majeed Malik and others v. Board of Governors Karachi, Grammar School). Grant of relief under Section 42 of Specific Relief Act, 1877. One reason for the divergence of judicial opinion is that when Specific Relief Act, 1877, was enacted, concept of rights which could be enforced through Courts was largely confined to ‘status’ as understood in feudal social context or rights pertaining to property in laissez-faire economy. With the development of jurisprudence over more than a century, a large number of other rights which did not relate to status of an individual or deal with tangible property came to be recognized by law and some of them were in the form of guaranteed fundamental rights. Principle, “wherever there is a right there must be a remedy to enforce it”, persuaded Courts not to remain bound within the technicalities of Section 42 of Specific Relief Act, 1877, for granting relief.

(4) 2006 YLR 185 (Karachi Stock Exchange through Attorney and another v. Muhammad Ashaqeen and 6 others). Conversion of public/amenity plot into residential/commercial plot. Said plot was granted/leased out to the respondent through a resolution of the Municipal Corporation approved by the Mayor as well as the Provincial Government under Section 45(4) of Sindh Local Government Ordinance, 1979, but in violation of the provisions of Section 45(5)(ii) of the Said Ordinance. Grant after conversion of the plot, and its approval had been made without taking into consideration of certain rules and regulations, particularly, that an amenity plot could not be converted into a residential or commercial plot and furthermore, a plot measuring more than 40 sq. yards could not be granted except through public auction. Even if the appellants had failed to get the said plot transferred in their favour, it did not mean that they were estopped from challenging its grant in favour of the respondent in case it was illegal and void being a violation of the laws dealing with the use and conversion of amenity plots.

(5) 2007 MLD 1880 (Naseem Ali Khan v. K. D. A. and others. Article 52-A of Karachi Development Authority Order, 1957, explicitly required that an amenity plot could not be converted into any other purpose without inviting public objections. Chief Minister had no authority whatsoever to allot plots under different schemes of the Authority.

(6) 2016 SCMR 101 (Province of Sindh through Chief Secretary and 8 others v. Syed Kabir Bokhari). Allotment of amenity plot/land for commercial use was directly in conflict with Art.52-A of the Karachi Development Authority Order, 1957 which specifically provided for procedure for seeking of conversion of amenity plot for other use. Admittedly, in the present case, there was no order by the competent authority to sanction the use of amenity land for commercial purposes.

(7) 2013 CLD 1263 (Najamuddin Zia and another v. Mst.Asma Qamar and others). The rejection of the plaint on technical ground amounts to deprive a person from his legitimate right of availing legal remedy in undoing the wrong done in respect of such right. This is a settled principle of law that in case of substantial question of facts or law the provisions of Order VII, Rule 11, C. P. C. cannot be invoked rather the proper course for the Court in such cases is to frame issues on such questions and decide the same on merits in the light of evidence. Reference can be made to the judgment reported in 2011 CLC 88 (Mst. Bano alias Gul Bano and others v. Begum Dilshad Alam and others).

1. The learned counsel for the Defendants No. 1, 2, 8, 9 and 10 argued that the plot number of the suit property is ST-2 whereas the number of the plaintiff‟s plot is ST-2B. The date of execution of lease of the plaintiff is 26.09.1992 and the date of execution of lease of Defendant No. 1 is 17.08.1992. Clause 20 which is a restrictive clause is common to both the leases. The perusal of prayer clauses do show that clauses (a) and (b) are coached in a negative sense and the plaintiff on its own showing has failed to seek any positive declaration in its favour. Section 42 of the Specific Relief Act, 1877 can only be invoked if any right, title and interest of the plaintiff in any property is denied. The prayer clauses (c) and (d) are related to cancellation of documents. Section 39 of the Specific Relief Act enables any person apprehending that a written instrument which is void or voidable and if left outstanding may cause him serious injury. The case of the plaintiff does not fulfil the above requirements. In this case there is no infringement or any threatened injury therefore the plaint is liable to be rejected. In response to the injunction application, they argued that so long as defendants are adhering to the covenants of lease and are willing to construct the hospital, they cannot be restrained from using their own plot for the purpose it was leased. The violation of covenant of lease if any can only be challenged by the lessor and not the strangers. The injunction cannot be granted when the conduct of the plaintiff has been such as to disentitle him to the assistance of the Court. The plaintiff was allotted amenity plot for construction of a hospital only which they are using as residence and also as a Dental Clinic which fact is evident from Nazir Report submitted in Constitutional Petition No. D-6629 of 2014. It was further argued that the plaintiff itself is a wrongdoer and has violated the restrictive covenants of lease (Clause 20) by not establishing and constructing a hospital even after expiry of 23 years of execution of lease. It was further contended that there is a distinction between an individual’s interest and the interest of public at large. It is a well settled principle of law that the individual interest yield to the national and public interest and the project of public interest must prevail. The learned counsel concluded that if this Court does not deem proper to reject the plaint at this stage and feels some triable issues then the injunction application may be dismissed and the answering defendants may be allowed to raise the construction and build hospital in the larger public interest at their sole risk and peril. It was further contended that the plaintiff in fact without any legal character wants the plot in question by hook and crook which is obvious from the substance of the plaint where unconvincing plea of easement has been nurtured. The learned counsel referred to following judicial precedents:

(1) 2007 SCMR 1446 (Atta Muhammad vs. Maula Bakhsh and others).Specific Relief Act Section 42. The Courts should also keep in mind that relief of declaration is discretionary and a plaintiff who seeks discretionary relief must come to the Court with clean hands.

(2) 2010 CLC 14 (Abdullah and others v. Muhammad Haroon and others). No duty was cast up on the plaintiffs/respondents, to take the pain of filing a suit at huge expenses just to protect the government land. The question of fraud was brought to the notice of the relevant authorities. No grievance was caused to the respondents/plaintiffs by the order of the Member, Board of Revenue. Only the Government could have challenged the said order.

(3) 1995 CLC 1012 (Barkat Ali and another v. Mst. Fatima Bai and 2 others). In the case of R. G. Sehwani Cooperative Housing Society Ltd., v. Haji Ahmed and others (PLD 1983 Kar. 11), while interpreting Section 105 of the Transfer of Property Act, it has been laid down that contravention of restrictive covenants of lease can be enforced only by the lessor and not the third parties. In view of the above legal position the submission of the learned counsel for the plaintiffs that the said defendants be restrained from raising construction on any area beyond one-fourth of the area of the plot in question is prima facie without any substance.

(4) PLD 2012 Sindh 92 (Ilyas Ahmed v. Muhammad Munir and 10 others). Any person entitled to any legal character or to any right to property can institute a suit for declaratory relief in respect of his title to such legal character or right to property. The expression, legal character has been understood as synonymous with the expression status. Section 42 of the Specific Relief Act applies only to a case where a person files a suit claiming entitlement to any legal character or any right to property which entitlement is denied by the defendants or in denying which the defendants are interested. Section 42 would be attracted to a case in which the plaintiff approaches the Court for the safeguard of his right to legal character or property but where right to his own legal character or property is not involved the suit is not maintainable.

(5) PLD 1978 Lahore 113 (Abdur Rahman Mobashir and 3 others v. Syed Amir Ali Shah Bokhari and 4 others). Specific Relief Act. No declaration, held, can issue outside provisions of Section 42 and Court’s power to make declaratory decrees limited to instances mentioned in the section.

(6) 1987 CLC 2416 (Chairman, Municipal Committee, Taxila v. Mohammad Jan and 4 others). Civil Procedure Code. A case standing in need of evidence having to be led for being established, cannot be considered a proper subject for issuing temporary injunction. Obligation of person desirous of having temporary injunction issued in his favour is to make out a prima facie case, in absence whereof a Court cannot be deemed possessed of the power to issue it.

(7) 1984 CLC 340 (Naseer Ahmed v. Hafiz Muhammad Ahmed and others). Transfer of Property Act. Section 105.Breach of restrictive covenant in respect of leases of urban lands could be resisted by lessor alone and not by other lessees unless there was tangible evidence that their rights as lessee will be infringed.

(8) 2006 CLC 1736 (Mrs. Shahnaz and others v. Hamid Ali Mirza). We are of the view that when ostensible title has been transferred in favour of the appellants, who are also in possession of the disputed plot, it may not be altogether fair to deny them the benefit of its possession till such time that the matter is finally resolved and the respondent’s claim is established. The defendant “vendee has absolute right to enjoy his possession of the area in dispute for so long as the decree for pre-emption is not passed against him and is not executed.

(9) PLD 1983 Karachi 11 (R.G. Sehwani Co-Operative Housing Society Ltd. v. Haji Ahmad and others). Transfer of Property Act. Section 105. Lease can be enforced only by a party to such agreement. Building agreement providing for allotments of plots by Society to its members and such members having to continue to be liable for performance of several stipulations until grant of lease to society, lease deed providing for cancellation of lease in discretion of lessor in case of contravention of provisions of lease, such covenants, of lease, held, cannot be enforced by plaintiffs.

1. The learned counsel for the Defendant No. 3 (K.M.C) in support of his application moved under Order VII Rule 11, C.P.C. argued that the plaintiff has no cause of action against them. Only lessor has right to object against the violation of lease if any. The private defendants have no intention to change the use of land which is basic condition of lease.

2. The learned A.A.G and State Counsel both relied upon and referred to their synopsis filed on 3.12.2015.

3. Heard the arguments. First I would like to take up CMA Nos. 1031 and 18660 of 2015 filed under Order VII Rule 11, C.P.C. by the Defendant No. 1 and Defendant No. 3 (KMC). The Defendant No. 1 raised the plea that the plaint does not disclose any cause of action and the plaintiff is stranger to the property henceforth the suit is barred under Section 42 of the Specific Relief Act. The plaintiff has flunked to put on view any legal character therefore the plaint is liable to be rejected. Whereas KMC in its application has also pleaded that plaintiff has no cause of action against them. The bone of contention in the matter is transfer of an Amenity Plot No. ST-2 adjacent to plaintiff‟s building. Massive emphasis made by the counsel for the plaintiff that bearing in mind clause 20 of the lease deed, it was vociferously preordained that the lessee will not sell, transfer, or assigned his rights in respect of demise premises and the plot should not be used for any other purpose. It was robustly argued that the Defendant No. 1 contravened and disregarded the express condition, therefore, he has lost title over the plot and on cancelation of the plot, the plaintiff‟s society has easement rights for allotment to live up to the need of extra land for broadening their substructure and set up. KMC in their counter affidavit robustly supplicated that in the lease of plaintiff also similar condition was ascribed but the plaintiff is luxuriating amenity plot as bungalow over substantial portion and small portion is being used for teaching facility with small dental clinic. Though the amenity plot was sold by the Defendant No. 1 to Defendant No. 2 and then to Defendant Nos. 8 and 9 but the fact remains that the use of plot is not changed to any commercial activity or residential purpose. The learned AAG also submitted his written submissions in which though he pointed out the breach of the terms and conditions of indenture of lease particularly in respect of clause 20, but at the same time it was further stated that the plaintiff has no right to seek declaration and cancellation of registered sale-deed.

4. Learned counsel for the plaintiff dissuaded and fight against applications moved under Order VII Rule 11, C.P.C. that neither this law suit is without cause of action nor it is barred under any law. In gross violation of lease deed the sale-deed was executed in favour of Defendant No. 2 by the Sub-Registrar for some corrupt motives. Subsequently the Defendant No. 2 sold out the property to Defendant Nos. 8 and 9. The Sub-Registrar being a public functionary was bound to deal the issue of registration in accordance with law. The plaintiff has approached this Court as a whistleblower to bring this illegality into notice of Court. On the contrary, counsel for the Defendant Nos. 1, 2, 8, 9 and 10 took the plea that the plaintiff has no cause of action. The violation of lease if any can be challenged or called into question by the lessor alone and not by any stranger. The plaintiff has no legal character to challenge the title of the defendants. The Defendant No. 1, 2, 8 and 9 have avowed and self-confessed that they have entered into a joint venture for establishing hospital for liver transplantation in the larger public interest as this facility is not available everywhere in the province.

5. In the case of Naseem-Ul-Haq (supra) authored by me I have discussed Section 42 of the Specific Relief Act in detail. No doubt the provisions of Section 42 are not exhaustive and all-encompassing of virtues and ambiances in which declaration is to be given. Sometimes in the peculiar and distinctive circumstances of the case Court may grant the declaration even not covered by Section 42 of the Specific Relief Act where in case general provision of law gives declaration sought. Legal character as used in Section 42 is equivalent to legal status and legal status is a legal right when it involves a peculiarity of the personality arising from anything unconnected with the nature of the act itself which the person of inherence can enforce against the person of incidence. Salmond pointed out in his book on Jurisprudence, rights of four distinct kinds: (1) rights (in the strict sense); (2), liberties: (3) powers; and (4) immunities. The word “right” is used in a wider sense in Section 42 of the Specific Relief Act. The distinction between the expression “right as to any property” and the expression “right to any property” is not very important.

6. It is sine qua non as to whether the plaintiff in facts and circumstances of the case should or should not grant declaration. Looking into down-to-earth and pragmatic perseverance in this forward-looking advance era, one should not stick to the rigidities and complexities or acid test of legal character but it needs some more generous comprehension to meet up all exigencies. Lord Cottonham said, in Taylor v. Salmon:

“It is the duty of a Court of equity to adapt its practice and course of proceedings, as far as possible, to the existing state of society and to apply its jurisdiction to all those new cases, which from the progress daily made in the affairs of men, must continually arise and not from too strict an adherence to forms and rules established under very different circumstances, decline to administer justice and to enforce rights for which there is no other remedy”. (1838) 4 Myln & Cr 134. (C M Row. Law of Injunctions, Eighth Edition.)

1. The dictum laid down in the case of Arif Majeed Malik and others (supra) unequivocally held that wherever there is a right there must be a remedy to enforce it. Persuaded Courts not to remain bound within the technicalities of Section 42 of Specific Relief Act. The reason for the divergence of judicial opinion is that when Specific Relief Act, 1877 was enacted concept of rights which could be enforced through Courts was largely confined to status as understood in feudal social context or rights pertaining to property in laissez-faire economy.

2. In the United States, both in the Federal and Uniform laws, the word “right” alone is used, so that a party may obtain a declaration as to any legal rights which, of course, mean justiciable rights. Ref: Cf. Ashwender v. Teinessee Valley Authority, 297 U.S. 288 at p. 325: L, Ed. 688 at p.

3. In keeping with Cf. 62 Harvard Law Review at pp. 875-76. (Ref: Anand & Iyer’s, Commentary on Specific Relief Act. 11th Edition. Page 927), the word “right” has been interpreted to include “liability” also, so that actions have been entertained against the Government and other public bodies to determine their liability, duty or power. Right also includes immunity, e.g. that a statute is not applicable to the plaintiff. Since the word “right” is not confined to proprietary right, the Courts have had no difficulty in making a declaration as to contractual right or a right to practice a profession or the like.

4. The plaintiff has also claimed easement. To warrant the interference of equity to protect an invasion of an easement, the easement should itself be certain and capable of being clearly ascertained and there should be clear desecration and defilement of the right but where the plaintiff asserted that he had an easement over the defendant’s land and sought to restrain defendant from interfering with his use and the defendant disputed the said right, the Court refused to interfere by injunction until such right was determined at law. According to Gale on Easement 13th Edition, Page 6, the following characteristic are essential to easement: (a) There must be a dominant and a servient tenement. (b) An easement must accommodate the dominant tenement. (c) Dominant and servient owners must be different persons. (d) A right over a land cannot amount to an easement, unless it is capable of forming the subject-matter of a grant. In tandem, the plaintiff has also portrayed and depicted its role as whistleblower and approached this Court to shield and protect the misuse of amenity plot by way of sale/transfer in violation of lease condition.

5. The term whistle-blower comes from the whistle a referee uses to indicate an illegal or foul play. US civic activist Ralph Nader is said to have coined the phrase, but he in fact put a positive spin on the term in the early 1970s to avoid the negative connotations found in other words such as “informers” and “snitches”. A whistleblower is a person who exposes any kind of information or activity that is deemed illegal, unethical, or not correct within an organization that is either private or public. The information of alleged wrongdoing can be classified in many ways i.e. violation of company policy, rules, law, regulation and or threat to public interest, national security as well as fraud, and corruption. Those who become whistleblowers can choose to bring information or allegations to surface either internally or externally. Internally, a whistleblower can bring his accusations to the attention of other people within the accused organization. Externally, a whistleblower can bring allegations to light by contacting a third party outside of an accused organization. Whistleblowers can reach out to the media, government, law enforcement, or those who are concerned but also face stiff reprisal and retaliation from those who are accused or alleged of wrongdoing. Ref: https://en.wikipedia.org/wiki/Whistleblower.

6. The judgment authored by me in the case of Ilyas Ahmed (supra) is distinguishable to the facts and circumstances of the case. Astute survey of the controversy divulges that it is essentially roaming around the sale of amenity plot twice. The plaintiff is discoursing the violation of lease while the private Defendants No. 1 and 2 including Defendant Nos. 8 and 9 are conversing that they intend to establish and construct a sophisticated state of the art liver transplant unit and general hospital through their joint venture. In the case of Muhammad Sabir (supra), private parties entered into an agreement for the sale of amenity plot without permission of the society. Later on the society communicated them that the amenity plot cannot be transferred or sold and the society has no concern with any private arrangement made by the parties. Basically, the application was moved on the premise that notice under Section 70 of the Cooperative Societies Act was not tendered to the Registrar Cooperative Societies, but I dismissed the application under Order VII Rule 11, C.P.C. for the reasons that there is a likelihood of misuse of an amenity plot reserved in the scheme for the public interest therefore, the presence of society was otherwise necessary keeping aside the intricacies of Section 70 of Cooperative Societies Act. In the case of Najamuddin Zia (supra) decided by me also an application under Order VII Rule 11, C.P.C. was filed. I held in this case that pleadings of the parties show off a substantial dispute which is mix question of law and facts and require evidence therefore the application for rejection of plaint was dismissed by me while giving reference of my another judgment reported in 2011 CLC 88 (Mst.Bano alias Gul Bano and others v. Begum Dilshad Alam and others).

7. It is renowned and eminent principle of law that in the case of substantial question of facts or law, the provisions of Order VII Rule 11, C.P.C. cannot be invoked rather than the proper course is to frame issues and decide the same on merits in the light of evidence. In the case in hand, innumerable complicated mix questions of law and facts are involved which cannot be decided summarily unless proper issues are framed and parties are allowed to lead evidence. The plaintiff has raised multiple questions not under parlance of Section 42 of Specific Relief Act, but violation of the lease clause and according to the contents of the plaint twice allowance of the sale of amenity plot in collusion with official defendants. Serious allegations have also been leveled against the Sub-Registrar of Properties, who allegedly hoodwink the restrictive clause in the lease and allowed the registration of conveyance deeds. In the nutshell, the plaintiff has beseeched and entreated its role as whistleblower to bring certain facts in the knowledge of this Court, therefore, it is indispensable to delve into the issues raised and decide the controversy with proper opportunity to all stake holders in the suit rather than non-suiting the plaintiff on mere technicalities. At this stage it would be premature to grasp and catch on that the plaintiff has failed to come into sight without any cause of action or the plaint appears to have been barred by any law. Nevertheless the crucial practicality and expediency needs to be thresh out in the course of trial as to whether the plaintiff may challenge the violation of lease or this right is only vested in or possessed by the lessor alone putting side by side the role of the plaintiff as whistleblower. The pros and cons lead me to the conclusion that the plaintiff may maintain the suit and at this juncture, the plaint cannot be rejected.

8. Now I would like to take up injunction application filed by the plaintiff with another application under Section 94 read with 151, CPC for the suspension of revised proposed building plan and the application moved under Order XXXIX Rule 4, CPC by the Defendant No. 8 for vacating the status quo order dated 3.12.2014 (CMA No. 16156 of 2014, CMA Nos. 17997 and 18327 of 2015). At this point of time the counsel for the private defendants argued that due to interim orders they are not in a position to raise construction for establishing a liver transplant unit and general hospital required to be built in the larger public interest. While the plaintiff in its injunction application prayed for suspension of lease with further prayer that the defendants may be restrained from creating any third party interest as well as raising construction on the plot in question till disposal of the suit. The pivotal thrust of the defendants arguments is that despite purchasing amenity plot, they have not changed the use of land and they want to establish a liver transplant unit and general hospital through joint venture in larger public interest. Whether they have formed a joint venture or not this question can only be decided at the trial of the suit where obviously they will have to produce convincing and believable evidence that despite sale or purchase of amenity plot, there is no defectiveness in the title in realism and actuality for the reason that the original lessee is part of consortium or joint venture. In my view, the Court is under obligation to keep in mind the socio-economic needs of society and should be aware of its own obligation towards society, the problem of balancing the social interest and individual interest should yield to public interest. In addition to public convenience as relevant consideration for grant of interlocutory injunction, the Court must also consider the effect of an injunction on the rights of third persons. In the case of Abu Dhabi Medical Devices Co. L.L.C. v. Federation of Pakistan, reported in SBLR 2010 (Sindh) 1313, I have discussed the expression public importance and public interest in the following words:--

“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 the 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 and embraces public security, public order and public morality. Expression Public Interest in common parlance means an act beneficial to general public and action taken in public interest necessarily means an action taken for public purpose”.

1. An injunction is an equitable relief based on well-known equitable principles. Since the relief is wholly equitable in nature, the party invoking the jurisdiction has to show that he himself was not at fault. The phrase prima facie case in its plain language signifies a triable case where some substantial question is to be investigated or some serious questions are to be tried and this phrase “prima facie” need not to be confused with “prima facie title”. Before granting injunction the Court is bound to consider probability of the plaintiff succeeding in the suit. All presumptions and ambiguities are taken against the party seeking to obtain temporary injunction. The balance of convenience and inconvenience being in favour of the defendant i.e. greater damage would arise to the defendant by granting the injunction in the event of its turning out afterwards to have been wrongly granted, than to the plaintiff from withholding it, in the event of the legal right proving to be in his favour, the injunction may not be granted. A party seeks the aid of the Court by way of injunction must as a rule satisfy the Court that the interference is necessary to protect from the species of injury which the Court calls irreparable before the legal right can be established on trial. In the technical sense with the question of granting or withholding preventive equitable aid, an injury is set to be irreparable either because no legal remedy furnishes full compensation or adequate redress or owing to the inherent ineffectiveness of such legal remedy. Ref: (C.M Row Law of Injunctions, Eighth Edition).

2. In the case of Karachi Stock Exchange (supra), the conversion of public/amenity plot into residential/commercial plot was changed and the suit for declaration and injunction was filed. The plaintiff pleaded that amenity plot could not be converted into residential or commercial plot. The Court held that even if the appellants failed to get the said plot transferred in their favour, it did not mean that they are estopped from challenging its grant in favour of the respondent, if it was granted in violation of the laws dealing with amenity plots. Similarly in the case of Naseem Ali Khan (supra) the Court discussed Article 52-A of KDA Order, 1957 which required that the amenity plot could not be converted into any other purpose without inviting public objections. While in the case of Province of Sindh through Chief Secretary (supra) the apex Court held that allotment of amenity plot for commercial use is directly in conflict with Article 52-A of the Karachi Development Authority Order, 1957 which specifically provided for procedure of conversion of amenity plot for other use.

3. With all humility, the aforesaid dictums are distinguishable as on the face of it in the present case there is no change or conversion of amenity plot to commercial or residential use but throughout the pleadings, nothing has been surfaced that the Defendant Nos. 1 and 2 or the Defendant Nos. 8 to 10 are endeavoring to convert the use of land from amenity to commercial or residential use. On the contrary they have vigorously articulated that they intend to build liver transplant unit and general hospital even they went on to argue that if this Court is not inclined to reject the plaint due to some triable issues even then they may be allowed to raise construction at their own risk and peril which obviously means that if at any later stage the Court comes to the conclusion that the restrictive clause of lease which put an embargo not to sell or transfer the plot has been contravened or violated then naturally the law will take its own course and party found at fault will have to face the adverse consequences. In the case of Chairman Municipal Committee (supra), Court held that a case standing in need of evidence having to be led for being established, cannot be considered a proper subject for issuing temporary injunction.

4. So far as the dictum laid down in the case of Abdullah and Barkat Ali (supra), the Court in the first case held that no duty was cast upon the plaintiffs/respondents to take the pain of filing a suit at huge expenses just to protect the government land. The question of fraud was brought to the knowledge of authorities and only the Government could have challenged the order whereas in the second case while interpreting Section 105 of the Transfer of Property Act, the Court held that contravention of restrictive covenants of lease can be enforced only by the lessor and not by the third party. While in the case of Naseer Ahmed (supra) it was held that breach of restrictive covenant in respect of leases of urban lands could be resisted by lessor alone and not by other lessees. In the case of R.G. Sehwani Cooperative Housing Society Ltd. (supra) again Section 105 of the Transfer of Property Act was under discussion and the Court was of the view that lease deed providing for cancellation of lease in discretion of lessor in case of contravention of provisions of lease, such covenants, of lease, held, cannot be enforced by plaintiffs. At this moment the case of Shahnaz and others (supra) is also quite relevant in which the Court reached to the conclusion that ostensible title has been transferred in favour of the appellant who are also in possession of the disputed plot, it may not be altogether fair to deny them the benefit of its possession till such time the matter is finally resolved and the respondent’s claim is established. In the same judgment, the case of Muhammad Shafi v. Kaniz Zohra Bib(1983 CLC 2541) has been referred to in which the Court held that the defendant vendee has absolute right to enjoy the possession of the area in dispute for so long as the decree for pre-emption is not passed against him and its executed.

5. The title of the plot conveyed by Defendant No. 2 in favour of Defendant Nos. 8 and 9 is not denied and their possession is also not disputed. At this juncture I would like to quote my another judgment authored in the case of Sayyid Yousaf Husain Shirazi v. Pakistan Defence Officers’ Housing Authority reported in 2010 MLD 1267, in which the basic ingredients warrant examination while granting injunction have been discussed in detail in the following words:--

“Relief of injunction is discretionary and is to be granted by Court according to sound legal principles and ex debito justitiae. 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 or 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 plaintiffs, the inconvenience caused to the plaintiff would be greater than that would be caused to the defendants if the injunction is granted. It is for the plaintiffs to show that the inconvenience, caused to them would be greater than that which may be caused to the defendants. Irreparable loss would mean and imply such loss which is incapable of being calculated on the yardstick of money.”

1. Taking into consideration the nitty-gritties and rudiments of this lawsuit, I have no disinclination in my mind to reckon that the plaintiff has failed to make out prima facie case and in fact the balance of convenience lies in favour of the private defendants. No question of sustaining any irreparable injury ascends to the plaintiff in the capacity and character of whistleblower. The Defendants No. 1, 2, 8 and 9 in a joint venture have resolved and committed to establish hospital on the amenity plot so the basic condition for which the amenity plot was allotted does not seem to have been violated nor the use of land is being changed. The lessor has not initiated any action against the alleged violation of lease and another crucial factor is also significant to point out that if a later stage the suit is decreed and the lease of amenity plot is cancelled or any direction is issued to the lessor to take action against the alleged violation of lease that would not amount an outright transfer or allotment of the plot to the plaintiff as their vested or legitimate right but law will take its own course. All these fundamental points at issue need to be threshed out during trial of the suit but at this stage no plausible justification is made out to continue the restraining order till final disposal of the suit.

2. In the wake of above discussion, the listed interlocutory applications are disposed of in the following terms:

3. Civil Misc. Application No. 1031 and 18660 of 2015 filed under Order VII Rule 11, C.P.C. are dismissed.

4. Civil Misc. Application No. 16156 of 2014 filed by the plaintiff under Order XXXIX Rules 1 & 2, C.P.C. is also dismissed. Consequently, the injunctive order dated 3.12.2014 is vacated. The Defendants No. 1, 2, 8 and 9 may raise the construction on the amenity plot in question at their own peril. Since interim orders have been vacated, therefore the Civil Misc. Application No. 18327/2015 filed by the Defendant No. 8 under Order XXXIX Rule 4, C.P.C. and Civil Misc. Application No. 17997/2015 filed by the plaintiff for suspending revised proposed plan are also disposed of accordingly.

5. Civil Misc. Application No. 17996/2015 (Contempt Application) filed by the plaintiff shall remain pending and will be taken up and decided with the main suit.

6. Civil Misc. Application No. 18326/2015 moved for converting the suit into fast track filed by the Defendant No. 8 is dismissed as no proof of age is attached with the application to show that she deserves the benefit of Circular issued by the honourable Chief Justice. However this application may be repeated with better particulars for the consideration of the Court.

7. Civil Misc. Application No. 18253/2015 was filed by the Defendant No. 8. Since the pending applications have already been fixed and heard, therefore this application has become infructuous and needs no further orders.

(R.A.) Applications disposed of

PLJ 2017 Karachi 71 (DB)

Present: Muhammad Ali Mazhar and Adnan-ul-Karim Memon, JJ.

Syed MUHAMMAD SHOAIB & others--Petitioners

versus

FEDERATION OF PAKISTAN through Secretary M/o Industries & Production, Islamabad and 2 others--Respondents

C.P. No. D-5176 of 2013 & 151 of 2014, heard on 15.12.2016.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Pakistan Steel Mills--Regularization services--Contract employees--Treatment and benefit of judicial precedent reminiscent--Entitlement of--Minutes of meeting--Benefit of regularization was extended to employees performing duties that their cases may be submitted to committee for regularization of their services through cabinet decision instead of FPSC--Decision was taken in presence of PSM representative who raised such motion so it is a virtuously beneficial decision in which probability cannot be ruled out that decision making body strategically not mentioned any grade or pay scale--It is well extended and broad spectrum decision which neither permits nor any tendency to articulate rigid or obstinate interpretation--PSM has no statutory rules service, petitioners had approached Court for enforcement of cabinet decision for regularization--PSM is amenable to writ jurisdiction of High Court and petition was maintainable. [Pp. 77, 79 & 82] A, B, C, D & E

Ch. Muhammad Ashraf Khan & Ch. Azhar Elahi, Advocates for Petitioners.

Mr. Sanaullah Noor Ghouri, Advocate for Respondent No. 2.

Mr. Muhammad Zahid Khan, Advocate for Respondent No. 3.

Shaikh Liaquat Hussain, Standing Counsel.

Date of hearing: 15.12.2016.

Order

Muhammad Ali Mazhar, J.--In essence, these petitions have been brought to strive for evenly treatment and benefit of judicial precedent reminiscent of Hafeeza Junejo case rendered by the learned division bench of this Court on 2.12.2012 in C.P.No. D-3272/2011.

1. The brief facts of the case are that the petitioners were initially appointed by Pakistan Steel Mills and presently performing their duties as teaching and non-teaching staff in Pakistan Steel Cadet College in terms of letters of contracts issued by Hadeed Welfare Trust. Since they are performing their duties for last considerable period on contract basis therefore they have approached this Court for regularization of services with similar treatment as meted out to the petitioners in C.P.No. D-3272/2011. The Respondent Nos. 2 and 3 filed their comments. The Respondent No. 2 in their comments raised the objections that the petitioners are employees of Hadeed Welfare Trust while the Hadeed Welfare Trust has taken the plea that that Office Memorandum issued by Establishment Division for regularization of contract employees does not apply to them.

2. The learned counsel for the petitioners argued that Petitioners Nos. 1 to 7, 21 and 22 in C.P. No. D-5176/2013 and the petitioner in C.P.No. D-151/2014 were employed by the Respondent No. 2 on different dates but after the creation of Respondent No. 3 they were en bloc taken on roll of the Respondent No. 3. The remaining petitioners were engaged by the Respondent No. 3 on different dates. The Hadeed Welfare Trust is fully owned by Respondent No. 2. The Respondent No. 1 issued office Memorandum No. 10/30/2008-R.II dated 29.8.2009 whereby all employees from BS-1 to BS-15 were to be regularized in the service of the Federal Ministries/Divisions/Attached Departments, Subordinate Offices, Autonomous, Semi-Autonomous Bodies/Corporations. Since the Office Memorandum, was not acted upon therefore employees including many of the petitioners filed Constitution Petition No. D-3272/2012 whereby the Respondent No. 2 was directed to regularize the services of petitioners in terms of Office Memorandum dated 29.8.2008. The judgment was assailed by the Respondent No. 2 in the Hon’ble Supreme Court but the petition was withdrawn with the undertaking that the Pakistan Steel Mills will implement the judgment in letter and spirit. The Respondent No. 2 implemented the judgment of this Court in relation to the employees form BS-1 to B-15 but the petitioner’s claim of regularization was rejected on the ground that they did not fall in the criteria being above the BS-15. Few Civil Misc. Applications were filed in the disposed of petition on 20.5.2013 but the learned divisional bench of this Court was pleased to hold that the employees approached for the implementation in their case do not fall within the scope of office memorandum as they cannot be categorized in grade 1 to 15. The BS.16 officers approached the hon’ble Supreme Court but their case was disposed of with the observation that that the Office memorandum is related to grade 1 to grade 15, therefore, the officers above the grade 15 may avail legal remedy, if any. He further argued that the Cabinet Committee in its meeting held on 25.1.2011 decided that contract employees who have completed one year of satisfactory service be regularized; the daily wages workers employed for 89 days (one spell) and completed three spells of their services shall be regularized in conformity with the apex Court and the cases of contract employees of BS-16 and above may be submitted to the committee for regularization of their services through cabinet decision instead of FPSC. Since the Respondent No. 2 did not implement the above decision, therefore, the Respondent No. 1 called the explanation of the Respondent No. 2 vide its letter dated 12.10.2011. The petitioners are entitled for regularization from the date of their induction with all benefits as has been done in the case of the petitioners in the CP. No. D-3272/2012. The regularization of service is not an initial recruitment but it is confirmation of an existing employment.

3. The learned counsel for the Respondent No. 2 argued that Pakistan Steel Mills has no statutory regulations hence petition is not maintainable. The petition is also hit by laches. The petitioners have failed to avail alternate remedy by filing appeal and or representation to the competent authority before approaching this Court. The petitioner could seek the remedy before the labour Court rather than filing this petition. The category of officers are excluded from the preview regarding regularization of the service of the employees in the letter dated 29.8.2008 mentioned in the Hafeeza Junejo case. All the petitioners are employees of M/s.Hadeed Welfare Trust and Pakistan Steel has been wrongly impleaded. The Petitioner Nos. 1 to 17 and 21 to 23 were the petitioners in C.P.No. D-3272/2011 but relief of regularization in service was declined to them being in officer category as the Office Memorandum dated dated 29.8.2008 speaks of the Cabinet Committee Decision for regularization of employees from BS-1 to BS-15 only.

4. The learned counsel for the Respondent No. 3 argued that the petitioners have no locus standi to file this petition. The petitioners voluntarily at their sweet will entered into Employment Contract with Respondent No. 3 hence petitioners cannot be allowed to approbate and reprobate. The category of the officers are excluded from the preview set out for regularization of the service of the employees as incorporated in letter dated 29.8.2008 and as mentioned in the Hafeeza Junejo case vide C.P.No. D-3272/2011. The Respondent No. 3 is a registered Trust and said Cabinet Committee’s decision dated 25.1.2011 is not applicable. The petitioners do not fall within the eligibility criteria framed in office Memorandum dated 29.8.2008 as referred to in the Judgment passed by this Court in C.P.No. D-3272/2011.

5. Heard the Arguments. Let us first shed light on Hafiza Junejo case (supra) in which the substratum and status of Hadeed Welfare Trust has been minutely discussed with regard to their administration and management through a trust. The learned author of the judgment also deliberated the Memorandum dated 22.07.2004 which was indeed the source and derivation of transfer of the Educational Institutions to Hadeed Welfare Trust. The relevant paragraphs of the judgment from 14 to 17 are reproduced as under:--

“14. It is admitted by Respondent No. 2 that petitioners were appointed on temporary/contract basis in Respondent No. 2. Therefore, their initial induction as employees of Respondent No. 2 is not denied. Thereafter, it is stated (as quoted above) that with effect from 31.7.2004 they were “en-block placed” to the Respondent No. 3. No document whatsoever for such en-block placement has been placed on record. Memorandum dated July 22, 2004 talks of placing the educational institutions. Nothing is said therein about the employees. No document whatsoever informing each employee of his placement has been placed on record. Registered Deed dated 27.2.2004 evidenced that an amount of Rs. 1,000,000/- (Rupees one million) was granted to the Respondent No. 3 as the property of the Respondent No. 2. In the Office Memorandum dated July 22, 2004 it was stated that Committee has been constituted for fixation of rent for the school buildings. The point is very clear, so far the school premises, furniture and building are concerned, they are properties of Respondent No. 2. It was agreed that rent will be subsequently settled. Through a statement filed, learned counsel for Respondent No. 3 placed on record certain documents which evidences that certain amount of rent is claimed to be recoverable by Respondent No. 2 from Respondent No. 3 and some rent in respect of the school buildings was paid by the Respondent No. 3 to Respondent No. 2. No document whatsoever was placed terminating employment of petitioners has been placed on record. No document that any of the petitioners received his final settlement has been placed on record.

1. In the case of Dawood Cotton Mills Limited v. Sindh Labour Appellate Tribunal (SBLR 2004 SINDH 614) a learned Division Bench of this Court quoted the following observations from the judgment of the Hon’ble Supreme Court of India in Hussain Bhai Calicut v. Alath Factory (1978 L.LJ 397):--

“5. The true test may, with brevity, be indicated once again. Where a worker or group of workers labours to produce goods or services and these goods or services are for the business of another, that other is, in fact, the employer. He has economic control over the workers’ subsistence, skill, and continued employment. If he, for any reason, chokes off, the worker is, virtually, laid off. The presence of intermediate contractors with whom alone the workers have immediate or direct relationship ex contract is of no consequence when on lifting the veil or looking at the conspectus of factors governing employment, we discern the naked truth, though draped in different perfect paper arrangement, that the real employer is the Management, not the immediate contractor. Myriad devices, half hidden in fold after fold of legal form depending on the degree of concealment needed, the type of industry, the local conditions and the like may be resorted to when labour legislation casts welfare obligations on the real employer, based on Arts. 38, 39, 42, 43 and 43A of the Constitution. The Court must be astute to avoid the mischief and achieve the purpose of the law and not be able by the maya of legal appearances.”

1. No document whatsoever has been placed by Respondent No. 2 to establish as to on what basis with what condition and with what stipulation were the employees in the schools placed at the disposal of Respondent No. 3. All that is stated in the comments is that employees were “en-block placed”. No document has been placed on record to establish that any employee was ever informed in writing for such placement. Some of the petitioners have been working since 1994 i.e. by 2004 they had completed almost eleven (11) years of service and thereafter all that was done to them was to place them “en-block” with the Respondent No. 3. No document has been produced establishing what was the relationship between Respondent No. 3 and Respondent No. 2. All this indicates that Respondent No. 3 has all alone been a mere subterfuge enabling Respondent No. 2 to shirk his responsibility towards its employees. Such kind of devices, it has been held by the Hon’ble Supreme Court in the case of Ikram Bari v. National Bank of Pakistan (2005 SCMR 100), amount to playing a fraud on statute.

2. Result of the above discussion is that this Const. Petition is allowed and Respondent No. 2 is directed to regularize the petitioners in service on terms and conditions contained in Office Memorandum dated August 29, 2008 and in accordance with the principles laid down by the Hon’ble Supreme Court in the case of Ejaz Akber Kasi vs. Ministry of Information & Broadcasting (2011 PLC (CS) 367). Let this exercise be completed within one month and the benefits be paid with arrears to the petitioners. Pending applications are disposed of.”

3. No doubt that the aforesaid judgment was germane to the employees in BS-1 to BS-15 primarily for the reasons that the judgment was grounded and centered on the Office Memorandum dated 29.8.2008 disseminated for regularization of contract employees performing their duties in the Federal Ministries, their attached Departments, subordinate offices, autonomous and semi-autonomous bodies/corporations in BS-1 to BS-15 with the cutoff date 3.6.2008. Though some of the present petitioners were also party to earlier petition filed by Hafiza Junejo but since the Office Memorandum permitted the regularization from BS-1 to BS-15, therefore, no favourable order could be achieved by them. It is also a fact that against the judgment of this Court, Civil Petition No. 1638/2012 was filed by Pakistan Steel Mills but on 30.10.2012, a statement was given to the apex Court that the directions contained in the judgment of High Court shall be exercised accordingly in letter and spirit by the petitioner (PSM) and on this statement, the petition was dismissed as withdrawn.

4. At this moment in time, the petitioners hinge on the minutes of the meeting of Cabinet Committee dated 7.2.2011 The relevant Paragraph No. 6 is reproduced as under;--

“6. After thorough discussions and deliberation, the following decision were taken:--

(i) Contract employees who have completed one year of satisfactory service be regularized.

(ii) Daily wages workers employed for 89 days (one spell) and completed three spells of their services shall be regularized in conformity with the order of the Apex Court.

(iii) The cases of contract employees of BS-16 and above may be submitted to the Committee for regularization of their services through Cabinet decision instead of FPSC.”

1. The aforementioned minutes lead to an unequivocal and an indisputable decision that the benefit of regularization was also extended to the employees performing duties in BS-16 and above with the criteria that their cases may be submitted to the Committee for regularization of their services through Cabinet decision instead of FPSC. A reply of Acting General Manager (A&P), Pakistan Steel Mills to the Petitioner No. 1 is also available at page-119, which is in fact written by him for the implementation and enforcement of the judgment passed in C.P.No. D-3272/2011 but in response, no pretext was put into words by the Pakistan Steel Mills with regard to the nonexistence or want relationship of employer and employee rather than the reply was based on the premise that the Establishment Division letter was confined to the contractual employees performing their duties in BS-1 to BS-15. It was further acknowledged that the judgment rendered by this Court in Hafeeza Junejo case as well as CPLA No. 1638/2012 have been implemented in its letter and spirit. At page page-129 (Annex-24) another letter issued by Government of Pakistan, Establishment Division on 30.5.2013 is available which emphases and prominences again the minutes of meeting of Cabinet Sub-Committee on regularizations of contract, daily wages, contingent employees in the ministries, divisions, attached departments, autonomous bodies, organization etc. held on 13.3.2013. These minutes do show in paragraph-236 that the representative of the Ministry of Production/Secretary Pakistan Steel Mills informed the Cabinet Sub-Committee that there are certain contract/daily wages employees in the cadet college and other educational institutions of the Steel Mills at Karachi who have served for more than one year and whose services are required to be regularized. On this motion, the matter was discussed in paragraph No. 236 and the decision is alluded to in Paragraph No. 237. For the ease of reference, both paragraphs are reproduced as under:--

“MINISTRY OF PRODUCTION

1. The representative of the Ministry of Production/Secretary Pakistan Steel Mills informed the Cabinet Sub-Committee that there are certain contract/daily wages employees in the Cadet College and other educational institutions of the Steel Mills at Karachi who have served for more than one year and whose services are required to be regularized.

DECISION

1. The Cabinet Sub-Committee discussed and directed that the services of all the contract/daily wages employees (teaching and non-teaching staff) of the Cadet College and other educational institutions of Pakistan Steel Mills Karachi, who have served for more than one year should be regularized subject to fulfillment of recruitment criterion and availability of posts under intimation to the Establishment Division.”

2. When we explicitly confronted the above decision to the learned counsel for the Pakistan Steel Mills as to whether Pakistan Steel Mills is operating cadet college and other educational institutions, Mr.Sanaullah Noor Ghouri, learned counsel PSM. clearly stated that the educational institutions and Cadet College are being run under the control of Hadeed Welfare Trust and this fact has also been confirmed by the learned counsel for the Hadeed Welfare Trust that all educational institutions and Cadet College are being administrated and governed under the umbrella of Hadeed Welfare Trust. On this well-founded statement, a domineering query ascends to that if Hadeed Welfare Trust has no nexus with Pakistan Steel Mills then why the representative of the Pakistan Steel Mills was sitting in the meeting of cabinet committee as Secretary and informed that there are certain contract/daily wages employees in cadet college and other educational institutions of the Steel Mills at Karachi deserving their regularization. Mr.Sanaullah Noor Ghouri, Advocate also augmented that there is no specific scale or grade mentioned in the decision and according to learned counsel some of the employees are performing their duties in grade 17 and above. This argument is miscomprehended, the minutes of meeting or the decision taken on 13.3.2013 cannot be read in isolation and segregation. On the contrary it will be read with the minutes of meeting dated 7.2.2011 in which the regularization benefits were extended to the employees in Bs-16 and above. One more prominent attribute cannot be dispensed with that the decision dated 13.3.2013 was taken in presence of PSM representative who raised this motion so it is a virtuously beneficial decision in which probability cannot be ruled out that the decision making body strategically not mentioned any grade or pay scale. It is quite obvious from the language of the decision that it is well extended and broad spectrum decision which neither permits nor any tendency to articulate rigid or obstinate interpretation.

3. The relationship between the Hadeed Welfare Trust and Pakistan Steel Mills does not requires any further deliberation after passing judgment by this Court in Hafeeza Junejo case. This Court has already surveyed and scanned the solemn structure and configuration of the trust and office bearers holding various posts have been discussed in detail. The letter written to the Petitioner No. 1 copy of which available at page-119 also amply demonstrates that in fact Pakistan Steel Mills is running the affairs of Hadeed Welfare Trust. The record further reflects that in Hafeeza Junejo case some interlocutory applications were moved which were disposed of by the learned Division Bench of this Court vide order dated 20.5.2013 and against the order one Liaquat Ali approached to the Apex Court in Civil Petition No. 1302/2013 but his counsel did not press the petition. However, the hon’ble Supreme Court again observed that the persons who are contract employees and fall within grade 1 to 15, their cases can be considered and decided within a period of 60 days and the petitioners not covered under the Office Memorandum may avail the legal remedy, if any. It was observed that the petitioners at SI.No. 1 to 16 mentioned in the earlier part of the judgment at page 27 of the paper book, their cases need not be considered as they are in officer grade. The learned counsel for the petitioners argued that now the petitioners have approached this Court for regularization of service in terms of office Memorandums available at page-129 to page-133. So far as the issue of maintainability is concerned, the petitioners have not approached this Court to challenge or the enforcement of the terms and conditions of service. It also makes no difference that PSM has no statutory rules service as in the present case, the petitioners have approached this Court for enforcement of cabinet decision for regularization. In this regard we feel no reluctance to hold that PSM is amenable to the writ jurisdiction of this Court and this petition is maintainable.

4. To enjoy the protection of law and to be treated in accordance with law is inalienable right of every citizen. Reading of Article 4 of the Constitution of Islamic Republic of Pakistan shows that it incorporates the doctrine of equality before law or equal protection of law and no action detrimental to the life, liberty, body, reputation or property of any person can be taken except in accordance with law. Public functionaries are supposed to function in good faith honestly and within the precincts of his power so that person concerned should be treated in accordance with law. Article 3 of the Constitution makes its incumbent upon the state to ensure elimination of all forms of exploitation. Reference can be made to the judgment authored by one of us (Muhammad Ali Mazhar-J), reported in 2013 PLC (C.S) 121 (Muhammad Akram Solangi & others v. D.C.O. Khairpur & others). The honourable Supreme Court in the case of Ikram Ban, reported in 2005 SCMR 100 held that Islamic welfare state is under obligation to establish a society, which is free from exploitation wherein social and economic justice is guaranteed to its citizens.

5. At this juncture we would like to quote 2015 SCMR 1257 (Pir Imran Sajid v. Managing Director, Telephone Industries of Pakistan). In this case the employees were performing their duties on contract basis and they approached time and again for regularization of their services. They also relied upon a Cabinet Committee’s decision for regularization dated 21.02.2013 and filed Writ Petition in the learned Peshawar High Court for implementation and enforcement of the Cabinet Committee’s decision but the petition was dismissed mainly for the reason that TIP is a private limited company with no statutory service rules and secondly the appellants were contract employees. The hon’ble Supreme Court in the aforesaid dictum held in Paragraph No. 5 as follows:

6. Keeping in view such status of the company, and the “Function Test” as prescribed and applied by a five member Bench of this Court in the case of Abdul Wahab and others v. HBL and others (2013 SCMR 1383), authored by one of us (Mian Saqib Nisar, J.), which test/criterion is fully meet in the present case, the status of TIP could not prevent the appellants from seeking constitutional remedy as the company clearly falls within the definition of a “person” as envisaged by Article 199 of the Constitution. The learned counsel for the respondents, in support of his second objection i.e. lack of statutory service rules, relied upon the judgment in the case of Fakhrur-Islam Qureshi (Civil Appeal No. 424 of 2009), authored by one of us (Mian Saqib Nisar, J.), whereby the said appeal was dismissed on the ground that relationship between the appellant, retired employee and TIP is not governed by statutory rules. Such reliance, in our view, is wholly mis-placed for the reason, that unlike in the present case the appellants therein were seeking pensionary benefits on the basis of pensionary rules, which rules were non-statutory. Whereas in the present case, the appellants are seeking implementation of the directive of the Prime Minister of Pakistan and the decision of the cabinet sub-committee for their regularization sought to be enforced by the relevant ministry.”

Whereas in paragraphs 8 and 12, the apex Court held as under:

1. In addition to the benefit of the above dictum, we may observe here that TIP’s non-compliance, rather defiance of the decision of the cabinet sub-committee to regularize the services of the appellants, and not heeding to the directive of their Ministry to comply with said decision, compliance whereof is being sought by the appellants, is wholly illegal and mala fide. Even otherwise, since as noted earlier, the retention of the appellants by TIP for a period of more than 12 years and repeated renewal of their contracts of employment, clearly show that the posts/positions held by the appellants were/are of permanent nature which were essentially required by TIP for its functioning and that repeated renewal of the appellants’ contracts and the increments granted to them show also, that the appellants have been discharging their duties to the satisfaction of their employer and therefore, employing/retaining the appellants on contract, instead on permanent basis was/is wholly mala fide, whimsical and unfair. Such practice/conduct has also been deprecated through judicial pronouncements. The appellants have rendered prime time of their life in serving TIP and in the process may now have become overage for any other suitable employment.

2. It is now well laid down that the object of good governance cannot be achieved by exercising discretionary powers unreasonably or arbitrarily and without application of mind but objective can be achieved by following the rules of justness, fairness, and openness in consonance with the command of the Constitution enshrined in different Articles including Articles 4 and 25. The obligation to act fairly on the part of the administrative authority has been evolved to ensure the rule of law and to prevent failure of the justice.

As a final point, the apex Court allowed the appeals and regularized the services of the appellants from the date of decision of the Cabinet Sub-Committee for Regularization.

1. In the wake of foregoing discussion, the petitions are disposed of with the directions to the Respondent No. 2 to regularize the services of the petitioners in terms of Cabinet Sub-Committee decision dated 13.3.2013. The pending applications are also disposed of.

(R.A.) Petitions disposed of.

PLJ 2017 Karachi 82 (DB)

Present: Muhammad Ali Mazhar and Syed Saeeduddin Nasir, JJ.

PAKISTAN PVC LIMITED GENERAL EMPLOYEES UNION--Petitioner

versus

GOVERNMENT OF PAKISTAN through Secretary M/o Finance, Islamabad and another--Respondents

C.P. No. D-1889 of 2013, decided on 7.12.2016.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Staff union--Outstanding amount of gratuity and cost of living allowance--Privatized--Memorandum of agreement--No justification of withholding payment for such long time--Validity--It is also well-settled that gratuity and cost of living allowance both are part of wages--Gratuity is actually a benefit for services rendered in past and reward of good, efficient and faithful service for a substantial period of time--Under law, it is responsibility of employer to immediately pay all full and final settlement dues to its employees either in case of retirement or even under GHS Scheme introduced if any--Payment to an unlimited period of time--A person who devoted and dedicated valuable years of his life at least deserves such courtesy and respect that his legitimate dues would be paid to him promptly.

[P. 84] A, B & C

Syed Shoa-un-Nabi, Advocate for Petitioner.

Malik Mushtaq Ellahi, General Secretary of Union.

Shaikh Liaquat Hussain, Standing Counsel.

Abdul Haseeb, Senior Legal Consultant, Privatization Commission of Pakistan.

Nadeem Arshad, Section Officer (Legal), Ministry of Finance, Government of Pakistan, Islamabad.

Date of hearing: 7.12.2016.

Order

Muhammad Ali Mazhar, J.--This petition has been filed by the staff union of Pak PVC. Limited through its General Secretary for seeking direction against the respondents to pay the outstanding amount of gratuity and cost of living allowance.

1. The brief facts of the case are that on 15.10.1991, a Memorandum of Agreement was signed between Government of Pakistan and employees of State Owned Industrial Units which were perceived to be privatized. A copy of Memorandum of Agreement dated 15.10.1991 is attached with the memo. of petition at page 29. By means of this agreement, different modalities were settled to deal the employees of different Industrial Units intended to be privatized with the genre and manner for the payment of their full and final settlement dues including Golden Hand Shake Scheme. The petitioner union has brought the case on behalf of its aggrieved members that though amount calculated by the management in terms of Golden Hand Shake Scheme have been paid to them but at the time of calculation, the impact of cost of living allowance was disregarded and or overlooked so for all intent and purposes, it is quite obvious that the calculation made by the respondents and or prospective owner of the industrial unit is incorrect and the dues were not paid as per GHS. Scheme and in view of the agreement dated 15.10.1991 in which the effect of cost of living allowance was mentioned.

2. The petitioner has also attached a copy of letter dated 13.11.2012 written by the Director General, Privatization Commission, Ministry of Privatization, Government of Pakistan to Mr. Nisar A. Memon, Board Member of Privatization Commission in which the reference has been given for the meeting with the Secretary, Privatization on the issue of payment of outstanding dues to the ex-employees of Pak. PVC Ltd. which was sold to Reyaz Shaffi (Buyer)vide sale agreement dated 23.01.1992. It is further stated that in the original sale agreement, there was no clause regarding payment of Golden Hand Shake Scheme to the workers but in order to address this issue, a Memorandum of Agreement was executed between Privatization Commission and the buyer on 16.06.1992, whereby, it was agreed that other legal dues to which workers are entitled shall be paid by the new owner along with Golden Hand Shake amount. Later a supplementary agreement was signed on 22.10.1992, whereby, it was agreed that liability for payment of Golden Hand Shake amount of the workers shall be shared equally between Privatization Commission and the buyer. In the same letter, a reference of Privatization Commission board meeting dated 26.01.2009 has also been given that a committee was constituted comprising the board members along with the representative of Finance Division and Ministry of Industries and Production to examine the case of workers of the Pak. PVC Ltd. Based on the recommendations of the Committee, the Privatization Commission Board in its meeting held on 19.11.2009 recommended to the Cabinet Committee of Privatization for the payment of gratuity and cost living allowance amounting to Rs. 21.262 Million to the employees of Pak PVC Ltd. and to arrange the above payment, the Finance Division was requested to provide funds for payment to ex-employees.

3. The petitioner in fact wants the implementation of this recommendation only to the extent of payment mentioned in the letter. On last date of hearing, notice was issued to the Director General, Privatization Commission to depute a responsible person fully conversant with the facts of the privatization of Pakistan PVC Ltd. and Secretary Finance was also directed to depute the Deputy Secretary, Finance to appear.

4. Mr.Abdul Haseeb, Senior Legal Consultant, Privatization Commission of Pakistan and Mr.Nadeem Arshad, Section Officer (Legal), Finance Division, Ministry of Finance, Islamabad are present. The representative of Privatization Commission admitted the contents of letter dated 13.11.2012. He responded that 483 employees have already been paid the amount of Golden Hand Shake but the amount of gratuity of some employees is outstanding in the sum of Rs. 8 Million while 13 Million is outstanding against the payment of cost of living allowance so according to their working, they have rightly mentioned the total amount of 21.262 Million in the above letter. He has also submitted a statement in Court to show that a letter has been sent on 5.12.2016 to the Ministry of Finance for the payment however there are some issues which are being examined by the Finance department.

5. Be that as it may. We feel no disinclination in our mind to hold that as soon as the liability has been admitted in the sum of Rs. 21.262 Million against the amount of gratuity and cost of living allowance, there is no further justification to delay the payment. The Privatization was completed in the year 1992 and since then the poor employees are combating for the payment of their dues including gratuity and cost of living allowance which is their vested right in terms of law as well as agreement signed between the Ministry of Privatization with Action Committee of the different Unions of employees of State Owned Industrial Units and Corporations. It is also well-settled that gratuity and cost of living allowance both are the part of wages. Gratuity is actually a benefit for services rendered in the past and reward of good, efficient and faithful service for a substantial period of time. Under the law, it is the responsibility of the employer to immediately pay all full and final settlement dues to its employees either in case of retirement or even under the GHS Scheme introduced if any. There is no justification of withholding this payment for such a long time. Most of the Members of Petitioner are present in Court and they have shown their miseries that due to the delay in payment they are facing financial hardship. There is no rational to hold this payment to an unlimited period of time. A person who devoted and dedicated valuable years of his life at least deserves this Courtesy and respect that his legitimate dues should be paid to him promptly.

6. The learned Standing Counsel submits that letter dated 05.12.2016 has been received by the Finance Division therefore he requests for some time so that the Finance Division may examine the matter. This issue relates to payment of dues since 1991 and since 2013 this petition is pending in this Court without any progress so it would be totally unjustified to grant any further time in view of the information conveyed by the learned counsel for the petitioner that out of 483 employees, at least 130 employees have expired but their dues could not be paid during their life time while remaining workers are suffering from severe hardship due to in action or the reckless attitude of the Privatization Commission and Government of Pakistan in the payment of admitted dues. One more important facet cannot be ignored which has been discovered from the letter dated 13.11.2012 as under:--

“2. Later a Supplementary Agreement was signed between the Buyer and the PC on October 22, 1992 whereby it was agreed that the liability for payment of GHS amount to workers shall be shared equally between PC and the Buyer. [Emphasis applied] It was also agreed that the Buyer will clear the GHS liability and liability for all legal dues in favour of the workers before November 30, 1992.”

1. On one hand, the Privatization Commission was so generous to share the GHS amount equally with the buyer but on the other hand, the poor employees are divested and deprived of their lawful dues. Whether this is a common practice of PC that in each case of privatization they are used to behave so generous to relieve the burden of every buyer by aforesaid sharing formula? This aspect also needs to be examined and interrogated by the Competent Authority. At this stage, the representative of Privatization Commission submits that still some amount is to be paid by the buyer. This is the look out and responsibility of Government of Pakistan and the Privatization Commission to recover the amount for which the poor employees are not responsible and they shall not become victim of inefficiency and or generosity of Government Departments extended to the buyer.

2. As a result of above discussion, this petition is disposed of with the directions to the Respondents to deposit admitted liability of Rs. 21.262 Million with the Nazir of the Sindh High Court within fifteen (15) days. On proper verification and identification, the amount will be disbursed by the Nazir to the individual employees. The General Secretary of the petitioner union will submit proper list of the employees who are entitled to receive this amount along with proper calculation of dues of each employee to the Nazir of this Court but before submitting this statement, the General Secretary will work out the amount of each worker with the help and assistance of the concerned department of Privatization Commission. Copy of this order may be transmitted to the learned Standing Counsel.

(R.A.) Petition disposed of.

PLJ 2017 Karachi 85 (DB)

Present: Aqeel Ahmed Abbasi & Arshad Hussain Khan, JJ.

BANK ALFALAH LIMITED--Appellant

versus

INTERGLOBE COMMERCE PAKISTAN (PVT.) LTD. and 5 others--Respondents

SPL HCA No. 282 of 2015, decided on 7.3.2017.

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

----S. 22(1)--Appeal against interlocutory order--Maintainability--In terms of sub-section (1) of Section 22 of FIO, 2001, an appeal can be filed by a person aggrieved by any ‘judgment, decree, sentence, or final order passed by a Banking Court’, within thirty days of such judgment, decree, sentence, or final order, to High Court--However, sub-section (6) of Section 22 of FIO, 2001, clearly bars filing of any ‘appeal, review or revision against an order accepting or rejecting an application for leave to defend, or any interlocutory order of Banking Court, which does not dispose of entire case before Banking Court, other than an order passed under sub-section (11) of Section 15 or sub-section (7) of section 19--Rationale behind above provisions seems to be expeditious disposal of cases under FIO, 2001 and to avoid unnecessary delay, which is caused by filing frivolous interlocutory which are subjected to frivolous appeals as well--If interlocutory orders are allowed to be challenged before High Court by filing appeals, very object for which FIO 2001 was enacted would be frustrated--Appellate power conferred on High Court under FIO 2001 in terms of Section 22 is therefore, restricted, only to extent entertaining an appeal against final order and judgment of Special Court. [Pp. 94 & 95] A

Words and phrases--

----“Final Order”--Meaning--Words ‘final order’ and ‘an interlocutory order’ have now been settled from various pronouncements of apex Court viz, “A final order means an order which finally disposes of rights of parties--Real test for determining whether order is final ought to be this: ‘Does judgment or order, as made, finally disposes of rights of parties? If it does, then it ought to be treated as a final order; but if it does not, it is then an interlocutory order. [P. 95] B

Black’s Law Dictionary (Sixth Edition)

Interlocutory Order--

----Word ‘Interlocutory Order’ has not been defined anywhere either in C.P.C. or in FIO 2001, but appeals were made competent under C.P.C. against orders covered by Order XLIII but legislature under sub-section (6) of Section 22 of FIO 2001 clearly mentioned that no appeal shall lie against an interlocutory order which does not dispose of entire case--It is thus clear that word ‘interlocutory order’ has been used to achieve object that appeal shall lie only against final order, did not stop after legislating that no appeal shall lie against interlocutory order but further qualified interlocutory order, which does not dispose of entire case--Intention of legislature is crystal clear from language employed in provision that appeal can only be maintained against last or final order--Appeal dismissed.. [Pp. 95 & 96] C

Mr. Arshad Tayyebaly, Advocate for Appellant.

Mr. Zeeshan Abdullah, Advocate for Respondents No. 1 & 2.

Mr. Ravi R. Pinjani, Advocate for Intervenor, (Shaheed Zulfiqar Ali Bhutto Institute of Science & Technology (SZABIST).

Date of hearing: 7.3.2017.

Judgment

Arshad Hussain Khan, J.--Through instant Special High Court Appeal the appellant has sought following relief:--

“(I) Recall/set-aside the impugned Order dated 24.08.2015 and pass order for attachment before judgment in respect of the Subject Property (Plot No. 99-CF-1/5, Clifton, Karachi) belonging to the Respondent No. 1.

(II) Until disposal of this Appeal, suspend the operation of the Impugned Order dated 24.08.20J5 and restrain the Respondent No. 1, along with its management, employees, agents from alienating, transferring, disposing of the subject property, or creating any third party interests or rights in the subject property.”

1. Brief facts as stated in the present appeal are that the appellant being a banking company had provided various financial facilities to Respondent No. 2 (CALLMATE TELIPS TELECOM LIMITED). Against the aforesaid financial facilities extended to Respondent No. 2 by the appellant, various securities were furnished to the appellant by the respondents, including, inter alia, personal guarantees of the sponsors/directors of the Company i.e. Respondents No. 3 (Mr. Ahmed Jamil Ansari), Respondent No. 4 (Mr. Hassan Jamil Ansari) and Respondent No. 5 (Muhammad Ajmal Ansari), a cross corporate guarantee of Respondent No. 1 (INTERGLOBE COMMERCE PAKISTAN (PVT.) LTD), a mortgage over the property of Respondent No. 6 (Mrs. Yuba Jamil Ansari), a hypothecation charge over goods, receivables, operating fixed assets etc. of Respondent No. 2. The aforesaid financial facilities were renewed/extended from time to time by the appellant to Respondent No. 2. The Respondent No. 2 availed and utilized the financial facilities but eventually defaulted in its repayment obligation and committed default in repayment of the dues despite various reminders by the appellant. Consequently, the appellant filed a recovery suit bearing No. B-01 of 2008 before this Court against the respondents for recovery of Rs.258,846,552/- along with cost of funds under Section 9 of Financial Institutions (Recovery of Finances) Ordinance, 2001. It has been stated by the appellant that the respondents not only committed willful default but Respondents No. 3 to 5 also transferred their major shareholding in Respondent No. 2 without prior written consent/permission from the appellant contrary to the agreed terms and conditions of the financing extended by the appellant. The said suit was decreed in the sum of Rs.258,846,552/- with cost of funds against the principal borrower, that is, Respondent No. 2 on 10.03.2008 and the case was adjourned for hearing of application for leave to defend filed by respondents 1 and 3 to 6. It has been stated that Respondent No. 1, who has executed a Corporate Guarantee has filed a separate application for leave to defend whereas Respondents 3 to 5 who have executed personal guarantees filed a joint application for leave to defend and Respondent No. 6, the mortgagor/guarantor also filed a separate leave to defend application. Respondent No. 1 in its leave to defend application admitted having executed the Corporate Guarantee in favour of the appellant to secure the outstanding and of Respondent No. 2. The appellant filed the replication in reply to the application for leave to defend of Respondent No. 1 denying the allegations leveled therein. Subsequently, the leave to defend applications of Respondents No. 1, 3 to 5, (the guarantors), were allowed unconditionally vide order dated 20.04.2009. The parties thereafter filed their proposed issues. It has been further stated that apart from the financial facilities extended to Respondent No. 2, inter alia, against security of the corporate guarantee of Respondent No. 1, the appellant had also extended financial facilities separately to Respondent No. 1, inter alia, against a security of mortgage in respect of Plot No. 99-CF-1/5, Clifton, Karachi, (subject property) as well as personal guarantees of Respondents 3 to 5 and another. Respondent No. 1 had also defaulted in repayment of the financial facilities extended to it by the appellant. Consequently, the appellant filed another recovery suit before the Banking Court No. III at Karachi bearing Suit No. 81 of 2009 for recovery of Rs.25,320,154.98/-along with cost of funds under Section 9 of Financial Institutions (Recovery of Finances) Ordinance, 2001 against Respondent No. 2 as principal borrower and mortgagor of the subject property and, inter alia, Respondents 3 to 5 herein. Further averred that respondents 1 and 2 for all intents and purposes were associated companies within the meaning ascribed to that term in the Companies Ordinance, 1984, having common management, that is Respondents 3 to 5, at the time when the financial facilities were obtained from the appellant by respondents 1 and 2. Further averred that Suit No. 81 of 2009 was decreed vide Order dated 25.08.2009 in favour of the appellant upon an admission on the part of Respondent No. 1 of its liabilities owed to the appellant. However, instead of passing a mortgage decree the Banking Court No. III issued a Decree for Redemption of the subject property on an application filed by Respondent No. 1. The aforesaid decree was thereafter assailed by the appellant before this Court in First Appeal No. 45 of 2009 and the Division Bench of this Court allowed the appealvide order dated 06.04.2010 upon Respondent No. 1’s conceding to the extent that the direction for redemption of the mortgaged property, that is, the subject was deleted from the Banking Court’s order dated 25.08.2009. The said decree passed by the Banking Court III was modified by the Division Bench of this Court. Thereafter, the Respondent No. 1 filed a statement depositing a pay order for Rs.28,475,362.86 against the decree passed by the Banking Court No. III and moved a similar application, which was filed by the respondent on the basis of which the decree for redemption was passed by the Banking Court No. III for redemption of the mortgaged property, that is, subject property and return of the original title documents, under Section 60 of the Transfer of Property Act, 1882 read with Section 151 CPC praying therein, inter alia, to pass necessary orders so that the subject property stands released and redeemed forthwith. A counter affidavit to the said application was filed by the appellant and a rejoinder thereon was also filed by the respondents. It is alleged that the aforesaid application was filed again with mala fide intention to obtain the same order which was passed under the decree for redemption, earlier by the Banking Court No. III and modified by the Division Bench of this Court in First Appeal No. 45 of 2009. SZABIST filed an intervener application in Suit No. 81 of 2009, as disposed of, seeking to become a party on the ground that SZABIST and Respondent No. 1 had entered into an agreement to sell in respect of the subject property. The intervener application filed by SZABIST, was dismissed vide order dated 09.10.2010. Thereafter, SZABIST filed a suit bearing Suit No. 142 of 2011 before this Court against Respondent No. 1 and the appellant, seeking specific performance of the agreement to sell in respect of the subject property. The appellant has also filed its written statement in the aforesaid SZABIST’s suit. It is stated that not only a suit was filed by SZABIST but, an intervener application was also filed in Suit No. B-01 of 2008 which is still pending adjudication. It is also stated that the subject property was not only mortgaged with the appellant at the time of execution of the agreement to sell entered into between the Respondent No. 1 and SZABIST, and the mortgage as well as the corporate guarantee executed by Respondent No. 1, which is the subject matter of Suit No. B-01 of 2008, was well in the knowledge of SZABIST and that the subject property was the only valuable asset belonging to the Respondent No. 1 and would potentially realize the decrees in both suits. that is, Suit No. 81 of 2009 and Suit No. B-01 of 2008. The aforesaid second application filed by Respondent No. 1 in Suit No. 81 of 2009, seeking redemption and release of the original title deeds of the subject property was thereafter allowed vide order dated 24.12.2012 by the Banking Court No. III, exercising its jurisdiction as an executing court for all intents and purposes, as Suit No. 81 of 2009 had already been disposed of. The appellant was thereafter constrained to once again file another Appeal before this Court assailing the order dated 24.12.2012 passed by the Banking Court-III bearing First Appeal No. 12 of 2013. The said appeal was allowed, vide short order dated 12.02.2013, by the Division Bench of this Court. It is also averred that upon knowledge that Respondent No. 1 was intending to dispose of the subject property and the agreement to sell entered into between Respondent No. 1 and SZABIST, the appellant immediately filed an application under Order XXXVIII, Rules 5 and 6 read with Section 151 CPC (bearing CMA No. 8617 of 2009 attachment application) in Suit No. B-01 of 2008 to protect its lawful rights and interests as a creditor. The Respondent No. 1 also filed a counter affidavit to the attachment application wherein a categorical statement was made that it has no intention to dispose of the subject property. It is also admitted that the security with the appellant was insufficient to satisfy the decree under Section 10(1) of the Financial Institutions (Recovery of Finances) Ordinance. 2001 already passed against Respondent No. 2 in Suit No. B-01 of 2008. It is also alleged that the sole mala fide intention of Respondent No. 1 in entering into an agreement to sell with SZABIST was to defeat and deprive the appellant from recovering the fruits of an eventual decree, which will be passed against Respondent No. 1 in Suit No. B-01 of 2008. For this very reason, the appellant filed the attachment application to prevent the sale/transfer of the subject property. Though the said attachment application was filed in the year 2009, it was not heard until 05.08.2015. Meanwhile, Respondent No. 2 was ordered to be wound up by this Court vide order dated 04.08.2008 passed in J.M. No. 5 of 2008. It is pertinent to note that the Official Liquidator/Official Assignee of Respondent No. 2 has not been able to trace, collect or seize any valuable asset of Respondent No. 2, which would be able to satisfy the decree passed against the Respondent No. 2 in Suit No. B-01 of 2008. As such the only hope available for the appellant to recover its dues being a secured creditor of both respondents 1 and 2 would be through realization of sale proceedings of the subject property, which the Respondent No. 1 is trying to alienate and dispose of with the sole mala fide intention of defeating any eventual decree that may be passed against it in Suit No. B01 of 2008. The attachment application was heard by the learned Single Judge of this Court and subsequently rejected vide impugned order.

2. Upon notice of the present appeal, the respondents filed their respective counter affidavits wherein while denying the allegations of the memo of appeal have also raised preliminary legal objections regarding maintainability of the appeal, as according to respondent(s) appeal is not maintainable against an interlocutory order in terms of sub-section (6) of Section 22 of the Financial Institution (Recovery of Finance) Ordinance, 2001 which provides for a specific bar for filing appeal against an interlocutory order. According to respondent(s), the impugned order, for the purpose and within the meaning of sub-section (6) of Section 22 of FIO 2001 is an interlocutory order, as the same has been passed on an interlocutory application, i.e. application under Order XXXVIII Rules 5 and 6 (bearing CMA No. 8617/2009), which undeniably, does not dispose of the entire case before the original banking jurisdiction of this Court, hence the appeal is not entertainable and liable to be dismissed on this score alone. It is also averred that even otherwise in general law i.e. CPC (Code of Civil Procedure, 1908), an appeal does not lie against an order of dismissing the application for attachment before judgment, whereas, appeal only lies against an order allowing the attachment before judgment. Therefore, according to respondent(s), on this score also, the appeal is not maintainable and liable to be out rightly dismissal. It is also averred that the appeal is also barred under sub-section (1) of Section 22 of FIO. 2001 as the impugned order does not fall within the category of judgment and decree, sentence, and/or final order. It is also averred that the impugned order cannot be termed as “final order’“ as the same has not terminated the litigation between the parties which, admittedly, is still pending in the main suit, in which issues are yet to be framed, evidence of the parties is yet to be recorded and judgment is yet to be passed. Besides above objections, it is also stated that in order to show Respondent No. 1 as guarantor in the instant suit, the appellant Bank filed forged/fabricated document/agreement, which has been discussed in detail in un-conditional leave granting order dated 20.04.2009 in Suit No. B01/2008. It is also stated that the alleged corporate guarantee of Respondent No. 1 is void for being not backed by any resolution by the Board of Directors of the company, in respect of alleged default, therefore, no liability can be attributed against Respondent No. 1. It is also stated that the subject property of Respondent No. 1 was only mortgaged in respect of finances, subject matter of Suit No. B-81/2009 filed in Banking Court No. 2 at Karachi, which according to respondent(s), after payment of decretal amount, stands redeemed and the same is no longer a mortgaged property with the appellant Bank. It is further stated that the subject property is not mortgaged in respect of finances, subject matter of Suit No. B-01/2008, therefore, the question, that Decrees in both the suits i.e. Suit No. 81/2009 and Suit No. B-01/2008, will be realized from the subject property, does not arise. Respondent further submitted that since the decree of Suit No. 81/2009 has already been satisfied, therefore, question of realizing the said decree from the subject property does not arise. It has been further stated by respondents that the application for attachment before judgment has now been decided/dismissed on merits by means of the impugned order, therefore, now there is no legal justification available with the appellant Bank to further keep the original title documents of the subject property as after redemption order by the learned Banking Court-III and upheld by the Division Bench of this Courtvide above referred order, the property is no longer a mortgaged property and the present custody of the original documents by the appellant Bank is unlawful and an illegal act. Respondent has further stated that the dismissal order of the application for attachment before judgment has been passed with cogent reasons as the appellant bank failed to make out a case for the attachment before judgment on the basis of material on record.

3. The learned counsel for the appellant during the course of arguments, while reiterating the contents of the memo of appeal has contended that the learned Single Judge failed to consider the conditions of Order XXXVIII Rules 5 and 6 CPC, 1908 relating to attachment before judgment. Per learned counsel, the learned Single Judge has exceeded its jurisdiction while dismissing the attachment application. It has been further contended that the learned Single Judge failed to take into consideration that the Official Liquidator’s Report in respect to the winding up proceedings against Respondent No. 2, which revealed that there are no valuable assets belonging to Respondent No. 2, and that the respondents misappropriated all assets of Respondent No. 2 and were now trying to dispose of the sole asset of Respondent No. 1, i.e. the subject property. It is also contended that the learned Single Judge also failed to consider that the balance of inconvenience is in favour of the appellant and the appellant would suffer irreparable losses if the subject property is not attached. Per learned counsel, the learned Single Judge also failed to appreciate that the other movable securities were siphoned away by the respondents during the course of their business, which, in any case, was carried out in an illegal and fraudulent manner for which Respondents 3, 4 and 5 faced criminal proceedings as well. All securities created by Respondent No. 2 were only available on the charge documents but were not tangible as the same had been misappropriated by management, that is Respondents 3 to 6, who were its directors/sponsors. According to learned counsel the learned Single Judge seriously erred in finding that the appellant was to blame for taking inadequate securities at the time of allowing the finances to Respondent No. 2. Whereas, the appellant also obtained the personal guarantees as well as a corporate guarantee from the respondent(s) in addition to the same. It has been contended that the learned Single Judge has also erred in not taking into consideration the various facts on record which clearly disclosed that the appellant does not have adequate security to protect its rights and to satisfy the decree which has already been passed against Respondent No. 2 and which will most likely to be passed against the Respondent No. 1 also after recording of the evidence. Further contended that the learned Single Judge has also failed to exercise the inherent jurisdiction vested in it inasmuch as the learned Single Judge even abstained from passing an injunctive order alternatively restraining Respondent No. 1, from transferring, selling or alienating the subject property till the final decision of the suit against Respondent No. 1 although a cogent case was made out by the appellant on the basis of facts. It is also contended that the learned Single Judge has also failed to exercise the jurisdiction vested in it to issue restraining order under its inherent powers on fallacious and hyper-technical grounds against the sale or transfer of the subject property till the decision of the suit which on the other hand would not take much time as the issues are already proposed by the parties and the evidence could be completed in short period. Per learned counsel, the learned Single Judge not only failed to consider properly but even disregarded the facts on record and the law cited before it in support of case of the appellant. It is also contended that the facts and law have been misinterpreted and misconstrued by the learned Single Judge, as laid down in the rulings of the higher Court, which have issued restraining orders for the completion of the sale in question before them to protect the legitimate interest of the creditors. It is also contended that the learned Single Judge while passing the impugned order has failed to apply his judicial mind on the clear decisions of the higher Court wherein the Courts have exercised inherent jurisdiction and have not hesitated to pass restraining order alternatively against the sale/ transfer of the properties for which attachment before judgment was sought in order to protect and safeguard the interest of the creditor/banks when it was found that the security of the appellant had become insufficient. Further contended that the impugned order is unjust, unreasonable, and erroneous in facts and law and has been passed in violation of the principles of law, justice and equity thereby causing serious prejudice/irreparable loss and damage to the appellant’s interest as creditor. Learned counsel for the appellant on the point of maintainability has contended that the order impugned in the present appeal for all intents and purposes is a final order, hence, it can be assailed in the appeal and as such the present appeal is maintainable.

4. On the other hand, learned counsel for the respondents, during the course of arguments, while reiterating the contents of the counter affidavits to the appeal has mainly contended that the present appeal is not maintainable as according to the learned counsel there is no provision in Financial Institution (Recovery of Finance) Ordinance. 2001 [FIO 2001] whereby an interlocutory order can be challenged in the appeal under Section 22 of FIO 2001 and admittedly the present appeal has been preferred against the order passed by the learned Single Judge (banking jurisdiction) on the application under Order XXXVIII Rule 5 CPC filed by the appellant. Per learned counsel provisions of Section 22 of the FIO, 2001, which has provided the right of appeal only against a judgment, decree, sentence or final order and the impugned Order does not fall in any of these categories, therefore, the present Special HCA is not maintainable. Further contended that the impugned order has been passed on merits and does not require any interference of this Court being well reasoned and speaking order passed by the learned Single Judge keeping in view the of the facts and law. It is also contended that the appellant has failed to fulfill the requirements/ingredients of Order XXXVIII Rule 5 CPC and the learned Single Judge in the impugned order discussed all the aspects of the matter. Learned counsel in support of his stance in the case on the point of maintainability of the appeal has relied upon the following case law:--

(1) 2005 CLD 1571 (Nazir Ahmed Vaid vs. Habib Bank Ag Zurich)

(2) 2014 CLD 1596 (Muhammad Khan vs. Zarai Tarakiati Bank Limited through President)

(3) 1990 C L C 1473 (Messrs Aziz Flour Mills vs. the industrial development bank of pakistan)

(4) PLD 1983 Karachi 527 (ALI MUHAMMAD BROHI vs. Haji MUHAMMAD HASHIM)

(5) PLD 1993 SC 109 (Pakistan Fisheries Ltd., Karachi and others vs. United Bank Ltd.)

(6) 2013 CLD 2033 (Bank of Punjab vs. Messrs Amz Ventures Limited and another)

(7) 2013 CLD 805 (Nadeem Athar vs. Messrs Dubai Islamic Bank (Pakistan) Ltd.)

(8) PLD 1959 Dacca 330 (S.N. Gupta & Co. vs. Sandananda Ghose and others)

(9) AIR 1982 Andhra Pradesh 408 (Union Bank of India, Visakapatnama vs. M/s. Andhra Technocrat Industries and another)

(10) AIR (31) 1944 Nagpur 30 (F.X. Rebello vs. Firm Ladhasingh Bedi & Sons)

(11) AIR 1935 Patna 219 (Kedarnath Himatsinghka and others vs. Tejpal Marudi and others)

(12) AIR 1933 Allahabad 557 (Om Prakash and others vs. Mohammad Ishaq and others) and

(13) Black’s Law Dictionary (Sixth Edition).

1. We have heard the learned counsel for the appellant and the respondents and have also perused the impugned order and the relevant record as well as the law on the issue involved in the present case. Since, the question of the maintainability of the present Special High Court Appeal has been raised, therefore, without dilating upon the merits of the case, we would like to decide the issue regarding maintainability first.

2. Before proceeding further, it will be appropriate to examine the provisions of Section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, which for the sake of ready reference is reproduced as under:--

“22. Appeal. (1) Subject to sub-section (2), any person aggrieved by any judgment, decree, sentence, or final order passed by a Banking Court may, within thirty days of such judgment, decree, sentence or final order prefer an appeal to the High Court.

(2) The appellant shall give notice of the filing of the appeal in accordance with the provisions of Order XLIII, Rule 3 of the Code of Civil Procedure (Act V of 1908) to the respondent who may appear before the Banking Court to contest admission of the appeal on the date fixed for hearing.

(3) The High Court shall at the stage of admission of the appeal, or at any time thereafter either suo motu or on the application of the decree holder, decide by means of a reasoned order whether the appeal is to be admitted in part or in whole depending on the facts and circumstances of the case, and as to the security to be furnished by the appellant:

Provided that the admission of the appeal shall not per se operate as a stay, and nor shall any stay be granted therein unless the decree-holder has been given an opportunity of being heard and unless the appellant deposits in cash with the High Court an amount equivalent to the decretal amount inclusive of costs, or in the case of an appeal other than an appeal against an interim decree, at the discretion of the High Court furnishes security equal in value to such amount; and in the event of a stay being granted for a part of the decretal amount only, the requirement for a deposit in cash or furnishing of security shall stand reduced accordingly.

(4) An appeal under sub-section (1) shall be heard by a bench of not less than two Judges of the High Court and, in case the appeal is admitted, it shall be decided within 90 days from the date of admission.

(5) An appeal may be preferred under this section from a decree passed ex parte.

(6) No appeal, review or revision shall lie against an order accepting or rejecting an application for leave to defend, or any interlocutory order of the Banking Court which does not dispose of the entire case before the Banking Court other than an order passed under sub-section (11) of Section 15 or sub-section (7) of Section 19.

(7) Any order of stay of execution of a decree passed under sub-section (2) shall automatically lapse on the expiry of six months from the date of the order whereupon the amount deposited in Court shall be paid over to the decree-holder or the decree-holder may enforce the security furnished by the judgment-debtor.

[Underlining is to add emphasis)

1. Perusal of above provisions reveals, that in terms of sub-section (1) of Section 22 of FIO 2001, an appeal can be filed by a person aggrieved by any ‘judgment, decree, sentence, or final order passed by a Banking Court’, within thirty days of such judgment, decree, sentence or final order, to the High Court. However, sub-section (6) of Section 22 of FIO 2001, clearly bars filing of any ‘appeal, review or revision against an order accepting or rejecting an application for leave to defend, or any interlocutory order of the Banking Court, which does not dispose of the entire case before the Banking Court, other than an order passed under sub-section (11) of Section 15 or sub-section (7) of Section 19.

2. The rationale behind above provisions seems to be expeditious disposal of cases under the F.I.O., 2001 and to avoid unnecessary delay, which is caused by filing frivolous interlocutory which are subjected to frivolous appeals as well. If the interlocutory orders are allowed to be challenged before the High Court by filing appeals, the very object for which the FIO 2001 was enacted would be frustrated. The appellate power conferred on the High Court under FIO 2001 in terms of Section 22 is therefore, restricted, only to the extent of entertaining an appeal against the final order and judgment of the Special Court.

3. Black’s Law Dictionary (Sixth Edition) defines final order as under:

“One which terminates the litigation between the parties and the merits of the case and leaves nothing to be done but to enforce by execution what has been determined.”

The words ‘final order’ and ‘an interlocutory order’ have now been settled from various pronouncements of the apex Court viz. “A final order means an order which finally disposes of the rights of the parties. The real test for determining whether the order is final ought to be this: ‘Does the judgment or order, as made, finally disposes of the rights of the parties’? If it does, then it ought to be treated as a final order; but if it does not, it is then an interlocutory order. Similarly, in AIR 1933 P.C. 58, Sir George Lowndes observed:

“The finality must be finality in relation to the suit. If, after the order the suit is still alive in which rights of the parties have still to be determined, no appeal lies against it. The fact that the order decides an important and even a vital issue is by itself not material. If the decision on an issue puts an end to the suit, the order will undoubtedly be a final one.”

Furthermore, in order to constitute a final order, it is necessary that the order should be one by which the suit or the proceeding in either way is finally disposed of. The decision of an important and vital issue which may ultimately affect the fate of the proceeding is by itself not enough. The test to be applied is, whether the proceeding is disposed of completely and the case is not kept alive for being dealt within the ordinary way. The final order must contain a final adjudication of the matter in contest between the parties to the action.

1. Though the word ‘interlocutory order’ has not been defined anywhere either in the. C.P.C. or in the FIO 2001, but the appeals were made competent under C.P.C. against orders covered by Order XLIII but the legislature under sub-section (6) of Section 22 of FIO 2001 clearly mentioned that no appeal shall lie against an interlocutory order which does not dispose of the entire case. It is thus clear that the word `interlocutory order’ has been used in contradistinction to the term “order”. The legislature, in order to achieve the object that appeal shall lie only against the final order, did not stop after legislating that no appeal shall lie against interlocutory order but further qualified the interlocutory order, which does not dispose of the entire case. The intention of the legislature is crystal clear from the language employed in the provision that appeal can only be maintained against last or final order.

2. Reverting back to the case in hand, from the perusal of the order impugned in the present Special High Court Appeal, it is manifestly clear that through the impugned order the learned Single Judge only disposed of the application under Order XXXVIII Rule 5 of CPC relevant portion for the sake of ready reference is reproduced as under:

“73. Before parting with this order, I must clarify that the observations made hereinabove are tentative in nature and shall not prejudice the case of any party to the instant suit which, of course, shall be decided on merits and in accordance with the law after framing of issues and recording of evidence of Plaintiff Bank and Defendants No. 2, 3, 4 & 6.

1. The nutshell of the above discussion is that the Plaintiff Bank has failed to make out a case for attachment before judgment of the immovable property bearing No. 99, CF-1/5, Clifton, Karachi under prevailing facts and circumstances, of the instant case. In view of this position, consequently, CMA No. 8617 of 2009 stands dismissed, however, with no order as to cost.”

Thus, the impugned order cannot, by any stretch of imagination, be regarded as a final order within the meaning of sub-section (1) of Section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, therefore, could not be subjected to an appeal before this Court.

1. From the above facts, it is clear that the suit instituted by the appellant is still pending adjudication, and the controversy raised therein is yet to be finally decided by the Banking Court, which is still seized of the matter. As and when the said suit is finally disposed of the appellant, if felt dissatisfied with the final outcome will be at liberty to bring it under challenge, by filing an appeal before this Court in terms of Section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001. In that event, the appellant would be at liberty to challenge the legality of all intermediate/interim/ interlocutory orders in the main appeal.

2. The upshot of the above discussion is that the present Special High Court Appeal was not maintainable in law and facts of the case, hence, the same was accordingly dismissed in limine vide our short order on 07.03.2017. These are the reasons for such short order.

(Y.A.) Appeal dismissed

PLJ 2017 Lahore 1 (DB) [Rawalpindi Bench Rawalpindi]

Present: Amin-ud-Din Khan and Masud Abid Naqvi, JJ.

GULZAR KHAN etc.--Appellants

versus

ROSHAN KHAN etc.--Respondents

R.F.A. No. 183 of 2014, heard on 6.4.2016.

Evacuee Property and Displaced Persons Law (Repeal) Act, 1975 (XIV of 1975)--

----Ss. 1(2) & 4--Allotment of plot--Forged and fictitious transfer order--Challenge to--Cancellation of documents--Third person has no right asking Court to cancel valid transfer order issued by department--Validity--Transfer order had not been issued in accordance with requisite procedure and same had been issued in favor of dead person--Transfer cannot be declared to be null and void as after her death her legal heirs were entitled to inherit in accordance with law--If plaintiffs had a valid document in their favour even then they can move for partition of property and suit for possession was not competent when they had no right to pray for cancellation of document--There was no date of permission and possession given in suit whereas case of appellants that deceased was in continuous possession--Appeal was allowed. [Pp. 4 & 6] A, B, C & D

Mr. Rizwan Akhtar Awan, Advocate for Appellants.

Sardar Abdul Aziz Khan Chandio, Advocate for Respondents.

Date of hearing: 6.4.2016

Judgment

Amin-ud-Din Khan, J.--Through this appeal appellants, who are defendants in a suit for declaration, cancellation of documents, possession, permanent & mandatory injunction filed by the respondents-plaintiffs, have challenged the judgment & decree dated 23.5.2012 rectified on 13.6.2014 whereby the suit has been decreed.

1. Brief facts of the case are that plaintiffs-respondents on 18.07.2002 filed a suit for declaration, cancellation of documents, possession, permanent & mandatory injunction on the ground that they have Transfer Order No. 26463 dated 28.6.1976 in favour of their predecessor and challenged the Transfer Order No. 15108 dated 29.12.1973 in favour of Mst. Iqbal Begum, the grandmother of the parties. Written statement was filed. Suit was contested on the ground that on the basis of forged and fictitious transfer order the suit has been filed and the transfer order in favour of Mst. Iqbal Begum which has been challenged and for the cancellation of which prayer has been made, is a valid document. Learned trial Court framed the issues, invited the parties to produce their respective evidence. Both the parties produced their oral as well as documentary evidence. Learned trial Court decreed the suit vide judgment & decree dated 23.5.2012 on the basis of findings recorded on Issues Nos. 1, 2, 3 and 6. Hence, this first appeal.

2. Learned counsel for the appellants argues that the Transfer Order No. 26463 (Exh.P.5) allegedly issued on 28.6.1976 prima-facie seems to be a forged and fictitious document as allegedly the same has been issued by the Deputy Settlement Commissioner. States that as at the time of alleged issuance of the said Transfer Order, the Displaced Persons (Compensation and Rehabilitation) Act, 1958 was repealed through the promulgation of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 (XIV of 1975) since 28th January, 1975 and according to sub-section (2) of Section 1 it was to take effect on the 1st day of July, 1974, therefore, states that under the repealing Act the powers were to be used by Board of Revenue and further states that the Deputy Settlement Commissioner who issued the Transfer Order in favour of predecessor of the appellants-defendants on 29.12.1973 has been shown to have issued the transfer order (Exh.P.5) in favour of predecessor of plaintiffs. Further that the possession of the appellants-defendants has been admitted upon the suit property and they are in possession since the time of their predecessor. Further states that now under the policy a District Verification Committee has been constituted who has verified the transfer order in favour of Mst. Iqbal Begum to be a valid and true document. Further that the witness produced by the plaintiffs themselves as PW-4 has shattered their case rather he has proved the valid transfer order i.e. Exh.P.6/Exh.D.1. States that if any transfer order is to be cancelled that prerogative is with the department to move for the same, any third person has no right asking the Court to cancel the valid transfer order issued by the department. Relies on “Faizuddin Ahmad versus Muhammad Yousaf and another” (1988 SCMR 1289). Further while referring the statement of PW-2 and the document produced by the said witness that matter of arbitration shows that in the year 1971 the proceeding with regard to allotment of the plot in question and other property total measuring 14 marlas 6 sirsahi from Khasra No. 438 was under process and same is the position in the reference of Arbitrator (Exh.P.1) and Award of Arbitration (Exh.P2) by the plaintiffs-respondents. Prays for acceptance of appeal and setting side the judgment and decree passed by the learned trial Court in favour of the plaintiffs-respondents.

3. On the other hand, learned counsel for the respondents argues that Mst. Iqbal Begum passed away in the year 1967, therefore, transfer order in favour of dead person was not possible. The case of learned counsel for the respondents-plaintiffs is that the matter with regard to allotment of land in favour of Mst. Iqbal Begum in the year 1961 ended in the year 1963 and therefore issuance of alleged transfer order in favour of Mst. Iqbal Begum in the year 1973 is forged and fictitious one. He has referred the documentary evidence produced by plaintiffs-respondents to state that the case pleaded by the plaintiffs has been fully proved, therefore, there is no defect in the judgment & decree passed by the learned trial Court. Prays for dismissal of the appeal.

4. We have heard learned counsel for the parties at full length, gone through the oral as well as documentary evidence produced by both the parties minutely with the able assistance of learned counsel for the parties and the findings recorded by the learned trial Court.

5. Plaintiffs-respondents came to the Court with filing a suit for possession and permanent injunction initially on 18.7.2002 and subsequently the plaint was amended and it was for declaration, cancellation of document, possession, permanent and mandatory injunction claiming that they be declared owner on the basis of Transfer Order No. 26463 dated 28.6.1976 (Exh.P5) and transfer order in favour of Mst. Iqbal Begum Exh.P.6/Exh.D.1 for land measuring 14 marlas and 6 sirsahi be cancelled. We have gone through the findings recorded by the learned trial Court on Issue No. 6 whereby it is held that transfer order in favour of Mst. Iqbal Begum Exh.D.1 has not been issued in accordance with the requisite procedure and same has been issued in favour of dead person, therefore, issue has been decided against the appellants-defendants. We are unable to agree with the learned trial Court as the documentary evidence produced by the appellants-defendants as Exh.DA, consists upon 16 pages (as mentioned in the statement of learned counsel for the defendants recorded on 5.5.2012), fully shows the application moved by Mst. Iqbal Begum in the year 1961 and departmental proceedings upon that application as well as the payment of compensation from the compensation book and the deed of association and settlement. Further the document transfer order Exh.D.1/Exh.P.6 has been verified by the District Verification Committee that this document is in accordance with the record, therefore, the learned trial Court was having no jurisdiction to cancel that document only on the basis that there are some procedural deviations committed by the department while issuing the same. We note that said deviations noted by the learned trial Court are actually not the deviations as the application for transfer was moved by Mst. Iqbal Begum, even if, she passed away during the pendency of the process of transfer of the property in her favour, the transfer in her favour cannot be declared to be null and void as after her death her legal heirs are entitled to inherit the same in accordance with law. It is admitted between the parties that Khasra No. 438 consists upon about 20 kanals of land. The argument of learned counsel for the respondents that the matter of transfer in favour of Mst. Iqbal Begum ended in the year 1963, is not borne out from the record that even the arbitration proceedings which have been produced as Exh.P.1 and Exh.P.2 show that transfer in favour of Mst. Iqbal Begum was under process at that time even in the year 1971. Learned counsel for the respondents wants to take benefit of this fact interpreting in favour of the plaintiffs-respondents that subsequently this process of transfer and allotment was not completed whereas the argument of learned counsel for the appellants-defendants that even if the arguments of learned counsel for the plaintiffs-respondents are admitted even then the possession by Mst. Iqbal Begum since the year 1961 and subsequently by her legal heirs in the year 1971 and till today by the appellants-defendants cannot be denied as there is no evidence on the file produced by the plaintiffs-respondents that the property was relinquished by Mst. Iqbal Begum or she or her legal heirs subsequently parted with the possession.

6. In this case we have noticed that more than 80% of the amount mentioned in Exh.D1 is shown to have been adjusted/paid, therefore, in the light of judgment passed by this Court reported as “Mst. Aziz Bibi versus Karam Din and others” (1995 MLD 1121) the learned trial Court has no jurisdiction to declare cancellation of said document for non-payment of the remaining price in the light of condition No. 8 of Exh.D.1 which is reproduced for ready reference:--

“In case of default in payment, the Board of Revenue, may effect the recovery as arrears of land revenue.”

Therefore, the findings recorded by the learned trial Court on Issue No. 6 are not sustainable under the law in the light of judgment of august Supreme Court of Pakistan reported as “Faizuddin Ahmad versus Muhammad Yousaf and another” (1988 SCMR 1289).

1. During the arguments we have noticed that at many stages learned counsel for the respondents has advanced arguments which were self-contradictory. At one stage his arguments were that the property mentioned in Exh.D.1/Exh.D.6 and Exh.D.5 which is in favour of the plaintiffs-respondents are separate properties and property in possession of appellants-defendants is the same which is of the plaintiffs-respondents, therefore, argues that possession has rightly been ordered to be given to plaintiffs. When confronted to the learned counsel that if it is so then why plaintiffs have prayed for cancellation of the document (Exh.P.6/Exh.D.1) in favour of Mst. Iqbal Begum, the predecessor of the parties to the suit, states that as it is a forged document, therefore, the prayer has been made. We are unable to understand that when as per the plaintiffs-respondents the property mentioned in Exh.D.1 is some other property then the property mentioned in Exh.P.5, transfer order in favour of predecessor of plaintiffs why the plaintiffs have prayed for cancellation of the said document. Further learned counsel for the respondents at one stage argued that even the document Exh.D.1 is a valid document then it will go in the interest of the appellants-defendants as they are also the legal heirs of Mst. Iqbal Begum and they will get share of inheritance. This argument is also against the stance taken by the plaintiffs in their suit. When the department issuing the transfer order Exh.D.1 in favour of Mst. Iqbal Begum has admitted this document to be true and valid and District Verification Committee in its meeting held on 19.3.2011 has approved the same how the plaintiffs were entitled to pray for the cancellation of the said document and we hold that in these circumstances the learned trial Court was having no jurisdiction to declare this document invalid or cancel the same.

2. We have noticed that Exh.P.5 as claimed by the plaintiffs in favour of their predecessor is visibly issued on 28.6.1976 by the same Deputy Settlement Commissioner who has issued Exh.D.1 on 29.12.1973 in favour of Mst. Iqbal Begum whereas after the repeal of laws through the repealed Act, 1975 the powers were with the Board of Revenue to deal with the matters in accordance with Section 4 of the said Act, therefore, this fact goes against the case of the plaintiffs. Even we have noticed that Exh.P.8 and Exh.P.9 allegedly issued on 9.10.1978 in favour of predecessor of the plaintiffs and Nawab Din are of the same officer as signatures are of the same person which are allegedly issued on 9.10.1978 whereas Exh.P.12 is undated which is with the signatures of the same Deputy Settlement Commissioner as claimed by the plaintiffs that this memorandum was issued to Mst. Iqbal Begum to deposit the price and if price will not be deposited the reservation of land will be withdrawn. Prima-facie this document does not seem to be correct document, therefore, not helpful for the plaintiffs/respondents.

3. So far as findings on Issues Nos. 1, 2 and 3 are concerned, admittedly Khasra No. 438 consists upon 20 kanals as has been admitted by Roshan Khan PW-1, who is one of the plaintiffs, in his cross-examination, therefore, even if the plaintiffs have a valid document in their favour even then they can move for partition of the property and suit for possession was not competent when they have no right to pray for cancellation of document Exh.P.6/Exh.D.1. Plaintiffs pleaded in Para Nos. 5 and 6 that their predecessor permitted his younger brother Abdul Rasheed alias Chan Mahi, predecessor-in-interest of the present defendants to reside in the suit house. We have noticed that there is no date of said permission and possession of defendants given in the suit whereas case of the appellants that Mst. Iqbal Begum was in continuous possession since before the year 1961 and after her death they are in possession.

4. By the scrutiny of evidence produced by the plaintiffs/ respondents it is clear that they miserably failed to prove Issues Nos. 1 to 3.

5. In these circumstances the evidence of the plaintiffs-respondents was not up to the mark to decide Issues Nos. 1, 2, 3 & 6 in favour of plaintiffs-respondents. In this view of the matter, this appeal is allowed, findings recorded by the learned trial Court on Issues Nos.

1, 2 & 3 as well as Issue No. 6 are reversed and the judgment & decree passed by the learned trial Court is set aside. Resultantly, suit filed by respondents/plaintiffs stands dismissed.

(R.A.) Appeal allowed.

PLJ 2017 Lahore 7 [Rawalpindi Bench Rawalpindi]

Present: Mirza Viqas Rauf, J.

Mst. HIFSA NASEER--Petitioner

versus

ADDITIONAL DISTRICT JUDGE, GUJAR KHAN and others--Respondents

W.P. No. 3149 of 2014, decided on 30.6.2016.

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

----S. 17--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Custody of minor--Welfare of minor--Remarriage can never be sole fact for deciding fate of custody of minor--Law is well settled by now that in matter relating to custody of minor, paramount consideration always remains welfare of minor--Custody of minor was infact directed to be handed over to her paternal grandmother and not father--Father was never willing to obtain custody of minor and petition was only filed to counter suit for recovery of maintenance decreed in favour of petitioner--In presence of real mother custody can never be handed over to paternal grand-mother--Second marriage of mother or father is not sole fact to decide fate of custody petition rather it is welfare of minor which will prevail upon all other consideration--Minor has now attained age of 08 years and petitioner is studying in school where petitioner is also serving as a teacher--Second marriage of petitioner disentitling her from custody of minor but Courts below disturbed custody of minor on extraneous reasons--Question of welfare of minor and proceeded to bank upon only question of second marriage of petitioner with a person who is not related to minor within prohibited degree, which approach can never be termed as judicious and lawful--It is primary duty of High Court to curb any illegality or perversity in proceedings of Courts below floating on surface of record, while embarking upon constitutional jurisdiction in terms of Art. 199 of Constitution in order to achieve ends of justice. [Pp. 10, 12 & 13] A, D, E, F, G & H

Custody of Minor--

----Affection of mother--No substitute--Question of custody--Mother of a child always has natural love and affection for his children male or female having no substitute--Apart from care, love and affection of a real mother of which there was no substitute, daughter requires her company and association for preparing her to shoulder responsibilities in future. [P. 10] B

Muhammadan Law--

----Custody of minor--Preferential right of mother to custody of infant children--Absolute rule--Muhammadan Law recognized preferential right of mother to custody of infant children which was ordained of Muhammadan Law by D.F. Mulla’s--Mother loses her preferential right in case she marries a person not related to child within prohibited degree but such is not an absolute rule. [P. 11] C

2014 SCMR 343, ref.

Raja Farrukh Arif Bhatti, Advocate for Petitioner.

Raja Muhammad Jawwad Arsalan, Advocate for Respondent No. 3.

Ms. Mehnaz Begum, Advocate for Respondent No. 4.

Date of hearing: 23.6.2016.

Judgment

Mst. Hifsa Naseer petitioner, through instant petition, assails the vires of judgment dated 09th of October, 2014, whereby the learned Additional District Judge, Gujar Khan, while dismissing her appeal affirmed the order dated 26th of May, 2014 passed by the learned Civil Judge 1st Class/Guardian Judge, Gujar Khan.

1. Precisely, the facts necessary for adjudication of instant petition are that the Respondent No. 3 filed a petition under Section 25 of The Guardians and Wards Act, 1890, seeking custody of minor daughter namely Hadia Umer. As per averments contained in the petition, the Respondent No. 3 was married to the petitioner on 06th of February, 2007 and from the wedlock, minor daughter was born on 07th of February, 2008. Due to strained relations, matrimonial tie ended in divorce. It is averred in the petition that the petitioner thereafter contracted second marriage with another person who is not related to minor within prohibited degree. The petitioner contested the petition and filed her reply wherein she not only raised preliminary objections, but also controverted the assertions contained in the petition. The divergent stance of the parties resulted into framing of multiple issues whereafter both the sides produced their respective evidence. Upon completion of evidence and hearing both the sides, petition was allowed vide order dated 26th of May, 2014. The petitioner, feeling dissatisfied from the said order, filed an appeal before the learned Additional District Judge, Gujar Khan, however, the appeal was dismissed vide judgment dated 09th of October, 2014, hence this petition.

2. Learned counsel for the petitioner submitted that the custody petition was nothing but a counter-blast of the suit filed by the petitioner for recovery of maintenance. He added that the petition was filed through attorney and Respondent No. 3 never appeared before the Court. Learned counsel contended that while disturbing the custody of the minor, both the Courts below were mainly persuaded with the fact of second marriage of the petitioner. Learned counsel maintained that re-marriage can never be the sole fact for deciding the fate of custody of the minor. Learned counsel argued that it is the welfare of the minor which is to be seen, while deciding the matter of custody but both the Courts below did not advert to this material aspect.

3. Conversely, learned counsel representing the Respondent No. 3 contended that on contracting second marriage, the petitioner lost the right of custody of minor in view of principles laid down in Para No. 354 of The Muhammadan Law. Learned counsel submitted that Respondent No. 3 has not contracted second marriage and he was rightly held entitled for the custody of the minor. It is argued that there are concurrent findings of facts recorded by both the Courts below which are based on proper appraisal of evidence and constitutional petition is not maintainable.

4. I have heard learned counsel for both the sides at some length and perused the record in order to appreciate their respective contentions.

5. Before dilating upon the propriety of the judgments under challenge, it would be advantageous to observe that there are certain admitted facts which crept up from the record. At the time of filing of petition, the minor was about five years of age and she is in the custody of the petitioner right from her birth. The petition was instituted through general attorney namely Abdullah Haris who is real brother of the Respondent No. 3. It is also an admitted fact that the Respondent No. 3 is residing abroad. Perusal of impugned judgments reveals that findings of both the Courts below are solely influenced with the factum of second marriage of the petitioner.

6. Law is well settled by now that in the matter relating to the custody of minor, paramount consideration always remains the welfare of the minor. Section 17 of The Guardians and Wards Act, 1890 lays down the necessary considerations for deciding the matter of custody which reads as under:

7. Matters to be considered by the Court in appointing guardian.--(1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.

(2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.

(3) If the minor is old enough to form an intelligent preference, the Court may consider that preference.

(4) Omitted by the Federal Laws (Revision and Declaration) Ordinance, XXVII of 1981.

(5) The Court shall not appoint or declare any person to be a guardian against this will

It is manifest from the above that the Courts, while deciding the question of custody shall be guided by the principles enumerated hereinabove and prime consideration before the Court would always be the betterment of the minor but not claims or wishes of rival contesting parties.

1. Mother of a child always has natural love and affection for his children male or female having no substitute. Apart from care, love and affection of a real mother of which there is no substitute, daughter requires her company and association for preparing her to shoulder responsibilities in future. This is the reason that Muhammadan Law recognized preferential right of mother to custody of infant children which is ordained in Para No. 352 of The Muhammadan Law by D.F. Mulla’s. No cavil that mother loses her preferential right in case she marries a person not related to the child within prohibited degree but this is not an absolute rule. In the case of “Shabana Naz versus Muhammad Saleem” (2014 SCMR 343), the Hon’ble Supreme Court of Pakistan while taking this issue very elaborately outlined the factors disqualifying the mother and father from the custody of minor in the following words:

“8. It may be noted that in terms of Section 7 of the Guardians and Wards Act, 1890 (the Act), the paramount consideration for the Court in making the order of appointment of guardian of minor is that it should be satisfied that it is for the welfare of minor. Although it is an established law that father is a natural guardian of his minor child/children but indeed the Court has to be satisfied while appointing the father as a guardian that the welfare of minor lies in the fact that he be appointed as a guardian and the custody of minor be delivered accordingly. There are many factors, which may not entitle the father to the custody of minor and some of the factors could be, where the father is habitually involved in crimes or is a drug or alcohol addict, maltreats his child/children, does not have a capacity or means to maintain and provide for the healthy bringing up of his child/children or where the father deliberately omits and fails in meeting his obligation to maintain his child/children. The factors noted above are not exhaustive and they may also not be considered as conclusive for that each case has to be decided on its own merit in keeping with the only and only paramount consideration of welfare of minor.

1. Para 352 of the Muhammadan Law provides the mother is entitled to the custody (Hizanat) of her male child until he has completed the age of 7 years and of her female child until she has attained puberty and the right continues though she is divorced by the father of his child unless she marries a second husband in which case the custody belongs to the father.

2. Para 354 provides for disqualification of female from custody of the minor, which includes the mother and one of the instance laid down is that if she marries a person not related to the child within the prohibited degree e.g. a stranger but the right revives on the dissolution of marriage by death or divorce.

3. Thus, it is apparent from reading of the two paras of the Muhammadan Law that though the mother is entitled to the custody (Hizanat) of her minor child but such right discontinues when she takes second husband, who is not related to the child within the prohibited degree and is a stranger in which case the custody of minor child belongs to the father. It has been construed by the Courts in Pakistan that this may not be an absolute rule but it may be departed from, if there are exceptional circumstances to justify such departure and in making of such departure the only fact, which the Court has to see where the welfare of minor lies and there may be a situation where despite second marriage of the mother, the welfare of minor may still lie in her custody.

While going through the principles laid down by the Hon’ble Apex Court in the case of Shabana Naz’s (supra), it can safely be held that welfare of minor plays pivotal role in deciding the question of custody of minor albeit mother has contracted second marriage. Reference in this respect, if needed, can also be made to “Mehmood Akhtar versus District Judge, Attock and 2 others” (2004 SCMR 1839).

1. There is yet another important aspect that Respondent No. 3, while seeking custody of minor daughter despite being available in the country did not opt to file the petition directly rather same was filed by Abdullah Haris who is his general attorney. It is also an admitted position on the record that previously when the petitioner instituted a suit for recovery of maintenance, which was decreed in her favour it was the Respondent No. 3 who contested the proceedings himself. While going through the impugned judgment dated 09th of October, 2014, it is observed that custody of the minor was infact directed to be handed over to her paternal grand- mother and not the father. The relevant extract from the impugned judgment is reproduced below:

“The mother of the respondent is a school teacher and retired from service and today on direction of Court order she appeared before the Court and got recorded her statement that she is ready to look after the minor in absence of her son. Admittedly the mother of the respondent is available at house who can take care of the minor and the respondent is in a better position to bear the expenses of the minor as well.”

The conduct of the Respondent No. 3 clearly indicates that he was never willing to obtain the custody of the minor and petition was only filed to counter the suit for recovery of maintenance decreed in favour of the petitioner. Even otherwise, in presence of real mother custody can never be handed over to the paternal grand-mother.

1. Needless to observe that second marriage of mother or father is not the sole fact to decide the fate of the custody petition rather it is the welfare of the minor which will prevail upon all other consideration. Record reveals that minor has now attained the age of 08 years and she is studying in Class-3 in the school where the petitioner is also serving as a teacher. Though no other material evidence is available on record other than the second marriage of the petitioner disentitling her from the custody of minor but both the Courts below disturbed the custody of minor on extraneous reasons. The accumulative effect of the available evidence leads to an irresistible conclusion that welfare of the minor lies with the petitioner. Both the Courts below have grossly mis-read the material pieces of evidence convenient for adjudication of question of welfare of the minor and proceeded to bank upon only question of second marriage of the petitioner with a person who is not related to the minor within prohibited degree, which approach can never be termed as judicious and lawful. Reference in this respect can also be made to “Mst. Gulnaz Bibi versus Faraqat Ali Shah and another” (PLD 2000 Peshawar 23).

2. Though there are concurrent findings of facts recorded by both the Courts below and this Court always exercises restraint, while interfering with such findings especially in constitutional jurisdiction but this by itself is not an inflexible rule. It is the primary duty of this Court to curb any illegality or perversity in the proceedings of the Courts below floating on the surface of the record, while embarking upon the constitutional jurisdiction in terms of Article 199 of The Constitution of Islamic Republic of Pakistan, 1973 in order to achieve the ends of justice. This Court cannot sit as a silent spectator, especially in the matter relating to the custody of minors and shut its eyes only on the ground that the Courts below have concurrently arrived at some conclusion, despite being an erroneous and illegal.

3. For the foregoing reasons, instant petition is allowed and the impugned judgment dated 09.10.2014 as well as order dated 20.05.2014 are set-aside being illegal and unlawful. As a result thereof, the guardian petition filed by the Respondent No. 3 stands dismissed with no order as to costs.

(R.A.) Petition allowed

PLJ 2017 Lahore 14 [Multan Bench, Multan]

Present: Ali Baqar Najafi, J.

Mst. RUKHSANA BIBI, etc.--Petitioners

versus

GOVERNMENT OF PAKISTAN, etc.--Respondents

W.P. No. 5939 of 2006, decided on 18.5.2016.

Constitution of Pakistan, 1973--

----Art. 25--Human right--Right of woman to marry--No discrimination--Right of a woman to marry of her own choice is basic human right and to acknowledge that right no discrimination is to be observed against Art. 25 of Constitution. [P. 19] A

Pakistan Citizenship Act, 1951 (II of 1951)--

----S. 10(2)--Constitution of Pakistan, 1973, Art. 199--Universal declaration of Human Rights, Arts. 2, 13 & 23--Constitutional Petition--Grant of citizenship to husband--Extradition from territory of Pakistan--Deportation--Right to acquire Pakistan nationality on marriage to foreigner male--Denial of citizenship to foreign national--Challenge to--An alien person unlawfully in a territory of a states may be expelled in pursuance of a decision reached in accordance with law and except where compelling reasons of national security otherwise required, will be allowed and have represented before competent authority--Right of men and women of marriageable age to marry and to form a family is recognized which is natural and fundamental group unit of society--Their marriage to an alien or change of nationality of their husband during marriage shall not automatically change nationality of wife or force her to get nationality of her husband and that states shall also grant women equal rights with respect to nationality of their children. [P. 20] B, C & D

Beijing Declaration, 1995--

----Art. 232(2)--Right to women to enter into marriage--Discrimination on basis of sex--Governments were required to review national laws including customary laws and legal practices in areas of family, civil, penal, labour or commercial law in order to ensure implementation of principles and procedure of all relevant international human rights instruments by means of a national legislation, revoke any remaining laws for discrimination on basis of sex and removing gender bias in administration of justice--State of Pakistan is bound to adopt/follow in relevant law keeping in view commitments it had already made to international community.

[P. 20] E

Syed Sajjad Haider Naqvi, Advocate for Petitioners.

M/s. Wajid Nawaz Bhatti, Standing Counsel alongwith Mian Riaz Hussain, Assistant Director, Passport Office, Multan for Respondents.

Date of hearing: 20.4.2016

Judgment

Through this Constitutional Petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioners seek direction to the respondents to prevent discrimination and grant citizenship to Petitioner No. 2, husband of Petitioner No. 1, enabling them to live together in Pakistan with the further direction to register Petitioner No. 2 as citizen of Pakistan and restrain the respondents from the extradition of the Petitioner No. 2 from the territory of Pakistan.

1. Precise facts giving rise to the filing of this writ petition are that Mst. Rukhsana/Petitioner No. 1 is SST teacher serving in the Education Department for the last 26 years. Her husband died in the year 2002 and from him, there was no child. Petitioner No. 2 is an Indian National presently residing at Multan who had come to Pakistan on 9.8.2003 along with his son, namely, Danyal Hassan and mother, Khurshid Bano, later died on 16.10.2005 and was buried at Multan. Sister of Petitioner No. 2, Mashkoor Bano, was also an Indian National who too migrated in the year 1962 to Pakistan and was married to one Syed Hassan Mian Zaidi and both are living in Multan as husband and wife, as she was already granted a Pakistani nationality.

2A. With this background, and with legitimate expectation that he would start his life in this territory created in the name of Islam, on 16.02.2004 Petitioner No. 1 got married with Petitioner No. 2 and from their wedlock one daughter namely, Hamyal Zehra was born on 06.06.2005. Petitioner No. 2 moved for citizenship of Pakistan but Respondent No. 2 directed Petitioner No. 2 to deposit Rs. 50,00,000/- for processing the citizenship application. He continued to move for extension of visa and on 19.09.2006 his visa was finally extended for 90 days which was to end on 18.12.2006 hence this writ petition.

1. Syed Sajjad Haider Naqvi, Advocate, learned counsel for the petitioners contends that the state of Pakistan is bound to amend all discriminatory provisions available in the statue and law particularly, Section 10(2) of the Citizenship Act, 1951. Further contends that a child is not to be separated from her parents but the respondents are forcing deportation of Petitioner No. 2 back to India which will deprive minor Himayal from the love and affection of her father. Refers to an order passed in Constitutional Petition No. 1415 of 2004, “Mst.Najma Bano vs. Government of Pakistan, etc.” passed by Sindh High Court at Karachi. Also submits that when the sister of Petitioner No. 2 had been conferred the Pakistani Nationality on the basis of marriage with a Pakistani male, refusal on the part of the respondents to grant nationality to Petitioner No. 2 being married with a Pakistani woman/Petitioner No. 1 is discriminatory. Refers to the judgment on the same question given by the Federal Shariat Court in Suo Moto case No. 1/K of 2006 (GENDER EQUALIY) [PLD 2008 Federal Shariat Court 1] and prays for relief.

2. Mr.Wajid Nawaz Bhatti, learned Standing Counsel assisted by Mian Riaz Hussain, Assistant Director, Passport Office, Multan, contends that the Petitioner No. 2 has no locus standi to file the writ petition as he is not the citizen of this country. Further contends that the act of the respondents is not discriminatory but is in accordance with the prevalent law. Adds, that the stay of Petitioner No. 2 in Pakistan is illegal, as his visa was not extended after 18.12.2006. Submits that if the Petitioner No. 2 is interested in Pakistani citizenship he can initiate the process and deposit a sum of five millions rupees as required under circular dated 16.01.1997 issued by the Ministry of Interior. Places reliance on [PLD 1998 Lahore 59] and [PLD 2015 Baluchistan 115] and prays for dismissal of this petition.

3. Arguments heard. Record perused.

4. At the very outset ,it is noted the Petitioner No. 2 is an alien male who has not been recognized as the one who could invoke the constitutional jurisdiction of this Court therefor to his extent , this writ petition is dismissed as not maintainable. However, the case of the Petitioner No. 1 is examined also with reference to the human right and discrimination aspects.

5. After hearing the learned counsel for the parties and perusing the available file, it is observed that said provision of Section 10(2) of The Pakistan Citizenship Act, 1951 have been made the topic of discussion they be reproduced below for ready reference:--

S. 10(2)………

Subject to the provisions of sub-section (1) and sub-section (4) a woman who has been married to a citizen of Pakistan or to a person who, but for his death would have been a citizen of Pakistan ,under Section 3,4 or 5 shall be entitled, on making application therefore, to the Federal Government in the prescribed manner, add, if she is an alien, on obtaining a certificate of domicile and taking the oath of allegiance in the form set out in the Schedule to this Act, to be registered as a citizen of Pakistan whether or not she has completed twenty one year of her age and is of full capacity.”

1. A perusal of the said section reveals that alien female has been given the right to acquire the Pakistan nationality on her marriage with a man of Pakistani nationality but an alien male migrated to Pakistan and married a Pakistani woman is not granted a right to acquire Pakistani Nationality.

2. This section was discussed in Suo Motu Case No. 1/K of 2006 in re (Gender Equality) [PLD 2008 Federal Shariat Court-1] where it was held by the Federal Shariat Court on 12.12.2007 that suitable steps for amendment of S.10(2) of Pakistan Citizenship Act, 1951 be taken for the grant Pakistani nationality to a foreign husband married to a Pakistani woman. However, Civil Shariat Appeal No. 1 of 2008 has been filed against the said judgment before the Hon’ble Supreme Court of Pakistan (Shariat Appellate Bench) and on 23.12.2014 notices have been issued. It was held as follows:--

“In view of the above, we are of the view that Section 10 of the Citizenship Act, 1951 is discriminatory, negates gender quality and is in violation of Article 2(a) & 25 of the Constitution of Islamic Republic of Pakistan and also against International commitments of Pakistan and, most importantly is repugnant to Holy Qur’an and Sunnah.”

1. The discrimination under Article 25 of the Constitution of Islamic Republic of Pakistan, 1973 has also been discussed in various judgments of the Hon’ble Supreme Court. Before referring to some of the relevant case law, it is appropriate to reproduce Article 25 of the Constitution of Islamic Republic of Pakistan, 1973:--

Article 25

“Equality of citizens.--(1) All citizens are equal before law and are entitled to equal protection of law.”

1. There shall be no discrimination on the basis of sex 1[xxx]

2. Nothing in this Article shall prevent the State from making any special provision for the protection of woman and children.

This article was basically interpreted in I.A. Sharwani and others vs. Government of Pakistan through Secretary, Finance Division, Islamabad and others (1991 SCMR 1041), later re-enforced in Secretary Economic Affairs Division, Islamabad and others vs. Anwar-ul-Haq Ahmed and others [2013 SCMR 1687], Para 26 of the former judgment is relevant, which is re-produced as under:

“26. From the above cited cases the following principles of law are deducible:--

(i) that equal protection of law does not envisage that every citizen is to be treated alike in all circumstances, but it contemplates that persons similarly situated or similarly placed are to be treated alike;

(ii) that reasonable classification is permissible but it must be founded on reasonable distinction or reasonable basis;

(iii) that different laws can validly be enacted for different sexes, persons in different age groups, persons having different financial standings, and persons accused of heinous crimes;

(iv) that no standard of universal applicationto test reasonableness of a classification can be laid down as what may be reasonable classification in a particular set of circumstances, may be unreasonable in the other set of circumstances;

(v) that a law applying to one person or one class of persons may be constitutionally valid if there is sufficient basis or reason for it, but a classification which is arbitrary and is not founded on any rational basis is no classification as to warrant its exclusion from the mischief of Articles 25;

(vi) that equal protection of law means that all persons equally placed be treated alike both in privileges conferred and liabilities imposed;

(vii) that in order to make a classification reasonable, it should be based--

(a) on an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out;

(b) that the differentia must have rationale nexus to the object sought to be achieved by such classification.

It lays down that persons similarly situated or similarly placed to be treated alike. Different laws can be validly enacted for different financial standings and persons accused of heinous crime. Surely marriage by petitioner to a foreigner male will not be covered in that category. The discussion regarding discriminatory application of Citizenship Act, 1951 is confined to the facts of the present case under which denial of citizenship to a foreign national having a Pakistani wife appears to be arbitrary and not founded on any rational basis and has no nexus to the object to be achieved by such classification. Above all, our constitution is specific about the person and do not recognize the gender discrimination.

1. The judgment titled “Sharifan and 6 others vs. The Federation of Pakistan through Secretary, Ministry of Interior and Narcotics Control, Interior Division, Islamabad [PLD 1998 Lahore 59] from respondent’s side relates to the situation in which male husband was not granted Pakistani nationality, since after marrying a woman of Pakistani nationality, he took her to his country where she delivered a child but in the present case both spouses have been living together ever since they married during which a child was also born in their family in Pakistan. Mother of respondent also died who was buried in Pakistan. Moreover, with due respect to the view expressed by the single bench of this Court in the year, 1998, this world has changed and the concept of discrimination against the weaker sex of our society has come a long way and by now male discrimination is also being viewed seriously.

2. Learned Standing Counsels have pleaded that the grant of citizenship right will increase the rate of divorce, increase unemployment ratio, grant a blanket approval to the foreign nationals who may act as spy of their countries maintaining their earlier allegiance which would be against the security of Pakistan and is likely to jeopardize the Indo-Pak relationship.

3. However, this issue can be addressed by categorization of citizenship into various types after conducting a verification based on close watch and survey, whereafter such person can be declared fit for the citizenship.

4. It is pertinent to mention here that right of a woman to marry of her own choice is the basic human right and to acknowledge this right no discrimination is to be observed against Article 25 of the Constitution of Islamic Republic of Pakistan.

5. Under Universal Declaration of Human Rights Article 2, everyone is entitled to the right of freedom irrespective of race, colour, sex, language, religion political or other opinion, national or social origin, property, birth or other status and under Article 13 everyone has right to freedom of movement and residence within the borders of each States and also a right to live in country including his own. Under Article 15 everyone has a right to a nationality and also to change his nationality. Under International Covenant on Civil and Political Rights adopted on 23.3.1976, everyone is free to leave any country including his own and will not be subjected to any restrictions except provided under the law, and necessary to protect national security, public order, public health or moral or the rights and freedom of others as provided under Article 11 thereof. Under Article 13 of the said Covenant, an alien person unlawfully in a territory of a States may be expelled in pursuance of a decision reached in accordance with law and except where compelling reasons of national security otherwise required, will be allowed to present the case and have represented before the competent authority. Under Article 23 thereof the right of men and women of marriageable age to marry and to form a family is recognized which is natural and fundamental group unit of the society. Under resolution 34 of 180 dated 18.12.1979 on convention of elimination of all forms of discrimination of women adopted by General Assembly under Article 9 States are bound to grant women equal rights with men to acquire, change or retain their nationality. They shall ensure that their marriage to an alien or change of nationality of their husband during marriage shall not automatically change the nationality of the wife or force her to get the nationality of her husband and that States shall also grant women equal rights with respect to the nationality of their children. Under Article 16 the States shall ensure same rights to the women to enter into the marriage, choose their spouses and to continue with the marriage and its dissolution. Under Article 232(2) of Beijing declaration of 1995 the Governments were required to review national laws including customary laws and legal practices in the areas of family, civil, penal, labour or commercial law in order to ensure the implementation of the principles and procedure of all relevant international human rights instruments by means of a national legislation, revoke any remaining laws for discrimination on the basis of sex and removing gender bias in the administration of justice. The State of Pakistan is bound to adopt/follow in the relevant law keeping in view the commitments it had already made to the International Community.

6. For what has been discussed above, this petition is allowed and Respondents No. 1 and 2 are directed to grant citizenship to Hassan Asghar s/o Ali Asghar, husband of the petitioner after

following the procedure as denying this right under Section 10(2) of the Citizenship Act is declared as discriminatory being in violation of Article 25 of the Constitution of Islamic Republic of Pakistan, 1973.

(R.A.) Petition allowed

PLJ 2017 Lahore 21

Present: Muhammad Sajid Mehmood Sethi, J.

M/s. COLONY SUGAR MILLS LTD.--Petitioner

versus

PROVINCE OF PUNJAB and others--Respondents

W.P. No. 18345 of 2012, heard on 2.5.2016.

Punjab Excise Act, 1914 (I of 1914)--

----S. 31--Notification No. SO Tax (E&T) 3-4/2012--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Business of manufacturing and sale of sugar--Duty on manufacturing of spirit in any distillery or brewery was imposed--Challenge to--Exemption from levy of duty--Alcoholic liquor--Provincial legislature can levy duty on alcoholic liquor and not on alcohol, so petitioners’ product being alcohol is exempted from levy of duty--Non-imposition of levy at time of issuance of license by Provincial Government does not create an embargo upon Provincial Government to levy duty on excisable items at a subsequent time, Provincial Government is competent under Section 31 of Act, 1914--High Court found no arbitrariness, unreasonableness, irrationality and unconstitutionality in Section 31 read with Section 3(6) & 3(14) of Act, 1914, and felt no hesitation to hold that it was a valid piece of legislation--Notification levying duty on product i.e. spirit being manufactured by petitioners and others, was validly issued on strength of Section 31 of Act. [Pp. 33, 54, 63 & 64] A, L & T

Punjab Excise Act, 1914 (I of 1914)--

----S. 3(19)--Constitution of Pakistan, 1973, Art. 142--Distribution of legislative powers--Exclusive power to make laws--Law for levy of excise duty including duties of sale--Question of--Whether ‘spirit’ is an alcoholic liquor coming within purview of Entry No. 44 of F.L.L. and thus, within legislative competence of provincial legislature--Denatured spirit is a form of alcohol i.e. liquid containing alcohol mixed with very small percentages of chemicals or other poisonous liquids, so as to render it unfit for human consumption--It is well settled that every law and every word in a statute has to be construed and interpreted in context embodied in it and any import into it may render different meaning and different sense which law-maker may not have intended to assign to it.

[Pp. 34, 35 & 39] B, C & D

Punjab Excise Act, 1914 (I of 1914)--

----S. 31--Constitution of Pakistan, 1973, Arts. 151 & 199--Duty on manufacturing--Imposition of export tax/toll tax by local councils--Imposition of said export will amount to restraint of freedom of trade, commerce or intercourse between one province and another--No such tax has been levied which may lead to infer that Provincial Government has imposed any restriction on freedom of trade in Pakistan--Levy by provincial legislature on movement of goods from one Province to another was violative of Item 27 of F.L.L. read with Art. 142 of Constitution and was declared unconstitutional--This alleged discrimination with regard to levy of impugned duty does not seem to be in favour of petitioners and as such may not be hit by Art. 151(3)(b) of Constitution. [Pp. 46, 47 & 48] E, F & G

Constitution of Pakistan, 1973--

----Arts. 18 & 25--Punjab Excise Act, 1914, S. 31--Fundamental right of equality--No discrimination--Legislature is competent to classify persons or properties into different categories subject to different rates of tax--If same class of persons is subjected to an incidence of taxation, resulting in inequality amongst them, is liable to be struck down on account of infringement of fundamental right of equality--No discrimination caused to petitioners as notification applies on all manufacturers of spirit throughout Punjab--Policy of a tax, in its operation may result in hardships or advantages or disadvantages to individual assessees, which are accidental and inevitable but simpliciter such a situation will not constitute violation of any of fundamental rights--Neither discrimination can be pleaded in fiscal statutes nor such statute can be struck down at touchstone of Art. 25 of Constitution. [Pp. 51, 52 & 52] H, I & J

Promissory Estoppel--

----Essential element of principle--Operation of doctrine of promissory estoppel is subject to several limitations including one that it cannot be invoked against legislature or laws framed by it because legislature cannot make a representation. [P. 54] K

Punjab Excise Act, 1914 (I of 1914)--

----Preamble--Preamble to an Act is an introductory statement that explains purpose and underlying philosophy of that Act--Its object is to clarify meaning or purpose of operative part of text in case of an ambiguity or dispute. [P. 55] M

Punjab Excise Act, 1914 (I of 1914)--

----S. 31(c) and Scope of--Authorizes Provincial Government to levy duty on manufacture of excisable item at such rate/rates determined by it, which provision is thus, true manifestation of purpose of Act. [P. 55] N

Punjab Excise Act, 1914 (I of 1914)--

----S. 21--Distilleries for manufacture of spirit--Restrictions and conditions--Contents of distillery license and at condition--Licensee shall observe provisions of Punjab Excise Act, and Rules made thereunder, and all Rules made under any other law for time being in force applicable to manufacture, issue and sale of spirit--Petitioners were estopped from approbating and reprobating in terms of what they are subject to, when their own words and conduct are illustrative of their having taken advantage of Act to commence business as distilleries--A license does not confer a right rather it creates a corresponding duty on part of beneficiary to regulate manufacturing process as per law. [P. 56] O

Punjab Excise Act, 1914 (I of 1914)--

----Ss. 31, 3(6) & 3(14)--Duty upon purchaser/consumer of spirit produced by distilleries--Notification--Challenge to--Notification was issued without describing any special procedure or manner for recovery of duty from manufacturer--Legislature cannot be estopped from issuing notification for purpose of imposition of tax with a view to generate revenue keeping in view its growing requirement to generate funds to address burning problems of day and complex issues faced by people, which legislature in its wisdom through legislation seeks to resolve--Therefore, there is no estoppel against Provincial Government to levy duty on excisable items--After issuance of notification, Govt. issued SCNs to petitioners requiring them to render explanation for non-payment of duty with specific indication that default in payment of duty would invite coercive measures against them. [P. 57] P & Q

Validity of Statutes--

----Burden is on person, challenging vires of any statute to show that, statute is beyond legislative competence or, is in violation of any constitutional provision or guarantee or, in negation of rights guaranteed under Constitution. [P. 60] R

Punjab Excise Act, 1914 (I of 1914)--

----S. 31--Duty on manufacturing of distillery or brewery--Lack of legislative competence and violation of any of fundamental rights guaranteed in Constitution--Validity--Petitioners had failed to establish any of grounds which may provide basis to strike down Section 31 of Act, and subsequent notification--Presumption is always in favour of constitutionality of an enactment and law would not be declared unconstitutional, unless case was so clear to be free from doubt and that too on basis of two grounds--No enactment can be struck down just by saying that it was arbitrary and illegal or that Court thought that it was unjustified. [Pp. 61 & 62] S

M/s. Ali Sibtain Fazli, Hasham Ahmad Khan, Muhammad Umer Riaz and Shehzad Maqsood, Advocates for Petitioner.

M/s. Asma Hamid, Additional Advocate General, Muhammad Ejaz, Assistant Advocate General, Mian Abid Zia, Law Officer, Excise & Taxation Department, and Akhter Ali Kureshi, Standing Counsel for Pakistan for Respondents.

Date of hearing: 2.5.2016.

Judgment

This single judgment shall dispose of instant petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (“Constitution”) as well as following connected Writ Petitions which have been heard together as common questions of law and facts have been raised therein:

1. W.P. No. 18346 of 2012 titled Noon Sugar Mills Ltd. v. Province of the Punjab, etc.

2. W.P. No. 18347 of 2012 titled Tandilianwala Sugar Mills Ltd. v. Province of the Punjab, etc.

3. W.P. No. 18348 of 2012 titled Abdullah Sugar Mills Ltd. v. Province of the Punjab, etc.

4. W.P. No. 18349 of 2012 titled Shakarganj Sugar Mills Ltd. v. Province of the Punjab, etc.

5. W.P. No. 18350 of 2012 titled Chrystalline Chemicals Industries (Pvt.) Ltd. v. Province of the Punjab, etc.

6. W.P. No. 18351 of 2012 titled Premier Industries Chemicals MFG. Co. (Pvt.) Ltd. v. Province of the Punjab, etc.

7. W.P. No. 18378 of 2012 titled United Ethanol Industries (Pvt.) Ltd. v. Province of the Punjab, etc.

8. W.P. No. 3913 of 2014 titled Hunza Sugar Mills v. Province of the Punjab, etc.

9. W.P. No. 25447 of 2015 titled Madina Sugar Mills (Pvt.) Ltd. v. Province of the Punjab, etc.

10. Petitioner in the instant case and petitioners in above-referred connected petitions, are companies engaged in the business of manufacturing and sale of sugar, and inter-alia, produce molasses and other by-products. From molasses, ethanol, commonly known as spirit, is extracted. Petitioner is licensed to manufacture said product under the Punjab Excise Act, 1914 (“Act, 1914”). On 03.07.2012, Secretary Excise & Taxation, Government of the Punjab, Excise & Taxation Department, upon the powers having been exercised by the Governor of the Punjab, in terms of Section 31 of the Act, 1914, issued Notification No. S.O.TAX(E & T)3-4/2012(“impugned Notification”) and imposed duty at the rate of Rs. 2 per liter on manufacturing of spirit in any distillery or brewery, w.e.f. 01.07.2012.

11. On the stamp of impugned Notification, Excise & Taxation Officer/Respondent No. 5 issued Show Cause Notice dated 10.07.2012(“SCN”), whereby petitioner was required to explain his failure to pay said duty and was warned that in case of failure, said duty would be recovered from petitioner by adopting coercive measures.

12. Through instant writ petition, petitioners have challenged aforesaid provisions of law, notification and subsequent SCN, with the following prayer:--

“In view of the above, it is most respectfully prayed that the impugned levy and demand of tax in terms of show cause notice as well as the impugned levy in terms of Notification dated 03.07.2012 may kindly be declared to be illegal, without lawful authority, and of no legal effect.

It is further prayed that Section 31 of the Punjab Excise Act, 1914 read with Sections 3(6) and 3(14) thereof as applied to the Petitioner may kindly be declared to be ultra vires the Constitution and thus illegal, without lawful authority and of no legal effect.

It is further prayed that pending disposal of writ petition the respondents be restrained from recovering the impugned amount of tax from the Petitioner.

It is further prayed that pending disposal of the writ petition, proceedings/operation of the impugned Show Cause Notice may kindly be suspended and the Respondent No. 5 be restrained from taking any coercive measure against the petitioner.”

1. Mr. Ali Sibtain Fazli, Advocate, learned counsel for petitioners submits that product manufactured by petitioners is not spirit rather it is ‘ethanol’; that even otherwise, the word ‘spirit’, as defined in Section 2(19) of the Act, 1914, means any liquor containing alcohol manufactured by distillation whether denatured or not, which means it has to be a liquor containing alcohol and not alcohol simplicitor; that ethanol is alcohol having formula as C2H5OH; that it cannot be consumed as it is not a drink and being pure alcohol it is poisonous and not drinkable; that ethanol/spirit being manufactured by petitioners does not fall in any of the items listed in Section 31 and excisable articles mentioned in Section 3(6) of the Act; that ethanol/spirit also does not come within the definition of liquor as provided in Section 3(14) of the Act for the reason that ethanol/spirit is a distilled alcoholic drink or volatile liquid obtained by distillation, therefore, it is not an excisable article and no duty can be imposed on it.

Learned counsel for petitioners contends that levy of excise duty under Section 31 of the Act, 1914, read with Sections 3(6) and 3(14), is unconstitutional because in terms of Article 142 of the Constitution, Provincial Assembly can only legislate in respect of matters which have not been listed in the Federal Legislative List of the Fourth Schedule of the Constitution, and, against Entry No. 44 of the Federal Legislative List, it is mentioned that excise duty can be levied by Parliament on all goods except alcoholic liquors, opium and other narcotics. The provincial legislature can levy duty on alcoholic liquor and not on alcohol; therefore, petitioners’ product, being pure alcohol, is exempted from levy of excise duty under the Act, 1914. Learned counsel for petitioner has relied on Hirjina & Co. v. Islamic Republic of Pakistan and another (1993 SCMR 1342). He has also placed reliance on the judgment rendered by Indian Supreme Court in case of Synthetics and Chemicals Ltd. and others v. State of U.P. and others ((1990) 1 Supreme Court Cases 109). He further argues that impugned Notification is also violative of Article 142 read with Entry No. 27 in the Fourth Schedule of the Constitution, according to which Provincial Legislature has no jurisdiction to legislate on inter-provincial trade and commerce as well as trade and commerce with foreign countries. He adds that most of the ethanol produced by petitioners is exported out of Pakistan and, therefore, Provincial Government cannot impose any tax on such goods as it is not within the legislative domain of the Provincial Legislature.

Learned counsel for petitioners challenges the vires of Section 31 of the Act, 1914, read with Sections 3(6) and 3(14) of the Act and Notification dated 03.07.2012 issued on the strength of Section 31 ibid, allegedly being violative of Article 151 of the Constitution. It is argued that as per said Article, Parliament is empowered to impose restrictions on freedom of trade, commerce or intercourse between one Province and another or within any part of Pakistan and Provincial Assembly or a Provincial Government is not vested with such powers. He submits that imposition of duty @ Rs. 2/- per liter on manufacture of spirit in Punjab tantamounts to impose restriction on free trade and would badly affect the business of petitioner and other manufacturers, as same product would be available in other provinces of Pakistan at cheaper rates and would ultimately affect competitiveness of the product outside Punjab. He adds that by levying impugned duty the respondent-Government has discriminated between the goods produced by the petitioners and the goods produced in other provinces of Pakistan, which is in violation of Article 151(3)(b) of the Constitution. He has relied on Murree Brewery Company Ltd. through Secretary v. Province of Balochistan through Secretary, Excise and Taxation, Quetta and 2 others (2003 PTD 2140), Murree Brewery Co. Ltd. through Manager Tops, M.B.C. v. Province of Punjab through Secretary, Excise and Taxation, Lahore and another (2001 CLC 1842) and Mirpurkhas Sugar Mills Ltd. v. District Council, Tharparkar and 2 others (1990 MLD 317). He submits that Article 151 of the Constitution does not permit the Provincial Assembly to impose tax affecting inter-provincial trade on the ground that said Article is intended to provide facilities or amenities which will improve the flow of trade. He adds that even if such tax is in the larger interest of public as specified in Article 151(4) of the Constitution, it must have consent of the President, but in the instant case no such consent has been sought by respondent-Government. He further submits that tax is a restriction on enjoyment of property and a ‘deterrent against free flow’ of trade. He has placed reliance on Mirpurkhas Sugar Mills Limited v. District Council, Tharparkar through Chairman and 3 others (1991 MLD 715).

Learned counsel for petitioners contends that product of petitioners is mostly exported out of Punjab as well as out of Pakistan, so it is exempted from levy of any duty as provided in Chapter 6 of the Punjab Liquor Import, Export, Transportation and Possessions Orders. Order 6.12(3)(f) ibid provides that Country spirit, Pakistan Made Foreign Spirit and rectified spirit may be exported in bond without payment of duty from any licensed distillery in the Punjab to any province of Pakistan to which the said privilege has been extended by the Punjab Government, subject to any conditions or restrictions which the Punjab Government may impose.

Learned counsel for petitioners submits that respondents have already levied duty on spirit vide Notification No. S.O.(Excise) E&T-II-7/2015 dated 30.06.2005 but without any reference of already imposed duty, respondents have levied a new duty vide impugned Notification. Thus, it amounts to double taxation, which is not permissible under the law.

Learned counsel for petitioners maintains that impugned Notification has been issued without complying with the procedural requirement of law as given in the Act, 1914, because said notification does not provide any mechanism for recovery of the duty, and subsequent SCN issued by Respondent No. 5, on the basis of impugned Notification, is also illegal and without jurisdiction.

Learned counsel further argues that Section 3 of the Federal Excise Act, 2005 states that there should be levied and collected, prescribed duties of excise on goods produced or manufactured in Pakistan; goods imported into Pakistan etc.; such goods as the Federal Government may specify, and services provided or rendered in Pakistan @ 15 % ad-valorem, except the goods and services specified in the First Schedule, which shall be charged to Federal Excise Duty, at the rate set forth therein. He adds that Section 16 of the said Act states that all goods imported, produced or manufactured in Pakistan and services provided or rendered except such goods and services as specified in the First Schedule shall be exempted from the whole of excise duties levied under Section 3. He submits that alcohol has not been listed as goods in the First Schedule and, therefore, it stands exempted from the levy of Federal Excise Duty under the Federal Excise Act, 2005.

Learned counsel for petitioners challenges the impugned Notification on the strength of Articles 18 and 25 of the Constitution and submits that petitioners have fundamental right to conduct any lawful trade and business but levy of such huge duty on the product of petitioners would amount to deprive them to continue their lawful business to earn livelihood. Reliance has been placed on Dr. Naveeda Tufail and 72 others v. Government of Punjab and others (2003 SCMR 291), Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others (PLD 1993 SC 341), Mian Manzoor Ahmad Wattoo v. Federation of Pakistan and 3 others (PLJ 1997 Lahore 490), Collector of Customs and others v. Sheikh Spinning Mills (1999 SCMR 1402), The Province of Punjab and another v. National Industrial Cooperative Credit Corporation and another (2000 SCMR 567), Nishat Tek Limited v. The Federation of Pakistan, etc (NLR 1994 Tax 114), Messrs Nafees Dry Cleaners, Wahadat Road, Lahore v. The Government of Punjab through Secretary Law and Parliamentary Affairs Department, Lahore and another (2001 PTD 2018) and Kesar Enterprises Ltd. v. State of U.P. & ORS. ((2011) 9 SCR 19).

1. On the other hand, Ms. Asma Hamid, learned Additional Advocate General assisted by learned Assistant Advocate General and learned Standing Counsel for Federation, contends that Ethanol also called Ethyl Alcohol, commonly known as Spirit, is primary alcohol; that it derives its chemical formula from its parent family of alcohol-OH group; that it is produced by fractional distillation after the process of fermentation between sugar containing materials and bacteria/yeast; that ethanol is the intoxicating agent in fermented and distilled liquors and is used in its pure or denatured form as a solvent in medicines, perfumes, cleaning agents and in fuel. She refutes the contention of petitioners that ethanol is not excisable being inconsumable item, by contending that ethanol, as a rectified spirit, is a consumable item unless it has been specifically denatured to render it unfit for human consumption. She adds that Section 3(6) of the Act does not provide any distinction of consumable or non- consumable products when it defines ‘alcoholic liquors’; that the tax statute must be read as it is and nothing can be read in or implied, rather plain meaning is considered, which is conveyed by the language used; that Section 3(14) of the Act defines liquor as intoxicating liquor, and includes all liquids consisting of or containing alcohol and also any substance which the Provincial Government may, by notification, declare to be liquor for the purposes of the Act. Ethanol being liquid and primary alcohol coming within the definition of liquor, is, thus, an excisable item. She further submits that plea of the petitioners that ethanol, being poisonous and not drinkable, is not ‘alcoholic liquor’, has no legs to stand because ethanol/ethyl alcohol is produced through fermentation and being a dilute liquid is concentrated by fractional distillation. Therefore, it is denatured purposely to make it unfit for human consumption. She maintains that the petitioners applied for and, subsequently, obtained license for the manufacture of distilled and rectified spirits, which are excisable articles within the ambit and scope of provisions of the same Act, under which the license is issued, therefore, petitioners are estopped from approbating and reprobating in terms of what they are subject to when their own words and conduct are illustrative of their having taken advantage of the Act to commence business as distilleries.

Learned Law Officer further argues that Article 142(c) of the Constitution contemplates that it is only the Provincial Legislature that is empowered to legislate and impose tax in relation to matters not specified in the Fourth Schedule and perusal of the same reveals that alcohol/alcoholic liquors are not covered in the Fourth Schedule. Adds that the impugned Notification has been issued by the competent authority under Section 31 of the Act, therefore, neither any special procedure was required nor any mechanism was needed, however, demand notices have been issued to petitioners wherein they have been asked to show cause as to why they are not liable to pay the accrued tax but the petitioners did not bother to file reply to said SCNs.

Learned Addl. Advocate General maintains that there is no discrimination against petitioners regarding levy of duty as it has been levied throughout Punjab. It was imposed after due deliberations by the legislature and the executive. Purpose behind levy of said duty is to generate public revenue, which would ultimately be used in public interest and welfare. She adds that it is well within the sovereign power of the State to impose taxes to raise revenue. Reliance has been placed on Molasses Trading and Export (Pvt.) Limited v. Federation of Pakistan and others (1993 SCMR 1905) and Government of Pakistan and others v. Muhammad Ashraf and others (PLD 1993 SC 176). She argues that even otherwise, discrimination can only be claimed by a citizen and not a company as held in Federation of Pakistan through Secretary, Ministry of Finance and others v. Haji Muhammad Sadiq and others (PLD 2007 SC 133). She continues to argue that no discrimination can be pleaded in fiscal statutes. The respondents have issued D-2 license in favour of petitioners for the manufacture of spirit and the petitioners are liable to pay excise duty levied on the manufacture of said product, which in no way amounts to encroachment upon their fundamental rights, as alleged by them. Fundamental rights are subject to other constitutional and legal restraints and regulations, and are not unfettered in their scope. She finally prays that this writ petition along with connected cases may be dismissed with costs. Reliance has been placed on State of M.P. v. Rakesh Kohli and another (2013 SCMR 34), Messrs Elahi Cotton Mills Ltd and others v. Federation of Pakistan through Secretary M/o Finance, Islamabad and 6 others (PLD 1997 SC 582), Sohail Jute Mills Ltd. and others v. Federation of Pakistan through Secretary, Ministry of Finance and others (PLD 1991 SC 329), Mian Ejaz Shafi and others v. Federation of Pakistan and others (PLD 1997 Karachi 604), Anoud Power Generation Limited and others v. Federation of Pakistan and others (PLD 2001 SC 340), Messrs Bisvil Spinners Ltd. v. Superintendent, Central Excise and Land Customs Circule, Sheikhupura and another (PLD 1988 SC 370), Abdul Rahim and 2 others v. Messrs United Bank Ltd. of Pakistan (PLD 1997 Karachi 62), Government of Pakistan and others v. Messrs Hashwani Hotel Ltd. (PLD 1990 SC 68), Messrs Army Welfare Sugar Mills Ltd. and others v. Federation of Pakistan and others (1992 SCMR 1652), I.C.C. Textiles Ltd. v. Federation of Pakistan and others (2003 PTD 1017), The Commissioner of Agricultural Income Tax, East Bengal v. B.W.M. Abdur Rehman, Manager, Taki Bara Taraf Wards Estate (1973 SCMR 445), I.T.As. Nos.1386/LB and 1387/LB of 2009, decided on 1st February, 2010 (2010 PTD 1255), (1195 (1) SCR 682), Pakistan Tobacco Company Ltd. and others v. Government of N.W.F.P. through Secretary Law and others (PLD 2002 SC 460), (1970 (1) SCR 710), Shree Digvijay Cement Co. Ltd. and others v. State of Rajasthan and others (AIR 2000 Supreme Court 680), Messrs Quetta Textile Limited through Chief Executive v. Province of Sindh through Secretary Excise and Taxation, Karachi and another (PLD 2005 Karachi 55), Shahtaj Sugar Mills Limited v. Province of Punjab through Secretary, Food, Civil Secretariat, Lahore and 3 others (1998 CLC 1912), M/s. Saif Nadeem Kawasaki Motors Limited v. The Government of N:W.F.P. through Secretary, Local Government Peshawar and another (PLD 1992 Peshawar 166), Mirpurkhas Sugar Mills Ltd. v. District Council, Tharparkar and 2 others (1990 MLD 317), Shahtaj Sugar Mills Ltd and 3 others v. Province of Punjab and others (1998 SCMR 2492), Pakistan Flour Mills Association and another v. Government of Sindh and others (2003 SCMR 162), The State of Bombay and another v. F. N. Balsara (A.I.R. (38) 1951 Supreme Court 318 (C.N.55), M/s. Motipur Zamindary Co. (P) Ltd. v. The State of Bihar ((1962) S.C.R. 498), Indian Mica & Micanite Industries Ltd. v. State of Bihar & ORS ((1971) S.C.R. 319), Vam Organic Chemicals Ltd. and another v. State of U.P. and others ((1997) 2 Supreme Court Cases 715), Bihar Distillery and another v. Union of India and others ((1997) 2 Supreme Court Cases 727) and Mohd. Bin Salem v. Umaji (AIR 1955 Hyderabad 113 (Vol. 42, C.N. 31)).

1. I have given anxious consideration to the arguments of learned representatives of both the parties and perused the record with their able assistance.

2. The impugned Notification as well as provisions of Section 31 of the Act, 1914 read with Section 3(6) and Section 3(14) of the said Act assailed through instant petition are reproduced hereunder:--

Notification dated 03.07.2012:

“No. SO.TAX(E & T) 3-4/2012. In exercise of the powers conferred under Section 31 of the Punjab Excise Act, 1914 (I of 1914), Governor of the Punjab is pleased to impose a duty at the rate of Rs. 2/- per liter on manufacturing of spirit in any distillery or brewery with effect from 1st July, 2012.

1. They duty shall be recovered from the distillery or the brewery, established or licensed under Section 21 of the said Act.”

Section 3(6) of the Act, 1914:

“excisable article means

(a) any alcoholic liquor, or

(b) any intoxicating drug, or

any medicinal or toilet preparation containing alcohol.”

Section 3(14) of the Act, 1914:

“‘liquor’ means intoxicating liquor, and includes all liquids consisting of or containing alcohol; also any substance which the Provincial Government may by notification declare to be liquor for the purposes of this Act.”

Section 31 of the Act, 1914:

“31. Duty on excisable articles. A duty at such rate or rates as the Provincial Government shall direct, may be imposed, either generally or for any specified local area, on any excisable article--

(a) imported, exported or transported in accordance with the provisions of Section 16; or

(b) manufactured or cultivated under any license granted under Section 20; or

(c) manufactured in any distillery established, or any distillery or brewery licensed under Section 21;

1. Petitioners have challenged Section 31 of the Act, 1914, and impugned Notification on the strength of Article 142 of the Constitution with the contention that Provincial Legislature can levy duty on alcoholic liquor and not on alcohol, so petitioners’ product being alcohol is exempted from levy of duty. In this regard, learned counsel for the petitioners has placed reliance on the case of Hirjina & Co. supra.

Part v. of the Constitution deals with distribution of legislative powers. Dispensation of legislative authority between the Federation and the Provinces in the Constitution is conceded through Federal Legislative List available in Fourth Schedule of the Constitution consisting of two parts. There are 59 entries in Part I and 18 in Part II. After 18th amendment, in terms of Article 142 of the Constitution, Parliament has exclusive power to make laws with respect to any matter in the Federal Legislative List with power to make laws pertaining to such areas in the Federation as are not included in any Province. Provincial Assembly has power to make laws in respect to any matter not enumerated in the Federal Legislative List.

Entry No. 44 appearing in the Federal Legislative List empowers the Parliament to make law for levy of excise duties including duties of sale. At the same time, levy of duties on alcoholic liquors, opium and other narcotics have been excluded from the domain of Parliament. The provisions of Article 142 and Entry No. 44 of the Federal Legislative List are reproduced below for ready reference.

Article 142 of the Constitution reads as under:

“142. 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.

Entry No. 44 of the Federal Legislative List reads as under:

“44. Duties of excise, including duties on sale, but not including duties on alcoholic liquors, opium and other narcotics.”

1. The primary question that requires determination by this Court is whether ‘spirit’ is an alcoholic liquor coming within the purview of Entry No. 44 of the Federal Legislative List and thus, within the legislative competence of provincial legislature? Let us have a visit of definitions of word ‘spirit’, necessary to resolve the query, as provided in the Act, 1914, as well as different dictionaries. Definition of ‘spirit’ provided in Section 3(19) of the Act, 1914, reads as under:--

“‘spirit’ means any liquor containing alcohol obtained by distillation, whether denatured or not.”

‘Spirit’ as defined in the Oxford English Dictionary Volume-I:--

1. A liquid of the nature of an essence or extract from some substance, esp. one obtained by distillation; a solution in alcohol of some essential or volatile principle.

2. An essence, distilled extract, or alcoholic solution, of a specified substance.

‘Spirit’ has been defined in Words and Phrases (Permanent Edition) Volume 39C, in the following words:

N.C. 1887. “Spirit,” or “Spirits,” has a general meaning, as applied to fluids, mostly of a lighter character than ordinary water, obtained, but not produced, by distillation; but, as applied particularly to liquors, they signify the essence, the extract, the purest solution, the highly rectified spirit--the pure alcohol contained in them. The spirit of liquors is really the alcohol in them. It is this characteristic, this essential element, that makes them spirituous.--State v. Giersch, 4 S.E. 193, N.C. 720.

1. ‘Spirit’ is the common name of ‘ethanol’ and its chemical name is ‘ethyl alcohol’. The New Shorter Oxford Dictionary on Historical Principles edited by Lesley Brown Volume 1 defines ‘ethanol’: A colourless volatile flammable liquid alcohol, C2H5OH, present in alcoholic drinks (cf. ALCOHOL 4), produced by the fermentation of hexose sugars, and used as a solvent, antifreeze, fuel, and intermediate; ethyl alcohol. Ethyl alcohol is also the intoxicating ingredient of many alcoholic beverages such as beer, wine and distilled spirits. There are two main processes for the manufacture of ethyl alcohol: the fermentation of carbohydrates (the method used for alcoholic beverages) and the hydration of ethylene. Fermentation involves transformation of carbohydrates to ethyl alcohol by growing yeast cells. Ethyl alcohol produced either by fermentation or by synthesis, is obtained as a dilute aqueous solution and must be concentrated by fractional distillation. Ethyl alcohol intended for industrial use is usually denatured (rendered unfit to drink), typically with methanol, benzene or kerosene, which is basically an industrial alcohol used for the manufacture and production of a thousand products. Denatured spirit is a form of alcohol i.e. liquid containing alcohol mixed with very small percentages of chemicals or other poisonous liquids, so as to render it unfit for human consumption.

2. The words ‘liquor’, ‘alcohol’, ‘alcoholic’, and ‘denatured’ occurring in the above definition of ‘spirit’ are defined and explained below:

“‘liquor’ means intoxicating liquor, and includes all liquids consisting of or containing alcohol; also any substance which the Provincial Government may by notification declare to be liquor for the purposes of this Act.” (Section 3(14) of the Act, 1914).

“liquor” A liquid; matter in a liquid state; occas. in wider sense, a fluid.

A drink (of an intoxicating beverage).

(The Oxford English Dictionary Volume-I).

“denatured” means effectually and permanently rendered unfit for human consumption.

(Section 3(5) of the Act, 1914).

“alcohol” 3. By extension of fluids of the idea of sublimation: An essence, quintessence, or ‘spirit’ obtained by distillation or ‘rectification’;

1. Organ. Chem. An extensive class of compounds, of the same type as spirit of wine, composed of carbon, hydrogen, and oxygen, some of which are liquid and others solid.

“alcoholic” Of or belonging to alcohol.

(The Oxford English Dictionary Volume-I).

1. In the case of The State of Bombay and another supra, after discussing definition of ‘liquor’ in various Acts, it was held as under:

“(16). Coming now to the various definitions given in the Indian Acts, I may refer in the first instant to the Bombay Abkari Act of 1878 as amended by subsequent Acts, where the definition is substantially the same as in the Act with which we are concerned. In the Bengal Excise Act, 1909, “liquor” is said to mean:

“liquid consisting of or containing alcohol, and includes spirits of wine, spirit, wine, tari pachwai, beer, and any substance which the Provincial Govt. may….declare to be liquor for the purposes of the Act.”

In several other Provincial Acts, e.g., the Punjab Excise Act, 1914, the U.P. Excise Act, 1910, “liquor” is used as meaning intoxicating liquor & as including alcohol. The definition of “liquor” in the Madras Abkari Act, 1886 is the same as in the Bombay Act of 1878. Even if we exclude the American & English Acts from our consideration, we find that all the Provincial Acts of this country have consistently included liquids containing alcohol in the definition of ‘liquor’ & ‘intoxicating liquor’. The framers of the Govt. of India Act, 1935, could not have been entirely ignorant of the accepted sense in which the word “liquor” has been used in the various excise Acts of this country, and, accordingly I consider the appropriate conclusion to be that the word “liquor” covers not only those alcoholic liquids which are generally used for beverage purpose & produce intoxication, but also liquids containing alcohol. It may be that the latter meaning is not the meaning which is attributed to the word “liquor” in common paralance especially when that word is prefixed by the qualifying word ‘intoxicating’, but in my opinion having regard to the numerous statutory definitions of that word, such a meaning could not have been intended to be excluded from the scope of the term “intoxicating liquor” as used in entry 31 of List II.”

1. An exhaustive and lengthy discussion over definitions of “liquor”, “intoxicating liquor”, “intoxicant” and word “includes” occurring in some definition, was made in case reported as Mushtaq Ahmad v. The State (1991 PSC 511), which is actually a criminal appeal arising out of Prohibition (Enforcement of Hadd) Order, 1979 (“PEHO”). Though elaboration on the definition of above words has been with reference of PEHO, 1979 but same are also helpful to understand their exact meaning, as these words are also used in the Act, 1914. Relevant para of the said judgment reads as under:

“8. Article 2(h) of the Order defines “intoxicating liquor” to include toddy, spirits of wine, wine, beer and all liquids of or containing alcohol normally used for purposes of intoxication, but does not include a solid intoxication even if liquefied. The word “liquor” does not necessarily mean liquid containing alcohol, such as beverage drink produced by fermentation or distillation. In common paralance it also denotes liquids, fluids or matters in a liquid state; chemical solutions; liquid solutions used as a wash or bath, or to cure or purify Articles etc. The expression “intoxicating liquor”, therefore, obviously has reference to liquids consisting of or containing something which produce intoxication. The word “includes” contained in Article 2(h) of the Order requires examination. In Dilworth v. Commissioner for Land and Income Tax (1899 A.C. 99 P.C.), Lord Watson observed:

“The word ‘include’ is very generally used in interpretation clauses in order to enlarge the meaning of the words or phrases occurring in the body of the statutes; and when it is so used these words or phrases must be construed as comprehending, not only such things which the interpretation clause declares that they shall include. But the word ‘include’ is susceptible of another construction, which may become imperative, if the context of the Act is sufficient to show that it was not merely employed for the purpose of adding to the natural significance of the words or expressions defined. It may be equivalent to ‘mean and include’ and in that case it may afford an exhaustive explanation of the meaning which for the purposes of the Act, must invariably be attached to these words or expressions.”

The question, therefore, that arises is whether the word “includes” has been used to enlarge the meaning of the expression “intoxicating liquor” or to limit its meaning and render it exhaustive. As a general rule, the word “includes” is used as a word of enlargement and ordinarily implies that something else also falls within the definition beyond the general or generic meaning of that expression which precedes it, i.e. a species which does not naturally belong to it or a species which normally or naturally attaches to it. What is the general or generic meaning attaching to the expression “intoxicating liquor”, so that the items that succeed the word “includes” either constitute a species which do not naturally belong to it or a species deemed included in the general or generic meaning of that expression or to its natural import. The word “intoxicant” has been defined in Article 2(g). The items listed in the Schedule to the Order are derivatives of plants. These Articles when consumed produce intoxication. They are also normally used by persons for purposes of intoxication. Some of these items can be consumed in liquid form. The expression therefore “intoxicating liquor” as used in its general or generic sense would therefore include all forms of drinks, beverages or liquids containing the Articles specified in the Schedule to the Order, i.e. intoxicants which are derivatives of certain stated plants, which are normally used by persons for the purposes of intoxication. “Toddy, spirits or wine …” are derivatives of cereats and fruits. These Articles when consumed also produce intoxication. What is common to them is alcohol. Thus, if the expression “intoxicating liquor” covers liquids containing intoxicants derived from plants, the words “toddy, spirits of wine,…” which follow the word “includes” refer to the species of liquids consisting of or containing alcohol derived from the fermentation or distillation of cereals or fruits. In short, the expression “intoxicating liquor” in its totality would cover all drinks, beverages or liquids consisting of or containing the Articles stated in the Schedule or alcohol which are normally used by persons for purposes of intoxication. The word “intoxication” in Article 2(h) of the Order does not mean to get drunk or unconscious or inebriated or elated beyond the bunds of sobriety. What is intended to convey is that the liquid can produce a state of intoxication, i.e. stimulation, depression, elation, semi-consciousness, etc.”

1. The above narrated definitions of different words relating to matter in hand, when read in juxtaposition, lead to the conclusion, with no ambiguity, that spirit squarely falls within the definition of liquor and alcoholic liquor is an umbrella term which covers all liquors including spirit. Alcoholic liquor, which includes ‘spirit’, is surely an excisable article, which squarely falls within legislative competence of provincial legislature in terms of Entry No. 44 of the Federal Legislative List as well as Section 3(6) of the Act, 1914.

2. The doctrine of noscitur a sociss has been interpreted at page 195 of “Reading Law” Antonin Scalia and Bryan A. Garner, as a rule of construction which teaches that the meaning of particular terms in a statute may be ascertained by reference to words associated with them in the statute; and that where two or more words of analogous meaning are employed together in a statute, they are understood to be used in their cognate sense, to express the same relations and give color and expression to each other. Thus, rectified and denatured spirits are listed as liquors containing alcohol.

3. The contention of petitioners that spirit, being inconsumable, non-potable or un-fit for human consumption, is not alcoholic liquor, is totally misconceived because the Act does not mention any such criteria to include or exclude a product from the purview of ‘alcoholic liquor’. It is well settled that every law and every word in a statute has to be construed and interpreted in the context embodied in it and any import into it may render different meaning and different sense which the law-maker may not have intended to assign to it. The defined words should not be given wider meanings than the one already given in the definition, lest it may defeat the very purpose of the law itself, as has been held in the case of M/s. Saif Nadeem Kawasaki Motors Limited supra.

4. While challenging vires of Section 31 of the Act, 1914, and impugned Notification, learned counsel for petitioners also takes support from the judgment rendered by Indian Supreme Court in case Synthetics and Chemicals Ltd. and others supra, and contends that ‘intoxicating liquor’ appearing in Entry No. 51 List II or ‘alcoholic liquors for human consumption’ appearing in Entry No. 51 List II of the Indian Constitution do not cover industrial alcohol being incapable of consumption, therefore, State Legislature had no authority to levy duty on it and at the most regulatory fee could be imposed.

The said case is distinguishable with the present matter due to the fact that constitutional scheme of India provides separate legislative entries with regard to Centre and States. Separate Legislative Lists are clearly demarcated and bifurcated therein. In India, alcoholic liquors for human consumption fall in Entry No. 51 List II, wherein the State legislature has been authorized to levy tax whereas alcoholic liquors other than for human consumption, have been left to the Central legislature, under Entry No. 84 for levy of duty of excise. This scheme of these two entries in Lists I & II is clear enough to indicate the line of demarcation for purposes of taxation of alcoholic liquors. What has been excluded in Entry No. 84 has specifically been put within the authority of the State for purposes of taxation.

Entry No. 8 in List II talks of intoxicating liquors and also refers to production, manufacture, possession, transport, purchase and sale of these liquors. It was held in the judgment that Entry No. 51 authorizes the State legislature to levy tax and duties on alcoholic liquors falling in Entry No. 51 and Entry No. 8 confers authority on the State legislature to enact laws for regulation.

In Pakistan, the constitutional scheme of separating the legislative competence on various subjects is governed by Article 142, by virtue of which a Provincial Assembly shall, and Parliament shall not, have power to make laws with respect to any matter not enumerated in the Federal Legislative List. The “alcoholic liquor”, being not mentioned in the Federal Legislative List, squarely falls within the legislative competence of the Provincial Legislature. Furthermore, the Act, 1914, does not create distinction of alcoholic liquors as for human consumption or otherwise.

1. High Courts and Supreme Court of India, in various decisions, have elaborated legislative jurisdiction of the State and the Union over matters enumerated in the Legislative Lists of their Constitution. They have also made observations by drawing lines of demarcation of the legislative authorities over liquors, intoxicating liquors and alcoholic liquors. Though in the scheme of Indian Constitution, their legislative lists and division of legislative powers over matters of liquor are quite different to that of Pakistan but in order to answer various queries raised by petitioners while relying on the case of Synthetics Chemicals supra, this Court feels it appropriate to cite famous decisions of Supreme Court of India wherein ratio of Synthetics Chemical supra has been discussed, elaborated and distinguished.

2. Facts as reported in the case of Vam Organic Chemicals Ltd. and another supra, are that two appeals were filed against the judgment of High Court of Allahabad dated 09.09.1991 whereby writ petitions filed by appellants were dismissed wherein Notification issued by the Excise Commissioner, Uttar Pradesh was challenged. Through said notification, certain amendments were made in the Rules for regulating the manufacture, supply, storage or sale of any intoxicant. It was further held that distilleries holding license for denaturation of spirit shall be liable to pay a denaturation fee @ 7 paise per liter in advance. The said notification was challenged by appellants on the grounds that the State of Uttar Pradesh had no power to legislate in respect of industrial alcohol or to levy taxes in respect thereof and further that levy being not based on quid pro quo was otherwise bad. The High Court rejected all the contentions of appellants and their writ petitions were dismissed. Supreme Court of India also dismissed appeal of appellants by upholding the decision of High Court.

In those appeals the appellants contended that the Supreme Court by its decision in Synthetics Chemicals had expressly ruled against legislative competence of the State so far as ethyl alcohol/rectified spirit is concerned. Further, they contended that even if the State is left with regulatory power to prevent misuse of industrial alcohol for potable purposes, such power did not include power to levy any impost. Further, the appellants contended that denaturation is a statutory duty imposed by a notification under the U.P. Excise Act and no service by the State being provided for the same, no fee could be charged and in any case even if the State has to incur any expenses for enforcement of the requirement of denaturation, there is no quid pro quo between the expenses incurred and the fees charged.

Those appeals were dismissed and contentions raised by appellants were rejected, with the following observations:--

“10. This Court dealt with the question of legislative competence of the State to impose tax or levy on industrial alcohol in the case of Synthetics and Chemicals Ltd. v. State of U.P. and ruled in the negative. The High Court took the view that the distinction between ethyl alcohol/rectified spirit as such and denatured spirit was not in issue, nor was it considered in that judgment and held that this Court cannot be said to have ruled that every rectified spirit/ethyl alcohol is industrial alcohol. The High Court reiterated that once denatured, the alcohol becomes exclusively industrial alcohol since it cannot be used for obtaining country liquor or for manufacturing IMFLs and said that it is to ensure that ethyl alcohol meant for industrial use is not misused or diverted for human consumption that impugned regulation is provided for by the State and further that the regulation being part of general regulation of the trade in alcohol in the interest of public health is relatable to Entries 6 and 8 of List II.

It was further noted in Paras 13 & 14:--

“13. We may note that the term “industrial alcohol” is not used in any of the Lists in the Seventh Schedule of the Constitution. All the entries quoted in the earlier part of the judgment have to be read with Article 248 of the Constitution which specifies residuary powers of the Union:

“248. Residuary powers of legislation.--(1) Parliament has exclusive power to make any law with respect to any matter not enumerated in the Concurrent List or State List.

(2) Such power shall include the power of making any law imposing a tax not mentioned in either of those Lists.”

This is reflected in Entry 97 of List I:

“97. Any other matter not enumerated in List II or List III including any tax not mentioned in either of those List.”

Whether alcoholic liquors other than “alcoholic liquors for human consumption” or “intoxicating liquor” was a State subject or a Union subject should be the real controversy. It is with a view to describing this kind of liquor that the term “industrial alcohol” is used. After an analysis of all the provisions of law giving the Union Parliament and the State Legislature jurisdiction to legislate on alcohol, this Court in the Synthetics Chemicals case held that the impugned notifications imposing certain fees as vend fee or transport fee, etc. were held to be within the legislative competence of the State. A careful reading of that judgment shows that the Court was fully aware of the fact that rectified spirit was the ingredient for intoxicating liquor or alcoholic liquor for human consumption although rectified spirit/ethyl alcohol as well as denatured spirit are referred to as “industrial alcohol” in that judgment. This Court did not hold that the State will have no power whatsoever in relation to “industrial alcohol”. In fact, in the judgment itself, the Court has enumerated the various areas relating to industrial alcohol in which the State could still legislate or make rules ....

1. It is to be noticed that the States under Entries 8 and 51 of List II read with Entry 84 of List I have exclusive privilege to legislate on intoxicating liquor or alcoholic liquor for human consumption. Hence, so long as any alcoholic preparation can be diverted to human consumption, the States shall have the power to legislate as also to impose taxes etc. In this view, denaturation of spirit is not only an obligation on the States but also within the competence of the States to enforce.

2. The case of Bihar Distillery and another supra describes respective spheres of control of Union and State Governments with regard to different entries in legislative lists of Indian Constitution regarding alcoholic liquors, rectified spirit, and intoxicating liquors. Bihar Distillery was getting its license renewed under the provisions of the Bihar Excise Act. In the year 1992, the authorities of the Bihar State proposed to cancel its license to which it objected on the ground that grant and cancellation of license was exclusive domain of Government of India and State Government had no say in the matter. It relied upon the decision rendered in the case of Synthetics and Chemicals Ltd. and others supra, and observed that Entry No. 51 in List II and Entry No. 84 in List I compliment each other. Both provide for duties of excise but while the States are empowered to levy duties of excise on (a) alcoholic liquors for human consumption and (b) opium, Indian hemp and narcotics manufactured or produced in the State and countervailing duties at the same or lower rates on similar goods manufactured or produced elsewhere in India but excluding medicinal and toilet preparation containing alcohol or any substance included in sub-para (b) of this Entry and the Union is empowered to levy duties of excise on tobacco and other goods manufactured or produced in India except (a) alcoholic liquors for human consumption and (b) opium, Indian hemp and other narcotic including drugs and narcotics. Medicinal and toilet preparations containing alcohol or any substance included in sub-para (b) which are excluded from Entry No. 51 in List II are expressly included in this entry.

It was further observed that as per Entry No. 8 in List II, production, manufacture, possession, transport, purchase and sale of intoxicating liquors is placed within exclusive domain of the States. It was also noted that even though control of certain industries may have been taken over by the Union by virtue of a declaration made by Parliament in terms of Entry No. 52 in List I, yet the “trade, commerce in, and the production, supply and distribution of the products” of such industry is placed in the concurrent field, which in the present context means that though the control of alcohol industry is taken over by the Union, trade, commerce in and the production, supply and distribution of the products of alcohol industry can be regulated both by the Union and the States subject, of course, to Article 254. It was also noted that insofar as the field is not occupied by the laws made by the Union, the States are free to legislate.

The observations contained in Vam Organic’s case supra, already affirmed by Supreme Court of India, were endorsed in paras 16, 17, 18 & 21 of the judgment.

1. Now I advert to the argument of learned counsel for petitioners that Section 31 of the Act and impugned Notification are violative of Article 151 of the Constitution. Learned Addl. Advocate General controverted this submission by reiterating that the respondent-Government has exclusive power to impose duty on an excisable item under Section 31 of the Act, 1914, and argues that mere imposition of duty is not a restriction upon free trade, which is prohibited by Article 151 of the Constitution. It is necessary to explore the object, scope and purpose of Article 151 of the Constitution. For convenience, Article 151 is reproduced hereunder:--

“151. Inter-Provincial trade. (1) Subject to clause (2), trade, commerce and intercourse throughout Pakistan shall be free.

(2) Majlis-e-Shoora (Parliament) may by law impose such restrictions on the freedom of trade, commerce or intercourse between one Province and another or within any part of Pakistan as may be required in the public interest.

(3) A Provincial Assembly or a Provincial Government shall not have power to:

(a) make any law, or take any executive action, prohibiting or restricting the entry into, or the export from, the Province of goods of any class or description, or

(b) impose a tax which, as between goods manufactured or produced in the Province and similar goods not so manufactured or produced, discriminates in favour of the former goods or which, in the case of goods manufactured or produced outside the Province discriminates between goods manufactured or produced in any area in Pakistan and similar goods manufactured or produced in any other area in Pakistan.

(4) An Act of a Provincial Assembly which imposes any reasonable restriction in the interest of public health, public order or morality, or for the alleviating any serious shortage in the Province of an essential commodity shall not, if it was made with the consent of the President, be invalid.”

It is evident from above narration that Article 151(1) guarantees trade, commerce and intercourse throughout Pakistan to be free, subject, however, to the power of Parliament to impose, by law, such restrictions on the freedom of trade, commerce or intercourse between one province and another, or within any part of Pakistan, as may be required in public interest, under Article 151(2). Article 151(3)(a) of the Constitution also, negatively, provides that a Provincial Assembly or a Provincial Government shall not have power to make any law or take any executive action prohibiting or restricting entry into or export from the province, of goods of any class or description. Article 151(3)(b) debars the Provincial Government to impose a tax which discriminates in favour of goods manufactured or produced in the province over similar goods not so manufactured or produced. Article 151(4), however, permits the Provincial Assembly to make law imposing reasonable restrictions in public interest as specified therein with the consent of the President.

In order to show that Section 31 of the Act, 1914, and impugned Notification are violative of Article 151 of the Constitution, learned counsel for petitioners has relied on the case of Murree Brewery Company Ltd. through Secretary supra. In my view, this case is based on entirely different facts. In the said case, vires of notification and memorandum issued by the Provincial Government, whereby tax had been imposed on the import of Pakistan Made Foreign Liquor, were challenged, which is not the case here because the respondents through impugned Notification, have levied duty on the manufacture of spirit.

1. Learned counsel for petitioners has also relied on the case of Murree Brewery Co. Ltd. through Manager Tops, M.B.C. supra. To better understand the ratio of said judgment, Para 9 is reproduced hereunder, whereby while interpreting Section 31 of the Act, 1914, it was held:--

“The section enables the Provincial Government to impose on any excisable article a duty, at such rate or rates as the Provincial Government shall direct, on such excisable article being imported, exported or transported in accordance with the provisions of Section 16 or manufactured or collected under any license granted under Section 20 or manufactured in any distillery established or any distillery or brewery licensed under Section 21. It is to be seen that clauses (a), (b) and (c) are disjunctive. The word “or” separates all the three clauses, which would indicate the intention of the Legislature that the duty can be imposed either under clause (a) or (b) or (c) but cannot be imposed under (a), and also under clauses (b) and (c). As I understand this section it does not authorize the Government to impose the duty twice on an excisable article. In other words if an excisable article has been subjected to duty under clause (b) or (c) it cannot again be subject to duty under clause (a). This interpretation is supported by language of Section 16, which lays down that intoxicants shall not be imported, exported or transported except after payment of any duty to which it may be liable under this Act. The word “or” separating the three clauses cannot be read as “and”.”

Admittedly, in the present cases, respondents have levied only one duty i.e. on the manufacture of liquor, which is apparently only under one clause of Section 31. So, the judgment cited by learned counsel for petitioner is not attracted to the facts of instant cases.

1. Learned counsel for petitioners further placed reliance on the case of Mirpurkhas Sugar Mills Ltd. supra. I have gone through the said judgment wherein imposition of export tax/toll tax by Local Councils on sugar leaving physical limits of their jurisdiction for delivery on destinations in other provinces, was challenged on the touchstone of Article 151 of the Constitution. It was held that imposition of said export will amount to restraint of freedom of trade, commerce or intercourse between one province and another. But in the case in hand, no such tax has been levied which may lead to infer that Provincial Government has imposed any restriction on the freedom of trade in Pakistan.

2. While relying on the case Messrs H.A. Rahim & Sons (Pvt.) Ltd. v. Province of Sindh and another (2003 CLC 649), learned counsel for petitioners contends that Article 151(3)(a) of the Constitution prohibited imposition of any restriction by Provincial Legislature in relation to inter-provincial trade i.e. movement of goods from one Province to another and any fiscal measure being a tax or a fee would amount to a restriction on such inter-provincial trade. They contend that any mode of taxation/fiscal measure would impair freedom of trade, commerce and intercourse because tax was a restriction on enjoyment of property and deterrent against free flow of trade.

The afore-referred case is quite distinguishable because in said case, plaintiff challenged vires of Sections 9 & 10 of Sindh Finance Act, 1994 whereby Government had imposed a levy known as ‘infrastructure fee’. Impugned levy was directly chargeable on the exit or entry of goods from/in the Province of Sindh. Power to legislate in relation to inter-provincial trade vests with Federation, so it was held in the said case that impugned levy by Provincial Legislature on movement of goods from one Province to another was violative of Item 27 of Federal Legislative List read with Article 142 of the Constitution and was declared unconstitutional.

It has been held by Hon’ble Supreme Court of Pakistan in the case of Pakistan Tobacco Company Ltd. and others supra, that liberal and dynamic interpretation of the word “free” does not mean an unqualified freedom at all in the trade, commerce and intercourse between the Provinces because unchecked freedom in the trade, commerce and intercourse without any reasonable prohibition and restriction would not be beneficial for an orderly society inasmuch as even there would be lack of discipline and the Provincial administration would not be in a position to control trade and commerce of prohibited/contraband articles, therefore, a qualified restriction, if imposed up to the trade had not impeded the flow of trade and commerce, would not tantamount to placing any prohibition or restriction on the trade, commerce and intercourse between the Provinces. But in the instant case, situation is drastically different. The matter of inter-provincial trade is not involved here rather respondent-Government levied duty on the manufacture of spirit, which has not created any restriction on inter-provincial trade. A bare perusal of the contents of impugned Notification makes it clear that levy has been imposed on the manufacture of product i.e. spirit and not on its movement. Therefore, by any stretch of the imagination, it cannot be construed that said notification is creating any hindrance/restriction in the freedom of trade of petitioners, in terms of Article 151 of the Constitution.

1. The stance of petitioners is that levy of Rs. 2/- per liter would increase the cost of production and ultimately high price of the product in Punjab, as compared to its price in other Provinces, would damage their business. The mere fact that the local sale of ‘spirit’ as compared to other Provinces of Pakistan, may have been adversely affected, due to imposition of duty, cannot result in terming the impugned Notification, as adversely affecting the free flow of trade and violative of Article 151 of the Constitution. Reliance can safely be placed on the case of Shree Digvijay Cement Co. Ltd. and others supra. It has been held, in a number of judgments, by the apex Court that unless there must exist prohibition by law and some actual restriction on freedom of trade only then it can be declared to be in violation of the mandate of Article 151 of the Constitution. Reliance can safely be placed on Pakistan Tobacco Company Ltd. and others supra. In my view, this alleged discrimination with regard to levy of impugned duty does not seem to be in favour of petitioners and as such may not be hit by Article 151(3)(b) of the Constitution.

2. Articles 301, 302, 303, 304 and 305 of the Constitution of India deal with the subject of trade, commerce and intercourse, and embody the rule contained in Article 151 of the Constitution of Pakistan. A similar question whether taxing the sales and purchases of tendu leaves at a higher rate than in the neighboring State violates Article 301 by impeding the free trade and commerce in tendu leaves throughout the territory of India, came under consideration before Supreme Court of India in case titled M/s. Vrajlal Manilal and Co. and another v. State of M.P. and another (AIR 1986 SC 1085), wherein it was held that an increase in the rate of tax on a particular commodity cannot per se be said to impede free trade and commerce of that commodity. Said Articles of Indian Constitution are reproduced below:

“Art. 301. Freedom of trade, commerce and intercourse.–Subject to the other provisions of this Part, trade, commerce and intercourse throughout the territory of India shall be free.

Art. 302. Power of Parliament to impose restrictions on trade, commerce and intercourse.–Parliament may by law impose such restrictions on the freedom of trade, commerce or intercourse between one State and another or within any part of the territory of India as may be required in the public interest.

Art. 303. Restrictions on the legislative powers of the Union and of the States with regard to trade and commerce.–(1) Notwithstanding anything in Article 302, neither Parliament nor the Legislature of a State shall have power to make any law giving, or authorizing the giving of, any preference to one State over another, or making, or authorizing the making of, any discrimination between one State and another, by virtue of any entry relating to trade and commerce in any of the Lists in the Seventh Schedule.

(2) Nothing in clause (1) shall prevent Parliament from making any law giving or authorizing the giving of, any preference or making, or authorizing the making of, any discrimination if it is declared by such law that it is necessary to do so for the purpose of dealing with a situation arising from scarcity of goods in any part of the territory of India.

Art. 304. Restrictions on trade, commerce and intercourse among States.–Notwithstanding anything in Article 301 or Article 303, the Legislature of a State may by law--

(a) impose on goods imported from other States or the Union territories any tax to which similar goods manufactured or produced in that State are subject, so, however, as not to discriminate between goods so imported and goods so manufactured or produced; and

(b) impose such reasonable restrictions on the freedom of trade, commerce or intercourse with or within that State as may be required in the public interest:

Provided that no Bill or amendment for the purposes of clause (b) shall be introduced or moved in the Legislature of a State without the previous sanction of the President.

Art. 305. Saving of existing laws and laws providing for State monopolies.–Nothing in Articles 301 and 303 shall affect the provisions of any existing law except insofar as the President may by order otherwise direct, and nothing in Article 301 shall affect the operation of any law made before the commencement of the Constitution (Fourth Amendment) Act, 1955, insofar as it relates to, or prevent Parliament or the Legislature of a State from making any law relating to, any such matter as is referred to in sub-clause (ii) of clause 6 of Article 19.”

In State of Kerala v. A.B. Abdul Kadir (1970) 1 SCR 700: AIR 1970 SC 1912), after referring to and explaining the earlier decisions on this subject, Supreme Court of India held at page 710 of S.C.R. and page 1918 of AIR as follows:--

“As we have already pointed out it is well established by numerous authorities of this Court that only such restrictions or impediments which directly and immediately impede the free flow of trade, commerce and intercourse fall within the prohibition imposed by Art. 301. A tax may in certain cases directly and immediately restrict or hamper the flow of trade, but every imposition of tax does not do so. Every case must be judged on its own facts and in its own setting of time and circumstances.”

1. Even otherwise, contention of the petitioners is that disparity in rate of the product, arrived at after levy of said duty, is affecting the inter-provincial trade. Apparently this assertion is based on conjectures and surmises because petitioners have brought nothing on record in shape of evidence, which may show any damage or loss to inter-provincial trade. Similar proposition came up for hearing before Hon’ble Supreme Court of Pakistan in the case of Shahtaj Sugar Mills supra, wherein it was held in Para 10 at page 2500, as under:

“Now adverting to next contention concerning possible adverse economic effect on inter-provincial trade resulting from disparity with regard to sugarcane development cess, in the Provinces of N.W.F.P. and Punjab. Suffice it to observe that absolutely no material or details have been mentioned or placed on record, which may even approximately disclose quantum of sugarcane transported from one province to another and its consumption in the Sugar Mills/ Factories, from different areas. The apprehension of economic imbalance or disadvantage toward inter-provincial trade is apparently based upon propitiates or imagination, therefore, without existence of tangible material and substantial reasons, possibility of loss or damage relating to inter-provincial trade cannot be assumed as basis for violating or affecting any legal right ….”

1. The petitioners have laid much stress on the exemption of ethanol from levy of any duty on the ground that it is an export product and thereby protected under order 6.12(3) (f) of Chapter 6 of the Punjab Liquor Import, Export, Transport and Possession Orders. This stance of petitioners is misconceived as levy of impugned duty by its very nature, is altogether distinct from levy of export tax, which is an inland tax leviable on manufacturers within the country or licensed for specific activities. It is not a border tax and does not purport to have any nexus with the export of ethanol. The impugned levy has been imposed regardless of the ultimate destination of the excisable article, but is primarily leviable on the quantum of its manufacture, therefore, the aforesaid immunity to pay tax is not relevant and of no help to petitioners.

2. The petitioners have challenged not only said provision of law and Notification but also the impugned SCN, which reads as “As you have already been conveyed through above mentioned letters that the Government of the Punjab has imposed duty on manufactured spirit @ Rs. 2 per liter. Challan forms for payment of duty have already been provided to you but the payment has not yet been deposited into the Government treasury. You are, therefore, directed to explain your position within 2 days otherwise the duty will be recovered through coercive measures under Land Revenue Act, 1967.”, on the touchstone of Articles 18 and 25 of the Constitution. It has been argued that Constitution guarantees right of every citizen to enter upon any lawful profession or occupation and to conduct any lawful trade or business and all citizens are entitled to enjoy equal protection of law but levy of impugned duty and that too at a high rate would deprive them to continue their lawful business, which is the source to earn their livelihood. Article 18 of the Constitution starts with the words “subject to such qualifications”, which means that Legislature can impose certain conditions to carry on a lawful business. The respondents through impugned Notification have not restrained petitioners from their lawful business but only imposed a certain duty on a specific product being manufactured by them.

3. Legislature is competent to classify persons or properties into different categories subject to different rates of tax. If the same class of persons is subjected to an incidence of taxation, resulting in inequality amongst them, is liable to be struck down on account of infringement of the fundamental right of equality. But, in the present case, there is no discrimination caused by respondents to the petitioners as the impugned Notification applies on all the manufacturers of spirit throughout Punjab.

Interpretation of Article 14 of the Indian Constitution, which is parallel to Article 25 of the Constitution of Pakistan, has been provided in the case of F. N. Balsara supra, in the following lines:--

“19. I now come to S.39 of the Act which has been impugned on the ground that it offends against Art.14 of the Constitution which states that “the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”. The meaning and scope of this Article has been fully discussed in the case of ‘Chiranjit Lal v. The Union of India, 1950 SCR 869, and the principles laid down in that case may be summarized as follows:

“1. The presumption is always in favour of the constitutionality of an enactment, since it must be assumed that the legislature understands & correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience & its discriminations are based on adequate grounds.

1. The presumption may be rebutted in certain cases by showing that on the face of the statute, there is no classification at all & no difference peculiar to any individual or class & not applicable to any other individual or class, & yet the law hits only a particular individual or class.

2. The principle of equality does not mean that every law must have universal application for all persons who are not by nature, attainment or circumstances in the same position, & the varying needs of different classes of persons often require separate treatment.

3. The principle does not take away from the State the power of classifying persons for legitimate purposes.

4. Every classification is in some degree likely to produce some inequality & mere production of inequality is not enough.

5. If a law deals equally with members of a well-defined class, it is not obnoxious & it is not open to the charge of denial of equal protection on the ground that it has no application to other persons.

6. While reasonable classification is permissible, such classification must be based upon some real & substantial distinction bearing a reasonable & must relation to the object sought to be attained & the classification cannot be made arbitrarily & without any substantial basis.”

7. While dealing with the subject of ‘discrimination’ in case of Messrs Elahi Cotton Mills Ltd. and others supra, it was held that tests of the vice of discrimination in a taxing law are less rigorous. If there is equality and uniformity within each group founded on intelligible differentia having a rational nexus with the object sought to be achieved by the law, the constitutional mandate that a law should not be discriminatory is fulfilled. It was further held that policy of a tax, in its operation may result in hardships or advantages or disadvantages to individual assessees, which are accidental and inevitable but simpliciter such a situation will not constitute violation of any of the fundamental rights. It was guided that judicial approach should be dynamic rather than static, pragmatic and not pedantic and elastic rather than rigid. The law should be saved rather than be destroyed and the Court must lean in favour of upholding the Constitutionality of a legislation keeping in view that the rule of constitutional interpretation is that there is presumption in favour of constitutionality of the legislative enactments unless ex facie it is violative of a constitutional provision.

Furthermore, neither discrimination can be pleaded in fiscal statutes nor such statute can be struck down at the touchstone of Article 25 of the Constitution. The equal protection of law does not envisage that every citizen is treated alike in all circumstances, but it contemplates that persons similarly situated or similarly placed are to be treated alike. In the instant case, petitioners have failed to establish any discrimination amongst manufactures of ‘spirit’ throughout Punjab, as impugned Notification is applicable on all the manufactures in Punjab. Duty has been levied under lawful authority vested in Provincial Government, in terms of the Punjab Excise Act, 1914, and is in the public interest to raise public revenue.

Even otherwise, it was also held in the case of Haji Muhammad Sadiq and others supra that a company incorporated under the Companies Act, 1913 or the Companies Ordinance, 1984 does not fall within the definition of a citizen. It was held that incorporated bodies/companies do not fall within the definition of a citizen for the purpose of Article 25 of the Constitution therefore, without joining to the share/account holders the impugned legislation cannot be examined within the parameters of Article 25 of the Constitution. Hon’ble Supreme Court of Pakistan also laid down distinction between the expression of a person and a citizen by saying:

“….As far as the expression ‘person’ is concerned it also includes a juristic person i.e. Incorporated bodies and so far expression citizen is concerned as it has been employed in Article 25 of the Constitution “person” which means as defined under the law. Essentially the law on the subject is Pakistan Citizenship Act, 1951 which by its implication excludes a juristic person from the definition of citizen.”

It was also held that:--

“….Undoubtedly the companies have no fundamental rights to carry on business through its representatives who are the citizens of Pakistan but for the purpose of challenging the constitutionality of a statute, it would be a condition precedent to satisfy that challenge is by a citizen at the touchstone of Article 25 of the Constitution, which provides that all citizens are equal before the law and are entitled to protection of law, Expression “citizen” means a citizen of Pakistan as defined by law under Article 260 of the Constitution. According to the case of The Progress of Pakistan Co. Ltd. v. Registrar Joint Stock Companies Karachi (PLD 1958 Lahore 887) relevant law to define the “citizen” is the Citizenship Act of 1951 as it has been explained in Sections 6, 7 and 9 of that Act…”

1. The petitioners have also raised plea that such condition/levy was not available at the time when license was issued in their favour, so it is not sustainable. Similar question came up for hearing before Hon’ble Supreme Court of Pakistan in the cases of Muhammad Ashraf and others supra, and Haji Muhammad Sadiq and others supra, wherein it was held that abstention of authority from subjecting a particular item of goods from regulatory duty at a given time, or for that matter, at the commencement of the financial year, does not create any vested right in favour of any party who may have entered into contracts on that basis, because the authority to levy the duty is the sovereign power of the State. Principle of promissory estoppel does not arise because there is no question of a representation on the part of the Government, which is an essential element of the principle of promissory estoppel, when particular item is not subjected to duty at the initial stage. The operation of doctrine of promissory estoppel is subject to several limitations including the one that it cannot be invoked against the legislature or the laws framed by it because legislature cannot make a representation.

Thus, it becomes very clear that non-imposition of impugned levy at the time of issuance of license by the respondents does not create an embargo upon the Provincial Government to levy duty on excisable items at a subsequent time, in view of the fact that Provincial Government is competent under Section 31 of the Act, 1914. The respondents have issued D-2 licenses in favour of petitioners to manufacture spirit and the petitioners are liable to pay excise duty levied on said product, which in no way amounts to an infringement of their fundamental rights.

1. In the case of Messrs Elahi Cotton Mills Ltd supra, the Hon’ble apex Court laid down that once the Court finds that a fiscal statute does not suffer from any constitutional infirmity, it is not supposed to entangle itself with the technical questions as to the scope and modality of its working etc. Such questions pre-eminently deserve to be decided by the Government which possesses expert’s services and the relevant information which necessitated imposition of the tax involved unless the same suffers from any legal infirmity which may warrant interference by the Court.

2. Furthermore, the only consideration, while construing a taxing measure for determining its constitutional validity, is whether the legislation under challenge is permissible by the Constitution. The reasonableness or otherwise of such statute is a matter of legislative policy and it is not for the Courts for adjudication. It was so commented by N.S. Bindra in his book “Interpretation of Statutes” (7th Edition) at page 771 and was reiterated and relied upon in the cases of Anoud Power Generation Limited and others v. Federation of Pakistan and others (PLD 2001 SC 340) and Haji Muhammad Sadiq and others supra.

3. Preamble to an Act is an introductory statement that explains the purpose and underlying philosophy of that Act. Its object is to clarify the meaning or purpose of the operative part of the text in case of an ambiguity or dispute. However, preamble prevails only where it provides a clear and definite interpretation whereas the meaning of the enacting words is indefinite or unclear. Characteristics of Preamble have also been noted in the case of Mohd. Bin Salem supra, whose relevant portion says:

“It may be that the preamble to an Act as observed in ‘Shamshir Ali’s case (A)’ gives an indication of the legislative intent of the instrument which is being construed but where radical amendments are effected in an Act showing a different intention to that expressed in the preamble, the fact that the preamble has not been amended does not in any way indicate that the legislative intention is unchanged….

Where the wording or object of a Statute given rise to doubts as to its proper construction the preamble affords a key to it. Though a preamble can throw a useful light as to what a Statute intends, it is a well settled rule that it cannot for any purpose control, restrict, extend, alter, qualify, detract from or add to the provisions where those provisions are expressed in clear and unmistakable terms.”

1. Preamble of the Punjab Excise Act, 1914, reads as under:--

“Whereas it is expedient to consolidate and amend the law in the Punjab relating to the import, export, transport, manufacture, sale and possession of intoxicating liquor and of intoxicating drugs.”

The object of promulgation of the Act, 1914, is very much clear from its Preamble. Clause (c) of Section 31 of the Act, 1914, authorizes the Provincial Government to levy duty on the manufacture of excisable item at such rate/rates determined by it, which provision is thus, true manifestation of purpose of the said Act. The Punjab Rules of Business, 2011, make it the duty of the Excise & Taxation Department to assess and collect taxes/duties on manufacturing, import, export of liquor, vend fee on retail sale of liquor and fees on grant and renewal of licenses/permits for liquor, as provided in the Second Schedule.

1. The word ‘intoxicant’ as defined in Section 3(12-a) of the Act means any liquor or intoxicating drug. The Act also empowers Provincial Government to issue license for establishment of distilleries and breweries for the manufacture of intoxicants otherwise prohibited. Admittedly, the petitioners obtained licenses to establish distilleries for the manufacture of spirit, under Section 21 of the Act, 1914, and in this way, are bound to abide by the restrictions and conditions imposed by the Provincial Government. It is argued on behalf of petitioners that duty cannot be levied under the provisions of the Act, 1914, as it confers permission/license to petitioners to manufacture ethanol in their capacity as distilleries, but this argument is not sustainable as petitioners are stopped to raise such objection. They cannot choose to reap from benefit of the license and avoid incidental disadvantages arising therefrom. I have gone through the contents of Distillery License and at Condition No. 1 it has specifically been mentioned that licensee shall observe the provisions of the Punjab Excise Act, 1 of 1914 and rules made thereunder, and all rules made under any other law for the time being in force applicable to the manufacture, issue and sale of Spirit. Petitioners are estopped from approbating and reprobating in terms of what they are subject to, when their own words and conduct are illustrative of their having taken advantage of the Act to commence business as distilleries. A license does not confer a right rather it creates a corresponding duty on the part of beneficiary to regulate the manufacturing process as per law.

2. It was the argument of petitioners that respondents have already charged duty on their product vide Notification No. S.O.(Excise)E&T-II-7/2005 dated 30.06.2005, therefore, they cannot charge further duty vide impugned Notification as it would amount to double taxation, which is not permissible. Notification dated 30.06.2005 reads as under:

“No. S.O.(Excise)E&T-II-7/2005. In exercise of the powers conferred by Sections 31 and 32 of the Punjab Excise Act, 1914 (I of 1914), the Government of the Punjab, in partial supersession of Notification No SO (Excise) E&T-II-22-97 dated 7-9-1998 and in further partial suppression of the existing rates provided in the Punjab Fiscal Orders contained in Chapter 2 of the Punjab Excise Manual Volume-II, is pleased to prescribe following rate if Excise Duty with effect from 1st day of July, 2005:--

Duty on rectified spirit Rs. 75/- per LP Gallon”

As submitted by the learned Additional Advocate General, Punjab, Notification dated 30.06.2005 was issued to impose duty upon the purchaser/consumer of spirit produced by the distilleries. The petitioners have neither any nexus with the said tax nor they are under any burden of the same, which is basically on the consumption of the product. It is to be paid by the holders of permits, who purchase it for specific activities for a range of varied rates in accordance with the use specified in the permit, e.g. homeopathic medicines, varnish, perfumes, etc. In the instant case, the Provincial Government has imposed duty on an excisable item, as it is evident from the contents of Section 31 of the Act, 1914. Therefore, the legislature cannot be estopped from issuing notification for the purpose of imposition of the tax with a view to generate revenue keeping in view its growing requirement to generate funds to address burning problems of the day and the complex issues faced by the people, which the legislature in its wisdom through legislation seeks to resolve. Therefore, there is no estoppel against Provincial Government to levy duty on excisable items. This power of legislature cannot be curtailed. Steering thought can be gathered from the cases of Haji Muhammad Sadiq and others supra, Messrs Elahi Cotton Mills Ltd. and others v. Federation of Pakistan through Secretary M/o Finance, Islamabad and 6 others (PLD 1997 SC 582), Molasses Trading and Export (Pvt.) Ltd. supra and Government of Pakistan v. Muhammad Ashraf (PLD 1993 SC 176).

1. It is stance of petitioners that the impugned Notification has been issued by the authority under Section 31 of the Act, without describing any special procedure or manner for recovery of said duty from the manufacturers. Suffice it to say that after issuance of said notification, Respondent No. 5 issued SCNs to petitioners requiring them to render explanation for non-payment of said duty with specific indication that default in payment of said duty would invite coercive measures against them. This shows that proper opportunity of hearing has been offered to petitioners before taking adverse action against them. Thus, it is clear that due process and principles of natural justice have also been observed by respondents. Even otherwise, interference at the stage of issuance of Show Cause Notice retards the adjudicatory process under the law. Reference can be made to Mughal-e-Azam Banquet Complex v. Federation of Pakistan and others (2011 PTD 2260):

“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.

1. Petitioner, however, can invoke the constitutional jurisdiction of this Court, if the Show-Cause Notice is not issued by a competent authority or the liability in the Show Cause Notice is palpably unlawful and without jurisdiction. This is not so in the present case. Show-Cause Notice is admittedly issued by a competent authority and its contents do not prima facie reveal that the liability is ultra vires the law. In fact the allegations raised in the Show-Cause Notices requires factual inquiry in order to determine whether the petitioner renders services as Caterers.”

2. Guidelines for interpretation of a taxing statute have been detailed by Hon’ble Supreme Court of Pakistan in the case of Messrs Hashwani Hotel Ltd. supra. According to said judgment, the first and the foremost principle of interpretation is that words are to be taken in their literal meaning. The plain ordinary meaning of the word is to be adopted in construing a document. There have to be special circumstances where this principle is to be deviated and certain words have to be interpreted differently than their plain meanings with reference to the context. In a taxing statute, as in any other statute, there is no reason to depart from the general rule that words used in a statute must first be given their ordinary and natural meaning. It is only when such an ordinary meaning does not make sense that resort can be made to discovering their appropriate meanings. While interpreting the taxing statute the Court looks to the words of the statute and interpret them in the light of what is clearly expressed. It cannot import provisions in the statute so as to support assumed deficiency.

3. In the case of Messrs Bisvil Spinners Ltd. supra, the principle of interpretation of a taxing statute as expressed in Maxwell on the Interpretation of Statutes, 12th Edition, p.256 has been mentioned, which reads as under:

“Statutes which impose pecuniary burdens are subject to the same rule of strict construction. It is well settled rule that all charges upon the subject must be imposed by clear and unambiguous language, because in some degree they operate as penalties: the subject is to be taxed unless the language of the statute clearly imposes obligation and language must not be constrained only tax a transaction which, had the legislature thought to it, would have been covered by appropriate words. “In a taxing Act,” said Rowlatt B.J., “one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used….”

1. In the case of Sohail Jute Mills Ltd. and others supra, the principle laid down by Lord Cairns in Charles James Partington v. The Attorney General (1869) L.R.Vol.IV, H.L.100), has been reiterated in the following words:--

“….as I understand the principle of all fiscal legislation, it is this: If a person sought to be taxed comes within the letter of the law he must be taxed, however great the hardship may appear to the judicial mind to be. On the other hand, if the Crown seeking to recover the tax, cannot bring the subject within the letter of the law, the subject is free, however apparently, within the spirit of the law the case might otherwise appear to be. In other words, if there be admissible, in any statute, what is called an equitable construction, certainly such a construction is not admissible in a taxing statute, where you can simply adhere to the words of the statute.”

1. The concept of interpretation of statute in fiscal legislation is also available in the case of B. W. M. Abdur Rahman, Manager, Taki Bara Taraf Wards Estate supra, as below:--

“But indeed, in determining whether or not a particular matter, comes within a taxing statute, it is only the letter of the law which must be looked to. This ample authority for the proposition that in a fiscal case, form is of primary importance, the principle being that if the person sought to be taxed comes within letter of the law, he must be taxed, however great a hardship may thereby be involved but on the other hand if the Crown cannot bring the subject within the letter of the law he is free, however apparent it may be that his case is within what might be called the spirit of the Law. As was said by Rowlatt, J., in Cap Brandy Syndicate v. Inland Revenue Commissioner ((1921) K.B 64).

1. As observed above, issue involved in the present case, relates to the legislative competence of Provincial Legislature. When vires of any statute are challenged, strong presumption as to legislative competence and validity of statute is always attached. Burden is on the person, challenging the vires of any statute to show that, the impugned statute is beyond the legislative competence or, is in violation of any constitutional provision or guarantee or, in negation of rights guaranteed under the Constitution. Reliance is placed on the cases of Messrs Quetta Textile Mills Limited through Chief Executive supra and Pakistan Flour Mills Association and another supra.

2. In the case of F. N. Balsara supra, it has been held as under:--

“….It is well settled that the validity of an Act is not affected if it incidentally trenches on matters outside the authorized field, & therefore it is necessary to inquire in each case what is the pith and substance of the Act impugned. If the Act, when so viewed, substantially falls within the powers expressly conferred upon the Legislature which enacted it, then it cannot be held to be invalid, merely because it incidentally encroaches on matters which have been assigned to another legislature. This was emphasized very clearly in ‘Gallagher v. Lynn’, 1937 A C 863 at p. 870, in these words: “It is well established that you are to look at the ‘true nature & character of the legislation: ‘Russell v. The Queen’, 1882 7 A. C. 829’ ‘the pith & substance of the legislation’.

The same principle was reiterated by the Federal Court in ‘Ralla Ram v. The Province of East Punjab’, 1948 F C R 207 at p. 225 and was also referred to in ‘Miss Kishori Chetty v. The King’ 1949 F C R 650 at p. 655 in the following passage:

“It may be that a general adoption of the policy of prohibition by the Provinces will lead to a fail in the import of foreign liquors & to a consequential diminution of the Central customs revenue, but where the Constitution Act has given to the Provinces legislative power with respect to a certain matter in clear and unambiguous terms, the Court should not deny it to them or impose limitations on its exercise, on such extraneous considerations. It is now well settled that if an enactment according to its true nature, its pith & substance, clearly falls within one of the matters assigned to the Provincial Legislature, it is valid notwithstanding its incidental encroachment on a Federal subject.”

1. So far as constitutional validity of Section 31 of the Act, 1914, is concerned, in case of Haji Muhammad Sadiq and others supra, principle to declare a law unconstitutional, as laid down by N.S. Bindra in his book on Interpretation of Statutes fourth edition at page 977, has been reproduced as follows:--

“To determine the constitutional validity of an Act, its pith and substance should be considered. In other words, where a law is impugned as ultra vires, it is the true character of the legislation that has to be ascertained. That is, it must be ascertained whether the impugned legislation is directly in respect of the subject covered by any particular Article of the Constitution or touches the said Article only incidentally or directly. If it be found that the legislation is in substance one on a matter which has been assigned to the Legislature, there can be no question of its validity even though it might incidentally infringe on matters beyond its competence.”

It was held in the judgment that:

“…In addition to it while construing a taxing measure for determining its constitutional validity at the touchstone of reasonableness cannot be entertained as per settled judicial norms. The only consideration is whether the legislation under challenge is permissible by the Constitution. The reasonableness or otherwise of such state is a matter of legislative policy and it is not for the Courts for adjudication. (Interpretation of Statute by N.S. Bindra Seventh Edition pg 771 relied upon by this Court in the case of Anoud Power Generation Ltd. v. Federation of Pakistan (PLD 2001 SC 340)….”

1. Furthermore, Court could not sit in judgment over the wisdom of the legislature and strike it down, except on two grounds, namely lack of legislative competence and violation of any of the fundamental rights guaranteed in the Constitution. The petitioners have failed to establish any of said grounds which may provide basis to strike down Section 31 of the Act, 1914, and subsequent notification. Presumption is always in favour of constitutionality of an enactment and law would not be declared unconstitutional, unless the case was so clear to be free from doubt and that too on the basis of said two grounds. No enactment can be struck down just by saying that it was arbitrary and illegal or that the Court thought that it was unjustified. Motive of the legislature in passing a Statute was beyond the scrutiny of Courts coupled with any irregularity of procedure under Article 69 of the Constitution. Propriety, expediency and necessity of a legislative act was to be determined by the legislative authority and not the Courts. Where the validity of the Statute was questioned and there were two interpretations, the one which would make the law valid had to be prepared over the other which would render it void. Reliance is placed on Badshah Gul Wazir v. Govt. of Khyber Pakhtunkhwa (2014 PLD Peshawar 210) and State of M.P. v. Rakesh Kohli and another (2013 SCMR 34).

2. In the case of Rakesh Kohli supra, it was held by Supreme Court of India that Statute enacted by Parliament or a Provincial legislature could not be declared unconstitutional lightly. Court must be able to hold beyond any iota of doubt that violation of the constitutional provisions was so glaring that the legislative provision under challenge could not stand. The petitioners have not brought on surface any material which may suggest flagrant violation of any of the constitutional provisions.

Likewise Hon’ble Supreme Court, in Lahore Development Authority through D.-G. and others v. Ms. Imrana Tiwana and others (2015 SCMR 1739), while referring to Cooley in his “Treatise on Constitutional Limitations”, has summarized the principles of interpretation as follows:--

“I. There is a presumption in favour of constitutionality and a law must not be declared unconstitutional unless the statute is placed next to the Constitution and no way can be found in reconciling the two;

II. Where more than one interpretation is possible, one of which would make the law valid and the other void, the Court must prefer the interpretation which favours validity;

III. A statute must never be declared unconstitutional unless its invalidity is beyond reasonable doubt. A reasonable doubt must be resolved in favour of the statute being valid;

IV. If a case can be decided on other or narrower grounds, the Court will abstain from deciding the constitutional question;

V. The Court will not decide a larger constitutional question than is necessary for the determination of the case;

VI. The Court will not declare a statute unconstitutional on the ground that it violates the spirit of the Constitution unless it also violates the letter of the Constitution;

VII. The Court is not concerned with the wisdom or prudence of the legislation but only with its constitutionality;

VIII. The Court will not strike down statues on principles of republican or democratic Government unless those principles are placed beyond legislative encroachment by the Constitution;

IX. Mala fides will not be attributed to the Legislature.”

As mentioned in the aforementioned judgment, these principles have been repeatedly articulated by Hon’ble Supreme Court of Pakistan in the cases of Province of East Pakistan v. Sirajul Haq Patwari (PLD 1966 SC 854) at page 954, Mehreen Zaibun Nisa v. Land Commissioner (PLD 1975 SC 397) at page 433, Kaneez Fatima v. Wali Muhammad (PLD 1993 SC 901) at page 915 J, Multiline Associates v. Ardeshir Cowasjee (1995 SCMR 362) at page 381, Ellahi Cotton Mills supra at page 676, Dr. Tariq Nawaz v. Govt. of Pakistan (2000 SCMR 1956) at page 1959-1960, Mian Asif Aslam v. Mian Muhammad Asif (PLD 2001 SC 499) at page 511, Pakistan Muslim League (Q) v. Chief Executive of Pakistan (PLD 2002 SC 994) at pages 1010, 1031, 1032, Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2005 SC 719) at pages 767 V, 773 CC & DD, 774 EE, Messrs Master Foam (Pvt.) Ltd. v. Government of Pakistan (2005 PTD 1537) at page 1556 F, Watan Party v. Federation of Pakistan, (PLD 2006 SC 697) at page 727, Haji Muhammad Sadiq supra at pages 160 L, 168 V, Dr. Mobashir Hassan and others v. Federation of Pakistan and others (PLD 2010 SC 265) at page 349 G & H, and Iqbal Zafar Jhagra v. Federation of Pakistan (2013 SCMR 1337) at page 1379 J.

1. Keeping in view the above discussion, this Court finds no arbitrariness, unreasonableness, irrationality and unconstitutionality in Section 31 read with Sections 3(6) & 3(14) of the Act, 1914, and feels no hesitation to hold that it is a valid piece of legislation. This Court is also of the opinion that Notification dated 03.07.2012 levying duty on

the product i.e. spirit being manufactured by petitioners and others, was validly issued on the strength of Section 31 ibid.

1. In view of above discussion, instant petition along with connected petitions, being devoid of merit, are hereby dismissed with no order as to costs.

(R.A.) Petitions dismissed

PLJ 2017 Lahore 64

Present: Amin-ud-Din Khan, J.

ZAHUR AHMAD (deceased) through LRs and others--Petitioners

versus

PAKISTAN CARGO SERVICES (PVT) LIMITED etc.--Respondents

W.P. No. 4665 of 2006, heard on 7.6.2016.

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

----S. 12(2)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Forged and fictitious decree was obtained--None of ingredients necessary to prove for invoking jurisdiction of Court u/S. 12(2), CPC--Signatures upon order sheet--Validity--When a party comes to Court through an application under Section 12(2) of CPC it is responsibility of that party to prove, one of or all grounds on basis of which application under Section 12(2) of CPC has been filed--Matter of misrepresentation is not even pleaded and fraud has not been mentioned, which was required to be pleaded with detail--While exercising jurisdiction under Art. 199 of Constitution High Court cannot afford to go into factual controversy between parties and matter of interpretation or reinterpretation of evidence of case available on file--When a party comes to Court and asks Court to adopt a specific procedure for determination of a lis before Court thereafter that party cannot use any deviation from normal procedure saying that it was detrimental to rights of that party.

[Pp. 68, 69 & 70] A, B, C, D & E

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

----S. 23--Civil Procedure Code, (V of 1908), S. 12(2)--Property was mortgaged with bank--Oral sale--Sale was claimed on basis of oral sale agreement to sell--Objection--Court fee--Validity--When applicants appeared before Court and made a statement that suit be decreed, therefore, now objection does not lie in their mouth that suit would have been for specific performance and property was pledged with Bank and under Section 23 of FIO. [P. 70] F

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

----S. 12(2)--Fictition and forged decree--Benefit of his own wrong--No ingredients--Party cannot take benefit of his own wrong--These objections could have been considered only if petitioners were able to prove misrepresentation and fraud committed by plaintiffs of suit--No ingredient of application under Section 12(2) of CPC has been proved by applicants/petitioners, therefore, all their objections raised are not considerable. [P. 71] G

Presumption of truth--

----Unimpeachable evidence--Presumption of truth is attached to judicial proceedings--Strongest and unimpeachable evidence is required to displace that presumption. [P. 71] H

M/s. Taki Ahmad Khan, Ch. Ghulam Hussain, and Malik Amjad Pervaiz, Advocates for Petitioners.

Malik Noor Muhammad Awan, Advocate for Respondents.

Date of hearing: 7.6.2016

Judgment

Through this writ petition petitioners have challenged the judgment/order dated 31.01.2006 passed by the learned Additional District Judge, Sialkot whereby revision petition filed by the respondents was accepted and the order dated 20.10.2005 passed by learned Civil Judge Class II, Sialkot was set aside whereby application under Section 12(2) of the, CPC filed by the petitioners was accepted.

1. Brief facts of the case are that Plaintiff/Respondent No. 1 filed a suit for declaration with regard to the land measuring 38 kanals 4 marlas with the assertion that through oral sale the suit property has been transferred by the three defendants in their favour and decree for declaration of title was sought on the ground that the property is situated outside the municipal limits, therefore, Registration Act is not applicable and the mutation is to be sanctioned in their favour. As per record of the learned trial Court on 9.5.1996 all the three defendants appeared before the Court in person as well as their counsel Mr. Aziz Ahmad Khan, Advocate appeared and got recorded a conceding statement and the learned trial Court decreed the suit on the basis of conceding statement of the defendants on the same day i.e. 9.5.1996. On 23.4.1999 the defendants filed an application under Section 12(2) of the, CPC against the plaintiff of the suit as well as Mr. Aziz Ahmad Khan, Advocate who appeared on their behalf in the suit. The grounds mentioned in the application were that a forged and fictitious, based upon fraud suit was filed title of which is “Pakistan Cargo Services (Pvt) Limited versus Zahur Ahmad etc.” It is contended in the application that the fictitious and based upon fraud suit was got decreed within a period of 14 days with the connivance of the Court on 9.5.1996. The grounds mentioned in the application are that Zahoor Ahmad was never appointed Attorney by the other defendants, the suit was fictitious and fraudulent and sale in favour of plaintiff has been denied. It is mentioned that in the fictitious and based upon fraud suit no summons were received by the defendants/applicants. It is further mentioned that after procuring the illegal decree dated 9.5.1996 Respondent No. 1/ plaintiff got sanctioned mutation on 6.7.1998 with regard to the suit property in his favour. It is further pleaded that after procuring a decree fictitiously decree-holder got filed a suit for pre-emption against it by Abdul Razzaq son of Nazar Muhammad Lumberdar with whom applicants-defendants have a longstanding litigation as well as rivalry but in the same breath it is stated that petitioners came to know about filing of pre-emption suit through children of said Abdul Razzaq. It is further pleaded that mutation in favour of plaintiff-Respondent No. 1 on the basis of fraudulent decree is No. 123 attested on 6.7.1998, it is not binding upon the rights of the applicants. It is further stated that when they came to know about the attestation of mutation the Plaintiff-Respondent No. 1 was asked to get the mutation reversed in favour of the applicants as they are poor persons and cannot afford the litigation expenses but when refused first time on 25.4.1996 and last time one week before filing of the application, therefore, the application.

2. Reply was filed. In reply case of the plaintiff that there is an agreement to sell with regard to the suit property between plaintiff and defendants through Zahoor Ahmad one of the defendants dated 5.1.1995 and the agreement was extended vide agreement dated 8.7.1998 and it is further mentioned that the suit property was pledged with the bank and matter was pending before the learned Judge Banking Court. On facts it is stated that since the date of decree the delivery of possession and sowing of crop is in the knowledge of the applicants. It is further mentioned that applicants appeared in person before the Court and their counsel also appeared and their Identity Card numbers were also mentioned when their statement was recorded by Malik Ghulam Muhammad, Civil Judge, who passed the decree in the suit. It is further mentioned that the power of attorney in favour of one of the defendants Zahoor Ahmad is registered one and same has not been cancelled, therefore, the stance taken by the applicants is absolutely against the law. It is further stated that the part of the suit property was exchanged and the pre-emption suit filed by Abdul Razzaq is also in the knowledge of the applicants from the day first, therefore, application is barred by time and not maintainable and has been filed malafidely.

3. 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 not only accepted the application but set aside the judgment and decree passed by the learned trial Court and it was ordered to the DDOR to reverse the mutation in favour of the decree holder. Respondent No. 1 being aggrieved by the judgment passed by the learned trial Court whereby the application filed under Section 12(2) of the, CPC was accepted, filed a revision petition which has been accepted by the learned revisional Court and the order passed by the learned trial Court accepting the application under Section 12(2) dated 20.10.2005 has been reversed. Hence, this writ petition by the applicants of application under Section 12(2) of the, CPC.

4. Learned counsel for the petitioners argues that suit was to be filed for specific performance on the basis of agreement to sell and further that the application under Section 12(2) of the, CPC has been filed on the basis of misrepresentation and fraud and for want of jurisdiction. Learned counsel argues that when the suit property was mortgaged with the Bank and matter was pending before the learned Judge Banking Court, therefore, the transaction claimed by the plaintiffs-respondents was hit by Section 23 of the Financial Institutions (Recovery of Finances) Ordinance, 2001. States that when possession was claimed, the plaintiff was required to pay the Court fee. States that when sale was claimed on the basis of oral agreement to sell, therefore, pleading in detail date, time and place and names of the witnesses were necessary. States that when evidence was recorded in the application under Section 12(2) of the, CPC the case pleaded by the plaintiff-respondent that he has purchased the suit property for Rs. 11,50,000/-, therefore, argues that agreement to sell dated 22.12.1994 has been produced as Exh.A20 which contains allegedly the signatures of Zahoor Ahmad only and does not contain the signature of the purchaser Pakistan Cargo Services (Pvt) Limited. Same is the position of agreement of extension of time Exh.A19. It is further argued that the suit was pending before the learned Civil Judge Class-II, who was having pecuniary jurisdiction of Rs. 50,000/- at that time. Further argues that Mr. Aziz Ahmad Khan, Advocate appeared as RW-2 and he has admitted that he is working with Pakistan Cargo Services (Pvt) Limited since the year 1992. Finally argued that when in the plaint there is no mention of agreement to sell and payment under the agreement, same cannot be considered. Prays for acceptance of the instant writ petition.

5. On the other hand, learned counsel for Respondent No. 1 argues that as it was settled between the parties that through the decree of the Court which was used as a tool, the suit property was got transferred with the consent of the writ petitioners, therefore, states that there was no need to mention full details in the plaint and when plaint was admitted by the defendants and the stance of the plaintiff was accepted, therefore, the learned trial Court has rightly decreed the suit and filing of application under Section 12(2) of the, CPC was malafide. Argues that none of the ingredients necessary to prove for invoking jurisdiction of the Court under Section 12(2) of the, CPC has been proved, therefore, findings of the learned revisional Court are in accordance with law and there is no defect in it and learned trial Court fell in error while accepting the application under Section 12(2) of the, CPC. Further states that the cross-examination upon Zahoor Ahmad is very important who admitted the stance of Respondent No. 1 with regard to pendency of the suit and states that through the pay orders and cheques the payments were made in the Banking Court when the suit property was put to auction on the ground that same was mortgaged with the ADBP and in execution the Court was going to auction the property. Learned counsel has referred the documentary evidence produced by Respondent No. 1 in the trial Court of application under Section 12(2) of the, CPC to show that the payments were made and the pay orders were submitted which match with the order passed by the learned Judge Banking Court dated 9.6.1995 when the pay order on 14.6.1995 for a sum of Rs. 1,47,281/- was produced which shows that the same was paid under the orders of the Court from the account of Pakistan Cargo Services. With regard to possession of the suit property refers interim order passed by this Court on 5.12.2006 to state that possession of Respondent No. 1 has been admitted by this Court as well as the writ petitioners. States that Respondent No. 1 is a limited company, suit has been filed through Chief Executive which was validly filed and writ petitioners have no right to challenge the same. States that in the special circumstances of the case the suit has rightly been filed for declaration and there was no need to ask for specific performance. Prays for dismissal of the writ petition.

6. I have heard learned counsel for the parties at length and gone through the record with their able assistance.

7. I am clear in my mind that when a party comes to the Court through an application under Section 12(2) of the, CPC it is the responsibility of that party to prove, one of or all the grounds on the basis of which the application under Section 12(2) of the, CPC has been filed. As in the instant case all the three grounds i.e. fraud, misrepresentation or want of jurisdiction have been pressed, therefore, instant matter can be adjudged. Firstly on all the three grounds pressed by the applicants-petitioners before the learned trial Court through application under Section 12(2) of the, CPC the fact or the Court record is that a suit for declaration was filed on 25.4.1996 by Respondent No. 1 and defendants/petitioners appeared in person as well as counsel filed power of attorney on their behalf and got recorded the statement on 9.5.1996 and put their signatures in the margin of their statement that they admit the suit and they have no objection if the suit is decreed and vide judgment and decree of the same date the suit was decreed. Application under Section 12(2) of the, CPC was filed on 23.4.1999 i.e. about three years after passing of the decree. I have minutely gone through the application filed under Section 12(2) of the, CPC in which in Para-3 the main thrust is that with the connivance of the Court a decree has been procured. I quote Para 3 of the application for ready reference:--

In Para 4 the grounds for acceptance of application under Section 12(2) of the, CPC have been mentioned. In none of the grounds it is mentioned that defendants-applicants never appeared before the Court on 9.5.1996 and got recorded their statement. Needless to state that for pressing fraud the same is to be pleaded with full detail, no detail has been mentioned, even as I have noted supra appearance before the Court and recording of their statement and their signatures upon the order sheet have not been denied by the defendants/ applicants, therefore, matter of misrepresentation is not even pleaded and fraud has not been mentioned, which was required to be pleaded with detail. The third part which relates to jurisdiction of the Court, is concerned, when the suit was valued for Rs. 22,000/- admittedly the learned Civil Judge Class-II was having the pecuniary jurisdiction of Rs. 50,000/- at that time, therefore, the suit was within the jurisdiction of the learned trial Court when defendants of the suit have not disputed the jurisdictional value of the suit, and got recorded their conceding statement. The main ground of attack through filing application under Section 12(2) of the, CPC against the judgment and decree dated 9.5.1996 that same has been procured with the connivance of Court (sic) not a single word in oral evidence has been uttered by the applicants or an iota of documentary evidence has been produced to this effect.

1. All the other objections which have been argued in detail before this Court can be considered if the applicants/petitioners were able to prove the basic ingredients, for invoking the jurisdiction of a Court under Section 12(2) of the, CPC, none of the necessary ingredients has been proved for invoking the jurisdiction under Section 12(2) of the, CPC, therefore, the other objections now raised or came on the surface during the proceedings and recording of evidence on application under Section 12(2) of the, CPC on behalf of both the parties are not directly relevant in my view in the above circumstances. I am conscious of the fact that while exercising jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 this Court cannot afford to go into the factual controversy between the parties and matter of interpretation or reinterpretation of evidence of the case available on the file. I have to consider the legal points only and nothing more. The learned revisional Court had considered the evidence available on the file to note that the payment made by the plaintiff through cheques and drafts matches with the payment received by the Banking Court on behalf of the applicants who were defendants/judgment debtors before the Banking Court for release of their mortgaged property. The payment was made through cheques and drafts by the plaintiff of the instant litigation. To strengthen this fact learned counsel for the respondents relies upon “Subedar Sardar Khan through Legal Heirs and others versus Muhammad Idrees through General Attorney and another” (PLD 2008 Supreme Court 591) and “Warriach Zarai Corporation versus F.M.C United (Pvt) Limited” (2006 SCMR 531). I am of the considered view that when a party comes to the Court and asks the Court to adopt a specific procedure for determination of a lis before the Court thereafter that party cannot use any deviation from the normal procedure saying that it was detrimental to the rights of that party. As I have noted supra that when the applicants-defendants appeared before the Court and made a statement that suit be decreed, therefore, now the objection does not lie in their mouth that suit should have been for specific performance and property was pledged with the Bank and under Section 23 of the Financial Institution (Recovery of Finances) Ordinance, 2001 the agreement of sale, transfer of property and suit was not competent and saying that the proper Court fee was not paid, these objections have absolutely no value when plaintiff appeared and made a statement before the Court and further stating that date, time and place of the agreement and the witnesses were not mentioned in the suit and further that when the agreement was for Rs. 11,50,000/-, therefore, suit was not competent before the Civil Judge Class-II and the last argument that when agreement has not been mentioned in the plaint, therefore, the findings with regard to payment of the consideration amount cannot be looked into. I am clear in my mind that these objections and arguments raised before

this Court have absolutely no value. Light can be taken from “Babu Jan Muhammad and others versus Dr. Abdul Ghafoor and others” (PLD 1966 Supreme Court 461). I am of the further view that a party cannot take the benefit of his own wrong. These objections could have been considered only if the petitioners were able to prove misrepresentation and fraud committed by the plaintiffs of the suit. As I have noted supra that no ingredient of application under Section 12(2) of the, CPC has been proved by the applicants/petitioners, therefore, all their objections raised are not considerable. Needless to state that presumption of truth is attached to the judicial proceedings. Strongest and unimpeachable evidence is required to displace this presumption. Light can be taken from “Muhammad Zaman versus Abdul Ghaffar and three others” (PLD 1980 Lahore 582), “Ghulam Muhammad and others versus Malik Abdul Qadir Khan and others” (PLD 1983 Supreme Court 68) and “Fayyaz Hussain versus Akbar Hussain and others” (2004 SCMR 964). So far as question that the plaintiff being a company has not produced the resolution, learned counsel states that during the revision petition resolution has been produced which shows that the previous proceeding/actions by the Chief Executive of the Company have been validated. In this regard judgment of the august Supreme Court of Pakistan reported as “Mushtaq Ahmad and others versus Muhammad Saeed and others” (2004 SCMR 530) can be relied upon.

1. In this view of the matter, the factual findings recorded by the learned revisional Court need no further examination or interpretation and legal position has been discussed supra. Resultantly, no case for interference by this Court has been made out, therefore, this writ petition stands dismissed.

(R.A.) Petition dismissed

PLJ 2017 Lahore 71 (DB)

Present: Mazhar Iqbal Sidhu and Sardar Ahmad Naeem, JJ.

MIAN ABDUL GHAFOOR WATTO--Petitioner

versus

N.A.B. etc.--Respondents

W.P. No. 40449 of 2015, decided on 20.1.2016.

Constitution of Pakistan, 1973--

----Art. 199--National Accountability Ordinance 1999, S. 25--Bail before arrest, dismissal of--Corruption in business of real estate--Element of ulterior motives or mala fide--Farmanite House Scheme--Applications invited were received alongwith requisite amount excessive to available plots--Effectees were counted to NAB authorities--Fraud being committed with 100 persons--Petitioner’s effrontery as well as non-complementary behavior remain preponderated before authorities for non-resolving dispute--Validity--Incidents of fraud in real estate business were rampant in society undermining warrant of law and destructing society--Constitution does not permit dwindling majesty of law in administration of justice in bringing delinquents to justice--Financial corruption and commission of white collar crimes and corruption in business of real estates are big issues being faced now a days were liable to be curbed with iron hands--Bail was dismissed. [P. ] A & B

Mr. Ahmad Awais, Advocate and Mr. Waheed Ahmad, Advocate for Petitioner.

Mr. Arif Mehmood Rana, A.D.P.G.A. and Ch. Khaliq-uz-ZamanD.P.G.A for NAB.

Mr. Muhammad Imran, A.D. NAB and Rai Haider Ali Naz, Dy, A.D., NAB with record.

Date of hearing: 20.1.2016.

Order

Mian Abdul Ghafoor Wattoo the petitioner seeks pre-arrest bail through this writ petition instituted under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 owing to impending fright of his being arrested by the NAB Authorities Punjab (Lahore).

1. Tersely referential accusal has been declassified that petitioner alongwith Zahoor Ahmad and Kausar Perveen set up a Firm with the name and style of Formanite Housing Scheme, 6 Haroon House Mozang Road, Lahore and on 02.01.2002 was duly registeredvide No. 2425-03-2004 by the Registrar of Firms City District Government, Lahore on 07.06.2004 thereafter, the Firm commenced purchasing the land from different venders in Mauza Kamahan Tehsil and District Lahore, through an approved lay out scheme as its phase Nos.1 and 2 (combined), was publicized multi-media, clientele were invited consequently through written agreements amongst the Firm and the customers, vending of plots of different measurements proposed and accepted. It may not be en passant to mention here that on 25.03.2013, Zahoor Ahmad son of Muhammad Sadiq R/o 311/12-1 Township, Lahore, (party of 2nd part) relinquished from the Firm business but the same was continued by the two partner as by the petitioner called as party of first part and Mrs.Kausar Parveen wife of Manzoor Ahmad Wattoo R/o 311/12-B-1 Township, Lahore (called party of 2nd part). On account of certain differences with the Firm some customers approached NAB Authorities of their being made victims of fraudulent knavery of the Firm. In certain Daily National Newspapers, NAB authorities invited aggrieved persons for the redressal of their grievances against the Firm, resultantly 100 of effectees were counted to the NAB Authorities, inquisitionally resulted incisively prima-facie involvement of the petitioner in the fraud being committed with 100 of persons.

2. Partway inquiry proceedings, petitioner prepared to settle the matters by voluntary return under Section 25 of the National Accountability Ordinance 1999 but nothing was found fruitful, the NAB Authorities took Zahoor Ahmad in custody (party of 2nd part).

3. Unto instant petition, it has been submitted by the learned counsel for the petitioner that proceedings of the NAB Authorities are despiteful and case of the petitioner does not fall within the mischief of the Ordinance ibid as the petitioner alongwith others by a registered Firm commenced the business Governed by civil liabilities and if any contractual infringement is made, the aggrieved party may go to the civil Courts; proceedings of V.R were not compos mentis but resulted in coercion by the Authorities, to which the petitioner never owned, no auditory fraud was perpetuated and even now the petitioner is prepared to the re-payments of alleged effectees; each and every transaction of the Firm is available in the record of the Firm which is also available with the NAB Authorities; the petitioner being proprietor benefactor has incessantly been co-operating the Authorities to resolute the alleged disputes but the Authorities being motivated ulteriorly inclinative and propensive in a show-boating sinisterly intend to put the petitioner behind the bars. At the last but not the least, it has been markedly described but not en-passant that freedom of the subject is a very precious cannot be comatosed casually, the petitioner is octogenarian, old age enervates infirmity. In this way the petitioner too deserves the relief sought for.

4. Learned A.D.P.G.A assisted by M/s Khaliq-uz-Zaman Chaudhry, Muhammad Imran A.D. NAB and Rai Haider Ali Naz Dy. A.D, NAB has raised exquisitive counter arguments pre-factorially to the Firm and determinative to the accusal attempted to portray a macabre depredative attitude of the Firm being run by the petitioner and his co-partner to depict gory plight of the deprived customers and the petitioner’s effrontery as well as non-complementary behavior remain preponderated before the Authorities catching his prevaricative for non-resolving the disputes postured the aggrieved hysterical to pother then as pis-aller the Authorities decide to take him custody whereas NAB has no despite to quirk with the petitioner. It has been maintained that the Firm got the lay out approved diverse shown to the public invited applications excessive to the approved plan, in this way, the Firm has plundered the innocent persons since 2013 NAB Authorities are behind the Firm/petitioner to resolute disputes with the aggrieved person but in a pre-disposed-cum-effrontery way it was gainsaid, it may not be incongruous to undertake commodiousness of depriveds of looming large for their irreparable loss assertively brought to the notice of Authorities, therefore, craved for dismissal of instant petition.

5. Arguments heard busily. File gone through intently.

6. Establishment of Firm to set up a housing scheme with the name and style Formanite Housing Scheme in District Lahore and its registration to commencement of its business of purchasing the lands from its owners and then its development and thereafter selling out of plots have indubitably been noticed these facts has also not been denied. The Court felt shock getting knowing that the approved lay out is distinguished to its displayed to the public at large and the applications invited and received alongwith requisite amounts from the customers are excessive to the plots/land available, NAB Authorities have probed business of Firm thoroughly and has prima-facie resolved in, implicating the petitioner in the business and being peculated the huge amount of innocent customers. Prodigious public amount is involved liable to be recovered from the petitioner to repay the effectees. The Court remains fizzled out in exploring any element of ulterior motives or malafide vis-a-vis the NAB Authorities as well as the deprivers/effectees. The Court has the circumstances noticed the petitioner predeterminable in tardiness towards non-setting the disputes rather squandered the time of NAB Authorities remaining aberrant instead of complimentary but to derring-do. The Court is conscious that life and liberty of a subject has enviably been protected by the constitution Islamic Republic of Pakistan but at the same time the law of the land loathes of going scot free wrongdoers. The Court has observed travails of the aggrieved persons. Incidents of fraud in real estate business are rampant in the society undermining the warrant of law and destructing the society. Constitution does not permit dwindling the majesty of law in the Administration of justice in bringing the delinquents to justice. The Court is conscious of the fact is that “that right to life of a citizen cannot put in abeyance on his arrest but in the case of Jennison v. Baker (1972) 1 All ER 997. 1006 it has remarkably been observed as follows:

“The law should not be seen to sit by limply while those who defy if go free and those who seek its protection lose hope”

Financial corruption and commission of white collar crimes and corruption in the business of real estates in our society are the big issues being faced now-a-days are liable to be curbed with iron hands.

1. After having deliberated over the facts and circumstances of the case Court has not observed preternatural circumstances to allow the instant petition and to grant extra-ordinary relief of pre-arrest bail to the petitioner, therefore, petition being shorn of reasons is yielded in dismissal. Parties to bear costs.

(R.A.) Bail dismissed

PLJ 2017 Lahore 75 [Bahawalpur Bench Bahawalpur]

Present: Shahid Mubeen, J.

ARSHAD ALI CHEEMA, ASSISTANT DIRECTOR/CREDIT OFFICER--Petitioner

versus

PRESIDENT, ZTBL, HEAD OFFICE FAISAL AVENUE, ISLAMABAD and 4 others--Respondents

W.P. No. 4892 of 2014, decided on 17.10.2016.

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

----S. 24-A--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Dismissal from service--Penalty of reduction by two stages lower in time scale of pay--Order was passed without assigning any reason--Validity--It is now an established principle of law that even an administrative/executive order must be passed with reasons--Public functionaries are duty bound to decide controversies after application of independent mind with reasons--Impugned appellate order has been passed in a mechanical way without applying independent mind to facts and circumstances of case--Petition was allowed. [P. ] A & B

Mr. Muhammad Arif Qureshi, Advocate for Petitioner.

Mr. Waheed ud Din Khan, Advocate for Respondent-Bank.

Date of hearing: 17.10.2016.

Order

Through this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has assailed the impugned orders dated 05.06.2014, 06.06.2009 and 05.08.2011 passed by the respondents.

1. Briefly stated the facts of the case are that the petitioner was charge sheeted on 08.05.2000 along with other co-accused under ZTBL Officers Services (E&D) Regulations, 1975 on certain allegations which resulted into dismissal of his services vide order dated 25.06.2001 passed by the Zonal head, ZTBL, Bahawalpur against which the petitioner preferred a service appeal before Federal Service Tribunal, which was abated and thereafter the petitioner filed W.P. No. 1711 of 2006 before this Court. The same was disposed of with the direction to the respondents to hold denovo inquiry against the petitioner vide order dated 24.01.2008. Consequently, vide order dated 18.12.2008 the petitioner was taken back to his duty. He was charge sheeted afresh and after conducting inquiry and keeping in view the findings of the inquiry officer, the Senior Vice President (DPD) vide impugned order dated 06.06.2009 imposed upon the petitioner major penalty of reduction by two stages lower in the time scale of pay of the petitioner for a period of three years and the intervening period from the date of the petitioner’s dismissal i.e. 25.06.2001 to the date of his reinstatement i.e. 18.12.2008, was ordered to be adjusted towards leave due to any kind and the remaining period was ordered to be treated as EOL without pay. The petitioner being aggrieved of the said order, preferred an appeal before Executive Vice President (HR) which was also dismissed due to lack of merit vide impugned order dated 05.08.2011 which constrained the petitioner to file W.P. No. 5967/2011 before this Court which also met with the same fate and was dismissed vide order dated 27.09.2012. The petitioner then filed Civil Petition for Leave to Appeal before the Hon’ble Supreme Court of Pakistan. Vide judgment dated 14.05.2013 the same was converted appeal and the order dated 27.09.2012 passed by this Court was set aside and the case was remanded to this Court to decide the petitioner’s W.P. No. 5967/2011 on merits. During the proceedings before this Court, the petitioner made a request that his appeal may be transmitted to Secretary Finance for decision. At the petitioner’s request W.P. No. 5967/2011 was disposed of vide order dated 23.04.2014 with a direction to Secretary, Ministry of Finance to look into the grievance of the petitioner and decide the same within a period of two months. The Ministry of Finance in compliance of order of this Court, afforded an opportunity of hearing to the petitioner andvide order dated 05.06.2014 disposed of the appeal of the petitioner with the direction to the petitioner to avail his remedy before an appropriate forum. Hence, this writ petition.

2. It is mainly contended by learned counsel for the petitioner that impugned order dated 05.08.2011 passed by the appellate authority is without assigning any reason which is repugnant to Section 24-A of the General Clauses Act, 1897.

3. On the other hand, learned counsel for respondent-bank supported the impugned order dated 05.08.2011 by contending that impugned appellate order is not a judicial order but an executive order, therefore, assigning of any reason is not mandatory.

4. Arguments heard. Record perused.

5. It is now an established principle of law that even an administrative/executive order must be passed with reasons. It will be advantageous to reproduced the impugned appellate order dated 05.08.2011 as under:--

“Reference is made to your Departmental Appeal dated 24.06.2009 against the decision of authority vide OM dated 06.06.2009. In this regard, your appeal has been considered by the EVP(HR)/Appellate Authority under E&D Regulations, 1975 but not acceded to, as the same has not been found on merit.’’

1. The bare perusal of the above order shows that same has been passed without assigning any reason. It will also be advantageous to reproduce Section 24-A of the General Clauses Act, 1897, which is as under:--

“24-A. Exercise of power under enactments.--(1) Where, by or under any enactment, a power to make any order or give any direction in conferred on any authority, office or person such power shall be exercised reasonably, fairly, justly and for the advancement of the purposes of the enactment.

(2) The authority, office or person making any order or issuing any direction under the powers conferred by or under any enactment shall, so far as necessary or appropriate, give reasons for making the order or, as the case may be, for issuing the direction and shall provide a copy of the order or, as the case may be, the direction to the person affected prejudicially.”

1. The provision of Section 24-A of the Act ibid has made it obligatory on the functionaries to substantiate their conclusions with reasons. The public functionaries are duty bound to decide the controversies after application of independent mind with reasons. It is manifestly clear that impugned appellate order has been passed in a mechanical way without applying independent mind to the facts and circumstances of the case. The impugned appellate order does not reflect that what was the controversy which was decided by the appellate authority. Reference may be made to the case law reported as “Government of Pakistan through Director-General, Ministry of Interior, Islamabad and others v. Farheen Rashid” (2011 SCMR 1). Relevant portion of the judgment is reproduced herein below:

“8. We have given our anxious considerations to the contentions of the learned counsel for the appellants and also heard the respondent. It is pertinent to mention here that the Inquiry Officer Ch. Zulfiqar Ali, Assistant Director Legal, FIA, had submitted report to the competent authority on 13-7-2006 which has already been mentioned herein above wherein it was recommended that criminal case be also registered against the respondent with the concerned police station in order to recover the stolen 8000 UAE Dirham of the complainant. There is no allegation qua theft of the aforesaid amount in the charge-sheet and show-cause notice. The competent authority dismissed the respondent on 28-7-2006 by countersigning the report of the Inquiry Officer as is evident from para. 3, of the dismissal order dated 28-7-2006. See Ghulam Mohi-ud-Din’s case PLD 1964 SC 829. The learned Service Tribunal although had converted the major penalty of dismissal into minor penalty as mentioned above yet the Service Tribunal had also not examined the facts that the charge-sheet and show-cause notice issued by the appellant to the respondent were defective. After addition of Section 24-A in the General Clauses Act, it is the duty and obligation of the public functionaries to decide the cases of their subordinates after application of mind with cogent reasons within reasonable time as law laid down by this Court in Messrs Airport Support Services’s case 1998 SCMR 2268 and Aslam Warraich’s case 1991 SCMR 2330. It is the duty and obligation of the Federal Service Tribunal to decide the appeal of the respondent after application of mind with reasons as law laid down by this Court in Gouranga Mohan Sikdar’s case PLD 1970 SC 158.”

Further reference may be made to the case law reported as “Mian Ayaz Anwar v. Federation of Pakistan through Secretary Interior and 3 others”(PLD 2010 Lahore 230). The relevant portion of the judgment is reproduce herein below:

“44. Additionally, it is clear from the comments, that the Ministry of Interior never applied its mind before placing the name of the petitioner on the ECL as the impugned order is a result of dictation from the Finance Division/State Bank of Pakistan. Discretion exercised under dictation, without reasons, based on irrelevant facts is not lawful exercise of discretion and therefore placing the name of the petitioner on the ECL in the present case shows that he has not been dealt with in accordance with law as provided in Articles 4 and 9 of the Constitution. Not to furnish reason for the decision

violates the principle of fairness, procedural propriety and natural justice besides Section 24A of the General Clauses Act, 1897. The impugned Memorandum fails to meet the requirement of procedural due process.”

1. Nutshell of the above discussion is that, this writ petition is allowed, impugned appellate order dated 05.08.2011 is hereby set-aside and the case is remanded to Executive Vice President, Human Rights Department, ZTBL, Head Office, Faisal Avenue, Islamabad/ Respondent No. 2, who shall decide the appeal of the petitioner afresh and shall pass a well-reasoned speaking order within a period of 30-days after the receipt of certified copy of this order after hearing the petitioner and all other concerned under intimation to the Deputy Registrar (Judicial) of this Court. No order as to cost.

(R.A.) Petition allowed

PLJ 2017 Lahore 79

Present: Ibad-ur-Rehman Lodhi, J.

MAQSOOD ALAM and others--Petitioners

versus

SHAHBAZ ALI and others--Respondents

C.R. No. 1919 of 2009, decided on 18.10.2016.

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

----Arts. 17 & 79--Document--Marginal witnesses--Mandatorily to appear in evidence--In absence of marginal witnesses of alleged agreement, even no secondary evidence was led by plaintiff--Moreover, scribe of agreement was not produced to prove such document--Even plaintiff/executant of alleged agreement did not bother to appear in witness box and on his behalf, his son/special attorney has deposed--No doubt, plaintiff could appoint an attorney to pursue suit, but being an executant of alleged agreement, his personal act would be required to be proved by him through his own statement and an attorney would not be substitute of plaintiff, as statement of attorney is based on hearsay evidence. [P. 81] A

Unilateral agreement--

----Scope--Not bear signature, hence, such agreements have no legal sanction. [P. 82] B

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

----S. 115--Civil revision--Suit for confirmation of possession through specific performance of agreement--Loan was obtained with condition that if defendant could not return and agreement will be treated as sole agreement--Suit was filed after about 30 years of execution of alleged agreement, dismissed--Validity--Alleged agreements are fake and fictitious, whereas general power of attorneys were obtained from legal heirs by plaintiff by way of fraud on pretext of transferring disputed house in their names from department--Even no illegality or irregularity has been found in impugned judgments warranting interference by High Court in its revisional jurisdiction. [Pp. 83 & 84] C & D

Syed Nisar Ali Shah, Advocate for Petitioners.

M/s. Muhammad Rafique Ch.-I and Ch. Muhammad Imran Bhatti, Advocate for Respondents No. 1 to 4.

Date of hearing: 18.10.2016.

Order

The suit for confirmation of possession through specific performance of agreements filed by Khushi Muhammad predecessor-in-interest of present petitioners has concurrently been dismissed by the learned Courts below, firstly by the learned trial Court on 22.10.2004 and then by the learned first appellate Court on 09.06.2008, when appeal filed against dismissal of suit was dismissed.

1. Through the referred suit, Khushi Muhammad predecessor-in-interest of present petitioners had sought performance of four agreements allegedly executed between the parties. The first agreement was executed between Khushi Muhammad plaintiff/predecessor-in-interest of present petitioners and Subah Sadiq predecessor-in-interest of defendants/respondents on 05.09.1964, whereby Subah Sadiq had obtained Rs. 18,000/- from plaintiff as loan on interest with the condition that if within three months, he could not return the said amount, the house in question will be sold to plaintiff and the agreement will be treated as sale agreement and in this regard, he also executed pronote in his favour. The plaintiff alleged that Subah Sadiq predecessor-in-interest of defendants/ respondents could not return the loan within stipulated period, whereupon he handed over possession of house to the plaintiff. The plaintiff has further alleged that he paid Rs. 2 lacs further to the defendants/respondents on their demand for transfer of house in question in his favour and in this respect, agreements dated 10.07.1994, 18.07.1994 and 20.07.1994 were executed between the plaintiff and defendants/legal heirs of Subah Sadiq. Later on, the defendants refused to get transferred the house in question in favour of the plaintiff.

2. As regard agreement dated 05.09.1964, it is observed that the said agreement is basic one, as whole case of the plaintiff is based upon this agreement. The marginal witnesses of said agreement were Aziz-ur-Rehman and Muhammad Rasheed, but they were not produced in the witness box. PW-5 Rana Abid Hussain son/special attorney of plaintiff deposed that Muhammad Rasheed was unknown, whereas second marginal witness Aziz-ur-Rehman had passed away.

In view of Article 17 of The Qanun-e-Shahadat Order, 1984, in order to prove such like document, at least two marginal witnesses are required mandatorily to appear in evidence and where such evidence is not produced, the document in view of Article 79 of said Order is not permitted to be taken into consideration as a piece of evidence.

In case titled “Farzand Ali and another versus Khuda Bakhsh and others” (PLD 2015 Supreme Court 187), the Hon’ble Supreme Court of Pakistan has held as under:

“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 witnesses must be examined by the party to the lis as per Article 79 of the Order ibid.”

It is pertinent to mention that in absence of marginal witnesses of alleged agreement, even no secondary evidence was led by the plaintiff. Moreover, the scribe of said agreement was not produced to prove such document. Even the plaintiff/executant of alleged agreement did not bother to appear in the witness box and on his behalf, his son/special attorney has deposed. No doubt, the plaintiff could appoint an attorney to pursue suit, but being an executant of alleged agreement, his personal act would be required to be proved by him through his own statement and an attorney would not be substitute of plaintiff, as statement of attorney is based on hearsay evidence.

It is also evident from the record that the plaintiff had not instituted the suit for specific performance of agreement in the lifetime of Subah Sadiq, who had died in the year 1974, rather he had filed the suit on 11.06.1995 after about 30-years of execution of alleged agreement and this fact was candidly admitted by PW-5 during cross-examination.

PW-5 Rana Abid Hussain real son/special attorney of plaintiff Khushi Muhammad during cross-examination deposed that agreement dated 05.09.1964 was reduced in writing before him. He further deposed that the amount was paid by Khushi Muhammad and at that time, he was also present there. The record reveals that PW-5, while recording his statement on 11.04.2002, has got mentioned his age as 44 years, whereas the alleged agreement was executed on 05.09.1964, meaning thereby that at the time of execution of agreement, he was six years old and naturally being minor, he was not mature at the relevant time, hence, his statement is not believable.

1. So far as the remaining agreements dated 10.07.1994, 18.07.1994 and 20.07.1994 are concerned, the execution of such agreements and further payment of Rs. 2 lacs to legal heirs of deceased Subah Sadiq/defendants are beyond understanding, as when the plaintiff has categorically alleged that in compliance of earlier agreement dated 05.09.1964, Subah Sadiq predecessor-in-interest of the defendants had given possession of the disputed house to him, then why he could not get executed said agreement or transferred the suit property in his favour during lifetime of Subah Sadiq.

PW-1 Naimat Ali scribe and Basharat Ali marginal witness of such agreements (Exh.P-1 to Exh.P-3) during cross-examination candidly admitted that payment was not made before them. On the other hand, other marginal witnesses of said agreements PW-3 Muhammad Riaz and PW-5 Rana Abid Hussain have deposed that such payment was made in their presence. PW-5 during cross-examination candidly admitted that no receipt was taken from Razia Begum regarding such payment.

Exh.P-1 to Exh.P-3 are unilateral, agreements, as it did not bear the signature of Khushi Muhammad plaintiff, hence, such agreements have no legal sanction. In Farzand Ali’s case supra, the hon’ble Supreme Court of Pakistan has observed as under:

“The first, and the foremost requisite of a contract (agreement) is that the parties should have reached agreement, which unmistakably means, that an agreement is founded upon offer and acceptance. Thus for the purposes of a valid contract (agreement) there should be the meeting of minds of the contracting parties (who are competent in, law to contract). And where a contract is reduced into writing, not only should it be founded upon the imperative elements of offer and acceptance, but its proof is also dependent upon the execution of the contract by both the contracting parties i.e. by signing or affixing their thumb impression. So that it should reflect and establish their “consensus Advocate idem”, which obviously is the inherent and basic element of the meeting of the minds, which connotes the mutuality of assent, and reflects and proves the intention of the parties thereto. In particular, it refers to the situation where there is a common understanding of the parties in the formation of the contract in the absence of which there is neither a concept nor the possibility of a valid contract. But in this case this is conspicuously lacking by virtue of non-execution (non-signing) of the agreement by the vendee/appellants, therefore, in law and fact it is no contract (agreement).”

1. The petitioners/defendants have controverted the stance of the plaintiff by alleging that Subah Sadiq predecessor-in-interest of petitioners had friendship with Khushi Muhammad and the disputed house was given to Khushi Muhammad on rent on the basis of good relations. They further alleged that the alleged agreements are fake and fictitious, whereas general power of attorneys were obtained from legal heirs of Subah Sadiq by the plaintiff by way of fraud on the pretext of transferring the disputed house in their names from the concerned Department.

Admittedly, the disputed house was owned by Subah Sadiq. The friendship of Subah Sadiq with the plaintiff is admitted by PW-3 Muhammad Riaz during cross-examination. He further showed his ignorance of the fact as to in what capacity, the plaintiff was residing in the house of Subah Sadiq. DW-1 Shaukat Ali real brother of Subah Sadiq during cross-examination to a specific question put by learned counsel for the plaintiffs has deposed as under:

"مدعی نے نا جائز فائدہ یہ اٹھایا ہے کہ مدعا علیہم سے کہا کہ ان کے نام مکان منتقل کرا دیں گے۔"

DW-2 Muhammad Ahmad during cross-examination has deposed that rent of disputed house was settled in his presence and in presence of wife and son of Subah Sadiq. Regarding execution of general power of attorney, said witness during cross-examination deposed as under:

"میں نے کوئی کاغذ نہ دیکھا ہے جو کہ صبح صادق نے کسی کے حق میں تحریر کیا ہو۔ از خود کہا کہ صبح صادق نے مختار نامہ عام خوشی محمد کو دیا تھا کہ وہ مکان ان کے نام کروا دے گا۔"

It is evident from the record that such version of the defendants was not denied by the plaintiffs during cross-examination by putting single suggestion to any of the witness.

1. The Courts below have rightly appreciated the evidence available on record in its true perspective and have rightly proceeded to dismiss the suit of the petitioners. Even no illegality or irregularity

has been found in the impugned judgments warranting interference by this Court in its revisional jurisdiction.

1. Resultantly, finding no force, this civil revision petition is dismissed.

(R.A.) Petition dismissed

PLJ 2017 Lahore 84

Present: Shahid Waheed, J.

NOOR DIN and another--Petitioners

versus

MEMBER (JUDICIAL-VI), BOARD OF REVENUE, PUNJAB, LAHORE and others--Respondents

W.P. Nos. 14626 and 27117 of 2014, heard on 9.11.2016.

Board of Revenue Act, 1957--

----S. 8--Punjab Land Revenue Act, 1967, S. 161--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--Mutation--review petition--Entries made in revenue record--Challenge to--Patently barred by time--Revenue hierarchy--Question of--Whether orders passed by M.B.R. were sustainale as same were bereft of any reason--Validity--Such perfunctory disposal leads to wastage of judicial time and time of litigants as well and, therefore, is always, regarded as imporer judgments and is of doubtful validity--It is an established principle of law that a judicial order must be speaking order manifesting by itself that Court has made an endeavor to marshal facts for resolution of issues involved for proper adjudication--Result may be reached by diligent effort, but if final order does not bear on imprint of that effort, and on contrary discloses arbitrariness of thought and action, feeling with painful result, that justice has neither been done nor seems to have been done is inescapable--Board of revenue is superior forum in revenue hierarchy and it is expected from it that it would promote culture of justification instead of culture of authority--Orders of M.B.R. do not exhibit judicious treatment and determination of dispute and therefore, cannot be held valid order--Petitions were allowed.

[P. 87] A & B

2012 CLC 1663, ref.

Mr. Saad Tariq, Advocate for Petitioners.

Mr. Naveed Saeed Khan, Addl. A.G. for Respondents No. 2 & 3.

Mian Asmat Ullah, Advocate for Respondents No. 4 to 9.

Nemo for Respondent No. 1.

Date of hearing: 9.11.2016.

Judgment

This order shall govern Writ Petition No. 14626 of 2014 and Writ Petition No. 27117 of 2014 as through them challenge has been made to the common orders passed by the learned Member, Board of Revenue, Punjab.

1. Dispute in this case relates to the entries made in Mutation No. 182 which was sanctioned on 31.05.1971. The Respondents No. 4 to 9 on 15.07.2010 challenged the said mutation through an appeal under Section 161 of the Punjab Land Revenue Act, 1967 before the Collector, Lahore. This appeal was accepted vide order dated 09.12.2010 by holding that the land measuring 10 kanals comprising khasra No. 38, 330/2 and 556 was part of the said mutation. Validity of the said order was assailed by the petitioners (i.e. Noor Din, etc,) by preferring an appeal before the Executive District Officer (Revenue), Lahore. This appeal was treated as revision petition and the same was accepted vide order dated 15.09.2011 and the case was remanded to the Collector for a fresh decision. On remand, the Collector vide order dated 22.03.2012 again accepted the appeal and directed the R.O. Halqa to implement the order in letter and spirit by cancelling Mutation No. 182. On 29.03.2012 the petitioners (i.e. Noor Din, etc.) through an appeal challenged the order dated 22.03.2012 before the Additional Commissioner. This appeal was dismissedvide order dated 23.02.2013. The said order was assailed through a revision i.e. ROR No. 696 of 2013 before the learned Member, Board of Revenue, Punjab. This revision was dismissed vide order dated 02.04.2013. The penultimate paragraph of the said order reads as under:

“I have heard the preliminary arguments of the learned counsel for the petitioners and gone through the record carefully. It is evident that the learned counsel has emphasized upon the same arguments, which he had brought before the learned Additional Commissioner (Revenue), Lahore, who fully addressed all points, while passing the impugned order. The impugned order is a speaking order and covers all aspects of the case. Besides this, the learned counsel for the petitioners has failed to point out any material irregularity in the impugned orders as well as in the order of Extra Assistant Settlement Officer, Lahore Cantt. Therefore, I find no justification to interfere with the concurrent findings of two lowers Courts in exercise of revisional jurisdiction u/S. 164 of Land Revenue Act, 1967. The impugned order, dated 23.2.2013 passed by the Additional Commissioner (Revenue), Lahore along with order dated 22.3.2012, 29.6.2011 passed by EASO, Lahore Cantt is hereby upheld. Resultantly the instant revision petition is dismissed in limine being devoid of force. The file of this Court be consigned to the record room after fulfillment of its due completion.”

1. Since the learned Member, Board of Revenue, Lahore had decided the revision petition (i.e. ROR No. 696 of 2013) without assigning any cogent reason, the petitioners (i.e. Noor Din, etc.) through a petition under Section 8 of the Board of Revenue Act, 1957 sought review of the order dated 02.04.2013. This review petition was dismissed by the learned Member (Judicial-VI) Eioard of Revenue, Punjab vide order dated 22.04.2014 by recording the following findings:

“I have considered the review petition, written arguments of learned counsels for the parties, as well as record of case file carefully. The petitioners failed to produce any new and important matter or evidence before the Court. The contention of the learned counsel for the petitioners has already been discussed in detail in the order under review. I find no reason to interfere in the order under review dated 02.04.2013 which is upheld and the instant review petition is dismissed.”.

1. The petitioners are aggrieved by the orders dated 2.4.2013 and 22.04.2014 of the learned Member (Judicial-VI) Board of Revenue Punjab. It is contended on behalf of the petitioners that the orders impugned in this petition are not valid inter-alia for the reasons that the appeal preferred by the Respondents No. 4 to 9 before the Collector challenging the entries made in mutation No. 182 was patently barred by time but this fact was not taken into consideration while passing the impugned orders; that during pendency of the civil suit instituted by Zafar Ahmad (petitioner of Writ Petition No. 27117 of 2014) challenging the entries made in the revenue record, the revenue hierarchy had no lawful authority to set-aside Mutation No. 182; and, that the learned Member Board of Revenue while passing the impugned orders had not assigned any cogent reason.

2. After hearing the afore noted arguments I asked learned counsel appearing on behalf of private respondents (i.e. Din Muhammad, etc.) as to whether the orders passed by the learned Member Board of Revenue are sustainable as the same are bereft of any reason. In response to said query the learned counsel appearing on behalf of the private respondents could not offer any convincing reply. The perusal of penultimate paragraphs of the impugned orders which have been reproduced hereinabove unfolds that the learned Member, Board of Revenue, Punjab while passing the same had neither apprised the arguments canvassed before him nor recoded his own independent

findings. Such a perfunctory disposal leads to wastage of judicial time and the time of the litigants as well, and therefore, is always, regarded as improper judgment and is of doubtful validity. It is an established principle of law that a judicial order must be speaking order manifesting by itself that the Court has made an endeavor to marshal the facts for the resolution of the issues involved for their proper adjudication. The ultimate result may be reached by a diligent effort, but if the final order does not bear an imprint of that effort and on the contrary discloses arbitrariness of thought and action, the feeling with the painful results, that justice has neither been done nor seems to have beep done is inescapable. In this regard reference may be made to the case of “Muhammad Ameer and others versus Mst. Fajjan and ethers” (2012 CLC 1663).

1. Needless to observe here that Board of Revenue is the superior forum in the revenue hierarchy and it is expected from it that it would promote the culture of justification instead of culture of authority. In the instant case the orders recorded by the learned Member Board of Revenue, Punjab do not exhibit a judicious treatment of the case and the determination of dispute and, therefore, cannot be held a valid orders. Thus without going into the merit of the case these petitions are hereby allowed and orders dated 02.04.2013 and order dated 22.04.2014 are hereby set-aside and declared to have been passed without lawful authority and of no legal effect. Resultantly the revision petition i.e. ROR No. 696 of 2013 shall be deemed to be pending before the learned Member (Judicial-VI), Board of Revenue, Punjab who shall decide the same afresh after affording opportunity of hearing to all the parties and through a well-reasoned speaking order as expeditiously as possible preferable within a period of two (02) months. Parties are directed to appear before the learned Member Board of Revenue, Punjab on 14.12.2016.

(R.A.) Petitions allowed

PLJ 2017 Lahore 87

Present: Ch. Muhammad Masood Jahangir, J.

FESCO through Chief Executive Officer, Faisalabad and 3 others--Petitioners

versus

MUHAMMAD ALI SHAH through Legal Heirs--Respondents

C.R. No. 4074 of 2010, heard on 8.6.2016.

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

----S. 115--Civil revision--Suit for declaration, decreed--Appeal was dismissed--Challenge to--Delay of three days--Application for condonation of delay--Grounds of--Certified copies was misplaced by clerical staff cannot be considered to be correct--Neither name of official nor any affidavit on his behalf was annexed to support grounds--Disbelieving grounds for condonation of delay--Validity--It is prime duty of Court to watch interest of a litigant and law of limitation imposes certain restrictions in filing suits as well as appeals to save parties from endless litigation--Limitation provided by statute can only be condoned, if circumstances enumerated are found to be beyond control of litigant and reasons assigned seem to be plausible. [P. 89] A

Limitation--

----Scope of--Condonation of delay--Grounds of--Certified copies of judgment was misplaced by clerical staff--Disbelieving grounds--No valid exercise in filing lis beyond limitation--Validity--It is now well settled that when lis is not filed within time prescribed by statute, valuable rights accrue in favour of opposite party, which cannot be taken away unless strong and convincing ground is shown for condoning delay--No such sort of explanation is perceptible from record to exercise indulgence in favour of petitioners. [P. 89] B

PLD 2008 SC 462, ref.

Mr. Sarfraz Ahmad Cheema, Advocate for Petitioners.

Mr. Muhammad Imran Bhatti, Advocate for Respondents.

Date of hearing: 8.6.2016.

Judgment

The precise facts of the case are that suit for declaration filed by the respondent (now represented through LRs) was decreed by the learned trial Courtvide judgment and decree dated 30.10.2009 and appeal preferred by the petitioners was dismissed by the learned lower appellate Court vide judgment and decree dated 17.7.2010. Hence the instant civil revision.

1. Arguments heard and record perused.

2. The perusal of record available on the instant file divulges that the petitioners had applied for obtaining the certified copies of the impugned judgment and decree dated 30.10.2009 passed by the learned trial Court on 03.11.2009, which was prepared on 10.11.2009, whereas the same was delivered on 14.11.2009, but the appeal was preferred before the learned lower appellate Court by the petitioners on 12.12.2009 with a delay of three days. Although an application for condonation of delay before the learned lower appellate Court has been filed by the petitioners, but the grounds that the certified copies of the judgment and decree passed by the learned trial Court was misplaced by some clerical staff cannot be considered to be correct. Neither the name of said official nor any affidavit on his behalf was annexed with the said application to support the grounds mentioned therein and the learned lower appellate Court was perfect while disbelieving the grounds urged by the petitioners for condonation of delay. Moreover, again the attitude of the petitioner remained indolent, who filed the instant civil revision with the delay of twenty days. Along with main case C.M.No. 3-C of 2010 for condonation of delay has been filed without any plausible ground. It is the prime duty of the Court to watch the interest of a litigant and the law of limitation imposes certain restrictions in filing the suits as well as appeals etc. to save the parties from endless litigation. The limitation provided by the statute can only be condoned, if the circumstances enumerated are found to be beyond the control of the litigant and reasons assigned seem to be plausible. The reasons assigned by the petitioners in their application for condonation of delay before the learned lower appellate Court as well as before this Court are not appealable to a prudent man and the same do not provide a valid excuse in filing the lis beyond limitation. It is now well settled that when the lis is not filed within time prescribed by the statute, valuable rights accrue in favour of the opposite party, which cannot be taken away unless strong and convincing ground is shown for condoning the delay. No such sort of explanation is perceptible from the record to exercise indulgence in favour of the petitioners. In the judgment reported as Imtiaz Ali v. Atta Muhammad and another (PLD 2008 SC 462), it has been observed by the apex Court that the appeal having been filed with one day after the period of limitation had created valuable right in favour of the respondents and such delay was not condoned as no sufficient cause was found for filing of the appeal beyond the period of limitation. No sufficient reason has been assigned by the petitioners for condonation of delay, who were bound to explain the delay of each and every day in filing of the revision petition, but nothing of such sort has been pleaded in the application for condonation of delay before the learned lower appellate Court and this Court as well. The learned lower appellate Court rightly dismissed the appeal filed by the petitioners treating the same to be time barred. Similarly C.M.No. 3-C of 2010 seeking condonation of delay in filing the instant civil revision before this Court having no substance is turned down.

3. Consequently, the instant revision petition being barred by time is dismissed.

(R.A.) Petition dismissed

PLJ 2017 Lahore 90

Present: Mirza Viqas Rauf, J.

DEFENCE HOUSING AUTHORITY, LAHORE through its Secretary--Petitioner

versus

ADDITIONAL DISTRICT JUDGE, LAHORE and 6 others--Respondents

W.P. No. 5195 of 2014, heard on 9.11.2016.

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

----O.VI, R. 17--Amendment in written statement--Rejecting application for amendment was not tenable--Proposed amendments were necessary--Pleading--Legality and propriety of orders--Any of party to lis can seek amendment of pleadings at any stage of proceedings if such amendments are necessary for purpose of determining real question in controversy between parties--Law is very liberal in that context and Courts always show leniency, while dealing with applications for amendments in pleadings--Proposed amendments can only be refused in rare and exceptional circumstances when it is established that same have been introduced in order to change complexion of suit or to introduce an entirely different case--While dealing with revision petition filed by petitioner had completely failed to advert to issue involved in matter--Case was remanded. [Pp. 92 & 94] A & B

PLD 1985 SC 345 ref.

Mr. Tariq Masood, Advocate for Petitioner.

Mr. M. Saleem Akhtar,Advocate for Respondents No. 3 to 7.

Date of hearing: 9.11.2016.

Judgment

Through instant petition, the petitioner assails the vires of order dated 30th of January, 2014, whereby the learned Additional District Judge, Lahore, while dismissing review petition filed by the petitioner affirmed the order dated 20th of September, 2013.

1. The facts in precision necessary for adjudication of instant petition are that Respondents No. 3 to 7 instituted a suit for permanent injunction against erstwhile Lahore Cantt. Co-operative Housing Society, Lahore, which is succeeded by the petitioner i.e. Defence Housing Authority, Lahore. During the pendency of suit an application was filed by the petitioner under Order VI Rule 17 of The Code of Civil Procedure (V of 1908) seeking amendment in the written statement. The application was resisted by the respondent which was ultimately dismissed vide order dated 15th of July, 2013. The petitioner, feeling dissatisfied from the said order filed a revision petition before the learned Additional District Judge, Lahore which was also dismissed vide order dated 20th of September, 2013. The petitioner then preferred a review petition for recall of said order but same was also dismissed vide order dated 30th of January, 2014, hence this petition.

2. Learned counsel for the petitioner submitted that proposed amendments were declined on extraneous grounds. He added that order dated 15th of July, 2013 rejecting the application for amendment is not tenable. Learned counsel contended that proposed amendments were necessary, however, both the Courts below have declined the same in an illegal and unlawful manner. It is contended that learned Additional District Judge, while adjudicating upon the revision petition travelled beyond its jurisdiction. Learned counsel argued that impugned order dated 30th of January, 2014 is not tenable under the law.

3. Conversely, learned counsel for the Respondents No. 3 to 7 defended the impugned order and submitted that the petitioner by way of proposed amendments wants to introduce a distinct plea which is not permissible under the law.

4. I have heard learned counsels for both the sides and also perused the record.

5. Before commenting upon the merits of the case, it would be advantageous to first examine the proposed amendments mentioned in Para No. 4 of the application which reads as under:

“Moreover, land measuring 56 Kanals comprising of Khasra Nos.5034/1442 (1 Kanal 8 Marlas), 5036/1442 (8 Kanals 12 Marlas), 5470/1443 (19 Kanals 18 Marlas) and 1444 (26 Kanals 2 Marlas) situated in Mauza Amer Sidhu (which land included part of the suit land) had also been bona fide purchased by the defendant Society (now Authority) even before the institution of the suit vide conveyance deed No. 10864 dated 6-11-1994 whereafter Mutation (No. 29921) in the name of the defendant was also sanctioned on 30-11-1994.”

The amendments in the pleadings can be sought in terms of Order VI Rule 17 of the Code of Civil Procedure (V of 1908) which is reproduced below:

“17. Amendment of pleadings.--The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.”

Bare perusal of the above referred provision of law postulates that any of the party to the lis can seek amendment of the pleadings at any stage of the proceedings if such amendments are necessary for the purpose of determining the real question in controversy between the parties. Law is very liberal in this context and Courts always show leniency, while dealing with the applications for amendments in the pleadings. The proposed amendments can only be refused in rare and exceptional circumstances when it is established that same have been introduced in order to change the complexion of the suit or to introduce an entirely different case.

1. The scope of Order VI Rule 17 of The Code of Civil Procedure (V of 1908) has very elaborately been discussed by the Hon’ble Supreme Court of Pakistan in the case of “Mst. Ghulam Bibi and others versus Sarsa Khan and others” (PLD 1985 Supreme Court 345). The relevant extract from the judgment supra is reproduced below:

“After bearing both the learned counsel for some time we agree with the observation made by the learned Judge in the High Court that “generally delay alone in applying for amendment or expiry of period of limitation or increase in Court-fee and change of jurisdiction is not a ground for refusing amendment in the plaint”, the judgments cited by the learned counsel for the appellants depending upon the circumstances of each of them support the said view. However, with respect, we have not been able to agree with the learned Judge that notwithstanding the legal position, “in the circumstances of the present case there is no merit in the prayer to allow the amendment for the reason that the appellants were negligent or that the application for amendment was not made bonafide”.

No doubt an objection was raised from the respondent-side that the suit was not maintainable in the present form and an issue was framed in that behalf. But it was ignored that the said issue was decided by the’ learned trial Court in favour of the appellants on the finding that the so-called agreement to exchange was, in so far as its contents disclose; in reality a contract of exchange. Therefore, the plaintiffs (the present appellants) could not be held to have acted in a mala fide manner in not seeking the amendment before the trial Court. In the same context the learned counsel for the appellants is right in pointing out that it was the respondent-side which filed the appeal before the District Court. If the appellants would have filed before the trial Court on this issue and they had filed the appeal before the District Court a question could have arisen as to why they did not at least ask for the amendment of the plaint as an alternative course of action. But here it was a different situation. Be that as it may, the learned Judge himself observed and rightly, so that the delay alone in applying for the amendment cannot be a determining factor for deciding an application under Order VI, Rule 17, C.P.C. The use of the expression “at any stage of the proceeding” in Rule 17 is not without significance. The word “proceedings” has been interpreted by this Court in a liberal manner so as to give a proper scope to the rule in accord with its purpose, as including the appellate stage and that too up to the Supreme Court.

The foregoing interpretation is also in accord with the mandatory language used in Rule 17 to the effect that “all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy ….. “Therefore, once the Court decides that the amendment is necessary for the said purpose of determining the real question, the Court is required by law to not only to allow an application made by a party in that behalf but is also bound to direct the amendment for the said purpose. Thus, the rule can be divided into two parts. In the cases falling under the first part, the Court has the discretion to allow or not to allow the amendment, but under the second part once the Court comes to a finding that the amendment is necessary for the purpose of determining the real question, it becomes the duty of the Court to permit the amendment.

What has been stated above is, however, subject to a very important condition that the nature of the suit in so far as its cause of action is concerned is not changed by the amendment whether it falls under the first part of Rule 17 or in the second part, because when the cause of action is changed the suit itself would become different from the one initially filed. Here this condition would not have been contravened if the amendment had been allowed by the High Court. The bundle of facts narrated in the plaint which constitute the cause of action, as the application for amendment shows, would not have suffered any material change if the request would have been allowed. Apart from the consequential technical changes mutatis mutandis in the context of the grounds stated in the application for amendment, only two major amendments were sought to be made in the plaint. They would have been firstly, the change in the heading signifying the suit being for specific performance etc. instead of declaration etc. and secondly, there was to be a similar change in the prayer paragraph. These amendments would not have caused any embarrassment to the respondents defendants either in seeking and making similar amendments in their written statement. The inconvenience caused to the respondents as the provision itself visualizes is not only natural but would ordinarily be occasioned in almost every case. That is why the law visualizes the award of adequate compensation: in that, the amendment has to be allowed “in such manner and on such terms as may be just”.

1. While examining the legality and propriety of the impugned orders, it is observed that the learned Additional District Judge, while dealing with the revision petition filed by the petitioner against the order dated 15th of July, 2013 have completely failed to advert to the issue involved in the matter. The learned Additional District Judge has proceeded on entirely different premises, while dismissing the revision petition filed by the petitioners by way of order dated 20th of September, 2013. Perusal of said order reveals that it runs on an entirely different pretext. The learned Additional District Judge was completely oblivion of the mandate of Order VI Rule 17 of The Code of Civil Procedure (V of 1908), while passing the said order and even no reference was made to the relevant provision of law, while dealing the issue. Though a review petition was filed by the petitioner but same was also dismissed vide order dated 30th of January, 2014 in a manner which is alien to law without even discussing the parameters for recall of order. The modus operandi adopted by the learned Additional District Judge is not in conformity with law. The impugned orders lack lawful reasoning and application of judicious mind. The learned Additional District Judge was supposed to dilate upon the issue of amendment as solicited by the petitioner by way of application which was dismissed vide order dated 15th of July, 2013 by the learned Civil Judge. Learned counsel for the Respondents No. 3 to 7 is even not in a position to justify mode adopted by the learned Additional District Judge, while passing the impugned orders dated 30th of January, 2014 and 20th of September, 2013.

8A. In view of above discussion, I am inclined to allow this petition, consequently orders dated 30th of January, 2014 and 20th of

September, 2013 passed by the learned Additional District Judge are set aside, as a result thereof, the matter is remanded back to learned District Judge, Lahore with the observations that revision petition filed by the petitioner shall be deemed to be pending, who shall either hear the same by his own or entrust it to any other Court of competent jurisdiction for its decision afresh on the merits in view of observations made hereinabove, after hearing both the sides. Office is directed to transmit the copy of this judgment to the learned District Judge, Lahore for its compliance.

(R.A.) Case remanded

PLJ 2017 Lahore 95 [Rawalpindi Bench Rawalpindi]

Present: Muhammad Ameer Bhatti, J.

IKRAM-UR-REHMAN--Petitioner

versus

GHULAM MUSTAFA--Respondent

C.R. No. 529-D of 2011, heard on 6.9.2016.

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

----Art. 129--General Clauses Act, (X of 1897), S. 27--Civil Procedure Code, (V of 1908), S. 115--Presumption--Necessitating production of postman, to prove factum of talb-i-ishhad--Vendee denied sending of notice--Failed to produce postman--Validity--Alleged superior right of pre-emption stood extinguished due to deficiency in evidence to prove factum of talb-i-ishhad--Petition was accepted.

[P. 96] A

Mr. Sajjad Mahmood Butt, Advocate for Petitioner.

Mr. Muhammad Amir Butt, Advocate for Respondent.

Date of hearing: 6.9.2016.

Judgment

This revision petition is directed against the judgments and decrees passed by both the learned Courts below dated 18.02.2009 and 05.03.2011, respectively, whereby the suit instituted by the respondent stood decreed and appeal whereof preferred by the petitioner was dismissed, hence, this revision petition.

1. The record of the case has been examined, perusal whereof reveals that the respondent/vendee specifically denied the sending of notice to him in his written statement. In this view of the matter, the

presumption arising under Article 129 of the Qanoon-e-Shahdat Ordinance, 1984 and Section 27 of the General Clauses Act, 1897, stands rebutted necessitating the production of Postman, to prove the factum of Talb-i-Ishhad, as per ratio laid down by the Hon’ble Supreme Court of Pakistan in a case reported as Allah Ditta through LRs and others vs. Muhammad Anar (2013 SCMR 866), which is found missing. It becomes clear like daylight that the pre-emptor has no case, as he failed to produce the Postman for recording his evidence in order to prove the service of notice upon the vendee/respondent, who had denied the sending of notice in a specific manner, therefore, it is held that his alleged superior right of pre-emption stood extinguished due to deficiency in evidence to prove the factum of Talb-i-Ishhad in accordance with the ratio decidendi by Hon’ble Supreme Court of Pakistan in referred case law. Hence, this revision petition is accepted; the judgments and decrees passed by both the learned Courts below are hereby set-aside resulting in dismissal of suit filed by the respondent. No order as to costs.

(R.A.) Petition accepted

PLJ 2017 Lahore 96 [Multan Bench Multan]

Present: Masud Abid Naqvi, J.

AYAT ULLAH--Petitioner

versus

APPELLATE AUTHORITY OF PUNJAB LOCAL GOVERNMENT ELECTION, TEHSIL JAHANIAN, DISTRICT KHANEWAL and 3 others--Respondents

W.P. No. 15419 of 2016, decided on 2.11.2016.

PunjabLocal Government Act, 2013 (XVIII of 2013)--

----S. 43(1)--Proposer and seconder were not members of electoral college--Nomination papers for seat of kissan councilor were rejected--Validity--A member of an electoral college may propose or second the name of any person who is a registered voter of any electoral area forming part of local government to be a candidate for elections--Petitioner had opportunity to cure defect but he had failed to do so within specified time--Nomination papers were rightly rejected--Petition was dismissed. [P. 97] A

Rana Muhammad Asif Saeed, Advocate for Petitioner.

Ch.Dawood Ahmad Wains, Advocate for Respondents.

Mr. Naeem Khan, Advocate/Legal Advisor Election Commission of Pakistan.

Date of hearing: 2.11.2016.

Order

Briefly stated facts of this writ petition are that petitioner submitted his nomination papers before Respondent No. 2 for the seat of Kissan Councilor, Union Council No. 120, Tehsil Jahanian District Khanewal which were rejected by the Returning Officer vide order dated 18.10.2016. The petitioner filed an appeal against the abovementioned order before the Appellate Authority Jahanian which was also dismissed vide impugned order dated 21.10.2016 and the nomination papers of the petitioner were rejected. Through this petition, the petitioner has challenged the validity of the orders passed by the learned Returning Officer and the learned Appellate Authority, Jahanian.

1. Learned counsel for the petitioner submits that petitioner should have been given the opportunity to substitute his proposer and seconder to meet the requirement of Section 43, Chapter v. of Punjab Local Government Act, 2013, however, he was not given the opportunity as envisaged in Section 14(vii) and (ix) of Punjab Local Government Act, 2013, therefore, the impugned orders are not sustainable in the eye of law and liable to be set aside.

2. I have heard the arguments of learned counsel for the parties and perused the available record as well as have minutely gone through the impugned order.

3. Perusal of record reveals that the proposer and seconder of petitioner were not members of Electoral College. Section 43(1), Chapter-V of Punjab Local Government Act, 2013, clearly stipulates that a member of an electoral college may propose or second the name of any person who is a registered voter of any electoral area forming part of the respective local government to be a candidate for the elections under this chapter. The petitioner had the opportunity to cure the defect but he failed to do so within the specified time. His nomination papers were rightly rejected. No infirmity legal and factual has been pointed out by the petitioner in the impugned orders dated 18.10.2016 and 21.10.2016 requiring interference by this Court which are accordingly upheld.

4. In view of the foregoing discussion, this writ petition is dismissed.

(R.A.) Petition dismissed

PLJ 2017 Lahore 98

Present: Ali Akbar Qureshi, J.

Syeda NEELAM ALTAF and 4 others--Petitioners

versus

SECRETARY, GOVERNMENT OF PUNJAB, SCHOOL EDUCATION DEPARTMENT, LAHORE 3 others--Respondents

W.P. No. 9365 of 2016, decided on 13.5.2016.

Constitution of Pakistan, 1973--

----Art. 10-A & 199--Constitutional petition--Appointment on contract basis--Termination--Wrongly recruited by competent authority--Ages were less than 20 years on closing date of submission of applications--Validity--Both parties are to be regulated according to terms and conditions of contract executed between parties, therefore, termination of petitioners is against spirit and terms and conditions of contract--Wrong and irregular appointment of petitioners on basis of contract by competent authority which, subsequently turned into termination--Action will be taken against officers who made wrong appointment, but petitioners would not be penalized for wrong action of officers/delinquents--Termination of petitioners is against spirit and Constitutional guarantee of Constitution--Petition was allowed. [Pp. 1001 & 101] A, B, C & D

Mr. Ghulam Hussain Shakar, Advocate for Petitioners.

Mr. Naveed Saeed Khan, Additional Advocate-General with LiaqatAli Chatha, DCO, Gujrat, Imran Sikandar Baloch, Special Secretary Schools, Lahore, Tahir Kashif, EDO (E), Gujrat, Riffatun Nisar DEO (W), Gujrat and Rana Younas Azhar, Senior Law Officer Schools Education Department FOR Respondents.

Date of hearing: 13.5.2016.

Order

The petitioners who were appointed by the respondent-department as SESE and ESE after completing all codal formalities on contract basis, in education department have been terminated on the ground, that the required age at the time of appointment was 20 years whereas the petitioners were less than the age required and advertised by the respondent-department.

1. In response of the notice, the respondent-department filed report and para-wise comments wherein it is stated, that the petitioners were recruited wrongly by the competent authority as the minimum age limit for recruitment as Educator was 20 years, whereas, the ages of petitioners were less than 20 years on closing date of submission of applications i.e. 5.12.2011. However, the respondent-department has not denied, that the petitioners fulfill the requisite educational qualification and at the time of filing the applications mentioned their correct ages i.e. less than 20 years, the petitioners are working for the last 4 to 5 years and the fact of ages of less than 20 years of the petitioners came into the knowledge of the respondents-department when the petitioners filed applications for regularization.

2. The Special Secretary Schools, Imran Sikandar Baloch and District Coordination Officer, Gujrat, Liaqat Ali Chatha appeared in person and frankly conceded that the petitioners fulfill the requisite qualification and no wrong information was provided by the petitioners at the time of filing the applications. The respondent-Secretary further submitted, that it is in fact the fault of the respondent-authority who at the time of appointment did not carefully scrutinized the record and appointed the petitioners, therefore, stern action has been proposed against the delinquent in accordance with law.

3. The respondent-secretary when confronted as to whether proper opportunity of a fair trial as enunciated in Article 10-A of the Constitution of the Islamic Republic of Pakistan, 1973, was provided to the petitioners while terminating their services, the respondent-Secretary in all fairness submitted, that no such opportunity was provided to the petitioners. Further stated, that the respondent-department is ready to consider the case of the petitioners sympathetically and the matter will be referred to the higher authorities for accommodation in accordance with law.

4. As earlier noted, that the petitioners fulfill the requisite qualification for the posts of SESE and ESE and at the time of filing the applications provided correct particulars including their age; the petitioners were appointed on contract basis and according to the terms and conditions of the contract, the petitioners can be terminated only according to condition No. 8 which is reproduced as under:

“(i) Contract of appointment will be liable to termination on One Month Notice or payment of One Month Salary in lieu thereof by either side without assigning any reason.

(ii) The Appointing Authority as a right to terminate contract at any time by giving a notice/personal hearing in case of poor performance or misconduct.

(iii) The contract will be terminated, if the Educator is on willful absence from duty or does not achieve 100% enrollment. Student Teacher Ratio (STR) (40:1), 100% retention and quality education to be judged on the basis of PEC Examinations, BISE examinations and monthly/ term tests conducted through DTEs or any other mechanism prescribed by the Department for Quality Assurance Test (QAT).

(iv) If degree(s)/certificate(s) are found bogus, the contract shall be terminated by the Appointing Authority.”

1. Admittedly and not denied by the respondent-State functionaries, that the petitioners have not been terminated from service according to the terms and conditions of the contract. Needless to mention, that both the parties i.e. the petitioners and the respondent-department are to be regulated according to the terms and conditions of the contract executed between the parties, therefore, the termination of the petitioners is against the spirit and terms and conditions of the contract.

2. As regard, the wrong and irregular appointment of the petitioners on the basis of contract by the competent authority which, subsequently turned into termination, the Hon’ble Supreme Court of Pakistan has observed in Director, Social Welfare, N.W.F.P., Peshawar v. Sadullah Khan (1996 SCMR 1350) and Collector of Customs and Central Excise, Peshawar and 2 others v. Abdul Waheed and 7 others (2004 SCMR 303). The relevant para is reproduced as under:

“The petitioners themselves appointed him on temporary basis in violation of the rules for reasons best known to them. Now they cannot be allowed to take benefit of their lapses in order to terminate the services of the respondent merely because they have themselves committed irregularity in violating the procedure governing the appointment.”

1. Although the Secretary of the respondent-department stated, that the action will be taken against the officers who made the wrong appointment, but the petitioners should not be penalized for the wrong action of the aforesaid officers/delinquents.

2. Even otherwise, the petitioners by afflux of time have already crossed the barrier of 20 years age and during the service of 4 to 5 years, as affirmed by the respondent-Secretary, no complaint has been reported against the petitioners. The termination of the petitioners is against the spirit and Constitutional guarantee of the Constitution of the Islamic Republic of Pakistan, 1973, provided in Article 10-A, therefore, this petition is allowed, the termination orders of the petitioners dated 05.01.2016 and 05.03.2016 are set aside and the matter is referred to the Secretary, Schools Education Department, Government of the Punjab to look into the matter in accordance with law and the principle laid down by the Hon’ble Supreme Court of Pakistan in the judgments (Supra). It is made clear that the law declared by the Hon’ble Supreme Court of Pakistan becomes the law of land under Article, 189 of the Constitution of the Islamic Republic of Pakistan, 1973.

3. Copy of this petition along with all the annexures be dispatched to the Secretary, Schools Education Department, Government of the Punjab. The petitioners shall appear before the secretary on 23.05.2016 at 11:00 a.m.

(R.A.) Petition allowed

PLJ 2017 Lahore 101

Present: Tariq Iftikhar Ahmad, J.

FATIMA RANA--Petitioner

versus

BILAL AHMAD BHATTI, etc.--Respondents

W.P. No. 38067 of 2016, decided on 8.12.2016.

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

----Preamble--Family Courts were established under the Act for expeditious settlement and disposal of disputes relating to marriage and family affairs and for matter connected therewith. [P. 103] A

Constitution of Pakistan, 1973--

----Art. 199--Family Courts Act, (XXXV of 1964), Schedule No. 9--Jurisdiction of Family Court--Divergent pleadings--Personal property and belongings of wife--Petitioner earned herself amount while serving in Canada and amount was sent through western union to her husband was dispute relating to marriage or matters--Question of--Whether disputed amount was personal property as wife--Determination--Prima-facie the claim of petitioner is of civil nature, for recovery of amount received by husband from her--Procedure to secure civil right is to be dealt with under CPC by Court of competent jurisdiction, whereas, family laws being special law has its own procedure as well as fixation of time for disposal of same--Courts act are deriving jurisdiction from codified law and also on basis of principles of natural justice--Trial Court while acting under principle of equity, natural justice and good conscious correctly observed and ‘advise’ to petitioner to avail her remedy at proper forum against her claim for recovery of amount--Petition was dismissed. [P. 104] B, C & D

PLD 2011 SC 260, rel.

Mr. Sami-ul-Hassan Rana, Advocate for Petitioner.

Date of hearing: 8.12.2016.

Order

Petitioner filed a family suit against Respondent No. 1 Bilal Ahmed Bhatti on 12.03.2016 for dissolution of marriage, recovery of maintenance allowance, dowry articles and cash approximately Rs. 64,65,871/-.

1. According to Para 5 of the plaint, she contended that after her marriage with respondent, she started job in Canada and out of her salary received, she sent total amount Rs. 40,00,000/- from time to time to respondent through Western Union. Respondent No. 1 filed written statement. He simply denied receipt of any amount from the petitioner allegedly sent to him by her from Canada.

2. Learned trial Court on the basis of divergent pleadings of the parties formulated five issues. The relevant Issue No. 3 is reproduced here under:

Whether the plaintiff is entitled to get recovered amount Rs. 40,00,000/- sent by her to her husband through Western Union from Canada? OPP

1. At the stage of evidence, Respondent No. 1 filed a miscellaneous application seeking amendment in Issue No. 3, as through his written statement he raised question in respect of jurisdiction of Family Court to deal with said issue and proposed the following additional issue to be framed:

3-A. Whether this Court has no jurisdiction to entertain the suit for recovery of Rs. 40,00,000/-? OPP.

1. Learned trial Court accepted the application and deleted Issue No. 3, however, recorded the following observations:

“Plaintiff/respondent is at liberty to avail her remedy at proper forum against the said claim.”

1. Being dis-satisfied with this order/observation, the petitioner has come up in writ petition stating that while passing impugned order on 27.10.2016, the learned trial Court exceeded its jurisdiction and passed an order, which was not prayed for by the respondent. Further stated that according to Entry No. 9 in the Schedule of Family Court Act, 1964, the petitioner as wife was claiming recovery of her personal property, however, because of wrong application of judicial mind and committing error in law, the impugned order was passed. The petitioner has sought setting aside of impugned order dated 27.10.2016 and requested that direction may be issued to learned trial Court to proceed and record evidence to decide the family suit on merit.

2. I have asked the learned counsel for the petitioner to assist me as to whether the amount of Rs. 40,00,000/- is personal property of the petitioner as wife under Item No. 9 of the Schedule of The Family Courts Act, 1964. Learned counsel urged that the said amount which was generated by the petitioner while serving in Canada, after her marriage and sent from time to time total amount Rs. 40,00,000/- to Respondent No. 1, her husband and as such, it is nothing else but her personal property and the Family Court having jurisdiction to entertain and decide this issue i.e. Issue No. 3. Further stated that learned trial Court without any prayer made by Respondent No. 1 suo-moto deleted Issue No. 3, which had already been framed without any legal and procedural justification, thus, it is a case of misuse of jurisdiction vested with the said Court. Learned counsel placed reliance on judgment of Hon’ble Supreme Court of Pakistan reported as Syed Mukhtar Hussain Shah vs Mst. Saba Imtiaz and others (PLD 2011 S.C.260).

3. To deal with proposition in hand it is appropriate to look into the relevant provision of West Pakistan Family Courts Act, 1964. Its preamble reads as under:

“Whereas it is expedient to make provision for the establishment of Family Courts for the expeditious settlement and disposal of disputes relating to marriage and family affairs and for matters connected therewith.”

1. As is settled that preamble of a Statute is incorporated to briefly mention the purposes of that Statute and plain reading of the preamble shows that Family Courts were established under the Act for expeditious settlement and disposal of disputes relating to marriage and family affairs and for matter connected therewith.

2. Now to look into Item No. 9 of Schedule of the Act which reads as under:--

“Personal property and belongings of a wife”.

1. The case of the petitioner is clear that she while serving in Canada received salaries and out of it sent certain amount to the petitioner in Pakistan while having in mind the preamble which provided settlement and disposal of dispute relating to marriage and family affairs and for matter connected therewith, so to my mind all these matters are relating to marriage and the matters connected therewith. I am afraid that the contention of the petitioner that she earned herself amount while serving in Canada and the amount was sent through Western Union to her husband is a dispute relating to marriage or matters, connected therewith. Prima-facie the claim of the petitioner is of civil nature, for recovery of amount received by respondent from her. It may be added here that the procedure to secure civil right is to be dealt with under the Civil Procedure Code, 1908 by the Court of competent jurisdiction, whereas, family laws being special law has its own procedure as well as fixation of time for disposal of the same. As such, when the learned trial Court observed in the last line of impugned order while deleting Issue No. 3 that petitioner is at liberty to avail her remedy at proper forum against the said claim is not suffering with wrongful exercise of jurisdiction.

2. I may further observe here that Courts act are deriving jurisdiction from codified law and also on the basis of principles of natural justice. In my view, the learned trial Court while acting under the principle of equity, natural justice and good conscious correctly observed and ‘advise’ to the petitioner to avail her remedy at proper forum against her claim for recovery of the amount. Learned counsel for the petitioner placed reliance on the judgment of Hon’ble Supreme Court of Pakistan reported as Syed Mukhtar Hussain Shah vs Mst. Saba Imtiaz and others (PLD 2011 S.C.260). In my humble view facts of matter before Apex Court were different as compared to present petition. Leave to appeal to the appellant in said matter was granted by the Apex Court to consider whether condition of payment of Rs. 1,00,000/- by the husband in the event of giving divorce to the wife as stipulated in Nikah Nama was a valid one and the amount so fixed was recoverable by filing a suit before Family Court. However, it is not case of the present petitioner as she is not claiming recovery of the amount on the basis of terms and conditions of Nikah Nama between her and Respondent No. 1.

3. The outcome of the discussion is that I do not observe any defect in the impugned order to exercise interference by this Court, resultantly, this petition stands dismissed.

(R.A.) Petition dismissed

PLJ 2017 Lahore 105

Present: Ch. Muhammad Masood Jahanagir, J.

ZAKA ULLAH--Petitioner

versus

PROVINCE OF PUNJAB, etc.--Respondents

C.R. No. 793 of 2016, heard on 4.11.2016.

Land Revenue Act, 1967 (XVII of 1967)--

----S. 42--Civil Procedure Code, (V of 1908), S. 115--Civil revision--Declaratory suit--Gift--Cancellation of mutation was allowed--Donar was old age ailing person who died within couple of days of attestation of mutation--Beneficiary of mutation and transaction--Validity--It is well established by now that mutation is always sanctioned through summary proceedings and is intended to keep record update for collection of land revenue--Such entries are made in Register under Section 42 of Land Revenue Act, 1967 which attains no presumption of correctness prior to incorporation in Record of Rights--No doubt, that entries in mutation are admissible in evidence in a case, but these require to be proved by person relying upon it independently through affirmative evidence because an oral transaction reflected therein neither confers title in favour of its beneficiary nor can establish same--No doubt, attesting witnesses, and revenue officer, appeared in witness-box and tried to prove attestation of mutation, but exercise was not sufficient, rather beneficiary was independently required to prove transaction which might have been settled prior to attestation of mutation--Muslim is free to transfer his property by making a declaration of gift in favour of any person, but when legal heirs of donor were available--It is settled law that findings on questions of fact or law recorded by Court of competent jurisdiction cannot be interfered with in revisional jurisdiction unless those findings suffer from jurisdictional defect, illegality or material irregularities--Disputed mutation being result of fraud was got attested by petitioner by playing fraud to deprive ladies and their brother and frivolous litigation based on mala fide as initiated by petitioner, High Court is inclined to direct to take legal action against petitioner or his family members, if they are still enjoying possession of disputed property and after their ejectment, possession should be delivered to respondents without any failure--If any illegal hindrance is created by petitioner or his family members, then through all coercive measures, even by aid of police to be provided by DPO, if needed (Judl). [Pp. 108, 109 & 110] A, E, F, G & H

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

----O. VII, R. 2 & O. VIIII, R. 2--Declaration of gift--Attestation of mutation--Cancellation of mutation was allowed--Beneficiary--Reflection from plaint--Declaration of gift was accepted without disclosing time, date, venue and names of witnesses when where and before whom transaction was effected--Principle of “secundum allegata et probate”--It is settled law that a party has to first plead facts and pleas in pleadings and then to prove same through evidence--A party is not allowed under law to improve its case beyond what was originally set up in the pleadings. [P. 109] B

Pleading--

----Scope of--Evidence led by a party beyond the scope of its pleadings is liable to be ignored--In absence of specific pleadings, Court could not allow a party to grope around and draw remote inferences in his favour from his vague expressions. [P. 109] C & D

PLD 2010 SC 965 & 2012 SCMR 254, rel.

Mr. Qadeer Ahmed Rana, Advocate for Petitioner.

Mr. Muhammad Arif Yaqoob Khan, Addl. A.G. for Respondents Nos. 1 to 4.

Mr. Imdad Ali Naikokara,Advocate for Respondent No. 4.

Date of hearing: 4.11.2016.

Judgment

This revision petition under Section 115 of the Code of Civil Procedure, 1908 is directed against judgment and decree dated 07.12.2012 passed by learned trial Court and judgment and decree dated 22.01.2016 delivered by learned lower appellate Court, through which, declaratory suit as well as appeal filed by present petitioner was dismissed respectively.

1. The brief facts of the case are that petitioner on 24.01.2008 instituted a declaratory suit with the assertion that subject land 06 Kanals 10 Marlas fully detailed in Para No. 1 of the plaint was owned by his brother, Manzoor Ahmed, who made declaration of gift in his favour, which was accepted by him and in lieu thereof, possession was also handed over to him and while acknowledging the transaction, the disputed property was also alienated in his favour by the donor through attestation of Mutation No. 431 dated 11.05.2006; that after the death of donor, one of his daughters Nusrat Begum Respondent No. 5/Defendant No. 4 filed an application on 27.06.2006 before DDO(R) Wazirabad/Respondent No. 2 for cancellation of Mutation No. 431, which was allowed by him vide order dated 18.10.2006 and the appeal of the petitioner was also dismissed by EDO(Rev)/Respondent No. 3 through order dated 22.01.2008, consequent thereupon, disputed mutation was cancelled and that the impugned orders being illegal and ineffective upon his rights were liable to be set aside. The suit was contested by Respondents No. 5 to 7 defendants with the stance that donor was an old age person, who was defrauded in the last days of his life by petitioner to deprive his daughters and son to inherit his legacy and when this fraud came into light, the same was challenged before the revenue hierarchy who cancelled it. The learned trial Court while facing with the contest captured the disputed areas of fact and law through settlement of issues and invited the parties to lead their evidence, who to prove their respective stance examined oral as well as documentary stock of evidence and after scanning the same, suit of petitioner was dismissed by the Court of first stance which was further congealed by learned lower appellate Court on their part through judgments and decrees referred to in opening para.

2. Mr. Qadeer Ahmed Rana, Advocate, learned counsel for petitioner emphasized with great vehemence that neither the application for cancellation of mutation tabled by Respondent No. 5/defendant was maintainable before DDO(Rev)/Respondent No. 2 nor could he annual the same; that EDO(Rev)/Respondent No. 3 while skipping that aspect also erred in law when he dismissed the appeal of petitioner and that petitioner through production of qualitative and quantitative evidence not only succeeded to prove the valid attestation of mutation, but also proved the declaration of gift, its acceptance and delivery of possession in liue thereof. He also submitted that learned Courts below while misinterpreting the evidence available on record passed the impugned judgments and decree, which are not sustainable.

3. Conversely, learned counsel for Respondent No. 5 and learned Law Officer on behalf of Respondents No. 1 to 4 have submitted that donor was an old age ailing person, who died within couple of days of attestation of disputed mutation and petitioner while practicing fraud got attested it to deprive his daughters and son from inheriting the subject property; that petitioner being beneficiary of mutation and transaction was obliged to prove the same independently and Courts below after appreciation of material available on lis file were immaculate to dismiss the suit as well as appeal. He further argued that concurrent findings of fact rendered by two Courts below could not be checked by this Court while exercising jurisdiction under Section 115 of the Code of Civil Procedure, 1908.

4. Heard, record thrashed.

5. The headmost argument of Mr. Rana that revenue authority was not competent to entertain an application for the cancellation of oral gift mutation on the score of fraud or on other intricated allegations might have substance, but after the pronouncement of order dated 18.10.2006 by D.D.O. (Rev), the petitioner himself availed the remedy of appeal provided in that hierarchy and after his failure, he without availing efficacious remedy provided in that forum, approached the Civil Court through institution of a civil suit. Instead of going into the controversy whether without availing the efficacious remedy on revenue side, a declaratory suit was maintainable or not and while ignoring whether revenue authorities were equipped with the jurisdiction to annual the mutation on the grounds mention in the application preferred by Respondent No. 5 and also while leaving those aside I am proceeding to resolve the real controversy involved herein whether Manzoor Ahmed made any declaration of gift in favour of petitioner and thereafter he personally got attested disputed mutation to acknowledge the oral transaction for the resolution of dispute.

6. Before embarking upon merits of the case and to proceed with the determination of respective stances of the parties, I feel it appropriate to comment on the principle dealing with oral transfer of immovable property effected through mutation. It is well established by now that mutation is always sanctioned through summary proceedings and is intended to keep the record update for the collection of land revenue. Such entries are made in the Register concerned under Section 42 of the Land Revenue Act, 1967 which attains no presumption of correctness prior to incorporation in the Record of Rights. No doubt, that the entries in the mutation are admissible in evidence in a case, but these require to be proved by the person relying upon it independently through affirmative evidence because an oral transaction reflected therein neither confers the title in favour of its beneficiary nor can establishe the same.

7. Resuming now to merits, it is the basic case of the petitioner as reflected from the plaint that his brother made a declaration of gift in his favour, which was accepted by him without disclosing the time, date, venue and names of witnesses when, where and before whom the said transaction was effected. No doubt, through his testimony being PW-1, petitioner tried to improve his case that on 11.05.2006 when disputed mutation was attested, the donor made offer of gift before him and Zafarullah (PW-3). Manzoor Ahmed, PW-2 and Zafarullah, PW-3 also worded in the same lines. As observed supra, no such case was developed in the pleadings of the plaint. It is settled law that a party has to first plead facts and pleas in the pleadings and then to prove the same through evidence. A party is not allowed under the law to improve its case beyond what was originally set up in the pleadings. The principle of “secundum allegata et probate” that a fact has to be alleged by a party before it is allowed to be proved, is fully applicable in this case, which has full command of provisions of Order VI Rule 2 and Order VIII Rule 2 of the Civil Procedure Code, 1908. As such any evidence led by a party beyond the scope of its pleadings is liable to be ignored. Reliance can be placed upon the dicta laid down in the case law reported as Muhammad Wali Khan & another vs. Gul Sarwar Khan & another (PLD 2010 SC 965) and Haider Ali Bhimji v. VIth Additional District Judge, Karachi (Sourth) & another (2012 SCMR 254), wherein it was held that in absence of specific pleadings, the Court could not allow a party to grope around and draw remote inferences in his favour from his vague expressions. The probe of statement of PWs further affirms that on the day of attestation of mutation, the vendor was a man of old age suffering with asthema and died just within 17 days of its attestation and the disputed mutation came into the knowledge of his legal heirs after his death, when they approached the revenue officials for attestation of inheritance mutation. The study of evidence examined by petitioner affirms that he failed to prove the oral gift transaction embodied in the mutation. No doubt, attesting witnesses, (PW-2) and (PW-3) and revenue officer, (PW-4) appeared in the witness-box and tried to prove the attestation of questioned mutation, but this exercise was not sufficient, rather the beneficiary was independently required to prove the transaction which might have been settled prior to attestation of mutation.

8. Another important aspect of the case was that admittedly the donor has two daughters and one son but the gift was made in favour of brother while depriving the legal heirs. No doubt, a Muslim is free to transfer his property by making a declaration of gift in favour of any person, but when legal heirs of the donor were available then as per dicta laid down in the judgments reported as Barkat Ali through Legal Heirs and others (Muhammad Ismail through Legal Heirs and others (2002 SCMR 1938) and Meraj Din vs. Mst. Sardar Bibi and 5 others (2010 MLD 843), there should be reasons to be highlighted as to why the donor was going to make a gift in favour of an alien, which is missing in this case.

9. As a result of probe of evidence available on file, this Court is of the considered view that petitioner failed to prove his case and both the Courts below were perfect in non-suiting him. It is settled law that the findings on questions of fact or law recorded by the Court of competent jurisdiction cannot be interfered with in revisional jurisdiction unless those findings suffer from jurisdictional defect, illegality or material irregularities. The concurrent findings of facts were recorded by both the Courts below, which are based on proper appreciation of evidence, oral and documentary, produced by the respective parties before the learned trial Court. No case of misreading or non-reading of evidence has been made out and neither any legal infirmity has been pointed out by the learned counsel for petitioner even during the course of arguments nor illegal exercise of jurisdiction or failure of exercise of jurisdiction by both the Courts below has been attributed to warrant interference by this Court under Section 115 of the Civil Procedure Code, 1908. Reliance is placed on the case law reported as Abdul Rahim & another vs. Mst. Janatay Bibi and others (2000 SCMR 346), Anwar Zaman & 5 others vs. Bahadur Sher & others (2000 SCMR 431), Aziz ullah Khan & others v. Gul Muhammad Khan (2000 SCMR 1647), Altaf Hussain vs. Abdul Hameed and Abdul Majeed through legal heirs an another (2000 SCMR 314), Haji Noor Muhammad v. Abdul Ghani & 2 others (2000 SCMR 329), Haji Muhammad Din vs. Malik Muhammad Abdullah (PLD 1994 SC 291) and Muhammad Rashid Ahmad vs. Muhammad Siddique (PLD 2002 SC 293).

10. Resultantly, the instant civil revision being devoid of any merit is dismissed with special cost of Rs. 100,000/- to be paid to Respondents No. 5 to 7.

11. Before parting with this judgment, when it is proved on record that disputed mutation being result of fraud was got attested by petitioner by playing fraud to deprive the ladies and their brother and the frivolous litigation based on mala fide as initiated by the petitioner, this Court is inclined to direct the Revenue Officer concerned to take legal action against the petitioner or his family members, if they are still enjoying the possession of the disputed property and after their ejectment, the possession should be delivered to Respondents No. 5 to 7 without any failure. If any illegal hindrance is created by the petitioner or his family members, then through all coercive measures, even by the aid of police to be provided by the DPO concerned, if needed, the possession should be delivered to

Respondents No. 5 to 7. Compliance report should also be submitted to this Court through Deputy Registrar (Judl).

(R.A.) Revision dismissed

PLJ 2017 Lahore 111 (DB)

Present: Sayyed Mazahar Ali Akbar Naqvi and Mazhar Iqbal Sidhu, JJ.

EHSAN ULLAH alias EHSANA--Petitioner

versus

STATE and others--Respondents

W.P. No. 6138 of 2008, decided on 20.9.2016.

Constitution of Pakistan, 1973--

----Art. 199--Criminal Procedure Code, (V of 1898), S. 439--Juvenile Justice System Ordinance, (XXII of 2000), S. 7--Pakistan Penal Code, (XLV of 1860), S. 299--Constitutional petition--Plea of juvenility plea taken at belated stage has no legal sanctity--Validity--There is no cavil to that proposition that provisions of Section 7 of Juvenile Justice System Ordinance, 2000 require detailed inquiry, which has to be carried out in letter and spirit but at same time High Court cannot lose sight of fact that matter in hand pertains to year 1993--If at all petitioner, who claims to be juvenile at time of occurrence, was not seized with Juvenile Justice System Ordinance, 2000 because it was not promulgated at that time, then admittedly provisions of Section 299, PPC, were part of PPC, and very much available to petitioner--Unfortunately all opportunities were squarely missed while dealing with matter, hence plea of juvenility taken at a belated stage after lapse of fourteen years means nothing--Plea of juvenility has been taken at a belated stage just to frustrate proceedings subsequent to final adjudication before Supreme Court--Filing of instant petition is nothing but to prolong proceedings, hence same having no legal force, hereby stands dismissed. [Pp. 114 & 115] A, B & C

2004 SCMR 1861, 1871, 2007 SCMR 758 & 2009 SCMR 399, ref.

M/s. Ghulam Farid Sanotra and Muhammad Ashfaq Mughal, Advocates for Petitioner.

Ch. Akbar Ali Kung, Asstt. A.G. for State.

Mr. Waqar-ul-Hassan Butt, Advocate for Complainant.

Date of hearing: 20.9.2016.

Order

Through the instant constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, read with Section 439, Cr.P.C. the petitioner has sought indulgence of this Court with the following prayer:--

“It is, therefore, prayed that by accepting this writ petition impugned order dated 29.01.2008 may kindly be declared illegal and without any lawful authority and remand the case with direction to Addl. Sessions Judge, Sialkot/Juvenile Court to determine the following:--

(i) Whether the convict Ehsan Ullah alias Ehsana son of Muhammad, was minor at the time of registration of FIR No. 46/1993, dated 21.02.1993 under Sections 302, 324, 34, PPC, Police Station Mautra, District Sialkot and after completing the inquiry inform its result to Secretary Home Department, Government of the Punjab, Lahore/Government of Pakistan, Ministry of Interior Islamabad with reference to Letter No. 3/78/2005-Ptns. dated 9.8.2007.

(ii) Any other appropriate relief which this Hon’ble Court deems fit and proper in the circumstances of the case may also be awarded.”

During the course of proceedings, amended petition was filed before this Court with certain amendments calling into question the vires of order dated 29.01.2008, passed by learned Additional Sessions Judge, Sialkot; whereby application of the petitioner in terms of Section 7 of the Juvenile Justice System Ordinance, 2000, was dismissed.

1. Facts of the case succinctly required for determination of the petition in hand are that the petitioner was booked in a case FIR No. 46/1993, dated 21.02.1993, offence under Sections 302, 324, 34, PPC, Police Station Mautra, District Sialkot. The matter firstly came up before the learned trial Court constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975, wherein the learned trial Court after recording the prosecution evidence and fulfilling other legal requirements found the accusations correct and vide judgment dated 15.05.1994 sentenced the petitioner to death on two counts. The judgment of the learned trial Court was assailed before the High Court through filing Crl. Appeal No. 292/1994, which was dismissed vide judgment 07.10.2002. Subsequently, the vires of the judgment of the High Court were challenged before the august Supreme Court of Pakistan through filing Crl. PLA No. 169-L/2003 and 57/2004; wherein the final adjudication was carried out on 15.03.2005, however, it met the same fate. Thereafter the petitioner filed mercy petition before the President of Pakistan in terms of Article 45 of the Constitution, which was referred to the Home Secretary for its adjudication in the spirit of Section 7 of the Juvenile Justice System Ordinance, 2000. The petitioner filed an application before the learned Additional Sessions Judge for conducting inquiry under Section 7 of the Juvenile Justice System Ordinance, 2000, and the learned trial Court while adjudicating application filed as per provisions mentioned above dismissed the same summarily, which is under challenge through the instant constitutional petition.

2. Learned counsel for the petitioner while addressing the Court contends that the impugned order is bad-in-law having been passed in a stereotype manner without adverting to real facts of the case. Further contends that in fact the learned trial Court was under obligation to adjudicate the application of the petitioner in letter and spirit and the requisite inquiry was pre-requisite for determining the question whether the petitioner was juvenile at the time of occurrence or not. He further states that the petitioner had produced two documents viz. birth certificate and school leaving certificate qua his age but the learned trial Court has not paid any heed to determine its genuineness and decided the matter in a hasty manner. It is finally argued that as the learned trial Court has not decided the lis as per dictates of justice, therefore, the instant petition is maintainable and deserves success on this score alone.

3. On the other hand learned Law Officer assisted by learned counsel for the complainant has forcefully argued that the matter relates to the year 1993 while the plea of juvenility was taken by the petitioner/convict when he had already exhausted all the remedies available under the law. Further contends that even the benefit of the proclamation issued by the President of Pakistan dated 13.12.2001 was available to the petitioner during the pendency of his appeal before the High Court, which was decided on 07.10.2002 while his appeal before august Supreme Court of Pakistan was finally adjudicated on 15.03.2005, however, that was not pressed before two appellate forums. It is further brought into the notice of the Court that on both the occasions it was very much within the domain of the petitioner to advance the plea of minority, however, the same was not agitated for the reasons best known to the petitioner. It is further argued that even the petitioner has not taken this plea while recording his statement under Section 342, Cr.P.C. Finally it is argued that any plea taken at a belated stage has no legal sanctity, as such the same requires to be repelled.

4. We have heard the arguments advanced by learned counsel for the parties and gone through the record available on file.

5. There is no cavil to this proposition that the provisions of Section 7 of the Juvenile Justice System Ordinance, 2000 require detailed inquiry, which has to be carried out in letter and spirit but at the same time this Court cannot lose sight of the fact that the matter in hand pertains to the year 1993. If at all the petitioner, who claims to be juvenile at the time of occurrence, was not seized with the Juvenile Justice System Ordinance, 2000 because it was not promulgated at that time, then admittedly provisions of Section 299, PPC, were part of the Pakistan Penal Code, 1860, and very much available to the petitioner. Apart from this the outcome of the conviction was result of a full-fledged trial by a Court constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975, where the petitioner had not taken the plea of minority in terms of Section 299, PPC. Moreover, during the course of proceedings of trial, the petitioner while making his statement under Section 342, Cr.P.C. had not pleaded this plea. So much so the petitioner had preferred appeal before the High Court challenging his conviction and sentence during the pendency of which Juvenile Justice System Ordinance, 2000, stood promulgated, however, this plea was not taken even at the time of final adjudication of the appeal. Furthermore the petitioner assailed the vires of the judgment of the High Court before the august Supreme Court of Pakistan where it was again open to the petitioner to address the question of minority/juvenility under Section 299, PPC, as well as, Section 7 of the Juvenile Justice System Ordinance, 2000, but unfortunately all opportunities were squarely missed while dealing with the matter, hence the plea of juvenility taken at a belated stage after the lapse of fourteen years means nothing. It seems that the plea of juvenility has been taken at a belated stage just to frustrate the proceedings subsequent to final adjudication before the august Supreme Court of Pakistan. There is plethora of judgments of the Apex Court that plea taken at a belated stage has no legal sanctity. Guidance in this regard is sought from the pronouncements of the august Supreme Court of Pakistan in the cases of Rehmat Ullah alias Raja vs. Home Secretary, Punjab, Lahore and others (2004 SCMR 1861), Muhammad Jamil vs. The State and 3 others (2004 SCMR 1871), Sarfraz alias Shaffa vs. The State and 3 others (2007 SCMR 758) and Ahmed Nawaz vs. The State (2009 SCMR 399).

6. In sequel to what has been discussed above, by scanning the material available on record from every angle and seeking guidance from the judgments of the Apex Court referred to above, we are of the considered view that filing of the instant petition is nothing but to

prolong the proceedings, hence the same having no legal force, hereby stands dismissed.

(R.A.) Petition dismissed

PLJ 2017 Lahore 115 [Multan Bench Multan]

Present: Ali Baqar Najafi, J.

Mst. AFSHAN BIBI--Petitioner

versus

JUDGE FAMILY COURT/GUARDIAN JUDGE KABIRWALA DISTRICT KHANEWAL and 2 others--Respondents

W.P. No. 15670 of 2011, decided 14.4.2016.

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

----S. 25--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Custody of minors--Mother of minors has contracted second marriage with stranger--Custody of minors was given to grandmother depriving mother--Challenge to--Contracting second marriage ipso fecto is not enough to deprive grand mother from custody of minors--Even marriage of the mother with a stranger who is not within the prohibitory degree of daughter has also not been held to be a sole ground depriving mother from custody--Minors never lived with grand mother so there is no question of developing the affinity with her--Conduct of father himself deprived him from custody of minors as he neither paid the maintenance to them nor supported grand mother in the claim for custody of the minors--Welfare of the minor lies with the mother, therefore, petition was allowed. [P. 117] A, B & C

Haji Muhammad Tariq Aziz Khokhar,Advocate for Petitioner.

Mr. Najaf Ali Chawan, Advocate for Respondent No. 3.

Date of hearing: 14.4.2016.

Order

Through this constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, orders dated 28.03.2011 passed by Guardian Court and dated 16.09.2011 passed by learned Addl. District Judge are challenged whereby custody of the minors namely, Zaiba Mai, now aged 8 ½ years and Arshad Ali, now aged 7½ years was given to the grandmother/Respondent No. 3 depriving the petitioner on the ground that mother of the minors as well as the son of Respondent No. 3 the father of the minors have re-married and settled in their own lives.

1. Arguments heard. Record perused.

2. Respondent No. 3 filed an application under Section 25 of the Guardian and Wards Act for custody of above said minors on 08.02.2010 taking the grounds that since petitioner has contracted second marriage with a stranger and her son i.e. father of the minors is confined in civil prison, and on account of relations established by petitioner with one Muhammad Khalid son of Haq Nawaz, whom she had got married later on 09.12.2009, she has deprived herself from the right of custody of the minors. The written statement was submitted by the petitioner denying the allegations made in the petition. After framing of issues, statement of Respondent No. 3/Mst. Saban Mai was recorded as AW-1, in which she has admitted that her son namely, Manzoor Hussain, has returned after serving the civil prison and has also shown her lack of knowledge about the payment of any maintenance by the father to the minors. AW-2, Allah Ditta, who is the grandfather of the minors also supports the case of Respondent No. 3. However, Manzoor Hussain, preferred not to appear in support of the petition for custody of the minors. On the other hand, petitioner appeared as RW-1 denying the factum of second marriage as according to her she was divorced 3 years prior to her statement recorded in the Court on 08.11.2010. She deposed that children are studying in the school. RW-2 is Ali Akhtar, who admitted that in execution of decree for recovery of maintenance allowance Manzoor Hussain, spent one year in the civil prison. AW-3 is Ashiq Ali, Nikah Khawan, who has produced the record showing Nikah of the petitioner with one Muhammad Khalid, contracted on 09.12.2009.

3. The Courts below have allowed the application under Section 25 of the Guardian and Wards Act merely on the ground that petitioner has contracted second marriage. Both the Courts erred in law while holding that right of Hazanat is to be based upon preferential order to mother then the mother’s mother, mother’s father, sister and sister’s daughter etc. In fact this order is to be followed in the absence of the father. This principle does not apply during the lifetime of the real father. As Manzoor Hussain, has neither supported the case of the petitioner nor claimed any custody of the minors, it appears that grandmother has filed custody petition in her own individual capacity which, I am afraid, is not a valid ground for the custody of the minors.

4. Contracting second marriage ipso fecto is not enough to deprive Respondent No. 3 from custody of the minors. Even marriage of the mother with a stranger who is not within the prohibitory degree of the daughter has also not been held to be a sole ground depriving the mother from the custody. It is also not denied that Manzoor Kussain, was a judgment debtor, and in execution of decree for the recovery of maintenance allowance he was sent to civil prison and on his return after one year, he preferred not to appear before the Court. The guardianship petition may have been filed in its counter blast.

5. It is also not denied that minors never lived with Respondent No. 3 so there is no question of developing the affinity with her. The conduct of father himself deprived him from custody of the minors as he neither paid the maintenance to them nor supported Respondent No. 3 in the claim for custody of the minors. The judgments cited by the respondent’s side are not relevant.

6. Keeping in view all the facts, the welfare of the minor lies with the mother, therefore, this petition is allowed and the impugned orders passed by the Courts below are set aside.

(R.A.) Petition allowed

PLJ 2017 Lahore 117 (DB)

Present: Abdul Sami Khan and James Joseph, JJ.

AAMIR SALEEM (Ex-SHO) P.S. SABZAZAR--Petitioner

versus

HOME SECRETARY, PUNJAB through Government of Punjab, Lahore and 3 others--Respondents

W.P. No. 24703 of 2014, decided on 16.9.2015.

Constitution of Pakistan, 1973--

----Art. 199--Pakistan Penal Code, (XLV of 1860), Ss. 302, 34, 324, 353, 186, 148, 149, 290, 427, 506-B & 109--Arms Ordinance, (XX of 1965), Ss. 13/20/65--Anti-Terrorism Act, (XXVII of 1997), Ss. 7 & 19(2)(5)--Constitutional petition--Investigation conducted by JIT--Anti-encroachment gang staff--Removing barriers/barricades--Death of 14 persons and injured--Judicial Commission--Fare and independent investigation is statutory right--Obligation of police--Validity--Courts can neither directly interfere nor influence investigation officers in investigation--It is statutory duty of police to investigate into commission of a cognizable offence on basis of report having been made to that effect--It is settled law that after submission of challan FIR cannot be quashed--It goes without saying that after submission of challan in trial Court an accused person deems himself to be innocent and falsely implicated and he wishes to avoid rigours of a trial then law has provided him a remedy under Sections 249-A/265-K, Cr.P.C. to seek his premature acquittal if charge against him is groundless or there is no probability of his conviction--Out of so many accused, only one person/petitioner has approached High Court in that regard--It is settled law that FIR cannot be quashed partially.

[Pp. 119 & 120] A, B & C

Mr. Waqar Hassan Meer, Advocate for Petitioner.

Mr. Sattar Sahil, AAG for Respondents.

Date of hearing: 16.9.2015.

Order

Through this petition in terms of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioner has called in question the investigation conducted by JIT so far in case No. 510/2014 dated 17.6.2014 offence under Section 302, 34, 324, 353, 186, 148, 149, 290, 427, 506-B, 109, PPC read with Section 13.10.65 Arms Ordinance, read with Section 7 of Anti-Terrorism Act, 1997, Police Station Faisal Town, Lahore be declared null and void ab-initio, without lawful authority and the Respondent No. 2 be directed to make available the report of learned Judicial Commission to the public as well as the petitioner.

1. Precisely, the germane events forming the background of this petition are that on 17.6.2014, Assistant Commissioner Model Town alongwith his Anti-Encroachment Gang Staff went to Idara-Minhaj-ul-Quran for allegedly removing barriers/barricades, allegedly facing some resistance requisitioned District Police as well as Elite Force etc. and while removing barriers an arson took place and allegedly 14 persons were done to death and about 83 persons were injured and the criminal machinery was set into motion on the eve of lodging FIR No. 510/2014 dated 17.6.2014 offence under Sections 302, 324, 353, 186, 148, 149, 290, 427, 506-B, 109, PPC read with Section 13.20.65 Arms Ordinance, read with Section 7 Anti-Terrorism Act, 1997 at police Station Faisal Town, Lahore. Later on the formal investigation was taken off and JIT was formed and the petitioner was arrested and his physical remand was obtained from 14.7.2014 to 20.8.2014 and the learned trial Court did not notice that the interim report was not submitted within 30 working days as mandated under Section 19(2) (5) of Anti-Terrorism Act, 1997 and that the Court of its own expedited its order without the issuance of prior notice and sent the petitioner to judicial remand on 20.8.2014 after about 38 days. That on 28.8.2011 interim report was submitted in the learned trial Court without mentioning Sections 302 and 319, PPC but at the foot of report Section 319, PPC finds mention. That in the meanwhile another FIR No. 696/2014 at Police Station Faisal Town for the same occurrence was got registered. That to dig out the real facts the learned Judicial Commission was formed in this case and the learned Judicial Commission concluded its report and the petitioner also prayed that the Respondent No. 2 be directed to make report of learned Judicial Commission available to public and the petitioner.

2. We have heard the learned counsel for the petitioner and also the learned Additional Advocate-General at considerable length and have gone through the documents appended with this petition. It has been noticed by this Court that on the written complaint of Inspector Rizwan Sadiq Hashmi, former SHO Police Station Faisal Town Lahore with regard to the incident dated 17.6.2014 of Minhaj-ul-Quran, a case FIR No. 510/2014 dated 17.6.2014, u/S. 302, 34, 324, 353, 186, 148, 149, 290, 191, 427, 506-B, 109, PPC read with 13.20.65 Arms Ordinance & 13-B/20.65 Arms Ordinance and 7 Anti-Terrorism Act, 1997 was registered. Before the constitution of JIT, the police arrested 52 persons on the spot and recovered different kinds of weapons and empties from the spot. The Joint Investigation Team (JIT) was constituted u/S. 19-A Anti-Terrorism Act, 1997 by the Government of Punjab headed by Addl: IG Special Branch Punjab Lahore vide order No. SO(SPL-CTS)11-1/2014(Lahore) dated 21.6.2014 and No. SO(SPL-CTS)11-1/2014(Lahore), dated 28.6.2014. The officers of ISI, MI and IB were also nominated the members of JIT by the Government of Punjab and JIT started the investigation on 27.6.2014 and JIT fixed liability on 9 police officials. The fare and independent investigation is statutory right and at the same time obligation of police. The Courts can neither directly interfere nor influence investigation officers in investigation. It is the statutory duty of the police to investigate into the commission of a cognizable offence on the basis of report having been made to that effect. The challan against the petitioner has been sent to the Court of competent jurisdiction on 16.9.2014. It is settled law that after submission of challan before the learned trial Court FIR cannot be quashed and the fate of the case and of the accused persons challaned therein is to be determined by the trial Court itself. It goes without saying that after submission of challan in the trial Court an accused person deems himself to be innocent and falsely implicated and he wishes to avoid the rigours of a trial then the law has provided him a remedy under Sections 249-A/265-K, Cr.P.C. to seek his premature acquittal if the

charge against him is groundless or there is no probability of his conviction. There is another factor in this case that out of so many accused, only one person/petitioner has approached this Court in this regard. It is settled law that FIR cannot be quashed partially. In this regard reliance can safely be placed upon PLD 2013 SC 401.

1. So far as the question of report of judicial commission is concerned that matter is pending before larger bench of this Court, so we are not intended to pass any order in this regard.

2. For what has been discussed above we have not seen any merits in this petition and the same is hereby dismissed.

(R.A.) Petition dismissed

PLJ 2017 Lahore 120

Present: Shahid Bilal Hassan, J.

FERYAL ALI GAUHAR and 5 others--Petitioners

versus

ENVIRONMENTAL PROTECTION AGENCY, PUNJAB through Director General--Respondents

W.P. No. 22520 of 2015, decided on 11.3.2016.

Punjab Environmental Protection Act, 1997--

----S. 21(9) & 22--Punjab Environmental Protection Rules, 2012, Scope--Lahore Development Authority Rules, 2014, Rr. 37(2)(3)--Lahore Development Act, 1975, Ss. 2, 3(c), 6, 14-A and 46--Constitution of Pakistan, 1973, Arts. 189 & 199--Constitutional petition--Environmental clearance--Construction of multi storey hotel--Right of clean and healthy environmental--Jurisdiction--Environmental tribunal--Maintainability--Alternative remedies--Petitioners had adequate and efficacious alternate remedies available with them of filing appeal before Tribunal, if they felt themselves to be aggrieved of impugned order--Therefore, when petitioners have alternate efficacious remedy available with them, they ought to have approached said forums instead of approaching High Court seeking invocation of extraordinary constitutional jurisdiction--It is a matter of easement rights, for which proper remedy is available under law, petitioners are aggrieved of approval granting order by department, they may avail efficacious and alternate remedy of filing appeal before proper forum, which has even been mentioned by petitioners in their constitutional petition--Appeal was dismissed. [Pp. 124 & 126] A, B & C

2015 SCMR 1739, 2007 MLD 1884 Kar., 2015 CLC 1295 Lahore, 2009 CLD 682 Kar., PLD 2015 Lah. 272, 2013 SCMR 591, 2015 CLC 978, 2015 YLR 1522 Lah, 2015 SCMR 1739, 1996 SCMR 1165, PLD 2010 SC 691, 2014 SCMR 1015, PLD 2006 SC 53, rel.

Mr. Waqas Ahmad Mir, Advocate for Petitioners.

Ch. Tanveer Akhtar, Advocate for Respondent No. 3.

Mr. Jawad Hassan and Mr. Ahmad Rafay Alam, Advocates for Respondent No. 8.

Mian Ejaz Majeed, D.D. (L&E), E.P.A., Punjab.

Mr. Shah Faisal Aziz, Asstt.D, E.P.A.

Mr. Sittar Sahil, A.A.G.

Mr. Jahanzeb Inam, Advocate for Respondent No. 5.

Date of hearing: 1.3.2016.

Order

This petition raises issues with regard to right of clean and healthy environment, environmental approvals affecting air, land, buildings and structures as well as social and economic conditions allegedly affecting community life of petitioners, etc. In this constitution petition, the petitioners have called into question the decision dated 07.11.2014 issued by Respondent No. 1/Environmental Protection Agency, Punjab contending the same in glare violation of procedural and substantive requirements of relevant environmental legislation, through which environmental clearance/approval for construction of a multi-storey hotel at Sundar Das Road, Zaman Park, Lahore has been granted. The petitioners brought all glaring illegalities committed while issuance clearing/approval for construction of a multi-storey hotel to the attention of Environmental Protection Agency, Town Municipal Administration, Gulberg Town and Lahore Development Authority/Respondents No. 1, 3 & 5 respectively. However, the respondents have ignored the letters written by the petitioners and failed to provide any response. It has been further contended that petitioners cannot be sent to the Environmental Tribunal of the Province since the same is ultra-vires, the Constitution, being in violation of Articles 175(3), 202 & 203 of the Constitution of Islamic Republic of Pakistan, 1973. Therefore, the petitioners have filed the instant constitutional petition.

1. Learned counsel for the petitioners while reiterating the grounds urged in the instant constitutional petition, in detail, has prayed for acceptance of the same and declare:--

• The impugned Decision of EPA as illegal and without legal effect, furthermore declare impugned decision as violating Petitioners’ right to a safe and healthy environment;

• EPA as a de-funct body till Advisory Committees are constituted and restrain it from granting any environmental approvals till such time;

• Exclusion of Petitions/public from any approval process regarding environment (EIA and/or IEE) as illegal, void and without legal effect;

• Any provision of IEE and EIA Regulations, 2000 that go beyond PEPA 1997 as ultra vires the Act;

• Rules 37(2) and (3) of the LDA Rules 2014 as illegal and unconstitutional;

• Sections 2, 3(c), 6, 14-A and 46 of LDA Act as unconstitutional;

• Any commercialization permissions regarding the Plot and/or Sundar Das Road by LDA, vide approval dated 25-11-2014, as illegal and unconstitutional;

• The Traffic Impact Assessment Study Report, dated 06.11.2014, prepared by Traffic TEPA, as illegal, void and without legal effect;

• Suspend, in the interim, the operation and effect of Impugned Decision;

• Restrain TMA Gulberg Town, in the interim, from allowing any work to commence on the Plot; and

• Environmental Tribunal as illegal and unconstitutional since it violates Articles 175(3), 202 and 203 of the Constitution.

Relies on Lahore Development Authority through D.-G. and others vs. Ms. Imrana Tiwana and others 2015 SCMR 1739, L.T-Col. Nawabzada Muhammad Amir Khan vs. The Controller of Estate Duty PLD 1961 Supreme Court 119, Gatron (Industries) Limited vs. Government of Pakistan and others 1999 SCMR 1072, Khalid Mehmood vs. Collector of Customs, Customs House, Lahore 1999 SCMR 1881, Farzand Raza Naqvi and 5 others vs. Muhammad Din through Legal Heirs and others 2004 SCMR 400. Moulvi Saif Ullah Memon and another vs. Province of Sindh and others 2011 CLC 1004, Muhammad Irshad and another vs. Tehsil Municipal Administration through Tehsil Nazim, Lodhran and 3 others 2006 CLC 1902, St. Judge’s Secondary School and others vs. Employees old-age Benefits Institution and another 1988 PLC 746, Gulistan Textile Mills Ltd vs. Pakistan 1983 CLC 1474 Karachi, Messrs S.A. Haroon and others vs. The Collector of Customs, Karachi, and the Federation of Pakistan PLD 1959 Supreme Court (Pak). 177, Mirza Muhammad Iqbal and others vs. Government of Punjab PLD 1999 Lahore 109 & Pakistan through Secretary Finance, Islamabad and 5 others vs. Aryan Petro Chemicals Industries (PVT), Ltd, Peshawar and others 2003 SCMR 370.

1. Nay-saying the submissions made by the learned counsel for the petitioners, the learned counsel appearing on behalf of the Respondent No. 8 accompanying the representatives of other respondents has argued that petitioners have adequate, efficacious and alternative remedies of approaching the Environmental Protection Tribunal, Lahore. Therefore, the instant writ petition being not maintainable may be dismissed. Relies on Lahore Development Authority through D.-G. and others vs. Ms. Imrana Tiwana and others 2015 SCMR 1739, Qazi Ali Athar, Advocate vs. Zawar Ahmed Khan Sherwani and 3 others 2007 MLD 1884-Karachi, Idress Ahmed Aftab vs. Government of Punjab, and others 2015 CLC 1295-Lahore, Ms. Salma Iqbal Chundrigar and others vs. Federation of Pakistan through Secretary Ministry of Environmental Protection, Islamabad and others 2009 CLD 682-Karachi, Bilal Akbar Bhatti vs. Election Tribunal, Multan and 15 others PLD 2015 Lahore 272, Suo Motu Case No. 13 of 2010, 2013 SCMR 591-Supreme Court of Pakistan, Nayyer Khan vs. Government of Pakistan through Secretary Ministry of Defence, Rawalpindi, Cantt. and others 2015 CLC 978, Syeda Abida Hussain Imam and others vs. The Province of Punjab through Secretary and others 2015 YLR 1522-Lahore.

2. Learned Assistant Advocate General has argued that instant writ petition is not maintainable for the reasons that Section 22 of the Punjab Environmental Protection Act, 1997 provides remedy of appeal against the order called into question through the instant writ petition before the Environmental Tribunal and Section 21(9) of the Act ibid bars jurisdiction of any other Court and Environmental Tribunal has exclusive jurisdiction for addressing such matters. Even, it is settled principle of law that where a statute provides appeal against an order, constitutional petition is not maintainable. He further argued that when law prescribed a certain procedure to do things then its compliance is mandatory. Relies on Lahore Development Authority through D.-G. and others vs. Ms. Imrana Tiwana and others 2015 SCMR 1739, Syed Saghir Ahmad Naqvi v. Province of Sindh through Chief Secretary, S&GAD. Karachi and another 1996 SCMR 1165, Rai Ashraf and others v. Muhammad Saleem Bhatti and others PLD 2010 Supreme Court 691, Zia-ur-Rehman v. Syed Ahmed Hussain and others 2014 SCMR 1015 and Ghulam Farid alias Farida v. The State PLD 2006 Supreme Court 53.

3. Heard.

4. A Court can proceed in a matter when it enjoys jurisdiction of dealing such controversy, brought before it, and when position speaks otherwise the acts done and proceedings carried on by such Court are nothing but an illegality and nullity in the eye of law. Furthermore, it is settled proposition of law that when Law prescribed a certain procedure to do things then its compliance is mandatory.

5. In the case in hand, the petitioners have adequate and efficacious alternate remedies available with them of filing appeal before the Environmental Tribunal, if they feel themselves to be aggrieved of impugned order; because Section 43 of the Amended Lahore Development Authority Act, 1975 provides ‘no Court or Authority shall have jurisdiction to question the legality of anything done or any action taken under [it], by or at the instance of the [LDA].’ Rule 27 of the LDA Land Use Rules, 2014, speaks a remedy of appeal before the Government of Punjab in case of any grievance germane to any order passed by an officer under LDA Act and Rules.

6. Apart from the above, Section 22 of the Punjab Environmental Protection Act, 1997 runs as ‘Any person aggrieved by any order or direction of the [EPA, Punjab] under any provisions of this Act’ may file an appeal to the Environmental Protection Tribunal, which is functioning at present in full strength with a Chairperson, Technical and General Members, after its establishment under the Punjab Environmental Protection Tribunal Rules, 2012.

Therefore, when the petitioners have alternate efficacious remedy available with them, they ought to have approached the said forums instead of approaching this Court seeking invocation of extraordinary constitutional jurisdiction. Reliance is placed on Order dated 28th July, 2015 passed by this Court in W.P. No. 14679 of 2015 (Akram Cotton Mills v. Government of Punjab), wherein it was observed that:

‘The petitioner has not availed the alternative remedy that is available to him under the statutory tribunal constituted under the Punjab Environment Protection Act, 1997. As a result, the petitioner’s writ petition is liable to be dismissed in reliance on the following judgments where remedies were available to supposed aggrieved persons under the law. The following judgments utilize the principle where writ petitions were not maintainable due to availability of alternate remedies under tribunals:

Idrees Ahmed Aftab v. Government of Punjab (2015 CLC1295)

Salma Iqbal Chundrigar v. Federation of Pakistan (2009 CLD 682)

Bilal Akbar Bhatti v. Election Tribunal Multan (PLD 2015 Lahore 272)

Faiz Bakhsh and others v. Deputy Commissioner/Land Acquisition, Bahawalpur (2006 SCMR 219) Shahjahan v. Amjad Ali (2000 SCMR 88)’

In this regard further assistance has been sought from LahoreDevelopment Authority through D.-G. and others vs. Ms. Imrana Tiwana and others 2015 SCMR 1739, wherein it has been held in reason (v) mentioned under Paragraph No. 94:

‘(v)………………………………

Moreover, the right of appeal and further remedies on the merits of the EIA approval available under the Pakistan Environmental Protection Act, 1997, have not been availed by the objecting respondents. The EIA cannot be struck down upon presumption or mere apprehension.’

1. It is stance of the respondents that they have followed the rules and regulations in granting approval for construction of Hotel in question, whereas the petitioners claim is otherwise and when law provides specific remedy of assailing any order passed by EPA, Punjab through appeal, the petitioners instead of approaching this Court ought to have knocked the door of a proper forum, which is Punjab Environmental Protection Tribunal, governed under the Punjab Environmental Protection (Amendment) Act, 2012. Moreso, the petitioners have failed to bring on record as to in what manner they would be considered or regarded as aggrieved person as has been observed in Nayyar Khan v. Government of Pakistan through Secretary Ministry of Defence, Rawalpindi Cantt. and others 2015 CLC 978-Lahore, which reads:

‘To satisfy the requirements of an “aggrieved person” in public interest litigation under Article 199 of the Constitution, the petitioner needs to disclose a personal interest in the performance of legal duty owed to him which if not performed would result in the loss of some personal benefit or advantage or curtailment of a privilege in liberty or franchise.’

At the most, whole the scenario and picture of the circumstances lead this Court to the conclusion that it is a matter of easement rights, for which the proper remedy is available under law, or if, as stated above, the petitioners are aggrieved of approval granting order by the respondents, they may avail efficacious and alternate remedy of filing appeal before the proper forum, which has even been mentioned by the petitioners in their constitutional petition.

1. So far as prayer with regard to declaring Rule 37(2) and (3) of the Lahore Development Authority Rules, 2014 as illegal and unconstitutional as well as Sections 2, 3(c), 6, 14-A and 46 of the Lahore Development Authority Act as unconstitutional, is concerned, suffice it to say that same question has been decided once and for all by the August Supreme of Pakistan while passing judgment reported as Lahore Development Authority through D.-G. and others vs. Ms. Imrana Tiwana and others 2015 SCMR 1739, wherein it has invariably been held:

‘62. There is no doubt that, as correctly noted by the High Court, the amendments made in the LDA Act, 1975 give LDA the authority to act, to undertake projects and to carry out work, which under the PLGA 2013 is within the Local Government domain. The functions of the Municipal Corporations under Section 87 of PLGA 2013 and that of the LDA under the LDA Act, 1975 overlap.

1. As the test for striking down statues is not met the provisions of the LDA Act, 1975 could not have been struck down by the High Court. At the same time, this Court is mindful of the fact that if the provision of the LDA Act, 1975 are interpreted as giving the LDA authority to overlap and override the Local Government and Section 46 is given full sway, it would result in a Local Government that is devoid of all authority be it political, administrative or financial.

2. The solution, therefore, lies in reading the provisions of the two statutes in harmony. The LDA Act, 1975 is to be regarded as an enabling statue. It allows LDA to act in support of and to complement the Local Government in the exercise of its functions and responsibilities. Where the Local Government is unable to act because of a lack of resources or capacity, or where the project is of such a nature that it spills over from the territory of one Local Government to another or where the size of the Project is beyond the financial capacity of the Local Government to execute; that LDA can step in an work with the Local Government. Economies of scale, spillovers and effectiveness are merely illustrative of the situations in which the LDA can act in the exercise of its functions to carry out developmental and other work and perform its statutory functions. There are not exhaustive. Life and time may throw up other situations and create circumstances which may warrant LDA action to be taken in consultation with the Local Government within the purview of PLGA, 2013. Closing the categories today will freeze growth and retard progress.

3. Likewise the Provincial Government, in the exercise of its legislative and executive authority can aid and support the Local Government. The Provincial Government is also not prevented from taking the initiative for the growth and development of the people and the Province in the exercise of its legislative and executive authority. The exercise of such authority must, however, be in the public interest. It should encourage institutional grown and harmony. It must be in consultation and with the participation of the Local Government. To complement is not to take over.

4. We are conscious that at times a Local Government too may decline consent for extraneous reasons. Where such consent is unreasonably withheld or denied for considerations other that in the public interest the Provincial Government would be at liberty to act in the public interest while constantly drawing guidance from the provisions of the PLGA, 2013 as for the time being in force. Indeed the Courts too can step in and interfere with such a failure to grant consent.

5. Viewed in the light the LDA Act, 1975 and the legislative and executive authority of the Province are not inconsistent with Article 140-A of the Constitution. These create a framework where the Provincial and Local Government and authorities of the Provincial Government work together in the public interest.

6. That being so what should one make of Section 46 of the LDA Act, 1975 which gives its provisions overriding effect. Its use as a tool to demolish the PLGA would be repugnant to Article 140-A. To strike it down would mean that even where the provisions of the LDA Act conflict with provisions of other statutes it would not override those. That cannot be the

legislativeintent. We are of the view that Section 46 would apply only in the event of a conflict or inconsistency between its provisions and that of other statutes. It would have no application and cannot be used to make the LDA Act to otherwise stall PLGA 2013 when substantive factual or policy grounds are unavailable. When harmoniously construed, as stated above, there is no conflict between the provisions of the PLGA, 2013 and the LDA Act, 1975.’

In presence of above enlightenment and illumination, there is no need to further discuss issue with regard to declaration of said provisions of law as illegal and unconstitutional, because verdict of Apex Court of the country has binding effect upon this Court as provided under Article 189 of the Constitution of Islamic Republic of Pakistan.

1. So far as the case law relied upon by the learned counsel for the petitioners, except Lahore Development Authority through D.-G. and others vs. Ms. Imrana Tiwana and others 2015 SCMR 1739, has no relevance to the facts and circumstances of the case in hand, rather same are distinguishable; therefore, it does not render any assistance or help to the petitioners’ stance.

2. For the foregoing reasons and while placing reliance on the judgments supra as well as on Suo Motu Case No. 13 of 2010, 2013 SCMR 591-Supreme Court of Pakistan, the instant writ petition being not maintainable, because of remedy available with the petitioners in shape of filing appeal before the Punjab Environmental Protection Tribunal, stands dismissed.

(R.A.) Appeal dismissed

PLJ 2017 Lahore 128 (DB)

Present: Mazhar Iqbal Sidhu and Farrukh Gulzar Awan, JJ.

SardarMASTAN SINGH ARORA--Petitioner

versus

PRESIDING JUDGE etc.--Respondents

W.P. No. 40376 of 2015, decided on 5.1.2016.

Constitution of Pakistan, 1973--

----Art. 199--Pakistan Penal Code, (XLV of 1860), Ss. 147, 149, 186, 295, 440, 506 & 123-A--Constitutional petition--Desecrated sanctity of Gurdwara Sahib--Sentiments of Sikh’s religion--Caused colossal loss to Sikhs Evacuee Trust Properties--No specific role was attributed--Prima facie--Relief of bail cannot be withheld as punishment and law discountenances keeping a person behind bars unendingly to punish him in advance--It is an adage of law since yore that an accused is presumed to be innocent unless is proved otherwise--Deliberating to facts and circumstances fastidiously Court is of humble view that a case of further inquiry as to guilt of petitioner is made out in his favour--Bail was allowed.

[Pp. 132 & 133] A & B

M/s. Ch. Muhammad Anawr Zahid and Mr. Muhammad Ahsan Bhoon, Advocates for Petitioner.

Mr. Muhammad Tariq Bashir Awan, Advocate for Complainant.

Mr. Muhammad Akhlaq, DPG for Respondents.

Date of hearing: 5.1.2016.

Order

Sardar Mastan Singh Arora, the petitioner was apprehended to prison, Sheikhupura in a case registered vide FIR No. 400/15 dated 18.12.2015 at P.S. City Nankana Sahib under Sections 147/149/186/ 295/440/506 and 123-A, PPC on the complaint of Respondent No. 7 Sardar Sham Singh and now by instant petition instituted under Art. 199 of the Constitution of Islamic Republic of Pakistan has impetrated his letting out of jail.

1. Tersely the prosecution case is that on 25.11.2015 at about 10.30 a.m., on the 457th “birth anniversary” of “Guru Nanak Dev Ji Maharaj” being celebrated, the complainant has invited Peer Hasnaat Shah, worthy State Minister for Religious Affairs and Interfaith Harmony, Muhammad Siddique-ul-Farooq, worthy Chairman Evacuee Trust Property Board were there to welcome them alongwith members of Sikh, GurdwaraParbandhak Committee, Nankana Sahib were present in the office, there unheraldedly 20/25 Yatris led by petitioner (Ex-Pardhan Pakistan Sikh GurdwaraParbandhak Committee) assembled in front of portal of the Gurdwara Sahib chanted inciting slogans by displaying Karpans and by gate-crashing besought upon security officials trounced them with Dandas, by brandishing Karpans also intimidated them, caused damage to the doors, windowpanes and allegedly reviled Yatris over there. It has further been alleged that petitioner and his accomplices intentionally and dishonestly desecrated the sanctity of the GurdwaraSahib, injured religious feelings/ sentiments of Sikh’s Religion and the respectable members of the welcoming committee succeeded in coming out of the office, thereafter, the petitioner and his particeps-criminis took over stage to proceed with the religious congregation by replacing worthy Gopal Singh Chawala alias Gopi, (stage Secretary) then also raised promotional slogans addressing the Yatris present there. It has further been alleged that Govt. intended to restrict the procession (Nagar Kirtan Palki Sahib) upto Gurdwara Tanbu Sahib but the procession would be led upto the said Gurdwara at any cost and also criticized security measures of the Government. It has also been alleged that, if any, untoward incident takes place, the members of Gurdwara Parbandhak Committee and the Govt. would be responsible also convulsively chanted while leading the Palki Sahib procession to Gurdwara Kiyara Sahib. The petitioner and his co-accused allegedly put the lives of thousands Yatrees (visitants) in danger.

2. Learned counsel for the petitioner has exquisitely submitted that the alleged incident took place on 25.11.2015 at about 10.30 a.m. whereas the matter was reported to the police on 18.12.2015 by a delay of 23 days without any reasonable perspicuity. Learned counsel has also attempted to establish prima facie the ulterior motive of the complainant for the registration of a false case, submits that earlierly the petitioner was Pardhan Pakistan Sikh Gurdwara Parbandhak Committee, tried to bring to justice certain persons who had allegedly caused colossal loss to the Sikhs Evacuee Trust Properties by getting a case registered vide FIR No. 116 dated 25.10.2013 under Sections 420/468/471/109, PPC read with Section 5(ii) of the Prevention of Corruption Act, 1947 at P.S. FIA/ACC circle/sub-circle Lahore as being one of the complainants, the said case is yet to be decided by the Court of law; fostering to this fact learned counsel has also referred to Suo Moto Case No. 9 of 2011, Constitution Petition No. 93 of 2012 and Crl. Original Petition No. 71 of 2013 all decided by the Hon’ble Supreme Court of Pakistan vide a composite order dated 25.7.2013 in its chronological Paragraph No. 19 at Sr. No. 12 Sardar Sham Singh, the complainant has been found one of the delinquents while the petitioner alongwith others were the initiators. Learned counsel has maintained that no specific role has been attributed to the petitioner; no medical evidence exists to prima facie prove trouncing but Karpans remain religiously sacred instruments cannot be treated and used weapons of offence by any stretch of imagination and the record shows reticence as to possessing of any broken windowpanes or the doors etc. Further submitted that offence u/S. 440, PPC is not made out whereas at the maximum Part-I of Section 506, PPC is allegedly made out, the same is bailable whereas offences under Sections 295/186/147, PPC are also bailable while offence u/S. 149, PPC has to be interpreted with the principal offence whereas Section 123-A, PPC has been levelled maliciously by epicaricacy to enhance the gravity of occurrence and to turn to The Pakistan Protection Act, 2014 implying to the Special Courts’ jurisdiction established under the Anti-Terrorism Act, 1997 while the same too is not constituted owing to absence of any evidence prejudicial to the safety or ideology of Pakistan and endangering the sovereignty of adoring homeland. At the last but not the least, it has been submitted that the petitioner was apprehended on 19.12.2015, since then he is in jail and is no more required for further investigation whereas he is octogenarian, therefore, all facts and circumstances of the case, prima face constitute a case for the grant of bail in favour of the petitioner, thus, instant petition may be allowed.

3. Learned Addl. P.G. assisted by learned counsel for the complainant has pedagogically opposed the submissions and submitted that the petitioner and his co-accused has expressed/uttered disrespect to the religious congregation notwithstanding knowing all, he himself remained Ex-Pardhan Pakistan Sikh Gurdwara Parbandhak Committee, whereas the premises of incident being highly sacred have been disregarded/desecrated whereas the accused-cum-sloganors took the law in their hands created law and order situation over annual rituals being participated by the Yatrees of Pakistan and other worldwide and the actions displaced by petitioner and co-accused have born bad image and now the investigation has been taken up by the Joint Investigation Team (J.I.T) is yet to be completed it, therefore, at this early stage, petitioner does not deserve to be let out of jail, again would create law & order situation there while the homeland is facing critical situation (circumstances) because of terrorism in country, all law enforcing agencies inclusive of the Army have indulged in controlling and eradicating the same. Concluding arguments, it has been pointed out that a compact disk prepared in incident by automation establishes prima facie convulsion undertaken the petitioner being miscreant and turbulent deserves no relief.

Learned counsel for the complainant supplementing to arguments of learned Law officer has submitted that PWs have supported the FIR’s version in their statements recorded u/S. 161, Cr.P.C.; partway investigation, the petitioner has been found guilty; the offence u/S. 123-A, PPC does not only fall within the prohibitory clause of Section 497, Cr.P.C. but also implicates the applicability of Protection of Pakistan Act, 2014 being a Scheduled one, therefore, the instant petition may be dismissed.

1. Busily tripartite arguments heard. Record perused intently.

2. Incident allegedly befell on 25.11.2015 at 10.30 a.m. whereas was reported to the police on 18.12.2015 with the delay of 23 days, has not been explained by the prosecution whereas prior to the alleged incident, the petitioner had initiated legal proceedings being one of the complainants against certain persons who had caused colossal loss to the Sikh’s Evacuee Trust Properties vide FIR No. 116 dated 25.10.2013 under Sections 420/468/471/109, PPC read with Section 5 (ii) of the Prevention of Corruption Act, 1947 at P.S. FIA/ACC, circle/sub-circle, Lahore. The order of the Hon’ble Supreme Court of Pakistan delivered on 25.7.2013 in Suo Moto Case No. 9 of 2011, Constitution Petition No. 93 of 2012 and Crl. Original Petition No. 71 of 2013 is also considered as primal to the FIR. These facts and circumstances prima facie are impressive for malicious involvement of the petitioner and have also been noticed concatenated with the arguments of learned counsel for the petitioner. Statements of the PWs are supporting to FIR. The Court has failed to explore medical evidence in this case of any of the alleged injured persons and no memo. of recovery of the broken items such as doors windowpanes etc. Contextually, prima facie the narrative of the accusal does not constitute offence u/S. 123-A, PPC because of absence of any specific evidence prejudicial to the safety and ideology of Pakistan and endangering its sovereignty, in this backdrop, levelling of the same somewhat expressive malicious intent of the prosecution to enhance the gravity of occurrence to bring the case in the Schedule of Protection of Pakistan Act, 2014. Rationally and noetically to all facts and circumstances viewing the annual ritual day and religious congregation, it may not be expected from such persons (like petitioner) being unhollowed/impertinent who himself remained Ex-Pardhan Pakistan Sikh Gurdwara Parbandhak Committee of Sikhs community as it is expected and desired to keep and continue utmost respect, affection, loyalty to the sacreds of his (sic) jail since 19.12.2015. It may be apt to mention that petitioner was not apprehended at the spot. Old age itself innervated infirmity and makes feeblish. Relief of bail cannot not be withheld as punishment and law discountenances keeping a person behind the bars unendingly to punish him in advance. We are proud to be democratic country governed by supremacy of Constitution as well as rules of law. Homeland’s Constitution enviably secures fundamental rights of the subjects enshrined therein vide Chapter-I which consisting 28 Articles commencing Articles from 08 to 28 and it is worth mentioning to refer Art.9 of the Constitution infra:--

3. Security of person.--No person shall be deprived of life or liberty save in accordance with law.

Again Art. 14 of the same described as follows:-

1. Inviolability of dignity of man, etc.--

(1) The dignity of man and, subject to law, the privacy of home, shall be inviolable.

(2) -----------------------

It would be lucrative to pen down Art.20 of the Constitution as under:--

1. Freedom to profess religion and to manage religious institutions.--Subject to law, public order and morality.

(a) Every citizen shall have the right to profess, practise and propagate his religions; and

(b) Every religious denomination and every sect thereof shall have the right to establish, maintain and manage its religious institutions.

Article 25 speaks as follows:--

1. Equality of citizens.--

(1) All citizens are equal before law and are entitled to equal protection of law.

(2) There shall be no discrimination on the basis of sex.

(3) Nothing in this Article shall prevent the State from making any special provision for the protection of women and children.

Withal Art.27 explains as under:-

1. Safeguard against discrimination in services.--

(1) No citizen otherwise qualified for appointment in the service of Pakistan shall be discriminated against in respect of any such appointment on the ground only of race, religions, caste, sex, residence or place of birth:

Provided---------------------------

Provided---------------------------

Provided---------------------------

(2) Nothing---------------------------

1. It is an adage of law since yore that an accused is presumed to be innocent unless is proved otherwise. Deliberating to the facts and circumstances fastidiously the Court is of the humble view that a case of further inquiry as to guilt of the petitioner is made out in his favour.

The Court has also been guided by the case of Kishore Kumar v. The State (1999 P.Cr.L.J 1736), therefore, sequently, instant petition is yielded in acceptance and petitioner is granted bail provided his submission of bail bonds in the sum of Rs. 10,00,000/- (ten lacs) with one surety in the like amount to the satisfaction of DR (J) of this Court who shall transmit the said bail bonds to the learned trial Court.

(R.A.) Bail allowed

PLJ 2017 Lahore 134 (DB)

Present: Shahid Jamil Khan and Muhammad Sajid Mehmood Sethi, JJ.

M/s. SARWAR & COMPANY (PVT.) LIMITED--Petitioner

versus

APPELLATE TRIBUNAL INLAND REVENUE, etc.--Respondents

P.T.R. No. 71 of 2014, 364 of 366 of 2013 and 477 to 482 of 2015, heard on 28.4.2016.

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

----Ss. 18(1)(a), 21, 169 & 221--Clause (126-F)--Tax reference--Tax payers--Interpretation--Controversy revolving around inter-pretation of clause (126-F)--Exemption clause was introduced in Part I of second schedule of Ordinance through Finance Act, 2010--Affected area of K.P.K, FATA and PATA--Imposition of tax and computation of income--Validity--Under Presumptive Tax Regime tax deducted/withheld on certain transactions is taken, by fiction of law, as final discharge of tax liability--Section 169(2) of Ordinance specifically provides that such income shall not be chargeable under any head of income for purpose of computing taxable income--Allowances of expenditures incurred in deriving income are specifically excluded; set of deductible allowances, losses and tax credits are also not permissible under Section 169 of Ordinance--Interpretation given by department to words “profit and gains” is plausible and convincing--While interpreting an exemption clause, plain language is to be considered; implications are not allowed; conditions stipulated in exemption clause must be fulfilled; and in case of any doubt or two possible interpretations, one favouring chargeability of tax is to be employed. [Pp. 140, 141 & 143] A, B & C

PLD 1991 SC 963, 2005 PTD 2131, 1999 SCMR 412, ref.

Rana Muhammad Afzal, Advocate for Applicants (in PTR Nos. 69, 70 & 71 of 2014).

Mr. Ibrar Ahmad, Advocate for Applicants/department (in connected PTR Nos. 364, 365 & 366 of 2013).

Ch. Muhammad Yasin Zahid and Liaquat Ali Chaudhry, Advocates for Applicants department (in connected ITR No. 477 to 482 of 2015).

M/s. Muhammad Iqbal Hashmi and M.M. Akram, Advocates for Respondents (in connected PTR Nos. 364, 365 & 366 of 2013).

Mr. Muhammad Ajmal Khan, Advocate for Respondents (in connected ITR Nos. 477, 478 & 479 of 2015).

Dr. Ishtiaq Ahmad Khan, Commissioner Inland Revenue, LTU, Lahore.

Mr. Muhammad Yasir Pirzada, Additional Commissioner Inland Revenue, Lahore.

Date of hearing: 28.4.2016.

Judgment

Shahid Jamil Khan, J.--As common legal issues, under similar facts are involved, therefore, this judgment shall decide the instant Tax Reference, as well as, PTR Nos. 69 & 70 of 2014, PTR Nos. 364, 365 & 366 of 2013, ITR Nos. 477, 478, 479, 480, 481 & 482 of 2015, arising out of four independent orders dated 28.02.2014, 27.08.2013 and 22.06.2015 passed, respectively, by Appellate Tribunal Inland Revenue (“Appellate Tribunal”).

PTR Nos. 69, 70, 71 of 2014 are filed by taxpayers, while PTR Nos. 364, 365 & 366 of 2013 and ITR Nos. 477 to 482 of 2015 are filed by the department.

1. Taxpayers, in the tax years 2010, 2011 & 2012, derived income from execution of construction contracts and other civil engineering projects. Head offices of taxpayers were at Lahore, however, the civil construction work was executed in affected areas of Khyber Pakhtunkhwa, FATA and PATA. The controversy, leading to the legal proposition under consideration, hinges upon interpretation of Clause (126-F), which was introduced in Part I of Second Schedule of the Income Tax Ordinance, 2001 (“the Ordinance”) through Finance Act, 2010. It provided exemption for three years (from tax year, 2010) to those taxpayers who were located in the affected areas of Khyber Pakhtunkhwa, FATA and PATA.

2. Taxpayers revised their returns/statements to get benefit of exemption provided under this Clause, however learned counsels for the taxpayers have not denied that they were covered by the provisions of Section 153(1)(c) of the Ordinance, therefore, fell under Final Tax Regime (“FIR”).

3. Notices under Section 122 of the Ordinance were issued, inter alia, for reason that the taxpayers were not entitled to concession under this Clause for being taxed under FTR. In Taxation Officer’s opinion, provisions of the Clause contained the words “profits and gains”, therefore, the concession was meant only for Normal Tax Regime (“NTR”).

4. In PTR Nos. 69, 70 & 71 of 2014 seven questions are framed, out of which following questions, which directly relate to the controversy, are pressed for our opinion:--

“iii. Whether the explanatory letter of FBR vide C. No. 4(4)ITP/2010 dated 07.06.2013 can be applied retrospectively.

v. Whether the learned Tribunal justified to declare that no refund is admissible on contract receipts when the appellant was not chargeable to tax in respect of those receipts being covered under Clause (126-F).

vii. Whether, in view of exemption certificate issued by Commissioner, the Additional Commissioner was empowered to undo the effect of exemption certificate issued to the appellant.”

In PTR Nos. 364, 365 & 366 of 2013, out of seven questions framed, following questions, which directly related to the controversy, are pressed for our opinion:

“1. Whether under the facts and circumstances of the case the learned ATIR was justified to delete minimum tax liability u/S. 113 on the ground that charging of minimum tax liability was not confronted to the taxpayer, whereas, payment/s of tax u/S. 113 was the statutory obligation of taxpayer? Furthermore findings on Section 113 are duly dilated upon?

1. Whether, the learned ATIR was justified to endorsed the order of CIR (Appeals) that the provisions of clause (126-F) of Part I of Second Schedule also grant exemption from tax on contractual receipts under Section 153(1)(c) of the Income Tax Ordinance, 2001 which otherwise fall under final tax regime and were not exempted by the statute in expressed manner?

In ITR Nos. 477 to 482 of 2015, following question is relevant to the proposition under consideration:

“(i) Whether the contractual receipts of a contractor would fall under clause 126-F who according to law is liable to be assessed under FTR/PTR and its receipts are taxable under clause (C) of sub-section (1) of Section 153 of the Income Tax Ordinance, 2001 subject to tax 6% as full and final tax?

1. Mr. Muhammad Yasir Pirzada, Additional Commissioner Inland Revenue, Lahore, assisted by learned counsel for the department, has argued the cases, with permission of the Court. He has read Section 18(1)(a) of the Ordinance, to submit that “profits and gains” of any business are taxable as business income under normal law; whereas under Section 169(2)(a), the income falling under FTR shall not chargeable to tax under any head of income in computing the taxable income of the person. Further submits that Appellate Tribunal, while holding that taxpayer was entitled to exemption under Clause (126-F), has not given reasons. Also submits that even minimum tax under Section 113 is not paid, if at all, it is accepted without considering that applicant was entitled to the exemption.

2. Mr. Muhammad Iqbal Hashmi, Advocate appearing for respondents taxpayers has raised preliminary objection that six appeals were decided through impugned order dated 27.08.2013, whereas department has filed only three applications. He explains that cross-appeals were filed against order of Commissioner Appeals; taxpayer had challenged levy of minimum tax on the ground that it was not levied in the order under Section 122(5-A), therefore, Commissioner Appeals could not have levied it. The department in PTR Nos. 364, 365 & 366 of 2013 has challenged Commissioner Appeals’ Order for allowing exemption under Clause (126-F). Mr. Ibrar Ahmad, Advocate for the applicants department confronted with the situation, submits that though the impugned order as a whole is challenged, yet the emphasis is on the findings of Appellate Tribunal regarding exemption under Clause (126-F).

Since, learned counsel for the applicants department in PTR Nos. 364, 365 & 366 of 2013 has failed to establish that findings of Appellate Tribunal on levy of minimum tax under Section 113 is challenged, therefore, we decline to exercise our jurisdiction to the extent of Question No. (1) regarding levy of minimum tax in PTR Nos. 364, 365 & 366 of 2013.

1. Replying to the arguments on remaining questions of law, Mr. Muhammad Iqbal Hashmi, Advocate submits that under proviso to Clause (126-F), manufacturers and suppliers of Cement, Sugar, Beverages and Cigarettes are excluded specifically from purview of the Clause. He explains that some of the sectors mentioned in the proviso are covered under FTR. He concludes that such exclusion is made regarding the income, covered under FTR. Placing reliance on Dr. Muhammad Anwar Kurd and 2 others v. The State through Regional Accountability Bureau, Quetta (2011 SCMR 1560) he submits; though business sector of the taxpayers, in this case, mentioned in the proviso, however, it encompasses their case on the analogy of being under FTR He also submits that “profits and gains” are covered under FTR and has placed reliance on a judgment by Division Bench of this Court in Messrs Rashid & Co. v. Commissioner of Income Tax, Zone-A, Lahore (2005 PTD 1790), Dr. Muhammad Anwar Kurd and 2 others v. The State through Regional Accountability Bureau, Quetta (2011 SCMR 1560). Explains that income under Presumptive Tax Regime (“PTR”) is also “profit and gains”. For this, he has placed reliance on Messrs Rashid & Co., v. Commissioner of Income Tax, Zone-A, Lahore and others (2005 PTD 1790).

2. Mr. M. M. Akram Advocate has also argued for the respondent taxpayers and submits that presumptive tax is charged in lieu of income tax, hence presumptive tax shall also be exempted from Clause (126-F) if income under normal law is exempted. He has placed reliance on paragraph No. 35 of the judgment in Messrs Elahi Cotton Mills Ltd. and others v. Federation of Pakistan, through Secretary M/o Finance, Islamabad and 6 others (PLD 1997 Supreme Court 582). Elaborating his arguments, he submits that as per judgment in Elahi Cotton Mills’ Case (supra), the presumptive tax is charged in lieu of income under Entry 52 of Fourth Schedule of the Constitution of the Islamic Republic of Pakistan, 1973 (“Constitution”). Explains; if income is exempted, then tax cannot be charged on a tax which is being charged in lieu of income. Reliance is placed on Commissioner of Income Tax/Wealth Tax v. Messrs Ellcot Spinning Mills Ltd. (2008 PTD 1401).

By referring to phrase “profit and gains” he disagree with the interpretation given by the Revenue. Explaining his argument; submits that this phrase has been used in number of places, other than Section 18, in the Ordinance. Concludes; that analogy drawn by the Revenue is misconceived. Also submits that only company is excluded from being taxed in FTR under sub-section (3) of Section 153 of the Ordinance.

1. Mr. Muhammad Ajmal Khan, Advocate for the respondents taxpayers in ITR Nos. 477, 478 & 479 of 2015 has adopted the arguments made by Mr. Muhammad Iqbal Hashmi, Advocate that specific exclusion under proviso to Clause 126-F includes all remaining taxpayers. In support, he has placed reliance on recent judgment dated 05.04.2016 by Hon’ble Supreme Court of Pakistan in Civil Appeals Nos. 1084 to 1098 of 2008.

2. Rana Muhammad Afzal, Advocate appearing for applicants taxpayers in PTR Nos. 69, 70 & 71 of 2014 has assailed order dated 28.02.2014 by Appellate Tribunal, whereby the applicants taxpayers were denied exemption under Clause (126-F). He submits that the show-cause notice under Section 122, the cases represented by him were defective, as the Taxation Officer had relied on a circular by Federal Board of Revenue (“FBR”) instead of issuing it on its own opinion. Argues; that FBR is not competent to interpret any provision of law, hence very initiation of the proceedings are liable to be declared unlawful. Further argues that in presence of an exemption certificate, in favour of the taxpayers, order under Section 122(5-A) could not have been passed. He has, however, adopted the arguments made by M/s. Muhammad Iqbal Hashmi & M. M. Akram, Advocates.

3. Replying to the arguments; Mr. Muhammad Yasir Pirzada, Additional Commissioner Inland Revenue, Lahore has read proviso to Clause (126-F) and has placed emphasis on the phrase “manufacturers and suppliers” used in the proviso.to submit that business sectors mentioned in the proviso are not covered under FTR. Further submits that Part IV of Second Schedule is meant for exemption from provisions; had legislature intended to exempt income under FTR, Section 53 read with Section 169 could have been notified under Part IV.

He has placed reliance on Uch Power (Pvt.) Ltd. and others v. Income Tax Appellate Tribunal and others (2010 PTD 1809) to submit that words “profit and gains” have already been defined conclusively by Hon’ble Supreme Court and declared that phrase “profit and gains” refers to business income only. Concludes; if arguments advanced by Mr. M. M. Akram, Advocate are accepted, then whole scheme of the Ordinance, as well as, FTR shall collapse because taxpayers would also claim allowances and exemptions under this regime. Responding to the arguments on ‘exemption certificate’, he submits that the certificate is issued on tentative assessment, which does preclude quasi-judicial authorities under the Ordinance, from a different opinion in exercise of power under Section 122 of the Ordinance, at a later stage. In response to the arguments by Rana Muhammad Afzal, Advocate, he submits that same cannot be entertained in advisory jurisdiction because this issue has neither being dilated upon by Appellate Tribunal nor any question is framed on it. In support he has referred to the findings by Appellate Tribunal in Paragraph No. 25 and has supported the reasons given.

1. Heard, record perused.

2. After perusal of impugned orders and record in light of the arguments, we shall examine, first, the pivotal controversy revolving around interpretation of the Clause (126-F). The exemption clause was introduced in Part I of Second Schedule of the Ordinance through Finance Act, 2010. It exempted those taxpayers who were located in the affected areas of Khyber Pakhtunkhwa, FATA and PATA. The Clause is reproduced for facility:

“(126-F) Profits and gains derived by a taxpayer located in the most affected and moderately affected areas of Khyber Pakhtunkhwa, FATA and PATA for a period of three years starting from the tax year 2010:

Provided that this concession shall not be available to the manufacturers and suppliers of cement, sugar, beverages and cigarettes.”

A cursory reading of the Clause shows that a concession from payment of tax, for three years is provided to those taxpayers, who are located in the affected areas of Khyber Pakhtunkwa, FATA and PATA. There is an obvious intent of encouraging the taxpayers for carrying out their business activities in the affected areas. Case of the taxpayers is that they are also located in the affected areas, therefore, the exemption could not be denied by a restricted interpretation of the phrase ‘profits and gains’.

1. It is an undisputed fact that taxpayers, in case under consideration, were being subjected to tax on their contractual receipts under Section 153(1)(c) of the Ordinance i.e., FTR. Department has not controverted the fact that the taxpayers are located in affected areas of FATA and PATA. Department by laying emphasis on the phrase “profit and gains” has interpreted the exemption clause by excluding taxpayers falling in PTR.

2. Under Presumptive Tax Regime the tax deducted/withheld on certain transactions is taken, by fiction of law, as final discharge of tax liability. Sub-section (2) of Section 169 of the Ordinance specifically provides that such income shall not be chargeable under any head of income for the purpose of computing taxable income. Allowances of expenditures incurred in deriving income are specifically excluded; set of deductible allowances, losses and tax credits are also not permissible under Section 169 of the Ordinance. Refund of tax collected or deducted is specifically prohibited in Clause (e) of Section 169(2), which is reproduced hereunder for ready reference:

“(e) there shall be no refund of the tax collected or deducted unless the tax so collected or deducted is in excess of the amount for which the taxpayer is chargeable under this Ordinance.”

Undeniably, the taxpayers in these cases were subject to final tax under Section 169(1)(b), being relevant is also reproduced hereunder:

“(b) the tax required to be deducted is a final tax under sub-section (3) of Section 151, sub-section (1-B) or sub-section (1-BB) of Section 152, sub-section (3) of Section 153, sub-section (1-AAA) of Section 152, sub-section (4) of Section 154, sub-section (3) of Section 156, sub-section (1) and (2) of Section 156-A or sub-section (3) of Section 233 on the income from which is was deductible.”

1. Conversely, for normal taxation, taxable income is classified under different heads of Section 11 of the Ordinance. This classification, as per sub-section (1), is for the purposes of imposition of tax and computation of other income. Profits and gains from any business are chargeable to tax under the head “Income from Business” under Section 18(1)(a) of the Ordinance. Section 20 deals with the deductions allowable for calculating the ‘profits and gains’ and computation of income chargeable under head “Income from Business”; whereas Section 21 deals with the deductions which are not allowed under the Statute for the same purpose.

Collective reading of the provisions, discussed supra, would lead to conclusion that for taxation under FTR in view of Section 169 of the Ordinance, no question of “profit and gains” earned by a taxpayer arises because the tax withheld/deducted on certain transactions is taken as final discharge of tax liability without entering into an inquiry that which expenditure was allowable, under Section 20, or which was not, under Section 21. In our opinion, the interpretation given by department to the words “profit and gains” is plausible and convincing. We are in agreement with the arguments by Mr. Muhammad Yasir Pirzada, Additional Commissioner Inland Revenue, Lahore that a specific exemption, from tax under Section 169, could have been given to the taxpayers if legislature had so intended.

1. We have also examined few judgments by the Apex Court of this country, wherein principles for interpreting an exemption clause are enshrined. In Elahi Cotton Mills Case (supra), it was ruled, “Under sub-section (1) of Section 14 of the Income Tax Ordinance, 1979 the Central Board of Revenue has been given the power to grant exemption in respect of the income or class of income or person or classes of persons specified in the Second Schedule including exemption from tax under the Ordinance subject to the conditions and to the extent specified therein or to exempt from the operation of any provision of the Ordinance subject to the conditions and to the extent specified therein. The Federal Government has also been given power under sub-section (2) of Section 40 to make amendment in the Second Schedule subject to the proviso that such amendment shall be placed before the National Assembly.”

[emphasis supplied]

In Messrs Humayun Ltd. v. Pakistan and others (PLD 1991 Supreme Court 963), the basic principles and rational of exemption clause is emphasis by reproducing an excerpt from the case Bank of Commerce v. Tennesse (161 US 134), which is as under;

“Taxes being the sole means by which sovereignties can maintain their existence, any claim on the part of anyone to be exempt from the full payment of his share of taxes on any portion of his property must on that account be clearly defined and founded on plain language. There must be no doubt or ambiguity in the language used upon which the claim to the exemption is founded. It has been said that a well-founded doubt is fatal to the claim; no implication will be indulged in for the purpose of construing the language used as giving the claim for the exemption, where such claim is not founded upon the plain and clearly expressed intention of the taxing power”.

In Karachi Development Authority v. Central Board of Revenue through Members Central Excise and Land Customs, Islamabad and, others (2005 PTD 2131), the Hon’ble Apex Court held, “Taxing statutes were construed strictly in favour of subjects whereas the provisions relating to exemptions were construed in favour of Government as Taxing authority and the Government, while exercising the power of exemption of duty on a particular article, might impose such condition, limitation and restriction as it deemed fit.”

1. Necessary corollary is that, while interpreting an exemption clause, plain language is to be considered; implications are not allowed; conditions stipulated in the exemption clause must be fulfilled; and in case of any doubt or two possible interpretations, the one favouring chargeability of tax is to be employed. It is also principle that exemption presupposes the chargeability, the judgment in Collector of Customs and others v. Ravi Spinning Ltd. and others (1999 SCMR 412) can be referred.

2. We have also examined judgment in Uch Power’s Case relied upon by the Revenue. In that case interpretation of Clause 176 of Part-I of Second Schedule to Repealed Income Tax Ordinance, 1979 (“Repealed Ordinance”) was involved. Interpretation of the phrase “profit and gains”, derived by an assessee (now taxpayer) from Electric Power Generation Project was involved. The taxpayer, in that case, claimed exemption on interest earned from the funds lying with the bank. Since the interest falling under Section 30 of the Repealed Ordinance was liable to be taxed under the head “Income from other Sources”, hence “profit and gains” were interpreted and it was held that income taxable under Section 30 was not exempted and only business income from project under Section 18 of the Ordinance was exempted.

3. We do not agree with the submission from taxpayer’s side that this case is distinguishable. In our opinion Uch Power’s Case is not only relevant but is binding on us, in view of Article 189 of the Constitution. For this opinion, we fortified by following words of wisdom as couched in paragraph No. 16 of the judgment, which is reproduced hereunder:

“16. Reverting to the other set of twenty two petitions placed in Categories (b) to (e); keeping in view the submissions of the learned counsel in this regard: we have carefully perused the case record and the relevant provisions of the Ordinance, which goes to show that by virtue of Section 15 of the Ordinance, for computation of total income, law makers have bifurcated all incomes into six heads, which are covered by Sections 16 (salary), 17 (interest on securities), 19 (house property), 22 (income from business or profession), 27 (capital gains) and 30 (from other sources) of the Ordinance. From the plain reading of these sections, it is evident that it is only the language of Section 22, which carries the words “profits and gains” and for the purpose of allowable deductions, income generated under this head is regulated by Section 23, while inadmissible deductions have been categorized in Section 24. Relating to the controversy in hand, the other relevant section is Section 30, which is the residuary section and covers income from all other sources, which are not covered by Sections 16, 17, 19, 22 and 27. Thus a combined reading of these provisions of the Ordinance makes it abundantly clear that use of words “profits and gains” under clause 176 is only with reference to the income generated by the companies, which is covered by Section 22 of the Ordinance. Admittedly, interest earned by the petitioner companies on their bank investments/savings accounts was an income covered by Section 30 of the Ordinance and thus not covered by exemption under clause 176 ibid. Similarly, the use of word “project” in clause 176 (ibid) has brought no significant change in this clear legal position. Thus, the arguments based on such premises are also devoid of force. Not only the Division Bench of Islamabad High Court has rightly examined this aspect of the case and decided the same against the petitioners/appellants/assessees but the findings of the findings of the Income Tax Appellate Tribunal in its judgments in the case of petitioner/appellant companies, following the same view, are unexceptionable.”

1. To crystalize the opinion arrived at, supra, we intend to resettle the question of law, before answering the proposition of law, in following words:

“Whether under the facts and circumstances of the case, taxpayers falling under Presumptive Tax Regime are entitled to exemption under Section 126-F?”

Our answer to the resettled question is in Negative. The petitions filed by the department are decided in its favour, whereas petitions filed by the taxpayers are decided against them.

1. After the opinion, ibid, most of the arguments need not to be attended. However, if any ancillary issue remains unattended, the same can be agitated by the concerned party before the Appellate Tribunal, through an application under Section 221 of the Ordinance. If so approached, the Appellate Tribunal shall decide the same, keeping in view the opinion in this case.

2. Office shall send a copy of this order under seal of the Court to the Appellate Tribunal Inland Revenue as per Section 133(5) of the Income Tax Ordinance, 2001.

(R.A.) Order accordingly

PLJ 2017 Lahore 145

Present: Shams Mehmood Mirza, J.

M/s. BHATTI BROTHERS RICE MILLS--Plaintiff

versus

SUMMIT BANK LIMITED--Defendant

C.O.S. No. 1 of 2012 and C.M. No. 207-B of 2015, decided on 16.3.2016.

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

----O. II, R. 2 & O. VII, R. 11--Rejection of plaint--Suit was barred--Recovery of damages, redemption of properties, cancellation of documents, rendition of accounts was founded on different cause of action--Validity--Plaintiffs were entitled at time of filing of first suit to claim all reliefs, mentioned in subsequent suit--Plaintiffs admitted having suffered huge losses and also claimed for redemption of mortgaged properties and for rendition of accounts and yet necessary reliefs flowing out of cause of action were not claimed although plaintiff was entitled to same--If plaintiff omits to sue for all claims and reliefs to which he is entitled in respect of a cause of action, he will be precluded to sue for same in second suit--Plaintiffs omitted to sue for reliefs/claims flowing out of cause of action at time of filing of first suit thereby relinquishing same--Application was allowed. [P. 146] A, B & C

Mr. Akhtar Javid, Advocate for Plaintiff.

Mr. Akif Majeed, Advocate for Defendants.

Date of hearing: 16.3.2016.

Order

This is an application filed under Order VII Rule 11, CPC by the defendant bank for rejection of plaint on the ground that suit is barred under Order II Rule 2, CPC.

1. It is stated that the plaintiffs had earlier instituted a suit against the defendant bank before the banking Court on 20.09.2011 on the same set of facts as has been alleged in the present suit. It is further stated that said suit on 17.07.2013 was disposed of on the statement recorded by learned counsel for the parties. It was according contended that the present suit was barred under the provision of Order II Rule 2, CPC.

2. Learned counsel for the plaintiff submitted that the suit earlier filed before the banking Court was for permanently restraining the defendant bank from taking coercive measures against the plaintiff for the recovery of the amounts and that the same was disposed of on the conceding statement of the learned counsel for the defendant bank. It was accordingly urged that the present suit which sought recovery of damages, redemption of properties, cancellation of documents, rendition of accounts etc was founded on a different cause of action and was not hit by the principle laid down in Order II Rule 2, CPC.

3. Argument heard and record perused.

4. A comparison of the plaints in both the suits shows that the facts alleged therein are similar and identical in nature. It is thus clear that plaintiffs were entitled at the time of filing of the first suit to claim all the reliefs, mentioned in the subsequent suit. In the first suit, the plaintiffs admitted having suffered huge losses and also claimed to have asked the defendant bank for redemption of the mortgaged properties and for rendition of accounts and yet the necessary reliefs flowing out of the cause of action were not claimed although the plaintiff was entitled to the same. In terms of Order II Rule 2, CPC, if the plaintiff omits to sue for all the claims and reliefs to which he is entitled in respect of a cause of action, he will be precluded to sue for the same in the second suit. The plaintiffs omitted to sue for the reliefs/claims flowing out of the cause of action at the time of filing of the first suit thereby relinquishing the same. They are, therefore, precluded to sue for the same in the second suit.

5. In the result, this application is allowed and the plaint is rejected in terms of Order VII Rule 11, CPC.

(R.A.) Application allowed

PLJ 2017 Lahore 147 (DB)

Present: Muhammad Tariq Abbasi and Mirza Viqas Rauf, JJ.

WASSI ULLAH KHAN--Petitioner

versus

STATE, etc.--Respondents

W.P. No. 19737 of 2015, decided on 15.2.2016.

Constitution of Pakistan, 1973--

----Art. 199--Bail in accountability Court, refusal of--Allegations of misappropriation/embezzlement on pretext of trading of share in stock exchange--Reference against accused--Civil liabilities--Entitlement of bail--Validity--Mere pendency of proceedings under Companies Ordinance, 1984 are not sufficient to absolve petitioner from criminal liability which is otherwise made out from allegations levelled in Reference--Even otherwise, it is well settled principle of law that civil and criminal proceedings can proceed side by side--At bail stage, only tentative assessment is required and deeper appreciation is not permissible--Petitioner is involved in alleged offence and he being director of company had cheated public at large--Petition was dismissed. [P. 148] A & B

Malik Akhtar Javaid, Advocate for Petitioner.

Mr. Arif Mehmood Rana, Addl. D.P.G. alongwith Dy. Director NAB for Respondents.

Mr. Umair Mansoor, Advocate for Respondent No. 5.

Mr. Muhammad Ali Malik, Advocate for Respondent No. 6.

Date of hearing: 15.2.2016.

Order

Through instant petition, the petitioner namely Wassi Ullah Khan seeks post arrest bail in Accountability Court Reference No. 52 of 2015.

1. Precisely the allegations against the petitioner are that being Director of M/s. Wassi Securities (SMC) Private Limited, he mis-appropriated/embezzled Rs. 67.76 million from the accounts of general public on the pretext of trading of shares in Lahore Stock Exchange.

2. Learned counsel for the petitioner submitted that no offence is made out against the petitioner under the NAB Ordinance, 1999. He added that the petitioner has already moved winding up petition and in view of the pendency of the same, NAB authorities are precluded to proceed against the petitioner. Learned counsel maintained that at the most, a civil liability is made out from the allegations levelled in the Reference and the petitioner is entitled to be released on bail as he is suffering behind the bars before his guilt is proved.

3. Conversely, learned Addl. Deputy Prosecutor General appearing on behalf of NAB has vehemently opposed the instant petition.

4. We have heard the learned counsel for the petitioner as, well as learned Addl. Deputy Prosecutor General for NAB and also perused the record with their assistance.

5. The prosecution against the petitioner was started on the complaint of Chairman, Securities and Exchange Commission of Pakistan on the allegations of mis-appropriation/embezzlement of Rs. 52.48 millions from the accounts of general public on the pretext of trading of shares in the Lahore Stock Exchange. The inquiry was initiated on 19.05.2014 whereafter the same was upgraded into investigation on 16.10.2014. The petitioner was arrested on 20.5.2015 and after investigation, Reference No. 52/2015 was filed in the Accountability Court Lahore against the petitioner for an amount of Rs. 67.76 millions as total liability of the petitioner. As per record, there are 152 claimants who have voiced their grievance before the NAB authorities on account of alleged embezzlement committed by the petitioner being Director of M/s. Wassi Securities (Pvt.) Limited. The petitioner though has filed company petition for winding up of his company before the learned Company Judge. However, the same was admittedly dismissed by way of order dated 25.11.2015, against which, an Intra Court Appeal was filed which is statedly pending. Mere pendency of proceedings under the Companies Ordinance, 1984 are not sufficient to absolve the petitioner from the criminal liability which is otherwise made out from the allegations levelled in the Reference.

6. Even otherwise, it is well settled principle of law that civil and criminal proceedings can proceed side by side. At bail stage, only tentative assessment is required and deeper appreciation is not permissible. There are sufficient reasons to believe that the petitioner is involved in the alleged offence and he being the Director of the Company had cheated the public-at-large.

7. In view of the above discussion, we are not inclined to allow the instant petition. Consequently, the same is dismissed.

(R.A.) Petition dismissed

PLJ 2017 Lahore 149

Present: Jawad Hassan, J.

ALLAH DITTA--Petitioner

versus

PROVINCE OF PUNJAB and 2 others--Respondents

W.P. No. 36681 of 2015, decided on 29.12.2016.

Punjab Employees Efficiency, Discipline & Accountability Act, 2006--

----Ss. 4(b)(iii), 10 (1) & 13--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--Dismissal order as well as order for rejection of departmental appeal--Recommendations of inquiry officer--Penalty of forfeiture of service--Show-cause notice--Defectiveness of inquiry--No prosecution witnesses were recorded--Discriminatory attitude--Question of--Whether I.O has violated requirements for not cross-examining witness and whether competent authority has passed order without procedure--Validtiy--If it is presumed that dismissal order has been passed while disagreeing with recommendations of I.O. competent authority must have recorded specific reasons of his disbelieving recommendations of I.O. by elaborating defences--Competent authority has recorded all submissions of petitioner but while passing dismissal order has not given specific findings for enhancing penalty from forfeiture of past service for two years to dismissal from service and has also ignored facts of defectiveness of inquiry--Since competent authority has passed a non-speaking order which is without any examining and recording of reasons as envisaged under Section 13(6) of 2006 Act--It is inalienable right of every citizen to be treated in accordance with law as envisaged by Art. 4 of Constitution--Hence, it is duty and obligation of every public functionary, including Government, to act within four corners of mandate of Constitution--Petition was accepted.

[Pp. 158, 159, 160, 161 & 163] A, B, C & D

Hafiz Tariq Nasim & Mr. Jawad Tariq, Advocate for Petitioner.

Mr. Ashfaq Ahmad Kharral,Assistant Advocate-General for Respondents.

Mr. Amjad Ali, Assistant Director Enquiry, Punjab Local Govt. Board.

Date of hearing: 21.12.2016.

Judgment

Through the instant constitutional petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the “Constitution”), the Petitioner has impugned his dismissal order dated 22.12.2014 as well as order dated 2.11.2015 for rejection of his Departmental Appeal.

1. The facts succinctly revealed from the petition are that the Petitioner was Taxation Officer TMA, Okara and after charge sheet an inquiry was conduct against him in which he filed written defense specifically refuting all the allegations. It is alleged that the Inquiry Officer recommended major penalty of forfeiture of service for two years under Section 4(b)(iii) of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006 (the “2006 Act”). It is further alleged that on the basis of said recommendations the Petitioner was served with a show cause notice dated 17.07.2014 by the Competent Authority which was replied by him in detail but while dissatisfying with the reply the Respondent No. 2 dismissed the Petitioner from service on 22.12.2014. Feeling aggrieved thereby the Petitioner filed Departmental Appeal before the Chief Secretary/Respondent No. 1 which was turned down vide order dated 02.11.2015. Hence, the instant petition.

2. In compliance of order of this Court dated 27.11.2015, report and parawise comments were filed on behalf of all the Respondents on 11.01.2016 praying therein dismissal of the instant petition.

3. Hafiz Tariq Nasim, learned counsel for the Petitioner submitted that the inquiry is defective as no prosecution witnesses have been recorded except, only one and that too, opportunity to cross-examine the said witness has not been afforded to the Petitioner. Learned counsel for the Petitioner further contended that Inquiry Officer has recommended for major penalty of forfeiture of service for two years but the Respondent No. 2 without giving any cogent reasons, despite raising the objections by the Petitioner while disagreeing with the recommendations, has enhanced the penalty to dismissal from service which is totally against the law and pronouncements of the apex Court. Learned counsel for the Petitioner further contended that the Departmental Appeal of the Petitioner has also been dismissed while ignoring this fact, as such the same also suffers from legal defect. Learned counsel for the Petitioner further argued that similar penalty was also awarded to the colleague of the Petitioner namely Rana Shahid against whom recommendations of the Inquiry Officer have been confirmed by the Respondent No. 2 and he is still working on his post whereas the Petitioner has been subjected to dismissal from service after enhancing the penalty, as such a discriminatory attitude has been met out with the Petitioner.

4. In support of his contentions learned counsel for the Petitioner placed reliance on the case titled Khalid Mansoor v. Director Federal Investigation Agency Rawalpindi and another (2008 SCMR 1174), Secretary Government v. Khalid Hamdani (2013 SCMR 817), Allah Yar v. General Manager, Railways Headquarters, Lahore and another (2001 SCMR 256) and Najam uz Zaman and others v. Engineer in Chief, GHQ, Rawalpindi and 2 others (2005 SCMR 1802). Learned counsel for the Petitioner also maintained that the Respondents while passing both the impugned orders have not applied their independent mind. Learned counsel for the Petitioner further added that the Respondent No. 2 while enhancing the penalty of the Petitioner has not countered the recommendations through specific findings, hence the recommendations presumed to be accepted. Learned counsel for the Petitioner further submitted that although the Respondent No. 2 in the impugned order dated 22.12.2014 has recorded all the above facts and submissions of the Petitioner but did not tackle them by a speaking order. Learned counsel for the Petitioner further contended that both the impugned orders are liable to be set aside being not passed in consonance with the spirit of law and the case law of the Hon’ble Supreme Court of Pakistan relied above.

5. Learned counsel for the Petitioner further argued that however, contrary to what is required under Section 13(6) of the Act, the Competent Authority did not give any reasons for disagreeing with the recommendations of the Inquiry Officer where he only imposed major penalty. Under the afore-referred provision, the Competent Authority could either proceed in terms of sub-section (5)(i) and (ii) “keeping in view the findings and recommendations of the inquiry officer or inquiry committee, as the case may be, facts of the case and defence offered by the accused during personal hearing” or could have proceeded in terms of sub-section (6) of Section 13 and “either remand the inquiry to the inquiry officer” or could have directed de novo inquiry “after recording reasons in writing” if he was of the view that “merits of the case have been ignored or there are other sufficient grounds. The learned counsel for the Petitioner argued that no reasons in writing were recorded before passing the impugned order dated 22.12.2014.

6. Learned Law Officer vehemently contested the arguments of the learned counsel for the Petitioner and submitted that loss to Government Exchequer is admitted. Learned Law Officer further contended that fair opportunity of personal hearing had been extended to the Petitioner. It was further argued that specific reason for disbelieving the recommendations of the Inquiry Officer has been given in the impugned order as the Petitioner had already been awarded two major penalties. Learned Law Officer also added that the penalty of the Petitioner for dismissal from service has aptly been enhanced as the Petitioner is habitual delinquent and deserves for the same. Learned Law Officer further argued that such like officers/officials in the Government Departments may cause problematic to the public at large and need to be dealt with stern action. Learned Law Officer also laid much stress on the point that the Competent Authority is not bound to pass orders in line with the recommendations of the Inquiry Officer. In the line of above submissions, learned Law Officer prayed for dismissal of the petition.

7. In rebuttal to the arguments of the learned Law Officer, the learned counsel for the Petitioner submitted that in the previous inquiry the Petitioner has been held to be exonerated.

8. This petition raises two important questions of service law in particular the 2006 Act. The first is, whether the Inquiry Officer has violated the requirements of the Section 10(1) of the 2006 Act for not cross-examining the witness. The other is, whether the Competent Authority has passed the impugned order without following the procedure laid down in Section 13 of the 2006 Act.

9. From the perusal of the record it reveals that disciplinary proceedings were initiated against the Petitioner under the 2006 Act on the allegation of committing irregularities in the contract of parking fee of general bus stand of TMA Okara causing financial loss of Rs. 1,58,52,155/- in connivance with the contractor. An inquiry was conducted in this regard and the Inquiry Officer found that allegations No. 2, 3, 4 & 5 stood proved against the Petitioner and recommended imposition of major penalty of forfeiture of past service for two years under Section 4(b)(iii) of the 2006 Act. On the basis of this, show cause notice dated 17.07.2014 was issued to the Petitioner which was duly replied in detail and vide the impugned order dated 22.12.2014 the Petitioner was dismissed from service. Thereafter, the petitioner preferred the Departmental Appeal against the dismissal order which was rejected by the Appellate Authorityvide the second impugned order.

Violation of Section 10 of the 2006 Act

1. Learned counsel for the Petitioner specifically raised objection regarding the defectiveness of the inquiry by submitting that no witness has been recorded while concluding the inquiry except only one and the right to cross-examine the said witness has not been given to the Petitioner. The learned counsel for the Petitioner has drawn the attention of this Court towards Section 10 of the 2006 Act which is reproduced below:

2. Procedure to be followed by inquiry officer or inquiry committee.--(1) On receipt of reply of the accused or on expiry of the stipulated period, if no reply is received from the accused, the inquiry officer or the inquiry committee, as the case may be, shall inquire into the charges and may examine such oral or documentary evidence in support of the charge or in defense of the accused as may be considered necessary and where any witness is produced by one party, the other party shall be entitled to cross-examine such witness.

(2) If the accused fails to furnish his reply within the stipulated period, or extended period, if any, the inquiry officer or the inquiry committee, as the case may be, shall proceed with the inquiry ex parte.

(3) The inquiry officer or the inquiry committee, as the case may be, shall hear the case from day to day and no adjournment shall be given except for reasons to be recorded in writing, in which case it shall not be of more than seven days.

(4) Where the inquiry officer or the inquiry committee, as the case may be, is satisfied that the accused is hampering or attempting to hamper the progress of the inquiry, he or it shall administer a warning and if, thereafter, he or it is satisfied that the accused is acting in disregard to the warning, he or it shall record a finding to that effect and proceed to complete the inquiry in such manner as may be deemed expedient in the interest of justice.

(5) If the accused absents himself from the inquiry on medical grounds, he shall be deemed to have hampered or attempted to hamper the progress of the inquiry, unless medical leave, applied for by him, is sanctioned on the recommendation of a Medical Board; provided that the competent authority may, in its discretion, sanction medical leave upto seven days without recommendation of the Medical Board.

(6) The inquiry officer or the inquiry committee, as the case may be, shall submit his or its report, containing clear findings as to whether the charge or charges have been proved or not and specific recommendations regarding exoneration or, imposition of penalty or penalties, to the competent authority within sixty days of the initiation of inquiry:

1. Section 10(1) of the Act clearly reveals that where any witness is produced by one party, the other party shall be entitled to cross-examine such witness. But in the present case although the Petitioner has been given opportunity of hearing yet he has been deprived of his right, bestowed by the Act, to cross-examine the witness produced by the other side. Furthermore, an inquiry cannot be held in an arbitrary manner and principles of natural justice must be followed. Fair chance of cross-examination and production of evidence in rebuttal must be provided. Hence, this Court is of the opinion that the inquiry has not been concluded in accordance with procedure provided under Section 10 of the 2006 Act by the Inquiry Officer. In National Bank of Pakistan v. Muhammad Iqbal (1986 SCMR 234) the Honourable Supreme Court of Pakistan has held that if the Petitioner is not allowed to cross-examine, dismissal order is set aside. Reliance is placed on Pasroor Sugar Mills Ltd. v. Abdul Qadeer (1988 PLC 246).

Violation of Section 13 of 2006 Act

1. It is noted from the record that the Respondent No. 2, the Competent Authority, on 22.12.2014 in the impugned Order in Para 5 noted the defence of the Petitioner which was developed from his detailed defence dated 5.08.2014 to the show cause notice dated 17.07.2014 which reads as follows:

“AND WHEREAS, the accused during the course of personal hearing submitted that he was proceeded under PEEDA Act, 2006 alongwith co-accused i.e. TMO TMA Okara who was senior most accused being higher in rank as envisaged in Section 2 of the PEEDA Act, 2006 therefore, his competent authority is Secretary LG&CD Department and the Punjab Local Government Board cannot hear his case. The charge sheet was also defective as apportionment of responsibility has not been done. The inquiry officer without recording statement of the prosecution witnesses and cross-examination by the accused compiled his report. He obtained two sureties before currency of the contract period and thereafter the action against guarantors was also initiated. The matter was in the knowledge of Administrator TMA Okara and nothing was concealed from him as the matter was discussed number of times and it was his personal responsibility under Rules 6 & 10 of the Punjab Local Government (Contract), Rules, 2003. Under Rule 26 of Punjab Local Government (Auctioning of Collection Rights) Rules, 2003 the Administrator had the power to take action against the contractor, Section 56 of the Punjab Local Government Ordinance, 2001 empowered him to ensure that the business of TMA is carried in accordance with the provisions of the Ordinance ibid and Section 59 of the Ordinance ibid held Administrator responsible for any financial loss or otherwise flowing from his decision and for the expenditure incurred without lawful authority.”

1. From the above, it is admitted that the Competent Authority did not consider the above points that charge sheet was defective; Inquiry Officer without recording statement of the prosecution witnesses and cross-examination of the accused, compiled his final report. Under Section 13 of the 2006 Act, the Respondent No. 2 has to weigh respect to the recommendation of the Inquiry Officer, however, it cannot differ with the recommendations of the Inquiry Officer without assigning any reasons. The Inquiry Officer in the case in hand submitted the inquiry report to the Competent Authority so as to enable the latter to proceed further as provided under the law. The Section 13 of the 2006 Act lays down a procedure to be followed by the Competent Authority and it reads as follows:--

“13. Order to be passed by the competent authority on receipt of report from the inquiry officer or inquiry committee.---(1) On receipt of the report from the inquiry officer or inquiry committee, as the case may be, the competent authority shall examine the report and the relevant case material and determine whether the inquiry has been conducted in accordance with the provisions of this Act.

(2) If the competent authority is satisfied that the inquiry has been conducted in accordance with the provisions of this Act, it shall further determine whether the charge or charges have been proved against the accused or not.

(3) Where the charge or charges have not been proved, the competent authority shall exonerate the accused by an order in writing.

(4) Where the charge or charges have been proved against the accused, the competent authority shall issue a show cause notice to the accused by which it shall--

(a) inform him of the charges proved against him and the penalty, or penalties proposed to be imposed upon him by the inquiry officer or inquiry committee;

(b) give him reasonable opportunity of showing cause against the penalty or penalties proposed to be imposed upon him and to submit as to why one or more of the penalties as provided in Section 4 may not be imposed upon him and to submit additional defense in writing, if any, within seven days of the receipt of the notice, before itself or the hearing officer, as the case may be;

(c) indicate the date of personal hearing or appoint a hearing officer to afford an opportunity of personal hearing on his behalf; provided that the hearing officer shall only be appointed where the competent authority is of the rank of Secretary to Government of the Punjab or above.

(d) provide a copy of the inquiry report to the accused; and

(e) direct the departmental representative to appear, with all the relevant record, on the date of hearing before himself or the hearing officer, as the case may be.

(5) After affording personal hearing to the accused or on receipt of the report of the hearing officer, the competent authority shall, keeping in view the findings and recommendations of the inquiry officer or inquiry committee, as the case may be, facts of the case and defence offered by the accused during personal hearing, by an order in writing--

(i) exonerate the accused; or

(ii) impose any one or more of the penalties specified in Section 4:

Provided that--

(i) Where charge or charges of grave corruption are proved against an accused, the penalty of dismissal from service shall be imposed, in addition to the penalty of recovery, if any; and

(ii) Where charge of absence from duty for a period of more than one year is proved against the accused, the penalty of compulsory retirement or removal or dismissal from service shall be imposed upon the accused.

(6) Where the Competent Authority is satisfied that the inquiry proceedings have not been conducted in accordance with the provisions of this Act or the facts and merits of the case have been ignored or there are other sufficient grounds, it may, after recording reasons in writing, either remand the inquiry to the inquiry officer or the inquiry committee, as the case may be, with such directions as the competent authority may like to give, or may order a de novo inquiry.

(7) .............................................................................

(8) .............................................................................”

1. Having not agreed with findings and recommendations made in the inquiry report, the Competent Authority instead of following the options available to him under sub-section (6) of Section 13 quoted above, proceeded to award major penalty of dismissal from service vide the impugned order dated 22.12.2014 by only holding in paragraph 9 without discussing the previous paragraph 5 which reads as follows:

“NOW THEREFORE, in view of the above, I DAWOOD MUHAMMAD BAREACH, Secretary LG&CD Department/Chairman Punjab Local Government Board in exercise of powers vested in me under Section 13(5)(ii) of the PEEDA Act, 2006 do hereby impose major penalty of “Dismissal from Service” upon the accused namely Allah Ditta Ex-TO(F) TMA Okara now ATO (F) TMA Kasur in terms of Section 4(1)(b)(vi) of the PEEDA Act, 2006. The case of Rana Shahid Ahmad Ex-TMO TMA Okara will be decided separately by the Competent Authority”

1. From the reading of the above Section, it is observed that on 22.12.2014 the Competent Authority purportedly proceeded in terms of sub-section (5)(ii) read with sub-section (6) of Section 13 with only two (2) pages while disagreeing vide the impugned order without giving any reasons and not properly examining the defences of the Petitioner noted in paragraph 5 above. Section 13(1) of the 2006 Act mandates the Competent Authority to carefully examine the report and the material produced before it prior to passing any order. However, contrary to what is required under Section 13(6) of the Act, the Competent Authority did not give any reason for disagreeing with the recommendations of the Inquiry Officer. As rightly argued by the learned counsel for the Petitioner, which the Court agrees with, the Competent Authority could either proceed in terms of sub-Sections (5)(i) and (ii) “keeping in view the findings and recommendations of the Inquiry Officer or Inquiry Committee, as the case may be the facts of the case and defence offered by the accused during personal hearing” or could have proceeded in terms of sub-section (6) of Section 13 “either remand the inquiry to the inquiry officer” or could have directed de novo inquiry “after recording reasons in writing” if he was of the view that “merits of the case have been ignored or there are other sufficient grounds”. Having not agreed with findings and recommendations made in the inquiry report, the Competent Authority instead of following the options available to him under sub-section (6) of Section 13 quoted above, proceeded to award major penalty of dismissal from service, which is against the spirit of the Section 13.

2. The similar issue was settled by the Honourable Supreme Court of Pakistan in Secretary Government of Punjab vs Ikram Ullah and others, (2013 SCMR 572) = Secretary, Government of Punjab (C&W) and others v. Ikramullah and 5 others (2013 PLC (CS) 801) wherein it was held as follows:

“there is no cavil to the proposition that the competent authority on receipt of the report from the Inquiry Officer of the Inquiry Committee can proceed in any of the options available to him in terms of sub-Sections (2) to (8) to Section 13 of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006. However, while doing so, it has to follow the procedure laid down therein and if it proposes to enhance the penalty it has to give reasons germane to the charges levelled and the evidence collected during inquiry and that too with reference to the liability of each of the officers who were inquired into. Unfortunately, the Competent Authority did not give any reason whatsoever except that he had gone through the record and the defence pleas of the respondents and had also personally inspected the road, defective construction of which was a moot point during inquiry. Mere deplorable condition of the road at site was not enough to hold each Respondent guilty unless the Competent Authority specifically had referred to the role and liability of each one of the Respondents in the light of material/evidence collected during inquiry. Learned Law Officer on Court query, could not dispute the fact that the Competent Authority neither gave any reason for enhancing the penalty nor apportioned the liability of each of the respondents specifically. Even the site inspection of the road was carried out, it is not denied by the learned Law Officer, after four years of the completion of the said project and that too in absence of the respondents. For what has been discussed above, we do not find any merit in these petitions, which are dismissed and leave refused.”

1. Moreover, the impugned order dated 22.12.2014 does not reflect that the Competent Authority has shown his disagreement specifically with the recommendations of the Inquiry Officer. Even otherwise if it is presumed that the dismissal order has been passed while disagreeing with the recommendations of the Inquiry Officer, the Competent Authority must have recorded specific reasons of his disbelieving the recommendations of the Inquiry Officer by elaborating the defences noted in Paragraph 5 of the impugned order. Furthermore, the Competent Authority has recorded all the submissions of the Petitioner in Paragraph 5 but while passing the dismissal order has not given specific findings for enhancing the penalty from forfeiture of past service for two years to dismissal from service and has also ignored the facts of defectiveness of the inquiry.

2. Further, the Honourable Supreme Court elaborated the role of the Competent Authority and the procedure it had to follow under Section 13(6) of the 2006 Act in Secretary Government v. Khalid Hamdani (2013 SCMR 817) wherein it was held as follows:

“the Competent Authority, it appears, neither examined the evidence recorded during inquiry nor appreciated the findings given by the Inquiry Officer and proceeded to enhance the penalty by converting the same into major penalty of dismissal from service and the recovery from Rs. 2.76 million as determined by the Inquiry Officer to Rest.6.518 million merely on the basis of a report submitted by the Chief Engineer after the submission of inquiry report and issuance of show cause notices to the respondent officers. If he was of the view that the finding of the Inquiry Officer qua the quantum of excess payment was factually incorrect, he could have directed de novo inquiry or could have confronted the respondent officers with the report of the Chief Engineer. He even did not specifically disagree with the findings of the Inquiry Officer with regard to the nature of the misconduct committed by the Respondent Officers which persuaded the latter to recommend minor penalties. The authority enhanced the penalty merely on the basis of Chief Engineer’s report that the excess payment made was more than what was calculated by the Inquiry Officer. There is no cavil to the proposition that the act of carelessness on the part of a civil servant could be a valid ground to award penalty. Elements of bad faith and willfulness may bring the act of negligence within the mischief of ‘misconduct’ but a conduct demonstrating lack of proper care and the requisite vigilance may not always be willful amounting to grave negligence to warrant harsh punishment.”

1. On the issue of exercising the discretion by the Competent Authority, while exercising power under Section 13(6) of the 2006 Act, the Honourable Supreme Court in Khalid Hamdani case supra held that in the administrative law, the authority is vested with a certain amount of discretion and the said discretion has to be exercised by applying independent mind uninfluenced by irrelevant or extraneous considerations. In Messrs Gadoon Textil Mills v. WAPDA (1997 SCMR 641), this Court was called upon to comment on the ambit of the discretionary power vested in an administrative authority. While analyzing the opinion, this Court to make exercise of discretionary power valid, observed as follows:

“Apart from being legal it is also reasonable. While conferring discretion on an authority the statute does not intend to arm such Authority with unfettered discretion which may be beyond the limits of reason, and comprehension of a man of ordinary intelligence. Wade in Administrative Law has traced the principles of reasonableness which according to him is firmly established at least from 16th century and has quoted Rooke’s case (1598) 5 Co. Rep. 99b where the Commissioner of Sewers had levied charges for repairing a river bank on one adjacent owner instead of apportioning it among all the owners, who had benefited.”

1. Since the Competent Authority has passed a non-speaking order which is without any examining and recording of the reasons as envisaged under Section 13(6) of the 2006 Act. This is against the law laid down by the Hon’ble Supreme Court of Pakistan. Further, the Honorable Supreme Court, in the case titled Muhammad Iqbal Chaudhry and another v. Secretary, Ministry of Industries and Production, Government of Pakistan and others (2004 PLC (C.S.) 896) at Para 3, has emphasized on the requirement of passing a speaking order by public authorities in following words:

“3. It may be noted that the forums seized with the judicial matters are required to pass such a speaking judgment that it should give an impression to readers that the legal and factual aspects of the, case which were raised before it for the purpose of decision have been considered and decided in the light of recognized principles of law on the subject instead of disposing of in slipshod manner.”

1. Further, in the case of Mollah Ejahar Ali v. Government of East Pakistan and others (PLD 1970 Supreme Court 173), the Honorable Supreme Court has explained the need and importance for passing a speaking order by stating that:

“There is no doubt that the High Court’s order which is unfortunately purfunctory gives the impression of a hasty off-hand decision which, although found to be correct in its result, is most deficient in its content. If a summary order of rejection can be made in such terms, there is no reason why a similar order of acceptance saying “there is considerable substance in the petition which is accepted”, should not be equally blessed. This will reduce the whole judicial process to authoritarian decrees without the need for logic and reasoning which have always been the traditional pillars of judicial pronouncements investing them with their primary excellence of propriety and judicial balance. Litigants who bring their disputes to the law Courts with the incidental hardships and expenses involved do expect a patient and a judicious treatment of their cases and their determination by proper orders. A judicial order must be a speaking order manifesting by itself that the Court has applied its mind to the resolution of the issues involved for their proper adjudication. The ultimate result may be reached by a laborious effort, but if the final order does not bear an imprint of that effort and on the contrary discloses arbitrariness of thought and action, the feeling with its painful results, that justice has neither been done nor seems to have been done is inescapable. When the order of a lower Court contains no reasons, the appellate Court is deprived of the benefit of the views of the lower Court and is unable to appreciate the processes by which the decision has been reached.”

1. Similarly, the Honorable Courts in various judgments, has directed several authorities to adhere to the above-mentioned principle while passing a speaking order with reasons and after keeping in view the facts and circumstances of the case, applicable law as well as precedents, if available. Reliance is placed on the case titled Town Committee, Piplan v. Muhammad Hanif and others (2008 SCMR 723).

2. It is also worth mentioning that it is inalienable right of every citizen to be treated in accordance with law as envisaged by Article 4 of the Constitution. Hence, it is the duty and obligation of every public functionary, including the Respondents, to act within the four corners of the mandate of the Constitution and the 2006 Act, and pass a speaking order. In Khalid Hamdani case supra, the Honourable Supreme Court held that we are also conscious of the well-recognized principle that when a decision is rendered by an administrative authority it is essential that an appropriate balance must be struck between the adverse effects which the decision may have on the rights or interests of the person contemned and the purpose which the authority is seeking to pursue, proportionately by now is a well-recognized concept of administrative law. The Superior Court in the case of Independent Newspaper Corporation (Pvt.) Ltd. and another v. Chairman, Fourth Wage Board and Implementation Tribunal for Newspaper Employees, Government of Pakistan, Islamabad and 2 others (1993 SCMR 1533) held that the principle is well-settled that when express statutory power is conferred on a public functionary, it should not be pushed too far, for such conferment implies a restraint in operating that power, so as to exercise it justly and reasonably.

3. Reliance is also placed on “Asif Yousaf v. Secretary Revenue Division, CBR, Islamabad and another” (2014 SCMR 147) in which it was held as follows:

“there is no cavil to the proposition that the Competent Authority is not bound by the recommendation of Inquiry Officer qua the award of penalty to the accused officer. However, while disagreeing and awarding higher penalty than recommended by the Inquiry Officer, he has to firstly provide opportunity of hearing to the accused officer and secondly, he has to pass a reasoned order with conscious application of mind. The tenor of the order passed to which reference has been made above indicates that although the Inquiry Officer had found the appellant to be negligent in his conduct and the charge of ‘maladministration’ was not proved yet the Competent Authority while awarding him major penalty of dismissal from service found that “there was substantial evidence on record to prove the charges”. There is no reference to the evidence or material which found favour with the Competent Authority to award major penalty of dismissal from service. Admittedly there was no allegation that the accused Officer was guilty of corruption or of financial gain.”

1. From the language used in the Section 13(1) of the 2006 Act, it is unequivocal that once the Competent Authority receives a report from the Inquiry Officer, it shall examine the (i) report and (ii) relevant case material. The word ‘shall’ has been used in this Section, which mandates the Competent Authority to examine carefully the report and all the material. In this case, as noted above, the Respondent No. 2 only mentioned the defences of the Petitioner in Para 5 from the record but failed to determine whether the inquiry has been concluded in accordance with the provisions of the 2006 Act because Section 13(1) clearly mentions that the Competent Authority has to determine the validity of the Inquiry proceedings from the report and all the material, available with it.

2. In the light of the principles laid down by the Hon’ble Supreme Court of Pakistan, it is ruled out that importantly, the Competent Authority was obliged to deal with the matter after application of mind with reasonsvide a speaking orders by elaborating

all the contentions. In the case in hand the Inquiry Officer only imposed major penalty vide the detailed ten (10) pages Report dated 18.06.2014, and the Petitioner in his detailed reply to the show cause of ten (10) pages has defended all the allegations but the Competent Authority in few lines has disagreed with the findings and dismissed the Petitioner from service without assigning detailed reasons through a proper speaking order and not adopting the procedure laid down in the Section 13(6) of 2006 Act.

1. From the referred Sections 10 and 13(6) of the 2006 Act and the law laid down by the Supreme Court in the judgments of Ikram Ullah and Khalid Hamdani cases supra, the Court is of the opinion that the Competent Authority and the Appellate Authority did not pass proper and lawful orders.

2. In view of what has been discussed above, the instant petition is accepted in the terms that the impugned orders 22.12.2014 and 22.11.2015 are set aside; consequently the inquiry proceedings are held to be defective. Hence, the Respondents shall hold de novo inquiry and shall conclude the same under due process of law after affording proper opportunity of hearing to all the concerned.

(R.A.) Petition accepted

PLJ 2017 Lahore 163

Present: Shujaat Ali Khan, J.

Dr. MUHAMMAD ARSHAD--Petitioner

versus

GOVT. OF PUNJAB etc.--Respondents

W.P. No. 11813 of 2012, decided on 19.12.2106.

Constitution of Pakistan, 1973--

----Art. 199--West Pakistan Government Educational and Training Institutions Ordinance, 1960, S. 18--Constitutional petition--Appointment against post of principal--Govt. Central Model School--No person could be appointed against post of principal on permanent basis--Retired person cannot be appointed by way of transfer--Legality of subsequent orders--No person can be appointed on contract basis beyond age of 63 years as an employee--Validity--Petitioner originally assailed posting of principal on additional charge basis and through amended petition he has also put a challenge to appointment of principal on contract basis--It is trite law that when law has required an act to be done in a particular way same could not be deviated--After publication of advertisements Board was bound to pass order on recommendations of selection committee but having not done so it deviated from prescribed procedure--As principal was appointed without adopting due procedure especially when he has already crossed upper-age limit his appointment cannot be validated by High Court in exercise of Constitutional jurisdiction--Petition was accepted. [P. 172] A, B & C

2011 SCMR 582, PLD 2013 SC 255, 2007 SCMR 97, PLD 2016 SC 961, PLD 2012 SC 132, PLD 2011 SC 205, 1993 SCMR 1287, 2013 PLD (CS) 1147 & 2013 PLC (CS) 191, rel.

Mr. Junaid Jabbar Khan, Advocate for Petitioner.

Rana Shamshad Khan, Additional Advocate General representing Respondent No. 1 with Ms. Asia Butt Law Officer.

Mr. Muhammad Siddique Awan, Advocate for Respondent No. 2.

Mr. Usman Karim-ud-Din, Advocate for Respondent No. 3.

Date of hearing: 19.12.2016

Order

The checkered history of the instant matter can be summarized in the words that the Board of Governors (hereinafter to be referred as “the Board”) Government Central Model School, Lower Mall, Lahore (hereinafter to be referred as “the School”) got published an advertisement in daily Jang, dated 4.02.2011, inviting applications from the prospective candidates for appointment against the post of Principal/Headmaster in the School. Upon completion of recruitment process, one Ghulam Abbas Sargana was appointed as Principal of the School vide order, dated 31.03.2011 passed by the Chairman of the Board. The appointment of Ghulam Abbas Sargana was challenged by one Sohail Manzoor, SST, who was also one of the contestants against the post of the Principal, before this Court by filing W.P. No. 7741/2011 which was accepted by a learned Division Bench of this Court, through order, dated 06.07.2011 whereby appointment of Ghulam Abbas Sargana was declared illegal. After decision of the matter by this Court, the Board re-advertised the post in daily Jang, dated 14.08.2011. Out of total 26 applicants, 9 including the present petitioner were short listed and the petitioner being on top of the merit was recommended for appointment by the Recruitment Committee. The recommendations of the Recruitment Committee could not be matured into reality as instead of issuing Appointment Letter in favour of the petitioner, Respondent No. 1, vide order, dated 16.03.2012, gave additional Charge of the post of the Principal to Mian Abdul Haq (Respondent No. 3) who was working as Director Public Instruction (Secondary Education) Punjab at that time. As during pendency of this petition Respondent No. 3 was not only appointed on contract basis vide order dated 16.03.2012 but his contract period was also extended through order, dated 13.04.2015, the petitioner filed an application (C.M. No. 654/2016) seeking amendment of the petition which was allowedvide order, dated 23.02.2016 and the petitioner filed amended writ petition whereby in addition to his earlier submission he has also put a challenge to order, dated 13.04.2015, whereby contract of Respondent No. 3 was extended.

1. The legal formulations put forward by learned counsel for the petitioner can be summarized in the words that the competent authority in the matter of appointment against the post of Principal was the Board and Respondent No. 1 did not figure anywhere thus the orders passed by him were coram-nonjudice; that though Respondent No. 3 was initially given additional charge of the post of Principal till the selection of regular incumbent but Respondent No. 1 in clear violation of the rules and regulations appointed Respondent No. 3 on contract basis after his retirement from government service; that as Respondent No. 3 occupied the post of Principal without completion of process, no person could be appointed against the post of Principal on permanent basis; that a proper procedure has been laid down for appointment against the post of Principal but Respondent No. 1 without adhering to the said procedure accommodated Respondent No. 3; that at the time when Respondent No. 3 was appointed on contract basis maximum age limit for an applicant against the post was 50 years which was pivotal point at the time of decision of W.P. No. 77411/2011; that Regulation No. 21 of the Government Central Model School, Lower Mall, Lahore Regulations 2014 (the Regulations 2014) caters for appointment by way of transfer but Respondent No. 3 being a retired person cannot be appointed by way of transfer. In support of his contentions, learned counsel has relied upon the cases reported as Ch. Muhammad Akram v. Registrar, Islamabad High Court and others (PLD 2016 SC 961), Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others (PLD 2012 SC 132), Human Rights Case No. 57701-P, 57719-G, 57754-P, 58152-P, 59036-S, 59060-P, 54187-P and 58118-K of 2010 and SMC No. 24 of 2010 (PLD 2011 SC 205), Munawar Khan v. Niaz Muhammad and 7 others (1993 SCMR 1287), M. Ashraf Azeem v. Federal Government of Pakistan and others (2013 PLC (C.S.) 1147) and Dr. Hafiz Muhammad Bashir and others v. International Islamic University, Islamabad and others (2013 PLC (C.S.) 191).

2. Learned Additional Advocate General, while opposing the submissions made by learned counsel for the petitioner, states that as Respondent No. 3 was posted by way of transfer there was no need for advertisement; that on account of exceptional output of Respondent No. 3 not only he was commended for his meritorious services but was also awarded BS-21; that according to amendment introduced in West Pakistan Government Educational and Training Institutions Ordinance, 1960 matter regarding appointment of Principal fairly and squarely falls within the domain of the Board; that output of the Board is to be adjudged by the revisional authority, therefore, no exception can be taken against appointment of Respondent No. 3.

3. Learned counsel representing Respondent No. 2, while defending the appointment of Respondent No. 3, states that as the Board not only comprised of competent persons but is also headed by a retired Judge of this Court it cannot be believed that while making appointment against such an important post they acted in an arbitrary manner; that as conduct of the petitioner was not above board as he was party to the proceedings pending before different forums he could not be appointed against the post of Principal; that initially Ghulam Abbas Sargana was appointed as Principal but as he failed to run the affairs of the said post on account of lack of experience he was replaced with Respondent No. 3; that the upper age limit of 50 years provided in Govt. Central Model School, Lower Mall, Lahore (General Conditions of Service) Regulations, 1990 was extendable.

4. Learned counsel representing Respondent No. 3 submits that as initially Respondent No. 3 was given additional charge of the post of Principal, there was no necessity of advertisement especially when the Board was not functional; that initially the petitioner did not challenge order passed in favour of Respondent No. 3 rather prayed for his appointment against the post of Principal and after appointment of Respondent No. 3 on contract basis he opted to amend this petition; that by way of amendment he only added certain paras in the original writ petition without scoring off the irrelevant, therefore, if it is considered a petition of quo warranto the same is not maintainable as personal interest of the petitioner is involved; that stipulation regarding upper age limit was not absolute rather the same could be relaxed by the Board in appropriate cases; that as the contract of Respondent No. 3 was extended while following the Regulations 2014, which having not been challenged still holds the field and any order passed there-under by the authority competent in that regard (the Board) cannot be annulled in these proceedings; that it is not necessary to issue publication for appointment in every case rather in appropriate cases the competent authority can dispense with the said condition; that as posts of Chief Election Commissioner, Advocate General, Attorney Generals can be filled in without advertisement the Board has committed no illegality while appointing Respondent No. 3 against the post of the Principal without advertisement. In support of his contentions learned counsel has relied upon the cases reported as Ghulam Rasool v. Government of Pakistan through Secretary, Establishment Division Islamabad and others (PLD 2015 SC 6) and Muhammad Shahid Akram v. Government of the Punjab through Chief Secretary and 3 others (2016 PLC (C.S.) 1335).

5. Learned counsel for the petitioner, while exercising his right of rebuttal, submits that the judgments relied upon by learned counsel for Respondent No. 3 are irrelevant inasmuch as in the recent judgment rendered in the case of Ch. Muhammad Akram (Supra) the apex Court of the country has declared appointments against certain posts in Islamabad High Court, Islamabad, as illegal on the ground that the same were made without following requisite criteria especially the advertisement.

6. I have heard learned counsel for the parties at considerable length and have also gone through the documents annexed with this petition as well as the case-law cited at the bar.

7. Firstly taking up the objection raised by learned counsel for Respondent No. 3 that as the petitioner did not challenge appointment of Respondent No. 3 in the original writ petition rather he prayed for his appointment, instant petition cannot be considered in the nature of quo-warranto, I am of the view that to appreciate the said contention prayer clause of the original writ petition is of paramount consideration which for facility of reference is reproduced herein below:--

“In view of the above it is most respectfully prayed that;

(i) An appropriate Writ may graciously be issued.

(ii) The impugned order dated 16.03.2012 qua the posting of Respondent No. 3 may kindly be declared as illegal/unlawful, coram-non-judice, void ab initio and be set aside.

(iii) The Respondent No. 1 may kindly be directed to issue appointment/posting Order of the petitioner as Principal, Govt. Central Model School, Lower Mall, Lahore.

(iv) Writ may kindly be accepted with all consequential benefits.

Any other relief deemed appropriate in the circumstances may also kindly be awarded to the petitioner.”

The afore-quoted prayer clause of the original writ petition renders it crystal clear that in addition to beseeching for his appointment against the post of Principal the petitioner also put a challenge to order, dated 16.03.2012 whereby Respondent No. 3 was posted against the post of Principal. Moreover, during pendency of this petition the petitioner filed an application (C.M. No. 654/2016) seeking amendment of the writ petition on the ground that as the period of contract of Respondent No. 3 was extended through order, dated 13.04.2015, he be allowed to challenge said order as well which application was allowedvide order, dated 23.02.2016. Pursuant to the said order the petitioner filed amended petition prayer whereof reads as under:--

“In view of the above it is most respectfully prayed that:

(i) An appropriate Writ may graciously be issued.

(ii) The Respondent No. 3 may kindly be asked that under what authority of law he is holding the post of Principal, Govt. Central Model School, Lower Mall, Lahore.

(iii) The impugned orders dated 16.03.2012, 26.04.2012, 21.06.2012 and 13.04.2015 of Respondent No. 3’s appointment as Principal, Govt. Central Model School, Lahore may kindly be declared as illegal/unlawful, coram-non-judice, void abinitio and be set aside.

(iv) The Respondent No. 2 may kindly be directed to appoint any suitable qualified person against the post of Principal, Govt. Central Model School, Lower Mall, Lahore that is too in pursuance of competitive recruitment process in accordance with law. The petitioner is ready to openly contest for the post in competitive recruitment process adopting fair procedure.

(v) Writ may kindly be accepted with all consequential benefits.

Any other relief deemed appropriate in the circumstances may also kindly be awarded to the Petitioner.”

A cursory glance over the afore-quoted prayer of the amended writ petition shows that in addition to his initial prayer challenging eligibility of Respondent No. 3 to hold the post of the Principal the petitioner also assailed legality of subsequent orders issued by the competent authority regarding appointment of Respondent No. 3 on contract basis and its subsequent extension. Further, the respondents having not challenged order dated 23.02.2016 passed by this Court permitting the petitioner to amend the petition has acquiesced therewith. In this scenario, plea of learned counsel for Respondent No. 3 that appointment of Respondent No. 3 was not challenged by the petitioner, has no worth.

1. Insofar as contention of learned counsel for Respondent No. 3 that as the petitioner challenged appointment of Respondent No. 3 for his personal gain, instant petition cannot be considered in the nature of quo warranto is concerned, suffice it to note that when appointment/posting of a person is challenged in respect of merit against a particular post the same cannot be treated as in the nature of quo warranto however when eligibility of a person to hold a particular post is challenged, the said embargo does not impede the way of a person to approach this Court. Insofar as case in hand is concerned, the petitioner has specifically averred that Respondent No. 3 after his retirement was not eligible for appointment on contract basis especially when he crossed the maxim age limit of 63 years. Moreover, the petitioner in addition to his official status also maintains his identity as common citizen of the country.

2. Now reverting to merits of the case I have noted that according to the provisions of the West Pakistan Government Educational and Training Institutions Ordinance, 1960 (the Ordinance 1960) the post of Principal was to be filled according to the Regulations to be framed under the said Ordinance. While exercising powers under Section 18 of the Ordinance 1960, the competent authority approved requisite Regulations which were circulated through Notification No. 1117/GMS/93, dated 25.10.1993 according to which if a contractual appointment was to be undertaken the same was to be confined only to three years or till the crossing of age limit of 63 years by the incumbent. The said Regulations were lastly amended in the year as the Rules 2014. Learned counsel for the petitioner has relied upon Regulation No. 21(b)(iii) of the Regulations 2014 according to which no person can be appointed on contract basis beyond the age of 63 years as an employee. Admittedly, at the time of appointment of Respondent No. 3 in the year 2012 he had already crossed the maximum age limit of 63 years. Further, according to Regulation No. 21(b)(vi) of the Regulations 2014 contract appointments are to be made by the respective appointing authorities on the recommendations of the concerned Selection Committee. There is nothing on record to show that Respondent No. 3 was ever recommended by the Selection Committee.

3. Learned counsel representing Respondents No. 2 as well as learned counsel for Respondent No. 3 and the learned Additional Advocate General has taken categorical stance that as Respondent No. 3 was appointed by way of transfer there was no need of advertisement. Admittedly, Respondent No. 3 stood retired from government service on 6.4.2012, therefore, it cannot be considered that at the time of his appointment on contract basis he was in government service. According to Regulation No. 21(b)(viii)(b) of the Regulations 2014 appointment against the post of the Principal can be made by way of transfer but the same is subject to the certain criteria. As per the said clause the Board was bound to invite three to five candidates from the concerned department and after assessing their eligibility one of them was to be appointed against the post of the Principal. There is nothing on record to show that there had been any deliberations by the Board after nomination of 3 to 5 persons as per the Regulations 2014. In this backdrop contention of the respondents that Respondent No. 3 was appointed against the post of Principal by way of transfer cannot be given any weightage.

The legal status of the appointments without their proper advertisement came under discussion before the apex Court of the country in the case of Ch. Muhammad Akram (Supra). The Hon’ble Supreme Court of Pakistan, while dealing with the consequences of appointment of any person against a particular post without advertisement has inter-alia resolved as under:--

“52. We have noticed that the Chief Justice Islamabad High Court has exercised powers under Rule 26 of the Lahore High Court and under Rule 16 of the Islamabad High Court to alter the eligibility and qualification for appointment as well as promotion within the Establish of Islamabad High Court. We hold that the Chief Justice has lost sight of the scheme of the Rules by appointing Respondents and others in the Establishment of Islamabad High Court. We have also noticed that the provisions of Rules that provide for mandatory competitive test for the appointment of employees in the Islamabad High Court Establishment were not followed, nor any advertisement was made to invite applications of eligible candidates. The justification that the Islamabad High Court was a new Establishment is not sufficient to override the mandatory requirement for the appointments. As a result, a number of meritorious and eligible candidates have been deprived of their fundamental right to seek employment through a competitive examination as provided under Article 18 of the Constitution.”

1. Another interesting fact of the instant case is that though Respondent No. 3 was appointed as Principal on contract basis in the year 2012 whereas the respondents are hinging upon the Regulations framed in the year 2014. Moreover, on the one hand the respondents adopted clear cut stance that there was no need of advertisement to fill up the post of the Principal but on the other they themselves having undertaken such exercise twice inconsistent approach on their part is established.

2. Learned counsel for the respondents, while portraying Respondent No. 3, as indispensable for the institution has argued that as there was no suitable candidate, Respondent No. 3 was appointed by the competent authority in view of his experience spreading over decades. The apex Court of the country in the case of Pakistan Tobacco Board and another v. Tahir Raza and others (2007 SCMR 97) while dealing with re-appointment of a person after his retirement has inter-alia observed as under:

“5. Perusal of the said rule shows that not only it is the President of Pakistan who is the re-pository of discretion but also that re-employment is permissible only in public interest. Merely because Petitioner No. 2 was described as hardworking and efficient officer did not authorize the Federal Government to by-pass the said rule”.

It is very ironical that the competent authority failed to find out any suitable candidate against the post of the Principal from the entire province having population of millions of people. If such a practice is allowed to be followed perhaps nobody would like to retire from government service. Posting of Respondent No. 3 as Principal on additional charge basis and then his appointment on contract basis and further extension of his contract in violation of stipulation of maximum age limit is inconsistent with the norms of social justice.

1. Learned counsel for the respondents have not uttered a word as to why recruitment process pursuant to the advertisement got published by Respondent No. 2, after decision of the matter (W.P. No. 7741/2011) by this Court (on 06.07.2011) was not finalized which fact alone is indiscernable on the part of the competent authority. If the competent authority was of the view that the petitioner could not be appointed against the post in question efforts were to be made for selection of somebody else through open contest.

2. Now coming to the point of laches, raised by learned counsel representing the respondents, I have noted that the petitioner originally assailed the posting of Respondent No. 3 on additional charge basis and through amended petition he has also put a challenge to appointment of Respondent No. 3 on contract basis and its subsequent extension through order dated 13.04.2015. It is trite law that when law has required an act to be done in a particular way the same could not be deviated. Reliance in this regard is placed on the case reported as Muhammad Anwar and others v. Mst. Ilyas Begum and others (PLD 2013 SC 255). Insofar as case in hand is concerned, after publication of the advertisements the Board was bound to pass order on the recommendations of the Selection Committee but having not done so it deviated from the prescribed procedure.

3. It is imperative to note that the Hon’ble Supreme Court of Pakistan, in Suo Motu Case No. 24 of 2010 (2011 SCMR 582) has taken serious note of the appointments of retired employees on contract basis without fulfillment of requisite criteria. At the cost of repetition, it is re-iterated that as Respondent No. 3 was appointed without adopting the due procedure especially when he has already crossed the upper-age limit his appointment cannot be validated by this Court in exercise of Constitutional jurisdiction vested under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.

4. For what has been discussed above, instant petition is accepted and appointment of Respondent No. 3 against the post of the Principal on contract basis is declared illegal. As a result, Respondent No. 1 is directed to ensure the appointment against the said post afresh in terms of the relevant rules. No order as to cost.

(R.A.) Petition accepted

PLJ 2017 Lahore 172

Present: Abid Aziz Sheikh, J.

PRIME COMMERCIAL BANK Ltd.--Petitioner

versus

KNIT KNOT PVT. LTD. etc.--Respondents

Ex. A. No. 15-B of 2013, decided 22.12.2016.

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

----Ss. 48 & 151--Financial Institutions (Recovery of Finances) Ordinance, 2001--Limitation Act, (IX of 1908), Art. 181--Dismissal of second execution application being barred by limitation--Limitation of six years for filing of any fresh execution application from date of decree or date of default in making payment as prescribed in decree or subsequent order of Court--Question of--Whether second execution application is barred by limitation or not--Validity--No order for execution of decree shall be made upon any fresh application presented after expiration of six years from date of decree sought to be executed--Provision of Section 48, CPC is clear and express in term and it will be fallacy to hold that six years limitation for fresh execution will be from date of dismissal of first execution application and not from date of decree--Second execution application was filed after five years from date of decree and question was whether Art. 181 of Limitation Act, will apply or fresh execution application will be governed under Section 48, CPC--Where decree or subsequent order direct any payment of money or delivery of any property to be made at a certain date or at recurring period, limitation of six years will run from date of default in making payment or delivery of property--No such direction was passed either in judgment and decree or in subsequent orders passed by Court--Agreement was admittedly without intervention and approval of Court, therefore, default of payments under agreement will not amount to default of payments under decree or any subsequent order passed by Court--Provisions of Section 48(1)(b) are not applicable and period of limitation for filing second execution application was to be calculated from date of decree.

[P. 179] C, D & E

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

----S. 48(2)(b)--Limitation Act, (IX of 1908), Art. 183--Original Civil Jurisdiction--Applicability of limitation--High Court jurisdiction under Ordinance is original civil jurisdiction and not ordinary original civil jurisdiction, therefore, provisions of Art. 183 of Limitation Act, and Section 48(2)(b), CPC are not attracted.

[P. 178] A

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

----S. 48(1)--Second execution application--Dismissal of first application on account of non-prosecution--Period of six years of limitation prescribed under Section 48(1), CPC for second execution application is to be reckoned from date of dismissal of first execution application, hence instant execution application was within time. [Pp. 178 & 179] B

Mr. Bilal Kashmiri, Advocate for Decree holder bank.

Mr. Shahid Ikram Siddiqui, Advocate for judgment debtors.

Date of hearing: 22.12.2016.

Order

C.M. No. 212/B-2016 & Main Case.

This objection petition is on behalf of judgment debtors under Sections 7 & 19 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (Ordinance) read with Sections 48 and 151 of Code of Civil Procedure, 1908 (CPC) for dismissal of second execution application (Ex.A. No. 15-B-2013) being barred by limitation.

1. Learned counsel for the applicant submits that suit for recovery was decreed on 19.09.2003 and first execution application (Ex.A. No. 53/B-2003) was filed on 21.11.2003, however, first execution application was dismissed for non-prosecution on 01.12.2008 and restoration application was also dismissed on 25.02.2014. Contends that instant second execution application (Ex.A. No. 15-B/2013) filed on 09.09.2013 is barred by limitation prescribed under Article 181 of the Limitation Act, 1908 (Act) and also beyond period of six years from the date of decree, prescribed under Section 48 of CPC. He submits that execution application being barred by limitation, is liable to be dismissed.

2. Learned counsel for the decree holder bank filed reply and submits that decree dated 19.09.2003 passed by this Court under the Ordinance was in capacity of Ordinary Original Civil Jurisdiction, therefore, limitation prescribed under Article 183 of the Act, will be applicable. He submits that after passing of decree, judgment debtors entered into out of Court settlement agreement dated 31.07.2007 with the decree holder bank but they defaulted in their commitment, therefore, the second execution application is within period of six years from the date of said default as prescribed under Article 183 of the Act and Section 48(2)(b) of CPC. Reliance is placed on Victory Corporation and others vs. Emirates Bank (PLD 1999 Karachi 391), Dr. Mrs. Tallat Khan and another vs. Mrs. Sara Shafqat and 6 others (2000 SCMR 184), Pakistan Fishers Ltd., Karachi and others vs. UBL (PLD 1993 SC 109), Adamgee Insurance Co. Ltd. and others vs. M.C.B. Ltd. and others (2005 SCMR 318) and Brothers Steel Mills Ltd. vs. Mian Ilyas Miraj and 14 others (PLD 1997 SC 543). He further submits that limitation period of six years for second execution application under Section 48, CPC is to be reckoned from dismissal of first execution application and not from the date of decree. He placed reliance on Mehboob Khan vs. Hassan Khan Durrani (PLD 1990 SC 778). He concluded that execution is within limitation under Section 48(1)(b) of CPC.

3. I have heard the learned counsel for the parties and perused the record.

4. To facilitate an easy analysis of legal questions raised, deem it necessary to briefly narrate the undisputed facts at the first instance. The suit for recovery (COS No. 4/2002) was filed by decree holder bank against judgment debtors on 09.12.2002. The judgment and decree was passed on 19.09.2003 by this Court under the Ordinance. The first execution application (Ex.A. No. 53/2003) was filed on 21.11.2003. The said first execution application was dismissed for non-prosecution on 01.12.2008. On 29.06.2012, decree holder bank filed application (C.M. No. 513-B of 2012) for restoration of first execution application. On 25.02.2014 restoration application was dismissed and this order was not challenged by decree holder bank any further before higher forum. The instant second execution application (Ex.A. No. 15-B/2013) was filed on 09.09.2013. It is relevant to note that during this time, the decree holder bank entered into agreement dated 31.07.2007 without intervention or approval of Court with judgment debtors. As per assertion of decree holder bank, the judgment debtors defaulted under the aforesaid settlement agreement.

5. The Issue Need examination is whether in the given circumstances, the instant second execution application is barred by limitation or not. Under Article 181 of the Limitation Act, for application, in which no period is provided elsewhere in the schedule or Section 48, CPC, the limitation period of three year is available from the date when the right to apply accrues. Section 48, CPC prescribed limitation of six years for filing of any fresh execution application from the date of decree or date of default in making payment as prescribed in the decree or subsequent order of Court. In present case, no doubt, the first execution application against the judgment and decree dated 19.09.2003 was filed on 21.11.2003, within period of three year, however, after dismissal of said execution for non-prosecution on 01.12.2008, the second execution application was filed on 09.09.2013, which was much beyond period of six years from the date of decree as prescribed in Section 48, CPC. Main argument of learned counsel for the decree holder bank is that as judgment and decree dated 19.09.2003 was passed by this Court in ordinary original civil jurisdiction, therefore, Article 183 of Limitation Act, will apply and period of six year will be reckoned from the date of default in payments, under settlement agreement dated 31.07.2007. I have carefully examined the aforesaid arguments. There is distinction between original civil jurisdiction and ordinary original civil jurisdiction of the High Court. The original civil jurisdiction can be conferred on High Court through statute, whereas ordinary original civil jurisdiction is conferred by, CPC. The august Supreme Court in Brothers Steel Mills Ltd.’s case (PLD 1996 SC 543) highlighted the above difference in following terms:

“Similar view seems to have been taken in Pakistan Fisheries Ltd. therefore, seems to be a consistent view that the High Court besides jurisdiction already conferred on it may be vested with any jurisdiction including original civil jurisdiction by a statute. Under such original civil jurisdiction the proceedings are to initiate and conclude before the High Court. The Ordinance likewise confers such original civil jurisdiction on the High Courts, which completely different from the ordinary original civil jurisdiction conferred the Code of Civil Procedure. Mr. Muhammad Farooq the learned A.S.C. has contended that the jurisdiction exercised by the Company Judge is special original jurisdiction and not original civil jurisdiction as the original civil jurisdiction is exercised under the Code of Civil Procedure. We are unable to subscribe to this contention as under the Ordinance the Court is required to adjudicate upon rights and liabilities of the parties which are civil in nature. Such jurisdiction conferred by a statute has sometimes been termed as special or statutory jurisdiction, but it possesses all the attributes of original civil jurisdiction and remains nothing but the original civil jurisdiction as distinguished from the appellate jurisdiction.”

The august Supreme Court in judgment (supra) further held as under:

“A close scrutiny of the judgments holding that the Court under the Ordinance does not exercise original civil jurisdiction shows that they are based on the observation made in Ahmed Khan (supra), in which Cornelius, C.J. has specifically mentioned that the ordinary original civil jurisdiction is confined to trial of suits. Although in some judgments the word ‘ordinary’ has not been used, yet where the proceedings are initiated by filing a plaint as provided by the Code of Civil Procedure, it should be termed as ordinary original civil jurisdiction and not merely original civil jurisdiction. To clearly understand the meaning and impact of the term “original civil jurisdiction” it is necessary to differentiate between these two terminologies. The original civil jurisdiction cannot be restricted to proceeding initiated by filing plaint which in my view is ordinary original civil jurisdiction of a Court, as jurisdictions are conferred on the High Courts by statutes which provide for initiating proceedings before the High Court itself.”

1. The original civil jurisdiction can be of two types; ordinary and extra ordinary. The Hon’ble Supreme Court of Pakistan in Brother Steel Mills (supra) noted that Lahore High Court does possess extra-ordinary original civil jurisdiction and as a matter of fact the only High Court which enjoys ordinary civil original jurisdiction is the Sindh High Court. In said judgment it was further held that since the High Court exercises civil jurisdiction under the Companies Ordinance 1984 (Companies Ordinance), therefore, Section 117, CPC shall apply. The reasoning advanced in this case was that since the Companies Ordinance redresses civil rights hence the High Court when exercising jurisdiction under the Companies Ordinance is in fact exercising original civil jurisdiction. The term original civil jurisdiction was explained in detail by Honourable Supreme Court in said judgment as being a jurisdiction where the Court is empowered to entertain suit and proceeding of civil nature which are initiated before the Court as a Court of first instance. The jurisdiction can be conferred on any Court including a High Court by a statute such as Companies ordinance or Ordinance, which may provide for initiating the proceedings in that Court as a Court of first instance having power to entertain and decide it. Such Court will thus be vested with original jurisdiction and if such jurisdiction relates to civil dispute it will be termed as original civil jurisdiction.

2. Similar to Companies Ordinance, the High Court while exercising jurisdiction under the Ordinance, also adjudicate upon civil rights and liabilities of the parties, hence it may be termed as special jurisdiction but it possesses all attributes of original civil jurisdiction. However, High Court under the Ordinance, does not exercise ordinary original civil jurisdiction conferred by, CPC. This fact is also evident from the decree sheet dated 19.09.2003 itself, where it is specifically recorded that the said decree was passed in original civil jurisdiction. Article 183 of the Limitation Act, is only applicable when judgment and decree of any High Court is passed in exercise of its ordinary original civil jurisdiction but not where decree is passed in original civil jurisdiction.

In the case law relied upon by the learned counsel for the petitioner i.e. Pakistan Fisheries’ case (supra), Dr. Mrs. Tallat Khan’s case (supra) and Adamgee Insurance Companies’ case (supra) it was also held that High Court under various statutes exercise original civil jurisdiction. In none of these judgments passed by august Supreme Court, it was held that High Court under statute exercise ordinary original civil jurisdiction. In (PLD 1998 Karachi 391), the Honourable Sindh High Court though while relying upon Pakistan Fisheries’ case (supra), held that under statute, High Court exercise ordinary original civil jurisdiction, however, this finding is not in consonance with the judgment by august Supreme Court relied upon, where it was held that High Court exercise original civil jurisdiction. This conclusion is supported by the fact that Honourable Supreme Court in another judgment Habib Bank Ltd. vs. Zulfiqar Ali Khan and others (2002 CLD 1758) while relying upon Pakistan Fishers Ltd., Karachi case (supra) held as under:

“It is clear from the above section that when a Judge of the High Court is nominated by the Chief Justice for expeditious disposal of the cases under the Act, he acts as Banking Court and any order passed by him as such Court would be in the capacity of a Banking Court and not the High Court in its ordinary jurisdiction.”

“In Messrs. Tri Star Polyester Limited and another v. Citi Bank 2001 SCMR 410, this Court has held that the High Court acting as Banking Court under Section 2(f) of the Act was similar to a Special Court and any such order passed by it was in its capacity as a Banking Court and not the High Court in its ordinary jurisdiction.”

In M/s. Tri-Star Polyester Ltd. and another vs. Citi Bank Ltd. (2001 SCMR 410), the Honourable Supreme Court held as under:

“High Court was constituted as a Banking Court and while trying a suit filed under the Act, it was not a High Court in its ordinary meanings exercising jurisdiction as such, whereas on the other hand it was exercising special jurisdiction having been constituted as a Banking Court.”

“It was held that the Banking Court as defined in the Act was similar to a Special Court as defined in Section 2(f)of the Banking Companies (Recovery of Loans), Ordinance, 1979 as regards nature of jurisdiction in banking cases, therefore, any order passed by a learned Judge of the High Court as such was in the capacity of a Banking Court and not the High Court in its ordinary jurisdiction.”

The above discussion leaves no doubt that High Court jurisdiction under the Ordinance is original civil jurisdiction and not ordinary original civil jurisdiction, therefore, provisions of Article 183 of Limitation Act and Section 48(2(b), CPC are not attracted.

1. The next contention of learned counsel for the decree holder bank is that period of six years of limitation prescribed under Section 48 (1), CPC for second execution application is to be reckoned from the date of dismissal of first execution application, hence this execution application is within time. This argument is also misconceived. Bare reading of Section 48 of CPC shows that no order for the execution of decree shall be made upon any fresh application presented after expiration of six years from the date of decree sought to be executed. The provision of Section 48, CPC is clear and express in term and it will be fallacy to hold that six years limitation for fresh execution will be from the date of dismissal of first execution application and not from the date of decree. The case of Mehboob Khan (supra), relied upon by the learned counsel for the decree holder bank is not applicable to the facts and circumstances of this case. In said case, the second execution application was filed after five years from the date of decree and the question was whether Article 181 of Limitation Act will apply or fresh execution application will be governed under Section 48, CPC. The Honourable Supreme Court held that first execution will be governed under Article 181 of Limitation Act whereas any subsequent or fresh application for execution will be governed by Section 48, CPC. It was nowhere held in said judgment that limitation of six years under Section 48, CPC will be counted from the date of dismissal of first execution application and not from the date of judgment and decree.

2. Learned counsel for the decree holder bank stressed hard on the argument that the parties entered into settlement agreement dated 31.07.2007 and judgment debtors committed default in payments under said agreement, therefore, as per Section 48(1)(b), CPC, period of limitation is to be calculated from the date of said default. The said argument has also no basis. As per provision of Section 48(1)(b), CPC, where decree or subsequent order direct any payment of money or delivery of any property to be made at a certain date or at recurring period, the limitation of six years will run from the date of default in making payment or delivery of property. In the present case, no such direction was passed either in judgment and decree dated 19.09.2003 or in the subsequent orders passed by the Court. The agreement dated 31.07.2007 was admittedly without intervention and approval of the Court, therefore, default of payments under said agreement will not amount to default of payments under the decree or any subsequent order passed by the Court. For above reasons, the provisions of Section 48(1)(b) are not applicable and period of limitation for filing second execution application was to be calculated from the date of decree dated 19.09.2003 under Section 48(1)(a), CPC.

3. The facts, circumstances and law discussed above, lead to the ineluctable conclusion that this second execution application filed on 09.09.2013 to execute judgment and decree dated 19.09.2003, is barred by limitation for period of 3 years 11 month and 21 days.

Accordingly, this application is allowed. The necessary corollary and effect is that execution application i.e. (Ex.A. No. 15-B/2013) is dismissed being barred by time.

(R.A.) Application allowed

PLJ 2017 Lahore 180

Present: Shujaat Ali Khan, J.

IFTIKHAR AHMAD etc.--Appellants

versus

MUHAMMAD NASIR--Respondent

S.A.O. No. 18 of 2011, decided on 22.12.2016.

Ejectment Petition--

----Scope of--Change of ownership of rented shop--Ejectment petition was dismissed--Appeal was accepted by First Appellate Court--Property was purchased from joint khata--Challenge to--Question of title cannot be decided by forum established under rent laws--Validity--In view of rival claims regarding possession over rented shop safer course for him was to produce vendors before Court to establish that prior to transfer of rented shop in his favour appellants were tenants but respondent withheld such evidence for reasons best known to him--It is well established by now that when a party withholds an important piece of evidence inference goes against him--There is no cavil with preposition that till a property is formally partitioned its co-sharers can dispose of their unidentified share but same is subject to certain conditions viz. no co-owner can be allowed to sale specific number/portion of joint property--Matter regarding payment of rent by appellants came to High Court whereupon they were allowed to pay rent--Without formal partition of property proceedings before Special Judge were not maintainable--Non-production of vendor from whom respondent is claiming title badly affected his case--Appeal was accepted. [Pp. 184, 185 & 187] A, B, C & D

2015 SCMR 1243, PLD 2015 SC 212, 2007 SCMR 437, PLD 2003 SC 410, 1996 SCMR 137, 1993 SCMR 1463, rel.

Mr. Shazib Masood, Advocate for Appellants.

Sardar Muhammad Tariq, Advocate for Respondent.

Date of hearing: 25.11.2016

Order

Briefly put, the respondent filed an Ejectment Petition against the appellants qua Shop Bearing No. 34-A, falling in Khasra No. 1918, Khewat No. 1164, Khatooni No. 1166, Ward No. 6, Nizam Market, Street No. 6, Anarkali Bazar, Faisalabad (hereinafter to be referred as the rented shop) with the averments that having purchased the said property from Zafar Iqbal etc. through registered Sale Deed Bearing No. 4043, dated 02.05.2000 he became owner of the rented shop. Upon service of notice, the appellants joined the proceedings by filing written reply inter-alia with the objections that as they being tenants of Abdul Wahid have no concern with the change of ownership of rented shop owned by Zafar Iqbal etc; that having knowledge about the change of ownership in favour of the ejectment-petitioner, they contacted their landlord, Abdul Wahid, who in turn presented before them a copy of gift deed qua the rented shop. Out of divergent pleadings of the parties the learned Special Judge (Rent) Faisalabad framed following Issues:--

“1. Whether there exist relation of landlord and tenant between the parties? OPA.

1. Relief.”

2. To prove his stance, the respondent (ejectment petitioner) produced Rana Muhammad Rasheed Advocate as AW-1, Muhammad Masood Advocate as AW-2, Aziz-Ur-Rehman as AW-3, Muhammad Zia-ul-Haq as AW-4 and Muhammad Salim as AW-5. In addition to oral evidence the respondent also tendered in evidence documents ranging from Exh.A/1 to Exh.A/9.

3. On the other hand, the appellants (respondents in ejectment petition) examined, Iftikhar Ahmad (Appellant No. 1) as RW-1, Abdul Wahid as RW-2, Muhammad Naveed as RW-3 and tendered in evidence receipts regarding payment of rent to Abdul Wahid Exh.R-1 to Exh.R-24, copy of Record of Rights for the year 2001-2002 relating to Property No. 34-A as Exh.R-25 and copy of order, dated 27.05.2002, passed by this Court in Civil Revision No. 42/2002, as Exh.R-26.

4. Upon conclusion of the proceedings the learned Special Judge (Rent), Faisalabad, dismissed the Ejectment Petition vide order, dated 21.01.2010, against which the respondent preferred an appeal. The learned Additional District Judge, Faisalabad, accepted the same vide judgment, dated 04.03.2011; hence this second appeal.

5. It is imperative to clarify here that during the course of cross-examination RW-2 was confronted with copy of plaint; copy of order, dated 29.05.2007, passed by Civil Court; copy of written statement, copy of contempt petition; copy of order dated 29.05.2007; copy of execution petition; certified copy of order dated 06.06.2005 passed by the learned Additional District Judge; copy of order dated 22.06.2005 passed by the Hon’ble Supreme Court of Pakistan; copy of order dated 03.02.2005 passed by this Court; copy of order dated 29.07.2003; copy of judgment & decree dated 30.01.2002 which were referred as Exh.A-13/RW-2 to Exh.A-23/RW-2. Despite my best efforts I have not been able to find out as to how the said documents, appearing on the record of the lower Court, at Pages No. 171 to 347, were exhibited in evidence. Further, mention of RW.2 on the said documents shows that they were purportedly produced by RW-2 whereas they have been exhibited as produced by the ejectmentpetitioner. Likewise, exhibiting of documents Exh.A-10/RW-2 to Exh.A-12/RW-2 available at pages No. 147 to 167 of the record of the lower Court is not established from interim orders as well as evidence of the parties. Perhaps the said documents were marked as exhibited during the course of their confrontation to RW-2 due to some inadvertence. As the said documents have neither been discussed by the learned Special Judge (Rent) nor by the appellate forum instead of deciding the matter on this issue I venture to decide the matter on merits.

6. The legal submissions formulated by learned counsel for the appellants can be summarized in the words that admittedly the rented shop falls in Khasra No. 1918 which is jointly owned by different persons and till its formal partition, the ejectment proceedings filed by the respondent were not maintainable; that claim of the respondent is that he purchased the shop from Zafar Iqbal etc. but he did not bother to produce them in the witness box to establish that prior to registration of sale-deed in his favour the appellants were tenants of said vendors; that it is well established by now that question of title cannot be decided by a forum established under Rent Laws; that the lower appellate Court has reversed the findings of the Court of first instance without advancing any cogent reasons; that to establish title it is incumbent upon a party to establish the same beyond reasonable doubt but despite holding that the respondent failed to establish so, the lower appellate Court illegally accepted the appeal filed by him. In support his contentions, learned counsel has also relied upon the cases reported as Rehmatullah v. Ali Muhammad and another (1983 SCMR 1064) and M/s. Symphony (Pvt.) Ltd. v. Haji Fazal Karim and others (2015 CLC 103).

7. Conversely, learned counsel representing the respondent, while defending the impugned judgment, submits that as the exact boundaries of the property subject of the Gift Deed executed by the brothers and sisters of Abdul Wahid was missing, the Court of first instance was not justified to dismiss his ejectment petition thus its findings were rightly reversed by the lower appellate Court; that sale-deed executed in favour of the respondent having exact dimension of the rented shop there was no dispute regarding title; that in the evidence the appellants side admitted that there was a family partition amongst the co-owners, therefore, they could not claim that without due partition the Ejectment Petition was not maintainable; that a similar question has already been decided by this Court while dealing with S.A.O. No. 94/2003 and the facts and circumstances of the said case being identical, the decision of this Court in the said appeal is applicable to the present case. In support of his contentions learned counsel has relied upon the cases reported, Suleman and another v. Ataullah and 5 others (2010 CLC 116), Pervaiz v. Amir Aziz (2005 CLC 594) and judgment, dated 10.02.1992, rendered by the apex Court of the country in Civil Petition for Leave to Appeal Nos. 495-L/1991 titled Muhammad Yousaf v. Settlement & Rehabilitation Commissioner.

8. While exercising his right of rebuttal, learned counsel for the appellants argues that the appellants never stated in evidence that the property was partitioned amongst the co-sharers of Khasra No. 1918 rather their stance was that legacy of Mukhtar Ahmed, father of Abdul Wahid, was divided amongst his legal heirs pursuant to a family settlement.

9. I have heard learned counsel for the parties at considerable length and have also gone through the documents annexed with this appeal as well as the case-law cited at the bar.

10. During the course of scanning the record of the lower fora I have noted that while deciding Issue No. 1 the lower appellate Court has mainly banked upon the fact that as the Gift Deed in favour of Abdul Wahid, was bereft of the exact specification of the subject property whereas the sale-deed registered in favour of the respondent bore exact identification thus the claim of the latter was on better footing. In this regard, I disagree with the findings of the lower appellate Court for the reason that in the very opening lines of the Gift Deed (Exh.A/9) it has been mentioned that subject of the gift comprise of a private Almirah No. 34-A falling in Khasra No. 1918, Khewat No. 1164 and Khatooni No. 1166. Further, AW-3, AW-4 and AW-5 admitted during their cross- examination that the sale-deed executed in favour of the respondent was not carrying shop number which fact also stands confirmed by the contents of sale-deed (Exh.A/4) being relied upon by the respondent. In this scenario, the observation of the first appellate Court cannot be blessed with stamp of authenticity simply for the reason that the document executed in favour of the respondent was on better footing. It is very ironical that on the one hand the respondent took clear cut stance that he purchased Almirah No. 34/A but on the other hand refused to accept the said Identification sufficient especially with reference to Gift Deed in favour of Abdul Wahid.

11. Admittedly the respondent stepped into shoes of Zafar Iqbal etc. and in view of the rival claims regarding possession over the rented shop the safer course for him was to produce the vendors before the Court to establish that prior to transfer of the rented shop in his favour the present appellants were tenants of Zafar Iqbal etc. but the respondent withheld such evidence for the reasons best known to him. It is well established by now that when a party withholds an important piece of evidence inference goes against him. Reliance in this regard is placed on the cases reported as Dr. Pir Muhammad Khan v. Khuda Bukhsh and others (2015 SCMR 1243), Dr. Muhammad Javaid Shafi v. Syed Rashid Arshad and others (PLD 2015 S.C. 212), Muhammad Zubair v. The State (2007 SCMR 437), Amirzada Khan and others v. Ahmad Noor and others (PLD 2003 S.C. 410) and Sughran Bibi v. Mst. Aziz Begum and 4 others (1996 SCMR 137). In the case of Dr. Pir Muhammad Khan (Supra) the apex Court of the country while clinching the issue regarding consequences of withholding of best evidence by a party has inter alia held as under:

12. Another aspect of the case, which has negative impact over the claim of the respondents in exercising their right of pre- emption over the suit land in a lawful manner is the fact that as per averments made in the plaint and the deposition of P.W.1 Hidayatullah, only he made the requisite talbs along with his brother Adalat Khan, who also exercised such right on behalf of his other three brothers, Khuda Bakshsh, Sardar Ali Khan and Karim Bakhsh, all sons of Mustajab Khan on the basis of power of attorney dated 2-6-1987 in his favour. Admittedly, the said document, typed on a twenty-five Rupees stamp paper, is special power of attorney, which is to be construed strictly as per its contents. The contents of this power of attorney reveal that it was executed by Khuda Bakhsh, Karim Bakshsh, Sardar Ali and Hidayatullah Khan in favour of Adalat Khan, but it contained no specific delegation of power in his favour for exercising the right of pre-emption over the suit land on behalf of its executants. Thus, for all intent and purposes, no right of pre-emption was legally exercised on behalf of respondents Khuda Bux, Karim Bux and Sardar Ali. Moreover, the said attorney, Adalat Khan, also did not bother to appear in the witness box to offer himself to the test of cross-examination as regards his purported authority to exercise right of pre-emption on their behalf. Withholding of such evidence by the respondents has not been explained anywhere, which gives an adverse presumption as regards the merits of their claim of making talb-i-muwathibat and talb-i-ishhad, strictly as mandated under the provisions of Muhammadan Law.” (emphasis provided).

13. Another important aspect of the instant case is that after transfer of Shop bearing Almirah No. 34/A in the name of Abdul Wahid by virtue of Gift Deed (Exh.A/9) how the same was available for its further transfer by Zafar Iqbal etc. in favour of the respondent. There is no cavil with the preposition that till a property is formally partitioned its co-sharers can dispose of their unidentified share but the same is subject to certain conditions viz. no co-owner can be allowed to sale specific number/portion of joint property. In this regard I stand guided by the law laid down in the cases reported as Jan Muhammad and another v. Abdul Rashid and 5 others (1993 SCMR 1463) wherein the august Supreme Court while dealing with the issue regarding sale of specific portion of the property by one of the joint owners laid law to the following effect:--

“……….. Needless to emphasise that the possession of one co-sharer in law is the possession of all and that any alienation made by the co-sharer in possession cannot put an end to the joint ownership/possession of the property and the transferee co-sharer steps into the shoes of the transferor qua his ownership rights in the joint property no more no less, as held by this Court in case Muhammad Muzaffar Khan v. Muhammad Yousuf Khan (PLD 1959 Supreme Court (Pak.) 9). In this view of the matter the petitioners can only claim ownership in the entire joint property owned by their transferor with the other co-owners and retain possession of the area specifically purchased by them till partition but cannot claim exclusive ownership thereto. The plaintiffs/ respondents were undoubtedly recorded co-sharers and therefore were rightly held as such by the appellate Court. However, since the petitioners have already constructed house on the area purchased by them without any objection by that co-sharers rather they acquiesced in the said construction, the petitioners shall remain in possession thereof till partition of the entire joint property viz., the suit Khasra numbers and the other Khasra numbers in which the transferors of the petitioners were joint owners and in the partition, whenever embarked upon, efforts shall be made to place the same in the lot of the petitioners as far as practicable and the other co-sharers compensated in the other joint property.” (emphasis provided).

1. Learned counsel for the respondent, while responding to the plea raised by the learned counsel for the appellants that without clearance of title/possession after formal partition the proceedings before the learned Special Judge (Rent) Faisalabad were not maintainable, has referred to the statement of RW-3 with the assertion that since said witness has admitted partition of the joint property the proceedings before the learned Special Judge (Rent) Faisalabad were maintainable. In this regard, I do not agree with the learned counsel for the respondent for the reason that during the course of cross- examination Muhammad Naveed (RW-3) stated that at the time of death of Mukhtar Ahmed, father of Abdul Wahid, the property was jointly owned by him alongwith his brothers Abdul Ghafoor and Manzoor Ahmed. Further, no specific suggestion by the respondent side was put to the said witness as to whether the property was partitioned amongst the co-sharers of Khasra No. 1918. Moreover, Abdul Wahid (RW-2) during his cross-examination clarified that the shop fell to his share pursuant to a family settlement amongst the legal heirs of Mukhtar Ahmed. He further stated that alongwith the legal heirs of Mukhtar Ahmed, Zafar Iqbal etc. were also co-owners in Khasra No. 1918.

Aziz-Ur-Rehman, AW-3, during the course of cross-examination admitted that the rented shop was purchased from Joint Khata. Further, Muhammad Zia-ul-Haq, AW-4, admitted that the property was purchased from joint Khata. In the presence of such straightforward facts the lower appellate Court has committed grave illegality while holding that the property having formally been partitioned ejectment proceedings before the learned Special Judge (Rent) were maintainable.

1. Now coming to the contention of the learned counsel for the respondent that as similar question has already been dealt with by this Court while deciding S.A.O. No. 94/2003 instant appeal deserves dismissal, I am of the view that each case has to be decided on the basis of its peculiar facts and circumstances. Undeniably the case referred by the learned counsel for the respondent not only pertained to distinct property but parties to the proceedings were also different. In this backdrop, it is not just to decide the instant appeal while relying upon the decision in the said case despite the fact that certain points might have similarity in both these cases.

2. While scanning the record, I have noted that the matter regarding payment of rent by the appellants came to this Court whereupon they were allowed to pay rent either to Abdul Wahid or to Muhammad Nasir. Pursuant to the order of this Court, the appellants have been paying rent to Abdul Wahid, therefore, there is no question of default on their part.

3. As a necessary corollary to the above discussion I am of the considered opinion that without formal partition of the property falling in Khasra No. 1918 the proceedings before the learned Special Judge (Rent) Faisalabad were not maintainable. Further, non-production of the vendor from whom the respondent is claiming title badly affected his case. Consequently, instant appeal is accepted and impugned judgment and decree passed by the lower appellate Court is set aside. As a result, the order passed by the learned Special Judge (Rent) Faisalabad shall hold the field. There shall be no order as to costs.

(R.A.) Appeal accepted

PLJ 2017 Lahore 187

Present: Syed Mansoor Ali Shah, C.J.

HafizJUNAID MAHMOOD--Petitioner

versus

GOVT. OF PUNJAB, etc.--Respondents

W.P. No. 2565 of 2014, heard on 19.12.2016.

Disabled Persons (Employment and Rehabilitation) Ordinance, 1981--

----Ss. 2(c) & 10--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Disabled person--Recruitment Policy--Physically blind--Disability did not dissude from becoming Hafiz-e-Quran--Challenge to--Lgality of recruitment policy--Validity--A disabled person under Ordinance is defined as a person who on account of injury, disease or congenital deformity, is handicapped for undertaking any gainful profession or employment in order to earn his livelihood and includes a person who is blind, deaf, physically handicapped or mentally retarded--It applies equally to persons with disabilities, guaranteeing them full enjoyment of their fundamental rights without discrimination--Triangular construct of right to life, dignity and equality under robust platform for mainstreaming persons with disabilities--Right to life and dignity of a person with disabilities can only be realized if State and its institutions take steps to provide reasonable accommodation that will facilitate and ensure that person with disabilities can enjoy life with honour and dignity like others in society--Department should have considered possibility of providing necessary technical and human support to ensure that petitioner was able to perform as an educator and was not discriminated on ground of disability.

[Pp. 190, 191, 200, 201 & 202] A, B, C, D & E

Disabled Persons (Employment and Rehabilitation) Ordinance, 1981--

----S. 10--Constitution of Pakistan, 1973, Art. 9, 14, 25 & 199--Physically blind--Disability--Special quota--Recruitment policy--Fundamental rights--Discrimination on basis of disability--Contentions of department--Being blind persons cannot write on black board and will not be able to control class--Unconstitutional and illegal--Validity--A blind man, from applying for post of SESE inspite of having successfully qualified NTS test, a pre-requisite for applying for the post--Question of more importance is, whether a person with disabilities, enjoys protection under Constitution--Government of Pb. has failed to consider that petitioner could have been made able enough to teach with help of assistive technology--No one has questioned qualification of petitioner--His ability to use blackboard and maintain discipline can be easily achieved through assistive technology and additional human resource--These reasons hold out a merciless and heartless department that has paid no heed to rights of petitioner under Constitution, Ordinance and Convention--Department has failed to realize that in considering social integration of people with disabilities, access to employment is often considered to be of a particular importance--In addition, employment can provide a structure to day and sense of purpose and often a sense of identity, as well as, providing opportunity to make social contact--Constitutional interpretation in light of Convention indubitably shows that a person with disabilities cannot be debarred from applying on open merit for general seats. 3% quota under Ordinance is an additional benefit and does not restrict a person with disabilities to apply for general quota--To restrict persons with disabilities to a limited quota of 3%, which may or may not be available, depending upon sanctioned posts, will amount to depriving equal accessibility and opportunity to person with disabilities and offend Art. 25 of Constitution--Any such restriction is opposed to constitutional mandate and also offends Convention--Government is directed to consider candidacy of petitioner against post of SESE on open merit and if need be against additional 3% quota for persons with disabilities by disregarding of Recruitment Policy. [Pp. 203, 204 & 205] F, G & H

M/s. Harris Azmat and Ali Khalid Sindhu,Advocates alongwith Petitioner in person.

Mr. Anwaar Hussain and Ahmad Hassan Khan, Assistant Advocates General, Punjab. Mr. Iftikhar Ahmad Mian, Advocate for Respondent No. 2.

Rana Muhammad Younus Aziz, Senior Law Officer, School Education Department.

Mr. Zubair Khan, Deputy Secretary, School Education Department, Govt. of the Punjab.

Mr. Tariq Ismail, Litigation Officer, Social Welfare Department, Punjab.

Mr. Iqbal Hussain, EAD o/o EDO (Education) Lahore.

Date of hearing: 19.12.2016

Judgment

“It is not the eyes that are blind, but the hearts” Holy Quran (22:46)

Petitioner has permanent visual impairment or Bilateral Permanent Blindness which in ordinary parlance means that the petitioner is physically blind.[1] This disability did not dissuade the petitioner from becoming a Hafiz-e-Quran and pursing higher education and successfully obtaining Bachelor of Arts (Honours) in English from Forman Christian College, Lahore in the year 2012. He also holds a Braille Proficiency Certificate from the Directorate of Special Education, Government of Pakistan dated 26-2-2016. According to the Disability Certificate dated 17-12-2016 the Assessment Board for the Disabled Persons[2] has recommended that the petitioner is “fit for job consistent with his experience.”

1. In response to a public advertisement in the year 2013, for the entry test for recruitment of educators, in all districts of Punjab, issued by National Testing Service (NTS) on behalf of School Education Department, Government of Punjab, the petitioner applied and successfully passed the NTS test. Thereafter, the local government advertised various posts of educators including the post of Senior Elementary School Educator (“SESE”). Having passed the NTS test the petitioner thought that he was eligible to apply for the said post, till he realized that the advertisement itself barred blind persons from applying. Upon further inquiry the petitioner found out that the bar is contained in the “Recruitment Policy-2013 for Educators” (“Recruitment Policy”) dated 31.07.2013.

2. The petitioner has challenged the Recruitment Policy before this Court on the ground that the definition of disabled person in the Recruitment Policy is against the definition of a disabled person as given in Section 2(c) of the Disabled Persons (Employment and Rehabilitation) Ordinance, 1981 (“Ordinance”). It is submitted that the petitioner is entitled to be considered on open merit at par with the other candidates and in addition to that a person with disabilities enjoys a 3% special quota under Section 10 of the Ordinance. He submits that the Recruitment Policy is violative of the fundamental rights and hence unconstitutional.

3. Learned Law Officers and the learned counsel for respondent Local Government alongwith the Deputy Secretary, School Education Department, present in Court, submit that it is not possible for a blind teacher to “control the class” or maintain discipline, therefore, he is not eligible to apply for the said post. Furthermore, the right of the petitioner to seek employment has to be proportionately balanced with the rights of the children to get proper education, while the right to education is the dominant right. While supporting the Policy, they submitted that Courts cannot interfere in Policy matters and placed reliance on Executive District Officer (Revenue), District Khushab at Jauharabad and others v. Ijaz Hussain and another (2011 SCMR 1864), Aqsa Manzoor v. University of Health Sciences, Lahore through Vice-Chancellor and 3 others (PLD 2006 Lahore 482), Lt. Muquddus Haider v. Federal Public Service Commission through Chairman, Islamabad (2008 SCMR 773), Punjab Public Service Commission and another v. Mst. Aisha Nawaz and others (2011 SCMR 1602) and Mian Muhammad Afzal v. Province of Punjab and others (2004 SCMR 1570).

4. I have heard the arguments and have gone through the record, the supporting materials and case law relied upon by the parties.

5. Facts are admitted and have been briefly narrated above. At a subjective level, the question before this Court is the legality of the Recruitment Policy that has deprived the petitioner, a blind man, from applying for the post of SESE inspite of having successfully qualified the NTS test, a pre-requisite for applying for the above post. But, viewed objectively, the question of more importance is, whether a person with disabilities, enjoys protection under the Constitution?

6. Taking up the question of maintainability of the petition first. It has been argued by the Respondents that Courts do not interfere in policy matters, hence this Court cannot examine the impugned Recruitment Policy and as a result this petition is not maintainable. Generally, governmental policy is enforceable against a citizen when it is translated into legislation, subordinate legislation or executive action. Any such legislation or executive action is then subject to judicial review. Policy is, generally, a guideline for the internal working of the Government, however, if the Policy impinges upon the fundamental rights of a citizen, it can be judicial reviewed, like any other legislation or executive action. Reliance is placed on Human Rights Case No. 14392 of 2013 (2014 PTD 243), Messrs Al-Raham Travels and Tours (Pvt.) Ltd. v. Ministry of Religious Affairs, Hajj, Zakat and Usher through Secretary and others (2011 SCMR 1621), Messrs Shaheen Cotton Mills, Lahore and another v. Federation of Pakistan, Ministry of Commerce through Secretary and another (PLD 2011 Lahore 120) and Wattan Party through President v. Federation of Pakistan through Cabinet Committee of Privatization, Islamabad and others (PLD 2006 SC 697). It has been argued in this case that the Recruitment Policy has deprived the petitioner of his right to life including right to livelihood, right to dignity and right to equality. Additionally, this case also revolves around interpretation of fundamental rights in the context of persons with disabilities. The case laws relied upon by the learned counsel for the respondents have been considered and have little relevance to the case in hand because they turn on totally different factual matrices. For these reasons, the Court can examine the said Policy and, therefore, the instant petition is maintainable.

7. At the very outset it is important to examine the meaning of disability. Disability means lacking one or more physical powers, such as the ability to walk or to coordinate one’s movements, as from the effects of a disease or accident, or through mental impairment.[3] A disabled person under the Ordinance is defined as a person who on account of injury, disease or congenital deformity, is handicapped for undertaking any gainful profession or employment in order to earn his livelihood and includes a person who is blind, deaf, physically handicapped or mentally retarded.[4] According to the UN Convention on the Rights of Persons With Disabilities (“CRPD” or “Convention”) ratified by Pakistan in 2011, persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others. Disability is an evolving concept and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others. Disabilities is an umbrella term, covering impairments, activity limitations, and participation restrictions. An impairment is a problem in body function or structure; an activity limitation is a difficulty encountered by an individual in executing a task or action; while a participation restriction is a problem experienced by an individual in involvement in life situations. Disability is thus not just a health problem. It is a complex phenomenon, reflecting the interaction between features of a persons’s body and features of the society in which he or she lives.[5]

8. As a matter of background, around 10 per cent of the world’s population, or 650 million people, live with a disability. They are the world’s largest minority. Eighty per cent of persons with disabilities live in developing countries, according to the UN Development Programme (UNDP). Ninety per cent of children with disabilities in developing countries do not attend school, says UNESCO. The global literacy rate for adults with disabilities is as low as 3 per cent, and 1 per cent for women with disabilities, according to a 1998 UNDP study. An estimated 386 million of the world’s working-age people are disabled, says the International Labour Organization (ILO). Unemployment among the disabled is as high as 80 per cent in some countries. Often employers assume that persons with disabilities are unable to work.[6] In Pakistan, estimates of the number of persons living with disabilities vary between 3.3million and 27million, depending on whether they are based on government statistics (the last census which measured the prevalence rates was taken in 1998) or whether they come from other agencies.

9. In Pakistan, there is no comprehensive law protecting the rights of persons with disabilities. The one and only piece of legislation that exists for persons with disability was passed in 1981 and focuses on employment and segregated education (in the form of special education schools). In the 33 years since then only minor adjustments have been made to the law, and it continues to be poorly implemented. Meanwhile, a number of policies and plans have been drafted, but once again, they remain only on paper. The law, policies and plans squarely underline a medical and charity approach to disability[7].

10. Globally, and in Pakistan, policy approaches to disability have largely been focused on rehabilitation, welfare handouts and related charity. This has been changing since the UN Convention on the Rights of Persons With Disabilities which offers a blueprint for a rights-based approach to mainstreaming persons with disabilities. Pakistan ratified the CRPD in 2011, but progress around building an inclusive society has been slow.[8] The Convention, which became operational in 2008, is the first human rights treaty of the 21st century and the first UN treaty protecting the fundamental rights of persons with disability. In line with the general discourse around development-related issues today, the treaty is a move towards viewing disability from a rights-based approach. [9]

UN Convention on the Rights of Persons With Disabilities

1. The Convention promotes, protects and ensures the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and promotes respect for their inherent dignity. The relevant provisions of the Convention are instructive, hence relevant portions are reproduced hereunder:

Preamble

(a) Recalling the principles proclaimed in the Charter of the United Nations which recognize the inherent dignity and worth and the equal and inalienable rights of all members of the human family as the foundation of freedom, justice and peace in the world, (b) Recognizing that the United Nations, in the Universal Declaration of Human Rights and in the International Covenants on Human Rights, has proclaimed and agreed that everyone is entitled to all the rights and freedoms set forth therein, without distinction of any kind, (c) Re-affirming the universality, indivisibility, interdependence and interrelatedness of all human rights and fundamental freedoms and the need for persons with disabilities to be guaranteed their full enjoyment without discrimination, (g) Emphasizing the importance of mainstreaming disability issues as an integral part of relevant strategies of sustainable development, (h) Recognizing also that discrimination against any person on the basis of disability is a violation of the inherent dignity and worth of the human person, (i) Recognizing further the diversity of persons with disabilities, (j) Recognizing the need to promote and protect the human rights of all persons with disabilities, including those who require more intensive support, (k) Concerned that, despite these various instruments and undertakings, persons with disabilities continue to face barriers in their participation as equal members of society and violations of their human rights in all parts of the world, (m) Recognizing the valued existing and potential contributions made by persons with disabilities to the overall well-being and diversity of their communities, and that the promotion of the full enjoyment by persons with disabilities of their human rights and fundamental freedoms and of full participation by persons with disabilities will result in their enhanced sense of belonging and in significant advances in the human, social and economic development of society and the eradication of poverty, (n) Recognizing the importance for persons with disabilities of their individual autonomy and independence, including the freedom to make their own choices, (o) Considering that persons with disabilities should have the opportunity to be actively involved in decision-making processes about policies and programmes, including those directly concerning them, (p) Concerned about the difficult conditions faced by persons with disabilities who are subject to multiple or aggravated forms of discrimination on the basis of race, colour, sex, language, religion, political or other opinion, national, ethnic, indigenous or social origin, property, birth, age or other status, (v) Recognizing the importance of accessibility to the physical, social, economic and cultural environment, to health and education and to information and communication, in enabling persons with disabilities to fully enjoy all human rights and fundamental freedoms, (x) Convinced that the family is the natural and fundamental group unit of society and is entitled to protection by society and the State, and that persons with disabilities and their family members should receive the necessary protection and assistance to enable families to contribute towards the full and equal enjoyment of the rights of persons with disabilities, (y) Convinced that a comprehensive and integral international convention to promote and protect the rights and dignity of persons with disabilities will make a significant contribution to redressing the profound social disadvantage of persons with disabilities and promote their participation in the civil, political, economic, social and cultural spheres with equal opportunities, in both developing and developed countries.

Article 3 (General Principles)

The principles of the present Convention shall be:

(a) Respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons;

(b) Non-discrimination;

(c) Full and effective participation and inclusion in society;

(d) Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity;

(e) Equality of opportunity;

(f) Accessibility;

(g) Equality between men and women;

(h) Respect for the evolving capacitated of children with disabilities and respect for the right of children with disabilities to preserve their identities.

Article 4 (General obligations)

1. States Parties undertake to ensure and promote the full realization of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability. To this end, States Parties undertake:

(a) To adopt all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the present Convention;

(b) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities;

(c) To take into account the protection and promotion of the human rights of persons with disabilities in all policies and programmes;

(d) To refrain from engaging in any act or practice that is inconsistent with the present Convention and to ensure that public authorities and institutions act in conformity with the present Convention;

(e) To take all appropriate measures to eliminate discrimination on the basis of disability by any person, organization or private enterprise;

(f) To undertake or promote research and development of universally designed goods, services, equipment and facilities, as defined in Article 2 of the present Convention, which should require the minimum possible adaptation and the least cost to meet the specific needs of a person with disabilities, to promote their availability and use, and to promote universal design in the development of standards and guidelines;

(g) To undertake or promote research and development of, and to promote the availability and use of new technologies, including information and communications technologies, mobility aids, devices and assistive technologies, suitable for persons with disabilities, giving priority to technologies at an affordable cost;

(h) To provide accessible information to persons with disabilities about mobility aids, devices and assistive technologies, including new technologies, as well as other forms of assistance, support services and facilities;

(i) To promote the training of professionals and staff working with persons with disabilities in the rights recognized in the present Convention so as to better provide the assistance and services guaranteed by those rights.

Article 5 (Equality and non-discrimination)

1. States Parties recognize that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law.

2. States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds.

3. In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided.

4. Specific measures which are necessary to accelerate or achieve de facto equality of persons with disabilities shall not be considered discrimination under the terms of the present Convention.

Article 27 (Work and Employment)

1. States Parties recognize the right of persons with disabilities to work, on an equal basis with others; this includes the right to the opportunity to gain a living by work freely chosen or accepted in a labour market and work environment that is open, inclusive and accessible to persons with disabilities. States Parties shall safeguard and promote the realization of the right to work, including for those who acquire a disability during the course of employment, by taking appropriate steps, including through legislation, to, inter alia:

(a) Prohibit discrimination on the basis of disability with regard to all matters concerning all forms of employment, including conditions of recruitment, hiring and employment, continuance of employment, career advancement and safe and healthy working conditions;

(b) Protect the rights of persons with disabilities, on an equal basis with others, to just and favourable conditions of work, including equal opportunities and equal remuneration for work of equal value, safe and healthy working conditions, including protection from harassment, and the redress of grievances;

(c) Ensure that persons with disabilities are able to exercise their labour and trade union rights on an equal basis with others;

(d) Enable persons with disabilities to have effective access to general technical and vocational guidance programmes, placement services and vocational and continuing training;

(e) Promote employment opportunities and career advancement for persons with disabilities in the labour market, as well as assistance in finding, obtaining, maintaining and returning to employment;

(f) Promote opportunities for self-employment, entrepreneurship, the development of cooperatives and starting one’s own business;

(g) Employ persons with disabilities in the public sector;

(h) Promote the employment of persons with disabilities in the private sector through appropriate policies and measures, which may include affirmative action programmes, incentives and other measures;

(i) Ensure that reasonable accommodation is provided to persons with disabilities in the workplace;

(j) Promote the acquisition by persons with disabilities of work experience in the open labour market;

(k) Promote vocational and professional rehabilitation, job retention and return-to-work programmes for persons with disabilities. (emphasis supplied)

1. Under CRPD, “Discrimination on the basis of disability” means any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation. The Convention explains that “Reasonable accommodation” means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedom. The Convention also defines “Communication” to include languages, display of text, Braille, tactile communication, large print, accessible multimedia as well as written, audio, plain-language, human-reader and augmentative and alternative modes, means and formats of communication, including accessible information and communication technology.

2. Reasonable accommodation can be through assistive technology, which is an umbrella term that includes assistive, adaptive, and rehabilitative devices for people with disabilities and also includes the process used in selecting, locating, and using them. Assistive technology promotes greater independence by enabling people to perform tasks that they were formerly unable to accomplish, or had great difficulty accomplishing, by providing enhancements to, or changing methods of interacting with, the technology needed to accomplish such tasks. Assistive Technology is a generic term for devices and modifications (for a person or within a society) that help overcome or remove a disability. The first recorded example of the use of a prosthesis dates to at least 1800 BC. The wheelchair dates from the 17th century. The curb cut is a related structural innovation. Other examples are standing frames, text telephones, accessible keyboards, large print, Braille and speech recognition software.

3. The term adaptive technology is often used as the synonym for assistive technology; however, they are different terms. Assistive technology refers to “any item, piece of equipment, or product system, whether acquired commercially, modified, or customized, that is used to increase, maintain, or improve functional capabilities of individuals with disabilities, ” while adaptive technology covers items that are specifically designed for persons with disabilities and would seldom be used by non-disabled persons. In other words, “assistive technology is any object or system that increases or maintains the capabilities of people with disabilities, ” while adaptive technology is “any object or system that is specifically designed for the purpose of increasing or maintaining the capabilities of people with disabilities.” Consequently, adaptive technology is a subset of assistive technology. Adaptive technology often refers specifically to electronic and information technology access.[10] Many people with serious visual impairments live independently, using a wide range of tools and techniques. Examples of assistive technology for visually impairment include screen readers, screen magnifiers, Braille embossers, desktop video magnifiers, and voice recorders. The Convention provides that no one can be discriminated on the ground of disability and obligates the State to take steps to provide reasonable accommodation in order to provide inclusion and access to persons with disabilities in the society.

Our Constitution

1. Our Constitution is prefaced by timeless and immutable constitutional values, which reflect the will and resolve of the people of Pakistan. These preambular constitutional values provide that principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall be observed. Wherein shall be guaranteed fundamental rights, including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality. These constitutional values, inter alia, flow into fundamental rights, like the right to life (Article 9), the right to dignity (Article 14) and the right to equality (Article 25) making our Constitution evergreen, organic and a living document.

2. Our Constitution, as a whole, does not distinguish between a person with or without disabilities. It recognizes inherent dignity of a human being, equal and inalienable rights of all the people as the foundation of freedom, justice and peace. Every person is entitled to all the rights and freedoms set forth therein, without distinction of any kind. Our Constitution embodies universality, indivisibility, interdependence and interrelatedness of all human rights and fundamental freedoms. It applies equally to persons with disabilities, guaranteeing them full enjoyment of their fundamental rights without discrimination. The triangular construct of the right to life, dignity and equality under the Constitution provides a robust platform for mainstreaming persons with disabilities.

3. Fundamental rights are the heart and soul of a living Constitution and must at all times be ready to embrace and protect the sensibilities and sensitivities of the people. They must be progressively and purposively interpreted to advance the frontiers of freedom, individual autonomy and free choice. Such vibrance and vitality is the hallmark of a living Constitution in a democracy. See Pakistan Tobacco Co. Ltd. and others v. Government of N.W.F.P. through Secretary Law and others (PLD 2002 SC 460) and Reference No. 01/2012 (Reference by the President of Pakistan under Article 186 of the Constitution of Islamic Republic of Pakistan, 1973) (PLD 2103 SC 279). Our Constitution proactively reaches out to persons with disabilities with force and vigour. The wisdom of the Convention is already embedded in the soul of our Constitution and can easily be rediscovered by using the principles of the Convention to purposively interpret the Constitution. Right to life, dignity and equality are further emboldened, illuminated and vitalized when interpreted in the context of the Convention. See M/s. Entertainment Network (India) Ltd. vs. Millieum Chennai Broadcast (Pvt.) Ltd. (2008 (13) SCC 30).

4. Right to life and right to dignity are the epicenters of our constitutional architecture. Right to life recognizes the importance of accessibility to physical, social, economic and cultural environment, to health and education and to information and communication, Such a right enables persons with disabilities to fully enjoy all human rights and fundamental freedoms. Every human being has the inherent right to life and to ensure its effective enjoyment, this incudes persons with disabilities, at par with the others. Right to life and right to dignity are deeply interwoven. “The purpose of the constitutional right to human dignity is to realize the constitutional value of human dignity. Thus its purpose is to realize a person’s humanity. The dignity of a human being is his free will; the freedom to shape his life and fulfill himself. It is a person’s freedom to write his life story. [11]“ Right to life and dignity of a person with disabilities can only be realized if the State and its institutions take steps to provide reasonable accommodation that will facilitate and ensure that the person with disabilities can enjoy life with honour and dignity like others in the society.

5. The Constitution abhors discrimination and holds that all citizens are equal before law and are entitled to equal protection of law. Inherent in Article 25 is the recognition that discrimination against any person on the basis of disability is a violation of the inherent dignity and worth of a human being. Article 25 of the Constitution promotes inclusiveness, effective participation and recognizes human diversity in a society. Non-discrimination as a fundamental right guarantees elimination of discrimination at all levels and, therefore, mandates that reasonable accommodation be provided by the State and other institutions, to actualize this constitutional goal and avoid exclusion of persons with disabilities from effective participation in the society. “There should be a full recognition of the fact that persons with disability are integral part of the community, equal in dignity and entitled to enjoy the same human rights an freedoms as others.”[12] Our Constitution promotes and protects the human rights of all persons inclusive of persons with disabilities. The constitutional values of social, economic and political justice recognize free choice and individual autonomy for all. Our Constitution is a living document and provides a bold and a passionate constitutional support for persons with disabilities.

6. This constitutional construct creates an obligation on the State and other institutions of the State to make all possible endeavours to mainstream persons with different abilities and to embrace the diversity in the society. The State and its institutions are under a constitutional obligation to go the extra mile and ensure, within the means available, that person with disabilities get reasonable accommodation in order to enjoy their fundamental rights in the same manner as enjoyed by other citizens of Pakistan. It is for the State and its institutions to provide the architecture, the structure, the assistive and adaptive technology, the system, the equipment and the facilitative support to persons with disabilities, so they can actualize their constitutional rights and freedom. In the present case, the department should have considered the possibility of providing necessary technical and human support to ensure that the petitioner was able to perform as an educator and was not discriminated on the ground of disability. The Recruitment Policy is devoid of any such sentiment.

The Recruitment Policy

1. Now I come to the relevant portion of the Recruitment Policy. Paragraph 4-D of the Policy reads as under:

4 D. Reserved Quota

(i) 2% statutory quota of the total allocated posts of each category will be reserved for disabled person on direct basis. Their disability certificates will be issued by District Officer (Social Welfare) concerned district of disabled person. Disability should not hinder mobility or effective communication or use of blackboard. Disabled candidates fit for teaching profession and able to read, speak, write and use blackboard will be eligible to apply for appointment against this quota. Under disabled persons’ quota, blind, deaf & dumb candidates will not be eligible to apply. The vacancies reserved for disabled persons against which disabled qualified candidates are not available, will be treated as unreserved and filled on district merit. (emphasis supplied)

According to the position taken by the respondents a blind person is not eligible to apply for the post of teacher because he cannot write on a blackboard. Further in the comments filed by the School Education Department (Respondent No. 1) Paragraphs 2 & 5 states as follows:--

“2. That Para 2 of the writ petition under reply is corrected [sic] to the extent of advertisement. However it is stated that a blind person cannot teach, therefore, he cannot be appointed as a Teacher.

1. That Para No. 5 of the writ petition under reply is correct. However, the blind persons have been excluded due to the reason that the blind persons cannot be appointed as a Teacher because in teaching profession Audio Visual Aids have been used and a blind person cannot use them in a proper manner due to which a policy has been made by the department for excluding the blind persons from appointment of teachers.”

2. Right to life, dignity and equality mandate that State and its organs will make serious endeavours to provide reasonable accommodation to persons with disabilities so that they can be mainstreamed and made useful and productive members of the society. The impugned Recruitment Policy is devoid of any such thought or realization. It lacks openness, inclusiveness and accessibility for persons with disabilities. The School Education Department, Government of Punjab has failed to consider that the petitioner could have been made able enough to teach with the help of assistive technology as elaborated above. No one has questioned the qualification of the petitioner. His ability to use blackboard and maintain discipline can be easily achieved through assistive technology and additional human resource. It is not the case of the department that reasonable accommodation cannot be provided or that it is burdensome or expensive. The ground urged by the department is that the petitioner being blind cannot write on the blackboard and will not be able to control the class. These reasons hold out a merciless and heartless Department that has paid no heed to the rights of the petitioner under the Constitution, the Ordinance and the Convention. The Department has failed to realize that in considering the social integration of people with disabilities, access to employment is often considered to be of a particular importance. There are a number of reasons for it, including the need for a good or at-least an adequate income and the self-respect gained through being self-supporting. In addition, employment can provide a structure to the day and sense of purpose and often a sense of identity, as well as, providing the opportunity to make social contact.[13]

3. The impugned Recruitment Policy to the extent of Para 4-D impairs the fundamental rights of the petitioner and is therefore declared to be unconstitutional and illegal. Respondents are directed to reframe the relevant portion of the Recruitment Policy keeping in view the import of this judgment and the wisdom of the Convention.

3% Quota under The Disabled Persons (Employment and Rehabilitation) Ordinance, 1981

1. Departmental Representative submits that the petitioner never applied for the post of SESE and even otherwise there are not seats under the disabled quota of the said post. Respondents have failed to appreciate that the petitioner could not apply as per the terms of the advertisement and the Recruitment Policy. It is also made clear that the constitutional interpretation in the light of the Convention indubitably shows that a person with disabilities cannot be debarred from applying on open merit for the general seats. The 3% quota under the Ordinance is an additional benefit and does not restrict a person with disabilities to apply for the general quota. To restrict persons with disabilities to a limited quota of 3%, which may or may not be available, depending upon the sanctioned posts, will amount to depriving equal accessibility and opportunity to the person with disabilities and offend Article 25 of the Constitution. Any such restriction is opposed to the constitutional mandate and also offends the Convention. Therefore, Respondent No. 1 is directed to consider the candidacy of the petitioner against the post of SESE on open merit and if need be against the additional 3% quota for persons with disabilities by disregarding Para 4-D of the Recruitment Policy. Let this exercise be completed within a month from now, with intimation to the Registrar of this Court.

2. I am hopeful that the Government of Punjab will set a healthy precedent in this case for others to follow. The Advocate General shall place a copy of this judgment before the Chief Minister, Punjab, as well as, the Chief Secretary, Government of the Punjab, so that the anguish and pain of persons with disabilities in the Province is passionately redressed and the Government succeeds in making the Province of Punjab, a disability sensitive Province.

3. In the end it is important to point out that words like “mentally retarded” to describe persons with intellectual disorders and “crippled” to describe persons with mobility issues underline the grave stigma in society. Globally, the nomenclature around persons with disabilities has shifted from “disabled person” or “handicapped person” to “person with disability” or persons with “different abilities.”

4. This petition is allowed subject to costs of Rs. 50, 000/-, which shall be paid by Respondent No. 1 to the petitioner, who with permanent visual impairment had to approach the Court due to the impugned Recruitment Policy. Reliance is placed on Kawas B. Aga and another v. City District Government, Karachi (CDGK) through Nazim-e-Ala and others, (PLD 2010 Karachi 182), The Postmaster-General, Northern Punjab and (AJ&K), Rawalpindi v. Muhammad Bashir and 2 others, (1998 SCMR 2386), Province of Sindh through Secretary, Home Department and others v. Roshan Din and others, (PLD 2008 S.C. 132), Inayatullah v. Sh. Muhammad Yousaf and 19 others, (1997 SCMR 1020), Mst. Afsana v. District Police Officer, (Operation), Khairpur and 5 others, (2007 YLR 1618) and M.D. Tahir, Advocate v. Federal Government and others, (PLD 1999 Lahore 409). Copy of the deposit slip shall be placed on the record of this file by Respondent No. 1 latest by 9th January, 2017. Thereafter, this file shall be put up before this Court on the administrative side for information or necessary orders, as the case may be.

(R.A.) Petition allowed

[1]. As per the Disability Certificate issued by the Assessment Board for the Disabled Persons District Lahore, Social Welfare Women Development and Bait-ul-Maal, Government of Punjab dated 5-5-2012 read with the Revised Disability Certificate dated 17-12-2016.

[2]. Social Welfare Women Development and Bait-ul-Maal, Government of Punjab.

[3]. Collins English Dictionary-Complete and Unabridged, 12th Edition 2014 © HarperCollins Publishers, quoted at URL http://www.thefreedictionary.com/disabled

[4]. Section 2(c) of the Ordinance.

[5]. World Health Organization. (2016) Disabilities, Retrieved on December 19, 2016 from http://www.who.int/topics/disabilities/en/

[6]. Moving from the margins - Mainstreaming persons with disabilities in Pakistan. British Council & The Economist Intelligence Unit -2014

[7]. ibid

[8]. ibid

[9]. ibid

[10]. Dr.K. Thiyagu, ASSISTIVE TECHNOLOGY AND INCLUSIVE EDUCATION, Laxmi Book Publication, 2014 p. 16

[11]. Aharon Barack- Human Dignity – The Constitutional Value and the Constitutional Right. Cambridge 2015. p.144

[12]. Jeeja Ghosh & Anr vs. Union of India & Ors (AIR 2016 SC 2392)

[13]. Assistive Technology for Visually Impaired and Blind People. Marion A Hersch, Michael A Johnson. Springer. P.670

PLJ 2017 Lahore 206 (DB)[Bahawalpur Bench, Bahawalpur]

Present: Shahid Mubeen and Habib Ullah Amir, JJ.

MUHAMMAD DIN, etc.--Appellants

versus

RASHEED AHMAD, etc.--Respondents

ICA No. 171 of 2010, decided on 6.12.2016.

Law Reforms Ordinance, 1972--

----S. 3--Constitution of Pakistan, 1973, Art. 199--Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, S. 3--Intra Court Appeal--Inheritance mutation--Daughter was excluded from legal heirs--Claim of real daughter was accepted--Challenge to--Revenue officer was not competent--Legal value of evidence recorded by notified officer--Validity--Recording of evidence were patently illegal being coramnon judice, therefore, not only order passed by him but also evidence recorded by him loses legal value--When very assumption of jurisdiction by notified officer was declared to be illegal and without lawful authority then whole proceedings including that of recording of evidence, which culminated in passing order by such officer, together with superstructure is liable to fall on ground--Order declaring as real daughter on basis of RL-II is neither justiciable nor sustainable as it was incumbent upon officer to hold a full-fledged inquiry by giving chance to both parties to produce their oral as well as documentary evidence to resolve controversy between parties. [Pp. 209 & 210] A, B & C

PLD 1958 SC 104, ref.

Mr. Amir Aqeel Ansari, Advocate for Appellants.

Malik Mumtaz Akhtar, Addl.A.G. for Respondent.

Mr. Fida Hussain Rahat, Advocate for Respondents No. 1 to 7.

Date of hearing: 6.12.2016.

Order

The appellants have preferred this Intra Court Appeal under Section 3 of the Law Reforms Ordinance, 1972, against judgment dated 28.09.2010 passed by learned Single Judge in Chambers in Writ Petition No. 2345 of 1994 whereby the writ petition filed by Respondents No. 1 to 5 has been allowed.

1. Succinctly, the facts giving rise to the institution of this Intra Court Appeal are that Noor Muhammad son of Mahkum Din was owner of agricultural land in India (Hindustan). After partition of the sub-continent, his claim was confirmed to the extent of 140 kanals 5 marks on 22.07.1957 but afterwards when it was found that the said land had already been allocated for Tomb of AMAR TASAR, same was cancelled by the Deputy Rehabilitation Commissioner, Bahawalpur vide order dated 31.12.1958 and in alternative land measuring 98 kanals 5 marlas in RL-II No. 25 dated 28.08.1959 was confirmed. After the death of Noor Muhammad, Mst. Kareem Bibi while claiming herself to be the daughter of Noor Muhammad got transferred the said inheritance in her favour. On complaint, Military Court sentenced to Mst. Kareem Bibi and her husband to get executed the mutation inheritance on the basis of fraud and misrepresentation in her favour while showing herself to be the daughter of Noor Muhammad and consequently the said allotment was cancelled. Said decision was set aside in appeal filed by Mst. Kareem Bibi and Respondents No. 1 to 5 were directed to approach the settlement office for the redressal of their grievance. In response to that, they challenged inheritance Mutation No. 2 sanctioned in favour of Mst.Kareem Bibi on 22.07.1957 through Civil Revision which was accepted on 21.06.1964 by the Additional Settlement Commissioner, Mutation No. 2 was cancelled and case was remanded to the Assistant Collector. On 08.09.1966 after inquiry Assistant Collector declared that Respondents No. 1 to 5 of the writ petition are the legal heirs of deceased Noor Muhammad and name of Mst. Kareem Bibi was excluded from his legal heirs. Feeling aggrieved, Mst. Kareem Bibi filed an appeal before the Collector which was accepted and the case was remanded to the Assistant Collector with direction to look into the matter as to whether Mst. Kareem Bibi is legal heir of Noor Muhammad or not according to the pedigree-table. Thereafter, the matter remained pending for a long time and no proceedings whatsoever took place. Then Mst. Kareem Bibi filed Writ Petition No. 51-R of 1973 in which this Court vide order dated 09.10.1977 declared all the orders passed after 29.12.1969 to be without lawful authority and of no legal effect and remanded the case to the Assistant Commissioner, Hasilpur who was duly Notified Officer under Section 3 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, for the decision of such cases. Thereafter, inquiry was conducted by the Assistant Commissioner, Hasilpur/Notified Officer and vide detailed order dated 26.07.1993 he declared that Mst. Kareem Bibi was not the daughter of Noor Muhammad deceased. Feeling aggrieved, Mst. Kareem Bibi filed Writ Petition No. 2347 of 1993 against the said order, which was accepted vide judgment dated 20.02.1994, the order dated 26.07.1993 was set aside and the case was remanded to the Assistant Commissioner Khairpur Tamewali for decision of the case within three months. Again the matter was re-opened before the Assistant Commissioner Khairpur Tamewali in which claim of Mst. Kareem Bibi was accepted vide order dated 26.09.1994 and she was declared as real daughter of Noor Muhammad deceased. Feeling aggrieved by the said order, Respondents No. 1 to 5 filed Writ Petition No. 2345 of 1994, which was allowed by the learned Single Judge in Chambers vide impugned judgment dated 28.09.2010 while setting aside the order dated 26.09.1994 and Mst. Kareem Bibi was declared as not the daughter of Noor Muhammad deceased. Hence this Intra Court Appeal.

2. Learned counsel for the appellants contends that the impugned judgment dated 28.09.2010 passed by the learned Single Judge in Chambers is not sustainable in the eye of law as it was passed on the basis of evidence recorded by the Assistant Commissioner/ Notified Officer of Hasilpur whose order was set aside by this Court vide judgment dated 20.02.1994 passed in Writ Petition No. 2347 of 1993, on the ground that he was not competent to do so, as he was not the Notified Officer/Assistant Commissioner Khairpur Tamewali under the settlement law, therefore, reliance upon the evidence recorded by the Assistant Commissioner/Notified Officer of Hasilpur by the learned Single Judge in Chambers is not legally justiciable. He further contends that the order dated 26.09.1994 passed by the Assistant Commissioner/Notified Officer of Khairpur Tamewali cannot be interfered with by this Court while exercising constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. On the other hand learned Additional Advocate General assisted by learned counsel for the respondents has supported the impugned judgment.

3. We have heard the arguments advanced by the learned counsel for the parties and perused the record with their able assistance.

4. It is an admitted fact that order dated 26.07.1993 passed by the Assistant Commissioner/Notified Officer of Hasilpur was set aside by the learned Single Judge in Chambers vide judgment dated 20.02.1994 passed in Writ Petition No. 2347 of 1993. The operative part of the said judgment is reproduced herein below:--

“4. The learned A.A.G. finds himself unable to defend the order in question in view of the legal position and previous order of this Court. I, therefore, accept the petition and set aside the impugned order as illegal and without lawful authority and send back the case to the Assistant Commissioner, Khairpur Tamewali for decision of the case within three months.”

When the order dated 26.07.1993 passed by the Assistant Commissioner/Notified Officer of Hasilpur was set aside by this Court vide order dated 20.02.1994 on the ground that Assistant Commissioner/Notified Officer of Hasilpur was not the notified officer under the Settlement Laws for the cases of Tehsil Khairpur Tamewali, hence, he was not competent to pass such order.

1. Now the question arises that what is the legal value of the evidence recorded by such an incompetent officer. The most important aspect of the case in hand is that the proceedings before the Notified Officer/Assistant Commissioner, Hasilpur, who has recoded the evidence of both the parties were incompetent and without jurisdiction. Since the Assistant Commissioner/Notified Officer of Hasilpur was not the competent/concerned Notified Officer/Assistant Commissioner, therefore, all proceedings conducted by him including that of recording of evidence were patently illegal being coram non judice, therefore, not only the order passed by him but also the evidence recorded by him loses legal value as the case was to be exclusively triable by the Assistant Commissioner/Notified Officer of Khairpur Tamewali.

2. This case can also be looked into from another angle i.e. when the very assumption of jurisdiction by the Assistant Commissioner/Notified Officer of Hasilpur was declared to be illegal and without lawful authority then the whole proceedings including that of recording of evidence, which culminated in passing order by such officer, together with superstructure is liable to fall on ground. In taking this view, reference can be made to case titled Yousaf Ali vs. Muhammad Aslam Zia and 2 others (PLD 1958 SC 104). While passing the impugned judgment dated 28.09.2010, the learned Single Judge in Chambers has heavily relied upon the evidence recorded by the Assistant Commissioner/Notified Officer of Hasilpur whose order was set aside by this Court, therefore, keeping in view the position explained above, reliance upon the evidence recorded by an incompetent officer is not justiciable.

3. It is pertinent to mention here that the Assistant Commissioner/Notified Officer of Khairpur Tamewali, while passing the order dated 26.09.1994 impugned in the writ petition, mainly relied upon RL-II No. 25 which throughout remained under challenge, therefore, the said order declaring Mst. Kareem Bibi as real daughter of Noor Muhammad on the basis of RL-II No. 25 is neither justiciable nor sustainable as it was incumbent upon the said officer to hold a full-

fledged inquiry by giving chance to both the parties to produce their oral as well as documentary evidence to resolve the controversy between the parties.

1. For the foregoing reasons, this Intra Court Appeal is allowed. The impugned judgment dated 28.09.2010 passed by the learned Single Judge in Chambers and the order dated 26.09.1994 passed by the Assistant Commissioner/Notified Officer of Khairpur Tamewali are set aside. The case is remanded to the Assistant Commissioner/Notified Officer of Khairpur Tamewali with a direction to hold a full-fledged inquiry as to whether Mst. Kareem Bibi is real daughter of late Noor Muhammad or not by allowing the parties to produce their oral as well as documentary evidence. He shall conclude the proceedings positively within a period of six months after receipt of certified copy of this order. No order as to cost.

(R.A.) I.C.A. allowed

PLJ 2017 Lahore 210 [Bahawalpur Bench Bahawalpur]

Present: Shahid Mubeen, J.

SHAH NAWAZ QURESHI--Petitioner

versus

ADDL. DISTRICT JUDGE, BAHAWALPUR, etc.--Respondents

W.P. No. 6867 of 2016, decided on 28.9.2016.

Constitution of Pakistan, 1973--

----Art. 199--Family Courts Act, (XXXV of 1964), S. 17--Constitutional petition--Right to produce evidence was closed--Suit for recovery of dower, decreed while suit for restitution of conjugal rights, dismissed--Concurrent in nature--Case was adjourned subject to payment of cost--Evidence was not produced deliberately and intentionally just to prolong proceedings--Provisions of CPC--Applicability--In absence of express provision in Family Courts Act, 1964, authorizing a Family Court to close evidence of party, there is no provision to effect that party’s evidence would not be closed even if party failed to produce evidence without sufficient cause, despite having availed of several opportunities to do so--Family Court can close evidence of a party who had failed to adduce evidence without sufficient cause--Although provisions of CPC and QSO have not been made applicable to Family Courts Act, before Family Court by virtue of Section 17 of Family Courts Act, but general principles can be invoked for due administration of justice where no procedure is provided Act, 1964--High Court cannot upset findings of Courts below while exercising constitutional jurisdiction as a Court of Appeal. [Pp. 214 & 216] A, C & I

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

----Preamble--Family Courts have been established for purpose of expeditious settlement and disposal of family disputes relating to marriage and family affairs and for matters connected therewith.

[P. 214] B

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

----Scope of--Advancement of justice and to avoid technicalities--Purpose of enacting Family Courts Act, is to frustrate technicalities for purpose of justice--It is settled principle of law that Family Court, while dealing with suit mentioned in Schedule of Family Courts Act, has to adopt procedure of his choice, in order to meet situation not visualized in Family Courts Act--It is also settled principle of law that Family Court has to regulate its own proceedings in accordance with provisions of that Act and in doing so it has to proceed on premises that every procedure is permissible unless a clear prohibition is found in law. [P. 215] D, E & F

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

----Scope of--Civil Procedure Code, (V of 1908), Scope--Provisions of CPC--No provision for closing of evidence--Validity--As there does not exist any provision for closing of evidence, therefore, Family Court can adopt procedure provided in CPC, and can apply same to proceedings pending before him. [P. 215] G

Limitation Act, 1908 (IX of 1908)--

----S. 5--Delay in filing appeal--Application for review of order passed by Family Courts--Dismissed for non-prosecution--Appeal was barred by time--Validity--Alongwith appeal an application under Section 5 of Limitation Act, 1908, was filed on ground of ailment--However, no medical certificate, in support of application, was appended--Petitioner has miserably failed to explain each and every day’s delay in filing appeal. [P. 216] H

Mr. Muhammad Imran Pasha, Advocate for Petitioner.

Mr. Shahid Sajjad Siddiqui, Advocate for Respondent No. 3.

Date of hearing: 28.9.2016.

Order

The petitioner through this constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, has assailed the judgment and decree dated 26.11.2015 passed by the learned judge Family Court, Bahawalpur, and judgment and decree dated 26.04.2016 passed by the learned Additional District Judge, Bahawalpur.

1. Briefly the facts necessary for adjudication of this constitutional petition are that Respondent No. 3 filed a suit for recovery of dower against the petitioner. The suit was contested by the petitioner by filing written statement. The petitioner also filed a suit for restitution of conjugal rights against Respondent No. 3, which was resisted by her by filing written statement. Both the suits were consolidated. Pre-trial reconciliation proceedings were conducted but these were ended in smoke.

2. Out of the divergent pleadings of the parties, the following consolidated issues were framed by the learned trial Court:--

“1. Whether the plaintiff is entitled to get decree for recovery of dowry as prayed for ? OPP

1. Whether the suit is not maintainable and is liable to be dismissed ? OPD

2. Whether the defendant Shah Nawaz is entitled to get decree for restitution of conjugal rights as prayed for ? OPD

3. Relief.”

After framing of issues, the parties were directed to produce their respective evidence. Respondent No. 3 produced the oral as well as documentary evidence whereas the petitioner did not produce his evidence and his right to produce evidence was closed on 21.10.2015 and thereafter he himself absented from the Court on 25.11.2015, consequently he was proceeded against ex-parte. After scanning the entire evidence available on record, the learned Judge Family Court, Bahawalpur, dismissed the suit of the petitioner for restitution of conjugal rights whereas the suit of Respondent No. 3 for recovery of dower was decreed vide impugned judgment and decree dated 26.11.2015. Feeling aggrieved, the petitioner preferred an appeal against the said judgment and decree, which was dismissed by the learned Additional District Judge, Bahawalpur, vide impugned judgment and decree dated 26.04.2016. Hence, this writ petition.

1. Learned counsel for the petitioner contends that order dated 21.10.2015 whereby the right of the petitioner to produce evidence was closed is not sustainable as there does not exist any provision in the West Pakistan Family Courts Act, 1964, to pass such like order. He further contends that the provisions of the Code of Civil Procedure, 1908, are not attracted and the same have been specifically excluded by virtue of Section 17 of the West Pakistan Family Courts Act, 1964. He further contends that the impugned judgments and decrees passed by the two Courts below are the result of misreading and non-reading of oral as well as documentary evidence available on the record.

2. On the other hand, learned counsel for Respondent No. 3 contends that the order dated 21.10.2015 whereby the right of the petitioner to produce evidence was closed was legally justiciable as on the last date of hearing i.e. 19.10.2015 the case was adjourned at the request of the learned counsel for the petitioner. He further contends that the impugned judgments and decrees passed by the two Courts below are concurrent in nature and this Court while exercising constitutional jurisdiction cannot upset the same, by taking a different view.

3. Arguments heard. Record perused.

4. In the case in hand the evidence of Respondent No. 3 was recorded on 10.07.2015 and the case was adjourned for 03.09.2015 for recording of evidence of the petitioner. On 03.09.2015, the evidence of the petitioner was not available and at the request of the learned counsel for the petitioner the case was adjourned for evidence of the petitioner for 29.09.2015. On 29.09.2015, once again the evidence of the petitioner was not in attendance and the case was adjourned at the request of the learned counsel for the petitioner subject to payment of cost of Rs. 100/- and the case was adjourned with last opportunity for 10.10.2015. On 10.10.2015, only one witness of the petitioner was present. However, the case was adjourned at the request of the petitioner on the ground that his counsel was not available. The case was adjourned for evidence of the petitioner for 19.10.2015. On the said date once again the evidence of the petitioner was not available and at the request of the learned counsel for the petitioner the case was adjourned for 21.10.2015 subject to payment of cost of Rs. 100/- and it was made clear that if the petitioner would not produce his evidence, the same would be closed. Once again on 21.10.2015 the evidence of the petitioner was not in attendance, therefore, his right to produce evidence was closed.

5. From the bare perusal of the aforesaid interim orders, it is manifestly clear that the petitioner did not produce his evidence deliberately and intentionally just to prolong the proceedings. On 19.10.2015, the case was adjourned at the request of the learned counsel for the petitioner and that too subject to payment of cost of Rs. 100/- and it was made clear that in case the petitioner would not produce his evidence the same would be closed. The learned Judge Family Court was justified in closing the right of evidence of the petitioner and there is no illegality in the order dated 21.10.2015.

6. It is pertinent to mention here that in the absence of express provision in West Pakistan Family Courts Act, 1964, authorizing a Family Court to close evidence of party, there is no provision to the effect that party’s evidence would not be closed even if the said party failed to produce evidence without sufficient cause, despite having availed of several opportunities to do so. Family Court can close evidence of a party who failed to adduce evidence without sufficient cause. The petitioner was given many opportunities to adduce his evidence but despite such opportunities including last opportunity and adjournment on payment of cost, he neither adduced evidence nor paid cost, therefore, evidence of the petitioner has rightly been closed. Law requires that case should be heard and adjudicated upon its merits and parties should be granted reasonable opportunity to produce their evidence. If the parties are allowed to get adjourned the case for the purpose of recording of evidence on number of occasions without any sufficient cause, then aims and objects in promulgating the West Pakistan Family Courts Act, 1964, will be rendered futile. From the bare perusal of the Preamble of West Pakistan Family Courts Act, 1964, it is manifestly clear that the Family Courts have been established for the purpose of expeditious settlement and disposal of family disputes relating to marriage and family affairs and for matters connected therewith. Uncalled for adjournments will frustrate the aims and objects of the West Pakistan Family Courts Act, 1964, for which the same has been enacted.

7. As far as argument of the learned counsel for the petitioner that the provisions of the Code of Civil Procedure, 1908, are not attracted and the same have been specifically excluded by virtue of Section 17 of the West Pakistan Family Courts Act, 1964, is concerned, although the provisions of Code of Civil Procedure and Qanun-e-Shahadat have not been made applicable to the West Pakistan Family Courts Act, 1964, before the Family Court by virtue of Section 17 of the West Pakistan Family Courts Act, 1964, but general principles thereunder can be invoked for due administration of justice where no procedure is provided in the West Pakistan Family Courts Act, 1964. Said provision of Section 17 is reproduced herein below:--

“S. 17. Provisions of Evidence Act and Code of Civil Procedure not to apply.--(1) Save as otherwise expressly provided by or under this Act, the provisions of the {Qanun-e-Shahadat, 1984 (P.O. No. 10 of 1984)} and the Code of Civil Procedure, 1908 {except Sections 10 and 11} shall not apply to proceedings before any Family Court, {in respect of part I of Schedule}

(2) Sections 8 to 11 of the Oaths Act, 1873, shall apply to all proceedings before the Family Courts.”

It will not be out of place to mention here that the purpose of enacting Family Courts Act is to frustrate the technicalities for the purpose of justice between the parties in the shortest possible manner. All that the Family Courts Act has done is that it has changed the forum, altered the method of trial and empowered the Court to grant better remedies. The only purpose of enacting special law i.e. West Pakistan Family Courts Act, 1964, regarding family disputes is for advancement of justice and to avoid technicalities. It is settled principle of law that learned Judge Family Court, while dealing with the suit mentioned in Schedule of the West Pakistan Family Courts Act, 1964, has to adopt procedure of his choice, in order to meet the situation not visualized in the Family Courts Act. It is also settled principle of law that the learned Judge Family Court has to regulate its own proceedings in accordance with the provisions of that Act and in doing so it has to proceed on the premises that every procedure is permissible unless a clear prohibition is found in law. As there does not exist any provision for the closing of the evidence, therefore, the Judge Family Court can adopt the procedure provided in the Code of Civil Procedure, 1908, and can apply the same to proceedings pending before him. In case titled Faiz-ul-Hassan vs. Mst. Jan Sultan and 2 others (2001 SCMR 1323), it has been held by the Hon’ble Supreme Court of Pakistan that where the husband participated in the proceedings but did not file written statement as directed, the Family Court is competent to strike off defence of the husband and pass the decree for recovery of dower amount. Further reference may be made to case titled Dr. Asma Ali vs. Masood Sajjad and others (PLD 2011 SC 221).

The relevant portion of the judgment is reproduced herein below:

“The provisions of the Civil Procedure Code have been excluded by Section 17 of the Family Court Act, 1964, to proceedings under it. And it has been consistently held that such provisions are not stricto sensu applicable to the proceedings before the Family Court. However, as the Family Court Act is not an all-encompassing legislation and the principles of certain provisions of the Code of Civil Procedure have at times been invoked when necessary to give effect to the Family Court Act.”

1. Against order dated 21.10.2015, the petitioner filed an application for review of the said order. This application was also dismissed for non-prosecution. From the judgment and decree dated 26.04.2016 passed by the learned lower appellate Court it appears that the appeal before the learned lower appellate Court was barred by time as against the judgment and decree dated 26.11.2015 passed by the learned Judge Family Court, the appeal was instituted on 28.01.2016. Alongwith the appeal an application under Section 5 of the Limitation Act, 1908, was filed on the ground of ailment. However, no medical certificate, in support of the application, was appended. It has also been observed by the learned lower appellate Court that the petitioner has miserably failed to explain each and every day’s delay in filing the appeal.

2. The judgments and decrees of the two Courts below are concurrent in nature and this Court does not find any misreading or non-reading of oral as well as documentary evidence available on the record. Even otherwise, this Court cannot upset findings of the two Courts below while exercising constitutional jurisdiction as a Court of Appeal. Learned counsel for the petitioner has failed to point out any illegality and jurisdictional defect in the concurrent finding of facts recorded by the two Courts below.

3. Sequel to the above, this writ petition is devoid of any force, hence, dismissed with no order as to cost.

(R.A.) Petition dismissed

PLJ 2017 Lahore 216 [Multan Bench Multan]

Present: Muzamil Akhtar Shabir, J.

M/s. SHANDAR VEGETABLE & GHEE MILLS through Chief Executive--Petitioner

versus

LEARNED JUDGE BANKING COURT NO. II, MULTAN and 3 others--Respondents

W.P. No. 15549 of 2013, heard on 14.12.2016.

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

----Ss. 2(c) & 9--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Misappropriating property--Suit between customer/borrower and financial institute--Deleting name from array of bank and impleading as defendant--Active consent of bank to agree to make arrangement between parties was not available--Validity--Bank cannot be forced to accept offer because basic ingredient for agreement/contract is free consent, which cannot be imposed upon a party--A person not a customer cannot be impleaded as a party to recovery suit and any interest in shape of night or liability of a third party may be determined during execution proceedings--For invoking constitutional jurisdiction of High Court vested in it under Art. 199 of Constitution, petitioner is bound to show that Courts below has exercised jurisdiction not vested in it by law or there is jurisdictional defect, misreading or non-reading of evidence through orders--Petitioner could not show any such defect through writ petition nor seen any jurisdictional defect therein whereby orders could have been declared as without lawful authority and of on legal effect. [P. 221] A & C

2016 CLD 2190, 2013 CLD 613, 627, ref.

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

----S. 22(6)--Constitution of Pakistan, 1973, Art. 199--Interlocutory orders--Constitutional petition--Jurisdictional defect--Interlocutory in nature and as Section 22(6) provides no appeal, review or revision against same entertaining constitutional petition without there being an illegality or jurisdictional defect would negate purpose of law. [P. 221] B

Mr. Kaleem Ullah Qureshi, Advocate for Petitioner.

Mr. Muhammad Saleem Iqbal, Advocate for Respondents No. 2 & 3.

M/s. Syed Fayyaz Hussain Zaidi & Syed M. Nabi, Advocates for Respondent No. 4.

Date of hearing: 14.12.2016.

Judgment

Through this writ petition orders of Banking Court No. 2, Multan (the Court) dated 10.10.2013 has been challenged whereby the application of respondent-Bank to deliver the possession of factory Shandar Vegetable & Ghee Mills was dismissed and also order dated 05.12.2013 whereby the application filed by defendants for release of mortgaged properties, deletion of their names from array of defendants and impleading the name of Respondent No. 4 instead as a party to the recovery suit pending adjudication before the Court was dismissed.

1. Brief facts of the case are that the petitioner company had obtained loan in the year 1996-1997 against the mortgaged of its eight properties which included Vegetable Ghee Mill factory along with building machinery, land measuring 48 Kanals situated at Mauza Kotla Rehman Ali, Bahawalpur Road, Multan, belonging to it. Respondent No. 2-Bank filed a suit for recovery of Rs. 3,98,80,241/-along with prevailing rate of mark-up till realization, which is pending adjudication in Banking Court No. 2, Multan. The details provided by plaintiff are as under:--

| | | | | | --- | --- | --- | --- | | “Sr. No. | Nature of facility | Amount of Limits in Million | Outstanding in Rs. | | 1. | LLM 3,54,79,516/- Facility | Rs. 26,380 | | | 2. | Demand Finance Facility | Rs. 3,887 | Rs. 44,00,725/- | | | Total | | Rs. 3,98,80,241/- |

Leave to defend has been granted to the petitioner.

1. The petitioner claimed that during the pendency of the suit, officers of the respondent-Bank introduced Respondent No. 4 as in investor who would pay the outstanding loan of the petitioner company if its aforementioned property is transferred to him. With the consent of the Bank, an agreement dated 21.04.2011 was entered into with Respondent No. 4 and power of attornrcy was also executed in his favour. According to the terms of the agreement, in lieu of transfer of property, Muhammad Saleem/Respondent No. 4 was to repay the loan outstanding against the company, but instead of making payment of loan to the respondent-Bank, Respondent No. 4 started removing machinery from the factory premises. As a consequences, an F.I.R Bearing No. 52/2012 dated 19.01.2012 was got registered by the petitioner against Respondent No. 4 with Police Station Basti Malook, Tehsil & District Multan.

2. On the basis of these facts the petitioner filed an application on 10.07.2012 for amendment of written statement which was dismissed or 26.09.2012. On 19.07.2013 the Bank filed application for delivery of possession of factory premises to the Bank. This application was dismissed on 10.10.2013. The petitioner filed an application for release of mortgaged properties other than the factory premises, deletion of the names of the petitioner from array of defendants and instead impleading Respondent No. 4 as a defendant in the recovery suit. This application was dismissed on 05.12.2013. The petitioner has now challenged the order dated 10.10.2013 and 05.12.2013 through this writ petition.

3. The petitioner argued that as the property was handed over to the Respondent No. 4 on the asking of respondent-Bank, therefore, the property be got recovered from Respondent No. 4 and handed over to the respondent Bank and furthermore that Muhammad Saleem, Respondent No. 4 be impleaded as a defendant in the recovery suit and also petitioner be deleted from the array of defendants. The respondent Bank and Respondent No. 4 are in connivance with each other and on one hand, deprived the petitioner company from the property owned by it and on the other hand, are demanding repayment of loan from him which falls in the realm of double jeopardy.

4. Conversely the learned counsel for the respondent Bank argued that it is clear from letter dated 2.11.2011 issued by the Bank that the agreement between the petitioner and Respondent No. 4 was not entered on the asking of the respondent Bank rather the Bank had clearly mentioned in the letter that “The Bank shall consider your offer for approval if you agree to making down payment of Rs. 12.00 M and the total repayment time of five years”.

Subsequently as the petitioner got an F.I.R registered for misappropriating the property against the said respondent, hance, the Bank did not agree with the scheme entered into between the petitioner and Respondent No. 4. Learned counsel for Respondent No. 4 stated that he is still willing to abide by the terms of offer whereby Respondent No. 4 had agreed to pay the down payment of Rs. 12.00 million and remaining payment within five years.

1. Heard. Record perused.

2. As far as deleting the name of the petitioner from the array of defendants and impleading Respondent No. 4 as defendant in the suit is concerned, it is clear from Section 2(c) read with Section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (the relevant provision of the Ordinance are reproduced below) that recovery suit is a suit between the customer/borrower and the financial institute i.e., Bank. Respondent No. 4 is not a customer rather the petitioner introduced him to repay its loan but the scheme/ arrangement was not approved by the Bank.

Section 2(c)

“customer” means a person to whom finance has been extended by a financial institution and includes a person on whose behalf a guarantee or letter of credit has been issued by a financial institution as well as a surety or an indemnifier”

Section 9. Procedure of Banking Courts.--

“(1) Where a customer of a financial institution commits a default in fulfillment of any obligation with regard to any finance, the financial institution or, as the case may be, the customer, may institute a suit in the Banking Court by presenting a plaint which shall be verified on oath, in the case of a financial institution by the Branch Manager or such other officer of financial institution as may be duly authorized in this behalf by power of attorney or otherwise.

(2) The plaint shall be supported by a statement of account which in the case of a financial institution shall be duly certified under the Bankers Books Evidence Act, 1891 (XVII of 1891), and all other relevant documents relating to the grant of finance. Copies of the plaint, statement of account and other relevant documents shall be filed with the Banking Court in sufficient numbers so that there is one set of copies for each defendant and one extra copy.

(3) The plaint, in the case of a suit for recovery instituted by a financial institution, shall specifically state.

(a) the amount of finance availed by the defendat from the financial institution;

(b) the amounts paid by the defendant to the financial institution and the dates of payment; and

(c) the mount of finance and other amounts relating to the finance payable by the defendant to the financial institution upto the date of institution of the suit.

(4) The provisions of Section 10 of the Code of Civil Procedure, 1908 (Act V of 1908), shall have no application for and in relation to suits filed hereunder.”

1. It has been noticed that active consent of the respondent-Bank to agree to make arrangement between petitioner and Respondent No. 4 is not available on the record. The letter dated 02.11.2011 only states that the Bank will consider offer for approval. Bank cannot be forced to accept the offer because basic ingredient for agreement/contract is free consent, which cannot be imposed upon a party. A person not a customer cannot be impleaded as a party to the recovery suit and any interest in the shape of right or liability of a third party may be determined during the execution proceedings. This view is also supported by the case law titled as National Bank of Pakistan versus Rajby International (Pvt) Limited through Liquidator and 3 others (2016 CLD 2190), NIB Bank Limited versus Ali Hamid Travels and 3 others (2013 CLD 613) & Muhammad Hanif versus NIB Bank Limited and 4 others (2013 CLD 627).

2. As far as recovery of the mortgaged property from Respondent No. 4 and delivery to the respondent-Bank is concerned, this aspect of the matter can also taken into consideration at the time when execution of decree, if any, is passed as a result of pending recovery suit before the Banking Court No. 2. The relief of release of mortgaged properties is pre-mature and not available at this stage. Besides both the order dated 10.10.2013 and 05.12.2013 are interlocutory in nature and as Section 22(6) provides no appeal, review or revision against the same entertaining constitutional petition without there being an illegality or jurisdictional defect would negate the purpose of law. For time being, I find no reason to set-aside the impugned orders dated 10.10.2013 and 05.12.2013 passed by Respondent No. 1.

3. For invoking constitutional jurisdiction of this Court vested in it under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner is bound to show that the Court below has exercised the jurisdiction not vested in it by law or there is jurisdictional defect, misreading or non-reading of evidence through the orders impugned. Learned counsel for the petitioner could not show any such defect in the impugned orders through this writ petition nor I have seen any jurisdictional defect therein whereby the orders could have been declared as without lawful authority and of no legal effect.

4. For what has been discussed above, this writ petition being devoid of any force stands dismissed.

(R.A.) Petition dismissed

PLJ 2017 Lahore 222

Present: Muhammad Qasim Khan, J.

Mst. SHUGUFTA PARVEEN and another--Petitioners

versus

DISTRICT EDUCATION OFFICER (EE) SIALKOT and 3 others--Respondents

W.P. No. 1175 of 2014, decided on 8.11.2016.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Appointment as ESE on contract basis were withdrawn--Allegations of--Difference between marks in original certificate/degree as compared with documents submitted with applications--Contentions--Copies of valid and genuine documents were attached and after verification of documents, appointment orders were issued--Termination without conducting inquiry as required by law--Remained on duties and received salaries before issuance of termination order--Educational marks were correctly written--Validity--Appointing authority denied signatures on appointment letters issued in favour of petitioners and produced by them but in absence of any other appointment letter and comparison of signatures of officer and recording of his statement in presence of petitioners and allowing petitioners to cross-examine authority, make whole process as doubtful--Appointment letters were rightly issued to petitioners after preparing of merit list and it may be possible due to some clerical mistake merit list has been wrongly prepared and now to save skin of officers petitioners have been made escape goat by leveling false allegations against them--Petitioners have been replaced by new one, as department has not initiated any inquiry in that respect and has not fixed responsibility on any person in this regard--Procedure at time of interview original documents are examined by authority and it is not possible that authority has not verified marks on application forms after examining original documents at time of interview--During recruitment process some negligence was committed by any of officials while calculating and typing marks for preparing merit list, but at late stage petitioners could not be penalized for same, especially when no one other is claiming appointment against posts of petitioner, being higher on merit and petitioner otherwise fulfil qualification criteria prescribed in recruitment policy. [Pp. 225 & 226] A, B & C

Mr. Muhammad Iqbal Mohal, Advocate for Petitioners.

Kh. Salman Mehmood, Assistant Advocate Genral with Ghulam Sughran Deputy District Education Officer (Women), Pasroor for Respondents.

Date of hearing: 8.11.2016.

Order

At the outset, learned counsel for the petitioners verbally seeks permission to add “Province of the Punjab through Secretary Education Government of the Punjab, Lahore” as Respondent No. 4, Although the learned Assistant Advocate General has opposed the stance, but in the larger interest of justice, permission is granted as it would not materially affect the nature of the writ petition. Learned counsel for the petitioners has amended the memo. of parties in the view of the Court.

1. Briefly the facts of the case are that after going through the requisite process, finally vide order dated 23.10.2009 the petitioners were appointed as ESE on contract basis for a period of five years and pursuant to their appointment letters, they both joined their respective places of postings. Subsequently, however,vide two separate orders dated 08.12.2010 and 11.12.2010 respectively, the appointment orders of Petitioner No. 1 and 2 were cancelled/withdrawn on the ground that their documents, submitted along with application for appointment were found fake and that there was difference between the marks in the original certificates/degree as compared with the documents submitted with application. The petitioners filed Writ Petitions No. 847 and 20939 of 2011. Vide order dated 08.11.2012 Wirt Petition No. 847 of 2011 was allowed by holding that since no inquiry had been held, therefore, termination order was illegal, however, respondents were at liberty to take lawful action against the petitioner. Whereas, vide order dated 05.06.2012 Writ Petition No. 20939 of 2011 was allowed by holding that appointment letter was not issued on the basis of any bogus/forged documents and that petitioner had been punished without opportunity of hearing and show-cause notice. With reference to the above orders of this Court, the petitioner were reinstated in service, but later-on, vide order dated 05.11.2013, their services have again been terminated, hence, this writ petition.

2. It is argued by learned counsel that the petitioners were appointed after adopting all the requisite process, copies of valid and genuine documents were attached with the candidature and after verification of those documents, the petitioners were appointed, but subsequently without any regular inquiry and even without affording them opportunity of hearing the petitioners were removed from service and after the orders of this Court in the earlier round of litigation they were reinstated, but yet again they have been terminated without conducting inquiry as required by law, which is clearly against the earlier orders of this Court.

3. The learned Law Officer submits that petitioners provided bogus copies of the educational certificates mentioning higher marks and on the basis of these fake documents, the petitioners succeeded in getting appointment letters. Further submits that a proper inquiry was initiated and rightly the impugned orders have been passed, hence, the instant writ petition be dismissed.

4. I have heard the arguments of learned counsel for the parties and perused the record appended with this petition and in the custody of official respondent, present in Court today.

5. After joining as ESE, the petitioners performed their duties but suddenly show-cause notices were served upon them and ultimately their appointments letters were recalled. They filed Writ Petitions No. 20939/2011 and 847/2011, which were allowed vide orders dated 05.06.2012 and 08.11.2012, respectively, and one of the ground for allowing those writ petitions was that regular inquiry had not been conducted, which was required under the law and it was further observed that respondents may take action against the petitioners after full-fledged inquiry. Resultantly, the orders vide which appointments of the petitioners were recalled, were set asideand the petitioners were reinstated in service. However, again vide the impugned orders dated 05.11.2013 passed by the authority i.e. DEO (W-EE), Sialkot, the services of the petitioners were terminated holding the same to be devoid of merit, rules and policy.

6. Although the stance of the respondents is very clear that the petitioners filed bogus certificates along with their application forms; for the same reason now they have been removed from service, but perusal of the file available with the officials of the respondents, present in Court, shows that in the application forms available on the file, the academic marks of the petitioners have been correctly written as compared to their original academic certificates. I have also gone through the appointment orders issued by the authority in favour of the petitioners, on which the academic marks of the petitioners have been mentioned, which are same as on the original academic certificates and the application forms available on the file. Para-16 of the contract agreement in which correct marks of the petitioners are written, also impose the following duty on the appointing authority:--

“It shall be the responsibility of concerned appointing authority that Academic and Professional record/documents of the Educators be verified before the relesase of the salary.”

Admittedly the petitioner remained on their duties and received salaries for couple of months before issuance of first termination order. Although it is alleged that during inquiry, the DEO(W-EE). Sialkot, denied, the signatures over the appointment letters issued in favour of the petitioners, on which his educational marks are correctly written. The Inquiry Officer has not collected any other appointment letter except produced by the petitioners either from the office copy of the department or from the accounts office, to establish that petitioners are performing duties on the basis of forged appointment letters. Although, it is alleged that appointing authority denied signatures on the appointment letters issued in favour of the petitioners and produced by them but in the absence of any other appointment letter and comparison of signatures with other admitted signatures of the said officer and recording of his statement in presence of the petitioners and allowing the petitioners to cross-examine the authority, make the whole process as doubtful. Moreover, the numbers written on the application forms of the petitioners are also correctly written as per academic certificates and they tally with the marks on the appointment letters issued and presented by the petitioners and available on the departmental record.

1. It appears that appointment letters were rightly issued to the petitioners after preparing of merit list and it may be possible due to some clerical mistake merit list has been wrongly prepared and now to save the skin of the officers the petitioners have been made escape goat by leveling false allegations against them. When the application forms having correct marks of the petitioners are on the record of the department then how it could be said that the petitioners have provided bogus academic certificates having wrong academic marks and it is not the case of the department that the application forms have been replaced by new one, as the department has not initiated any inquiry in this respect and has not fixed responsibility on any person in this regard. Even as per procedure at the time of interview the original documents are examined by the authority and it is not possible that the authority has not verified the marks on the application forms after examining the original documents at the time of interview.

2. Furthermore, Pura-3 of the order dated 05.06.2012 passed by the then Hon’ble Chief Justice, Lahore High Court, Lahore in Writ Petition No. 20939 of 2011, the relevant lines whereof are reproduced hereunder, in clear terms provides that:--

“The appointment letter has been perused. Cause 16 thereof mentions correctly the marks obtained by the petitioner in her matric, intermediate and graduation examinations. Clearly, the appointment letter was not issued to the petitioner on the basis of any bogus/forged documents.”

It is admitted position that facts of the case of the writ petitioner in Writ Petition No. 20939/2011 are absolutely identical to the case of the petitioner in Writ Petition No. 847/2011, therefore, the conclusions drawn in the above-reproduced order also cover the case of the petitioner in the second writ petition and those findings have also attained finality, as those have not been challenged before any Court. Besides, as observed in the curlier round of litigation that the presumption would be with respect to the regularity of performance of administrative functions, unless and until otherwise is provided, but no reasoning could be forwarded by the respondents that how the authority neglected his duties imposed in Para-16 referred above. Even otherwise, from perusal of the documents, it appears that officials are trying to save their own employees and in a hasty manner are trying to fix responsibility on the petitioners. The petitioner were not provided copy of the charge sheet, they were not provided opportunity of cross-examining the witnesses and even not provided opportunity to produce their defence evidence. Furthermore, when the petitioners while appearing before the authority for personal hearing had in clear terms stated that their qualification certificates had been got verified by the Deputy District Education Officer, it was incumbent for authority that apart from associating the said Deputy District Education Officer in the inquiry proceedings, the entire relevant record must have been collected and attached with report and parawise comments at least or produced before this Court on the date of hearing. In the absence of any such important record, the inference is quite obvious that respondents have no such record.

1. As discussed above, it appears that during recruitment process some negligence was committed by any of the officials while calculating and typing the marks for preparing the merit list, but at this late stage the petitioners could not be penalized for the same, especially when no one other is claiming appointment against the posts of the present petitioners, being higher on merit and petitioner otherwise fulfil the qualification criteria prescribed in recruitment policy.

2. Furthermore, it is clear and authoritative view of the Hon’ble Supreme Court of Pakistan as declared in the case “Province of Punjab through Secretary, Agriculture, Government of Punjab and others versus Zulfiqar Ali” (2006 SCMR 678), that appointment of an employee, if made illegally, could not be cancelled and instead of taking action against such employee, action must be taken against Appointing Authority for committing a misconduct by making illegal appointment. Reliance in also placed on the case “Director, Social Welfare, N-W.E.P, Peshawar versus Sadaullah Khan” (1996 SCMR 1350).

3. For what has been discussed above, this writ petition is allowed and the impugned termination order dated 05.11.2013 are hereby set-aside.

(R.A.) Petition allowed

PLJ 2017 Lahore 227 [Multan Bench Multan]

Present: Masud Abid Naqvi, J.

MUHAMMAD RAMZAN--Petitioner

versus

ADDL. DISTRICT JUDGE, etc.--Respondents

W.P. No. 5602 of 2010, decided on 7.12.2016.

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

----S. 9--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Suit for possession--Shamilat deh--Dispossessed illegally and unlawfully--Validity--It is well settled proposition of law that Section 9 of Specific Relief Act, is entirely a different kind of action because it gives a special privilege to persons in possession to take action promptly on their dispossession of immovable property and dispossessed persons are entitled to succeed simply by proving that they were in possession and had been dispossessed without due course of law and dispossession had taken place within six months of suit without raising or discussing question of title either of plaintiffs or defendants. [P. 228] A

Mehr Abdul Ghafoor, Advocate for Petitioner.

Mian Muhammad Jamal, Advocate for Respondents.

M/s. Muhammad Riaz Jahanian, Ch. Habib Ullah Nahang and Syed Tajamal Hussain Bokhari, Advocates for Respondents No. 3 to 5.

Date of hearing: 7.12.2016.

Order

Brief facts of this petition are that respondents/plaintiffs filed a suit for possession under Section 9 of Specific Relief Act with the averments that plaintiffs are owner in possession of the agricultural land and suit property is as Shamilat Deh while defendants have no concern whatsoever with the suit property while defendants interfered into their possession and they filed suit for permanent injunction and stay order was issued by the learned Court but despite of stay order of the Court, defendants destroyed the crop of plaintiffs. It was further added that defendants dispossessed the plaintiffs illegally and unlawfully and in this connection case FIR No. 219 dated 12.06.2008 was registered. Hence, the suit. The defendants contested the suit by filing the written statement wherein they raised legal and factual points and specifically denied the execution of exchange deed. Out of divergent pleadings of the parties, issues were framed by the learned trial Court. The parties produced their respective evidence and after recording the same, learned trial Court vide judgment and decree dated 24.11.2009 decreed the suit of the plaintiffs/respondents. Feeling aggrieved, one of the 07 defendants i.e. Defendant No. 1 filed revision petition and the learned Additional District Judge vide judgment & decree dated; 06.05.2010 dismissed the same. Being dissatisfied, the petitioner/Defendant No. 1 has filed the instant revision petition and challenged the validity of the judgments and decrees passed by the learned Courts below.

1. I have heard the arguments of learned counsel for the parties who reiterated their respective arguments and perused the available record as well as have minutely gone through the impugned judgments and decrees.

2. It is well settled proposition of law that Section 9 of the Specific Relief Act, 1877 is entirely a different kind of action because it gives a special privilege to persons in possession to take action promptly on their dispossession of immovable property and the dispossessed persons are entitled to succeed simply by proving that they were in possession and had been dispossessed by the defendants without due course of law and the dispossession had taken place within six months of the suit without raising or discussing the question of title either of the plaintiffs or defendants. Onus to prove the Issues No. 5 and 6 was on the plaintiffs which are the main and vital issues. Mian Mohammad Kamal/one of the plaintiffs appeared and deposed as PW-1. He categorically deposed that the plaintiffs are the real brothers and were in possession of the suit property for the last 50 years but they were dispossessed from the suit property. Abdul Majeed/PW-2/tenant of the plaintiffs also supported the version of the plaintiffs. Both the PWs were subjected to cross-examination but there exist no substantial variations/contradictions in the deposition of- PWs. The plaintiffs exhibited documentary evidence i.e. Ex.P-1 to Ex.P-8 to prove their case of possession and dispossession. Hence, the plaintiffs/respondents proved their possession of suit land and thereafter dispossession by the defendants through oral and documentary evidence.

On the other hand, in cross-examination, Mohammad Ramzan/DW-1 frankly conceded the possession of plaintiffs and their possession with undermentioned these words:

یہ درست ہے کہ فصل کے اجاڑے اور قبضہ کی بابت میاں کمال مدعیاں نے میرے خلاف مقدمہ نمبر 219/08 تھانہ صدر میلسی میں درج کروایا تھا میں مقدمہ 219/08 میں شامل تفتیش ہوا تھا میں کرائم برانچ ملتان میں بھی شامل تفتیش ہوا تھا میں تفتیش کے دوران یہ بیان نہ دیا تھا کہ میں نے اجاڑہ نہ کیاتھا البتہ سرکاری زمین پر قبضہ کیا ہے ۔۔۔۔۔۔۔۔۔ میں نے 4.06.08 کو قبضہ کے بعد درستی کاشت کی درخواست دی تھی ۔۔۔۔۔۔۔۔۔ رقبہ مدعویہ کی وارہ بندی مدعیاں کے نام غلط بنی ہوئی ہے مجھے علم نہ ہے کہ وارہ بندی سابقہ پندرہ بیس سال سے مدعیان کے نام ہے۔

By minutely perusing the contents of pleadings, oral evidence of PWs/DWs as well as documentary evidence, then remains no doubt that the plaintiffs were in possession of suit land but were dispossessed by the defendants on 04.06.2008 as conceded by petitioner himself as PW-1 and the plaintiffs took prompt action by filing instant suit on 27.11.2008 i.e. within six month of dispossession.

1. Even otherwise,; with respect to interference in concurrent findings of the Courts below, the Hon’ble Supreme Court of Pakistan in a case reported as Mst. Farhat Jabeen vs. Muhammad Safdar and others (2011 SCMR 1073) has held that:

“It is settled rule by now that interference in the findings of facts concurrently arrived at by the Courts should not be lightly made, merely for the reason that another conclusion shall be possibly drawn, on the reappraisal of the evidence; rather interference is restricted to ‘the cases of misreading and non-reading of material evidence which has bearing on the fate of the case.”

1. In the present case, no such defects have been pointed out by the learned counsel for petitioner in order to seek interference by this Court. Learned Courts below have meticulously examined the entire evidence of the parties and thereafter reached at the conclusion

regarding the controversy. Neither any misreading or non-reading of evidence on record nor any infirmity, legal or factual, has been pointed out in the impugned judgments and decrees passed by the learned Court below, therefore, this petition is dismissed.

(R.A.) Petition dismissed.

PLJ 2017 Lahore 230

Present: Ali Akbar Qureshi, J.

ABDUR REHMAN KALYAR--Petitioner

versus

DISTRICT COORDINATION OFFICER, CHINIOT and 3 others--Respondents

W.P. No. 39939 of 2016, decided on 4.1.2017.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Membership of club--Entry in premises and to avail facilities--Validity--If petitioner is member of D.P.C. he is allowed to enter in premises and to avail facilities like other members, extended by D.C.O.--If till today he is not a member of D.P.C., he may take membership in accordance with law and may avail facilities. [P. 231] A

Sardar Yousaf Nadeem, Advocate for Petitioner.

Mr. Naveed Saeed Khan, Addl.A.G. alongwith Abdul Waheed, Chief Officer Municiapl Committee, Chiniot for Respondents.

Date of hearing: 4.1.2017.

Order

In response of the notice, Abdul Waheed, Chief Officer, Municipal Committee, Chiniot has appeared alongwith the record and submits, that one room consisted of 01 Maria and 01 Sq. Ft. was allotted to the members of the District Press Club, Chiniot by the District Coordination Officer, Chiniot on the application filed for this purpose. Further submits, that neither the room has been allotted permanently nor given on rent to the said club.

1. In response thereof, learned counsel for the petitioner submits, that the petitioner is also the member of the District Press Club, Chiniot and therefore, he be allowed to enter in the premises and

to avail the facilities extended by the District Coordination Officer to the other members of the press club.

1. Learned Additional Advocate General, under instructions, has no objection to it.

2. In view of above, if the petitioner is the member of the District Press Club, Chiniot, he is allowed to enter in the said premises and to avail the facilities like other members, extended by the District Coordination Officer. If till today he is not a member of the District Press Club, he may take the membership in accordance with law and may avail the facilities.

3. Abdul Waheed, Chief Officer, Municipal Committee, Chiniot, to whom the show-cause notice to initiate the contempt proceedings was given, seeks forgiveness, therefore, the show-cause notice is recalled.

4. This petition is disposed of accordingly.

(R.A.) Petition disposed of

PLJ 2017 Lahore 231

Present: Ali Akbar Qureshi, J.

MUHAMMAD ILYAS (deceased) through his Legal Heirs and others--Petitioners

versus

Mst. KHURSHEED BIBI (deceased) through her Legal Heirs and others--Respondents

C.R. No. 1705 of 2005, decided on 19.2.2016.

Muhammadan Law--

----Inheritance mutation--Residuaries--Distant kinderd--According to mandate of Muhammadan Law, in presence of residuaries, distant kindred cannot inherit anything--It is settled principle of Islamic Law, that nearer in decree excludes more remote, therefore, as per pedigree table and law, both ladies are not only distant kindred but also remoter in decree. [P. 235] A

Residuaries--

----Inheritance mutation--Being distant kindred in presence of residuary--Entitlement of--Being distant kindred are not entitled to inherit anything from property left by deceased, as whole of property left by deceased is to be inherited being residuaries.

[P. 236] B

Muhammadan Law--

----Sole residuary--Succession--Legal heirs--It is well established principle of Muhammadan Law, moment Muslim owner dies, succession of estate left by Muslim owner immediately opens and devolves upon legal heirs, meaning thereby when “H” died, his inheritance was immediately devolved upon “B” being sole residuary and when “B” died, in same manner, his succession opened and devolved upon heirs and by that way all persons became owners of property left by deceased predecessor, to extent of their shares--Both mutations were not attested and sanctioned in accordance with law, therefore, mutations would not affect rights of heirs who inherited property. [P. 236] C

Inheritance--

----Limitation--In matter of inheritance, no length of time would extinguish right of inheritance and bar of limitation is not applicable. [P. 236] D

2002 CLC 587 Lah. 2005 SCMR 1447, 2007 SCMR 1446, 2011 YLR 2099 & 2014 SCMR 801 & 2015 SCMR 869, rel.

Messrs Saeed-uz-Zafar Khawaja, Ch. Muhammad Naseer, Asjad Saeed, Advocates for Petitioners.

Messrs Bakhtiar Mahmood Kasuri, Abdul Wahid Chaudhry, Advocates for Respondents.

Messrs Shahid Naseem Gondal and Mushtaq Ahmad Mohal, Advocates for Respondent No. 9-C.

Date of hearing: 22.1.2016.

Judgment

This single judgment will dispose of two cases i.e. C.R.Nos.1705 and 1706 of 2005, being arisen out of the same judgment and decree.

1. This civil revision is directed against the judgment and decree dated 28.04.2005 and 16.12.2000, whereby through a consolidated judgment, suit titled as Muhammad Ilyas etc. v. Khursheed Bibi etc. filed by the petitioners was dismissed, whereas the suit titled Khursheed Bibi etc. v. Muhammad Ilyas etc. filed by the respondents was decreed.

2. This case has a long history and question of inheritance is involved, therefore, it is necessary to give brief facts of the case. The petitioners Muhammad Ilyas, Muhammad Siddique, sons of Jannatay Bibi and Bahishtan, daughters of Dina, filed a suit for possession Malkana titled as Muhammad Ilyas etc. v. Khushi Muhammad etc. regarding the suit land measuring 324 Kanal 5 Marla on the ground, that predecessor of the parties namely Hasal was the original owner of the suit land and on his death, inheritance Mutation No. 797 dated 09.08.1951 was sanctioned in favour of Baksha for half share and remaining half share in favour of Jannatay and Bahishtan, daughters of Dina, who was son of Balaki; when Baksha died, his inheritance Mutation No. 846 dated 17.03.1952 was sanctioned in favour of Jannatay and Bahishtan; when Jannatay died, her property was devolved upon her sons Muhammad Ilyas and Muhammad Siddique; that the land in question is common and is being cultivated by the tenants who are paying the share of produce to Defendants/ Respondents No. 1 to 12 and by this way, the petitioners are being deprived of their share out of the suit land and lastly submitted, that they time and again asked the Respondents No. 1 to 12 to admit the petitioners as owners of the suit land to the extent of their shares and hand over the possession, which was refused.

Muhammad Din, Muhammad Shafi and Jamal Din alias Jamala also filed a rival suit for possession Malkana quathe suit land measuring 258 Kanal 17-1/2 Marla contending therein, that Hasal son of Yousaf was owner of the suit land measuring 161 Marla 7-1/2 Maria and on his demise, inheritance Mutation No. 797 dated 09.08.1951 was sanctioned in favour of one Baksha son of Balaki and Mst. Jannatay and Bahishtan in equal share. Lastly prayed, that the afore-referred inheritance mutation was wrongly entered, as Dina, the father of Defendants No. 1 and 2, had already died and by this way, Baksha son of Balaki was only legal heir of Hasal son of Yousaf and Respondents No. 1 and 2 are not entitled to get anything from the legacy of Hasal (deceased). Further submitted, that Baksha who was himself owner of the land measuring 258 Kanal 7-1/2 Marla when died, his inheritance Mutation No. 846 dated 17.03.1952 was sanctioned in favour of Respondents No. 1 and 2 which was in fact against the law, because Dina, the father of Defendants No. 1 and 2, had already died. Lastly prayed, that Respondents No. 1 and 2 have been asked many a times to give possession Malkana of the suit land to the rival petitioners being co-sharer but the Respondents No. 1 and 2 refused to accede the genuine demand of the petitioners.

1. As per the record, the controversy involved in this matter is regarding the inheritance of one Hasal, predecessor of the parties and owner of suit land. The respondents are claiming themselves owner of the suit property on the basis of two inheritance Mutations No. 797 and 846 of suit land entered on the demise of Hasal son of Yousaf and Baksha son of Balaki, respectively, whereas the plaintiffs of rival suit being collaterals have claimed the inheritance of aforesaid deceased persons and prayed, that the aforementioned inheritance mutations be declared against the law.

Both the suits were consolidated in compliance of the order passed by the learned Additional District Judge, who remanded the matter to the learned trial Court. The learned trial Court framed consolidated issues, recorded the evidence of the parties and finally dismissed the suit titled Muhammad llyas etc. v. Khursheed Bibi etc. and decreed the suit titled Khursheed Bibi etc. v. Muhammad llyas etc.

Being aggrieved with the judgment and decree passed by the learned trial Court, two appeals were filed by the petitioners, which were dismissed by the learned appellate Court after hearing arguments of both the parties, hence, this revision petition.

1. Heard. Record perused.

2. The parties to the case filed two suits claiming themselves the legal heirs of Hasal son of Yousaf, predecessor of the parties and status of the inheritance Mutation No. 797 dated 09.08.1951 and Mutation No. 846 dated 17.03.1952. Both the parties while filing the suit submitted pedigree table and details of the suit land which have not been disputed by any of the parties, therefore, it is to be seen who is entitled to inherit the suit land.

3. It would be appropriate to firstly deal with the inheritance of Hasal son of Yousaf who as per the death certificate (Exh.P.7) died on 15.12.1950. This fact was stated by Bahishtan, who appeared as witness and stated that Hasal died about two years prior to the partition of the subcontinent whereas Baksha died 5/6 years after the death of Hasal son of Yousaf, therefore, it is clear, that Baksha died after Hasal son of Yousaf and this fact is also supported by the death certificate (Exh.P.9), which is available in the record, wherein the date of death of Baksha son of Balaki is entered as 15.11.1951.

4. Admittedly, Hasal son of Yousaf died issueless and at the time of death of Hasal, Baksha son of Balaki, one of the collaterals of Hasal, was alive whereas Dina son of Balaki had died in the year 1916, this fact is mentioned in his inheritance mutation. Bahishtan while appearing as witness also stated, that she was 60 years old when her father Dina, son of Balaki, was died.

5. Jannatay and Bahishtan Bibi, the predecessor of the petitioners Muhammad Ilyas etc. were the daughters of said Dina son of Balaki as recorded by the learned Courts below and admittedly Jannatay and Bahishtan Bibi are not the lineal female descendants of Kamal, who was the common great ancestral of them and that of Baksha son of Balaki as well as Hasal son of Yousaf. Bakshas son of Balaki was only alive lineal male descendant of Kamal son of Amin at the time of death of Hasal son of Yousaf.

6. The learned Courts below and especially the learned appellate Court, after putting great efforts and analyzing the provisions of Muhammadan Law, has reached to the conclusion, that Baksha was the only male descendant at the time of death of Hasal.

7. Law of inheritance gives three classes of legal heirs i.e. sharer, residuaries and distant kindred. The pedigree table is admitted by the parties, therefore, according to the pedigree table, none of the petitioners, being sharer are entitled to anything out the legacy of Hasal or Baksha because they do not fall in the category of sharer.

8. As regard the residuaries, which has been defined in Muhammadan Law, that full paternal uncles, full paternal uncles’s sons sons and their remote male descendants in the like order how low so ever comes in the class pertaining to descendants of true grandfather how high so ever of the deceased and by this way, the petitioners fall in the category of residuaries of legal heirs of deceased Hasal son of Yousaf.

9. The learned appellate Court, after consulting the record and the law applicable on the case, finally came to the conclusion, that the plaintiff of the suit titled Muhatnmad Din etc. v. Jannatay Bibi etc. are the residuaries whereas Jannatay and Bahishtan, the predecessors; of plaintiffs in a suit titled Muhammad Ilyas etc. v. Khusi Muhammad etc. are the distant kindred of both the deceased i.e. Hasal son of Yousaf and Baksha son of Balaki.

10. According to the mandate of Muhammadan Law, in the presence of residuaries, distant kindred cannot inherit anything. Even otherwise it is settled principle of Islamic Law, that nearer in decree excludes the more remote, therefore, as per the pedigree table and the law, Jannatay Bibi and Bahisthan Bibi are not only distant kindred of Baksha son of Balaki but also remoter in decree.

11. In these circumstances, Bahishtan and Jannatay being distant kindred were not entitled anything from the legacy of Hasal son of Yousaf being distant kindred in the presence of residuary, deceased Baksha son of Balaki, the inheritance Mutation No. 797 dated 09.08.1951 of deceased Hasal son of Yousaf which was sanctioned in favour of Baksha son of Balaki and Bahishtan and Jannatay but as per law Jannatay and Bahisthan being distant kindred are not entitled to inherit anything from the property left by deceased Hasal, as whole of the property left by Hasal son of Yousaf is to be inherited by Baksha son of Balaki being residuaries.

In the same manners and principle, the property left by Baksha son of Balaki was to be inherited by Muhammad Din, Qaim Din and Jamal Din alias Jamala and inheritance Mutation No. 846 dated 17.03.1952 was not correctly entered in the names of Bahishtan and Jannatay, being distant kindred.

1. Even otherwise, it is well established principle of Muhammadan Law, the moment Muslim owner dies, succession of estate left by Muslim owner immediately opens and devolves upon the legal heirs, meaning thereby when Hasal died, his inheritance was immediately devolved upon Baksha being sole residuary and when Baksha son of Balaki died, in the same manner, his succession opened and devolved upon the heirs i.e. Muhammad Din, Qaim Din and Jamal Din and by this way all the above persons became owners of the property left by deceased predecessor, to the extent of their shares. Both the impugned Mutations No. 797 and 846 were not attested and sanctioned in accordance with law, therefore, both mutations would not affect the rights of the heirs who inherited the property.

2. Learned counsel for the petitioners vehemently argued, that the respondents while filing the suit did not claim the declaration and by this way, the suit is hopelessly barred by time.

3. It has already been observed, that the moment Muslim owner of the property dies, immediately succession opens and devolves upon the heirs and the Muslim heirs become the owner of the property to the extent of their share. Admittedly, in this case, the property was cultivated by the tenants and they were giving the share of produce to the respondents, therefore, the arguments advanced by learned counsel for the petitioners have no substance or force.

4. As regard the limitation, the Hon’ble Supreme Court of Pakistan in plethora of judgments, has observed, that in the matter of inheritance, no length of time would extinguish the right of inheritance and bar of limitation is not applicable. Reliance is placed on Mst. Bushra Bibi and 2 others v. Muhammad Sharif and 23 others [2002 CLC 587 (Lahore)], Muhammad Iqbal and others v. Allah Bachaya and 18 others (2005 SCMR 1447), Atta Muhammad v. Maula Baksh and others (2007 SCMR 1446), Allah Yar v. Mst. Zahoor Elahi and 5 others [2011 YLR 2099(Lahore)], Mst. Gohar Khanum and

others v. Mst. Jamila Jan and others (2014 SCMR 801) and Mahmood Shah v. Syed Khalid Hussain Shah and others (2015 SCMR 869).

1. To rebut the arguments of learned counsel for the respondents, the learned counsel for the petitioners has relied upon Mst. Grana through Legal Heirs and others v. Sahib kamala Bibi and others (PLD 2014 SC 167), but the facts of the aforesaid case are entirely different, therefore, the same is not applicable in the instant case.

2. Although the learned counsel for the petitioners argued the case at length but could not point out any jurisdictional defect, legal infirmity, illegality or irregularity with the judgment questioned herein, therefore, there is hardly any chance to interfere with the well worded concurrent findings of the learned Courts below. I am fortified by the esteemed judgments of the Hon’ble Supreme Court of Pakistan, in the case of Cantonment Board through Executive Officer Cantt. Board, Rawalpindi v. Ikhlaq Ahmed and others (2014 SCMR 161), Mst. Zaitoon Begum v. Nazar Hussain and another (2014 SCMR 1469) and Noor Muhammad and others v. Mst. Azmat-e-Bibi (2012 SCMR 1373).

3. Resultantly, this revision petition, having no force, is dismissed with no order as to costs.

(R.A.) Petition dismissed

PLJ 2017 Lahore 237 [Multan Bench Multan]

Present: Shahid Mubeen, J.

MUSTAFA KAMAL--Petitioner

versus

MEPCO, etc.--Respondents

W.P. No. 2414 of 2016, decided on 7.4.2016.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Employee’s son quota--Appointment in service employee’s son quota in MEPCO--Appointment letter was not issued--Validity--Petitioner is a child of serving employee and MEPCO authorities have not issued any offer of appointment to children of serving employees--There were 50-seats vacant and those seats were filled amongst, children of employees died during service, children of deceased retired employees and children of retired employees and no child of serving employee has been issued offer of appointment--It is established principle of law that policy decision cannot be upset unless it is shown that same is contrary to fundamental rights of petitioner enshrined in Constitution or same is arbitrary--High Court does not find policy either contrary to fundamental rights of petitioner or suffers from arbitrariness. [Pp. 238 & 239] A & B

Malik Ali Muhammad Dhol, Advocate for Petitioner.

Ch. Saleem Akhtar Warraich, Advocate for Respondents.

Date of hearing: 7.4.2016.

Order

Through this writ petition, the petitioner has sought directions to respondents to appoint him as Meter Reader in the in-service Employee’s Son Quota in MEPCO Multan.

1. Briefly stated the facts of the case are that the petitioner in response to proclamation issued by the respondents applied for the post of Meter Reader in in-service Employee’s Son Quota. According to advertisement 198 posts were to be filled in on merits and 50 posts were to be filled on the basis of Employee’s Son Quota. The petitioner also obtained 44 marks in NTS exam and Respondent No. 6 issued interview letter to the petitioner in Employee’s Son Quota. The petitioner appeared in the interview and got full marks. The respondents did not appoint the petitioner in Employee’s Son Quota and appointed the children of employees who died during service, died after retirement and retired Employee’s Son but they did not appoint any child of employees who are in service. Hence, this writ petition.

2. It is contended by learned counsel for the petitioner that the petitioner has not been appointed by the respondent authorities with malafide intention. Further submits that being son of serving employee he is entitled for appointment.

3. On the other hand, learned counsel for the respondent’s department submits that there were 50-seats and those were filled amongst the (a) Children of employees died during service, (b) Children of deceased retired employees, (c) Children of retired employees and no child of serving employee has been issued offer of appointment.

4. Heard. Record perused.

5. It is an admitted fact that the petitioner is a child of serving employee and respondent authorities have not issued any offer of

appointment to the children of serving employees. There were 50-seats vacant and those seats were filled amongst, Children of employees died during service, Children of deceased retired employees and Children of retired employees and no child of serving employee has been issued offer of appointment. The contention of the learned counsel for the respondents is supported by policy decision vide office order No. AD (E.II.A) 07781/PROPRIETYRIGHTS/Chairman/21812-22461 dated 08.04.2004 and no discrimination has been made for the petitioner. It is established principle of law that policy decision cannot upset unless it is shown that same is contrary to the fundamental rights of the petitioner enshrined in the Constitution of Islamic Republic of Pakistan, 1973 or the same is arbitrary. This Court does not find the policy either contrary to the fundamental rights of the petitioner or suffers from arbitrariness.

1. Sequel to the above, this writ petition has no force, hence, dismissed with no order as to cost.

(R.A.) Petition dismissed

PLJ 2017 Lahore 239 [Multan Bench Multan]

Present: Ch. Muhammad Iqbal, J.

SALMAN SHAHZAD, etc.--Petitioners

versus

CHIEF EXECUTIVE, MULTAN, etc.--Respondents

W.P. No. 6976 of 2016, decided on 5.9.2016.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Employee’s son quota--Posts of teacher--Criteria of two years diploma was not fulfilled--Validity--Required qualification was matric with two years C.D.D. from recognized government institution, whereas, petitioners possessed three years diploma of as such, they had failed to fulfill prescribed criteria as required under law--It is settled law that High Court cannot substitute opinion of recruitment/department selection committee--Petitioners has not been able to point out any illegality or material irregularity in recruitment process of D.S.C. and has also not identified any jurisdictional defect.

[Pp. 240, 241 & 242] A, B & C

2015 SCMR 112, ref.

Mr. Sajjad Hussain Tangra, Advocate for Petitioners.

Mr. Saleem Akhtar Warraich, Advocate for Respondents.

Date of hearing: 5.9.2016.

Order

Through this writ petition, the petitioners have prayed as under:--

In view of above, it is humbly prayed, that this writ petition may kindly be graced with acceptance and the respondents may kindly be directed to recommend the name of the petitioners against the vacant/unfilled post of TRACER (BPS-7), and respondents further may kindly be directed to issue letter of appointment for TRACER in BPS-7 immediately to the petitioners in the supreme interest of justice.

1. Learned counsel for the petitioners contends that Respondent No. 2/MEPCO through a consolidated advertisement published 48 posts of TRACER (38 posts for open merits & 10 for employee son Quota) in a National Daily Newspaper in which the prescribed qualification for the above said post was Matric with two years Civil Draftsman Diploma from the recognized government institution; that the petitioners filed applications having three years Diploma of Associate Engineer in Civil Technology in which they appeared in NTS papers and obtained 36 marks (Petitioner No. 1) & 38 marks (Petitioner No. 2) respectively and the petitioners were interviewed but they have not been selected by Respondent No. 1. Hence, this writ petition.

2. Learned counsel appearing on behalf of the respondents submits that the petitioners have filed applications against the post of TRACER (BPS-7) but they did not fulfill the prescribed criteria of two years Civil Draftsman Diploma, as such, they have rightly not been appointed by the Department Selection Committee (DSC), as such, the instant writ petition is not maintainable and the same is liable to be dismissed.

3. Heard. Record perused.

4. Admittedly, 48 posts of TRACER (BPS-7) were advertised (38 for open merits & 10 for employees’ son Quota), in which, the required qualification was Matric with two years Civil Draftsman Diploma from the recognized government institution, whereas, the petitioners possessed three years Diploma of Associate Engineer in Civil Technology, as such, they have failed to fulfill the prescribed criteria as required under the law.

Even otherwise, the Govt. of Pakistan, Cabinet Secretariat Establishment Division, vide office memorandum dated 3rd March, 2015 recommended for amendments in Mechanism to ensure appointment on merit based recruitment in the Ministries/ Divisions/ Sub-ordinate Offices/Autonomous/Semi-Autonomous Bodies/ Corporations/Companies/Authorities and the assessment criterion of a candidate observed by the Department Selection Committee is as under:--

Further the DSC would assess the applicants as under:--

Relevant qualification/experience 30%

Knowledge/Skill relevancy 40% and

Personality/Interpersonal 30%

Communication skills

1. Learned counsel for the petitioners has failed to establish any malice on the part of the members of the Recruitment/Department Selection Committee. The contention of the learned counsel for the petitioners that despite having qualified the test and interview they were not recommended for appointment is misconceived as from the perusal of the record the Department Selection Committee has rightly not recommended them for appointment being below merit. It is settled law that this Court cannot substitute opinion of the Recruitment/Department Selection committee and on this same point, the Hon’ble Supreme Court of Pakistan in case reported as Arshad Ali Tabassum vs. The Registrar Lahore High Court, Lahore (2015 SCMR 112) held as under:

“7. As far as the contention of the petitioner that he was not recommended for appointment by the committee due to the malice on the part of the members of the Interview Committee for the reason that his services were terminated as Civil Judge on the charge of misconduct, is concerned, suffice it to observe that according to the established principle of law this Court cannot substitute opinion of the Interview Committee on the bald allegation after losing the chance in the interview. Reference is made to the case of Asif Mahmood Chughtai, Advocate and 17 others v. Government of Punjab through Chief Secretary & others (2000 SCMR 966), Dr. Mir Alam Jan v. Dr. Muhammad Shahzad & others (2008 SCMR 960) and Muhammad Ashraf Sangri v. Federation of Pakistan & others (2014 SCMR 157). In such circumstances, the petitioner could not establish any malice on the part of the interview Committee. There is also no measuring apparatus with this

Court to determine that the petitioner was deferred in the interview by the Interview Committee only for the sole reason of his misconduct as Civil Judge. It is presumed that the Interview Committee must have given the petitioner marks after judging his ability without being influenced by the earlier misconduct of the petitioner as the Interview Committee was not acting as Disciplinary Committee dealing with the misconduct of the petitioner. Since the petitioner could not fulfil the requisite criteria for the post of Additional District & Sessions Judge, therefore, he was not recommended for appointment by the Selection Committee, thus, no illegality has been committed by the respondent while acting on the recommendations of the Examination Committee warranting interference by this Court in its constitutional jurisdiction.”

As such, both the petitioners have failed to fulfill the criteria as required under the law.

1. The learned counsel for the petitioners has not been able to point out any illegality or material irregularity in the recruitment process of Department Selection Committee and has also not identified any jurisdictional defect.

2. In view of above, this writ petition is dismissed in limine being misconceived and devoid of any merits.

(R.A.) Petition dismissed

PLJ 2017 Lahore 250

Present: Jawad Hassan, J.

Dr. KUMAIL ABBAS RIZVI--Petitioner

versus

UNIVERSITY OF PUNJAB, etc.--Respondents

W.P. No. 34140 of 2015, decided on 2012.2016.

Constitution of Pakistan, 1973--

----Arts. 4, 10-A, 14 & 199--Constitutional petition--Lecturer at College--Ex-Pakistan study leave--Resignation was tendered--Instead of accepting resignation removed from service--Non-speaking order--Resignation of petitioner was tendered and university without any legal justification, declared him as absent from duty and terminated his lien from post of lecturer from that date--Petitioner was qualified person and from issuance of notification, his future has been stigmatized for no fault on his part--Termination letter was passed without giving detailed reasons for terminating services--Performance of petitioner is exceptionally good but then terminating him, lowers his dignity in public life--Principle is required to be extended further to cases where any violation of right to dignity is caused, because human dignity, honour and respect is more important than physical comforts and necessities--Act of university, not only stigmatized honour and prestige of petitioner, but has also defamed him in estimation of society which is contrary to law--Right to live is not confined to mere living but it means meaningful life, which can be enjoyed with dignity and without defamation--No attempt on part of any person individually, jointly or collectively to detract, defame or disgrace another person, thereby diminishing, decreasing and degrading dignity, respect, reputation and value of life should be allowed to go with impunity--It is a well settled law that no one should suffer on acts of departments--Once petitioner has tendered his resignation, university was bound to decide its application without delay and with reasons, within reasonable time--Alleged actions of university are blatant violation of Fundamental Rights as enshrined in Arts. 9 & 14 of Constitution, to enjoy inviolability of right to life and dignity of man--Dignity of man is not only provided by Constitution, but according to history and under Islam, great value has been attached to dignity of man--It is duty of Court, under Arts. 9 and 14 of Constitution to safeguard and preserve life and dignity of citizens and protect them from serious and hazardous risks so that they can live a happy and meaningful life--Petitioner being a citizen of Pakistan was suffering loss to stigma of termination instead of resignation due to act of department for his future in academia. [Pp. 254, 256 & 257] A, B, C, D, E, F & G

PLD 2013 Lah. 413, 2010 PCr.LJ 1824 & 2016 PLC (CS) 155, ref.

Mrs. Rabbiya Bajwa, Advocate for Petitioner.

Ch. Aamir Mahmood, Legal Advisor Univeristy of Punjab.

Mr. Ashfaq Ahmad Kharal, Asstt.A.G. for Respondents.

Date of hearing: 20.12.2016.

Order

Through this constitutional petition, the petitioner has assailed Notification dated 1.10.2014 whereby Respondent No. 4 intimated the petitioner about fate of meeting of Syndicate held on 29.08.2015, whereby it did not accept the resignation of the petitioner w.e.f. 01.08.2011, and terminated the petitioner from the Punjab University service w.e.f. 06.08.2011 through the impugned order dated 01.10.2015.

1. Brief facts for the disposal of this constitutional petition are that the petitioner was appointed as Lecturer at Hailey College of Commerce and he applied for two-years Ex-Pakistan Study Leave (without pay) to resume his duties on HEC overseas scholarship for Masters leading to Ph.D Studies at the University of Paris. The said application of the petitioner was approved as requested by the Respondent No. 3. Subsequently, the petitioner came back to Pakistan in 2011 and tendered his resignation to Respondent No. 2. He was offered promotion to the post of Assistant Professor, but the petitioner refused to accept the same with thanks and ultimately name of petitioner was removed from the faculty list on the college website. Eventually vide letter dated 23.09.2014 issued by the Respondent No. 4, the petitioner was removed from service and his lien from the post of lecturer was terminated on account of alleged absence from duty. The petitioner approached Respondent No. 2 through written application dated 2.10.2014 for acceptance of previously tendered resignation in lieu of termination from service, which was declined vide impugned office order dated 1.10.2015. Hence this constitutional petition.

2. The learned counsel for the petitioner argued that the petitioner came back to Pakistan from France and tendered his resignation on 1st August 2011 to the Vice Chancellor which was forwarded to the concerned authorities and reached the Additional Registrar but instead of accepting his resignation he received the termination letter dated 23rd September 2014. The counsel further stated that petitioner immediately approached the Respondent No. 2 to clarify his position and requested to rectify the mistake of not accepting his resignation on time but the respondents declined his requested and terminated him with a non speaking order without hearing him, hence, violated Article 4 of the Constitution of Pakistan, 1973 (the “Constitution”) under which it is petitioner’s inalienable right to be treated with law and to enjoy the protection of law and the respondents cannot take any action detrimental to the reputation of the petitioner except under the law. Lastly, the counsel argued that that the impugned order is also not a speaking order with reasons and passed against the Article 10-A of the Constitution in which the petitioner has a fundamental right of a fair trial and a due process of law. In support of her contention, she has placed reliance upon Qaiser Zaman v. Federal Board of Revenue, Islamabad and others (2015 PLC (CS) 243), whereby the Hon’ble Supreme Court of Pakistan in the identical situation did not maintain the findings of the departmental authority and/or the order of the learned Tribunal passed on the ground of limitation, which orders have adverse effect on the career of the appellant, and directed the Secretaries, Establishment Division and Cabinet Division to ensure that the resignation cases of the Civil Servants be immediately processed and the concerned Civil Servant be also informed about its fate forthwith as per Rules. The delinquent officers/officials who cause delay in processing such cases be made accountable and proceeded against departmentally.

3. The respondents in their report and parawise comments in Para-6 has admitted that “only due to inadvertence or for the reasons best known by the then Additional Registrar-I, who instead of accepting the resignation of Dr. Syed Kumail Abbas Rizvi, initially advised him not to resign. It is only on account of not processing his case, that the Syndicate in its meeting held on 29.08.2015 terminated his lien from the post of Lecturer.” It is also reflected from perusal of comments submitted by the respondents that “The impugned notification is the result of inadvertence as resignation of the petitioner did not reach his personal file and was also not processed. However, considering his case as one of absence from duty, the matter was placed before the Syndicate before the Competent Authority which eventually terminated the lien of the petitioner.” When confronted with the Respondent’s counsel, whether the impugned order is sketchy and non-speaking, the counsel frankly conceded.

4. It is reflected from perusal of record that petitioner after his repatriation, moved his resignation from the position of Lecturer to the Respondent No. 2 on 01.08.2011 for its acceptance. It is to be noted that the said resignation application was officially received on 19.08.2011 and then forwarded to the concerned Registrar on 19.08.2011. This application was not decided and was kept aside, without any reason. However, the Syndicate in its 1714th Meeting (the ‘Meeting’) held on 29 August 2015 wrote which is as follows:

“Thereafter, he submitted his resignation to the Principal, Hailey College of Commerce with effect from 01.08.2011 which was sent to the Vice-Chancellor who marked it to the Registrar. Record shows this resignation reached to the then Additional Registrar-I, Prof. Dr. Aurangzeb Alamgir who did not process it on the reason best known to him. As the resignation of Mr. Kumail Abbas Rizvi did not reach to his personal file, therefore, as per record, Mr. Kumail Abbas Rizvi was considered absent from his duties since 06.08.2011.

Regarding the performance of the petitioner it has been written in the Meeting as follows:

“His performance was exceptionally good. As he was already doing Ph.D., he requested for leave for the completion of his studies. He did not receive any scholarship funds from the University for Ph.D. studies. Further, he was on leave without pay. His leave was, therefore, approved. On completion of his Ph.D., he came back, joined Punjab University and then resigned from Punjab University service being an unconfirmed employee till that time.

In the said Meeting it was further written regarding the resignation of the petitioner which is as follows:

“The Additional Registrar-I (Dr. Kamran Abid) replied that the statement of Mr. Rizvi itself showed that his resignation reached the table of Dr. Aurangzeb Alamgir, the then Additional Registrar-I who called upon Mr. Rizvi in his office and advised him not to resign and thereafter, the resignation did not see day light till today. Therefore, responsibility lies with the then Additional Registrar-I who did not process his resignation.”

1. Despite what is written above, the Syndicate did not approve the request of the petitioner and terminated his lien from the post of Lecturer Hailey College of Commerce and declared the petitioner absent w.e.f. 06.08.2011. Moreover, the Syndicate also initiated civil proceedings against the petitioner and his surety for breach of contract (surety bond) amount of liquidated damages Rs. 10,00,000/-. Subsequently, the Syndicate in its Meeting held on 29.08.2015 disapproved the request of the petitioner for acceptance of his resignation w.e.f 01.08.2011 instead of his termination from Punjab University service w.e.f 06.08.2011.

2. From the facts above and after examining the record appended with the instant petition, it is to be noted that the said state of affairs demonstrate that resignation of the petitioner was tendered on 01.08.2011 and the respondents without any legal justification, for no fault on part of petitioner declared him as absent from duty since 06.08.2011 and terminated his lien from the post of the Lecturer from the said date. The petitioner is qualified person and from the issuance of impugned notification, his future has been stigmatized for no fault on his part. The termination letter is of two line and has been passed without giving detailed reasons for terminating the services. It was the mistake of the Respondent for not accepting the resignation on time. The work of petitioner has been appreciated by the Respondent in its 1714th Meeting on 29 August 2015 by holding that the performance of the petitioner is exceptionally good but then terminating him, lowers his dignity in the public life. It is fundamental right of the petitioner to be treated by the Respondent with dignity under Article 14 of the Constitution, which is reproduced hereunder:

“14. Inviolability of dignity of man, etc.--(1) The dignity of man and, subject to law, the privacy of home, shall be inviolable.”

1. Hon’ble Mr. Justice (R) Fazal Karim in book “Judicial Review of Public Action” explains that the Clause (1) of Article 14 of the constitution has two parts; the first part guarantees the dignity of man and the second part guarantees the privacy of home. While the dignity of man is an absolute right and “is not subject to law but is an unqualified guarantee”, the right to privacy of home is subject to law. The dignity of man and privacy of home appear to run into each other; they are rights related one with the other and that is the reason that they have been dealt with together in Clause (1) of Article 14 of the constitution. Further, the honorable superior Courts of Pakistan in various judgments has established that the right to dignity is one of the cardinal principles of law and most valuable right, to be observed in every civilized society and more particularly in a country which claims to be an Islamic Country because the human values are to be guarded and protected. This principle is required to be extended further to the cases where any violation of the right to dignity is caused, because the human dignity, honour and respect is more important than physical comforts and necessities.

2. It has been held in the case of Liaqat Ali Chugtai v. Federation of Pakistan through Secretary Railways and 6 others (PLD 2013 Lahore 413) that dignity of man was that valued and serene condition in a person’s social and individual life which was violated when he was, publicly or privately, subjected by another to offensive and degrading treatment, or when he was exposed to ill-will ridicule disesteem or contempt. However, dignity in humans involved the earning or the expectation of personal respect or of esteem and it was something that was inherently a person’s God-given inalienable right that deserved to be protected and promoted by the Government and the community. Human dignity was in itself enshrined as the corner stone of society from the very beginning of civilization and was the foundation, the cause and end of all social institutions, therefore, all social institutions, governments, States, laws, human rights and respect for persons originated from the concept of dignity of man or his personhood. Any attempt to undermine the dignity of a human being would also undermine the very foundation and support upon which an orderly society was structured. (University of Pretoria v. Tommie Meyer Films (Edms) Bpk 1979 1 SA 441(A), and Jean Frederic Ponoo v. Attorney-General [2010] SCCC 4 rel.) It was further held in Liaqat Ali Chughtai ibid case that value of human dignity was not only concerned with an individual’s sense of self-worth, but also constituted an affirmation of the worth of human beings in the society and included the intrinsic worth of human beings shared by all people as well as the individual reputation of each person built upon his or her own individual achievements. Value of human dignity, therefore, valued both the personal sense of self-worth as well as the Public’s estimation of the worth or value of an individual.

3. While discussing the sanctity and inviolability of human dignity in the case of Bashir Ahmad and another v. Maqsood Ahmad and another, (2010 PCr.L.J FSC 1824), the honorable Federal Shariat Court has held that Holy Quran in very clear terms in “Surah Bani Israeel” declares and upholds the principle of human dignity. According to this Islamic Injunction every person born in this world without reference to colour, caste and creed is clothed with dignity; it is a free gift from Allah Almighty and no human being has the authority to tear as under the cloak of honour conferred by the Lord Creator; it is a fundamental right which is not dependent on the sanction of human Legislation and is excellent in the highest degree. Edifice of social interaction is built upon this edict; and it is the duty of persons in authority to honour the concept of human dignity. To establish such right is tantamount to enforcing a Divine Injunction.

4. On the issue of terminating the Petitioner’s services, it is essential to note that the honorable Lahore High Court in Nadeem Asghar Nadeem vs. Province of Punjab, (2016 PLC (CS) 155), has held that every termination order must carry reasons and this was equally applicable to the case of termination simpliciter and there was no plausible explanation why a public authority must shy away from giving reasons for termination. To withhold reasons for termination of a civil servant generated a host of adverse assumptions against the character of a civil servant which had a bearing on his reputation and goodwill and failure of disclosing or intentional withholding of reasons was, therefore, below the dignity of any white collared officer and offended Article 14 of the Constitution.

5. From the above facts, the said act of the Punjab University the respondents, not only stigmatized the honour and prestige of the petitioner, but has also defamed him in the estimation of society which is contrary to law and above said principle laid down by the Superior Courts. The right to live is not confined to mere living but it means meaningful life, which can be enjoyed with dignity and without defamation. No attempt on the part of any person individually, jointly or collectively to detract, defame or disgrace another person, thereby diminishing, decreasing and degrading the dignity, respect, reputation and value of life should be allowed to go with the impunity. The situation is aggravated if it affects the honour and respect of any person in public life or in any concerned with collective good of the public, in any walk of life.

6. It is apparent from the record that dignity of the petitioner guaranteed in Article 14 of Constitution, in instant case had been reduced to a farce by terminating the petitioner on 01.10.2015 on account of absence, while he already had submitted his resignation on 01.08.2011 which was not accepted without any fault on behalf of the Petitioner. It is a well settled law that no one should suffer on the acts of the Departments or the Government. Once the petitioner has tendered his resignation, the Respondents were bound to decide its application without delay and with reasons, within reasonable time. As noted above, the Syndicate in the Meeting clearly held that “The Additional Registrar-I (Dr. Kamran Abid) replied that the statement of Mr. Rizvi itself showed that his resignation reached the table of Dr. Aurangzeb Alamgir, the then Additional Registrar-I who called upon Mr. Rizvi in his office and advised him not to resign and thereafter, the resignation did not see day light till today. Therefore, responsibility lies with the then Additional Rezistrar-I who did not process his resignation.” Hence, the petitioner has suffered due to the act of the respondents. The alleged actions of the respondents are blatant violation of Fundamental Rights of the petitioner, as enshrined in Articles 9 & 14 of the Constitution, to enjoy the inviolability of right to life and dignity of man. Dignity of man is not only provided by Constitution, but according to history and under Islam, great value has been attached to dignity of man.

7. Since the dignity of petitioner, as discussed above, had been violated in breach of law by the respondents, it is the duty of this Court, being the custodian of rights of the citizens of Pakistan, to render help and protect the same as far as possible because Article 14 of the Constitution provided inviolable right to dignity of the man. It is the duty of the Court, under Articles 9 and 14 of the Constitution to safeguard and preserve the life and dignity of the citizens and protect them from serious and hazardous risks so that they can live a happy and meaningful life. In this case, the petitioner being a citizen of Pakistan was suffering loss to the stigma of termination instead of the resignation due to the act of the respondents for his future in the academia.

8. Since the above said situation, the resignation of the petitioner was tendered well within time on 1st August 2011 and was forwarded to the concerned on 19th August 2011, the responsible officials/officers of the respondent who sat over it and remained dormant for a considerable time and did put it up, were under legal obligation to process it in accordance with law and rules of the University.

9. Hence in view of the above, this petition is allowed and the respondents are directed to accept the resignation dated 1st August 2011 of the petitioner in accordance with relevant Laws and Rules and the order of termination dated 1 October 2015 is set aside, being in violation and contrary to constitutional guaranteed rights of the Petitioner.

(R.A.) Petition allowed

PLJ 2017 Lahore 258

Present: Jawad Hassan, J.

SHAHRUKH AAMIR UBAID--Petitioner

versus

NATIONAL HIGHWAY & MOTORWAY POLICE--Respondent

W.P. No. 38173 of 2016, decided on 5.12.2016.

Constitution of Pakistan, 1973--

----Art. 199--Territorial jurisdiction of Balochistan--Lahore High Court has no jurisdiction to take cognizance of matter--Held: It is a recognized principle of law that constitutional jurisdiction or jurisdiction of judicial review by High Court is exercised under Art. 199 of Constitution and not under any other instrument--Lahore High Court is created by Constitution of Pakistan, thus, it can only exercise powers which are conferred upon it by or under Constitution--High Court under Art. 199 of Constitution enjoyed ample powers but it was mandatory upon High Court to confine itself to its territorial jurisdiction, and no one should consider constitutional jurisdiction of High Court fragile to misuse or deviate from same to meet his own designs or suitability--Issuance of writ is an extraordinary jurisdiction of High Court and is invoked when stipulations in Constitution for its issuance are met--Petitioner(s) had failed to satisfy that High Court could exercise jurisdiction against NHA who were neither appointed nor carrying out their duties, within territorial jurisdiction of Lahore High Court, whereby Lahore High Court could exercise jurisdiction--High Court does not have jurisdiction to issue a writ in these constitutional petitions, and has no jurisdiction to issue direction to NHA--Petitions were dismissed. [Pp. 261 & 263] A, B & C

2015 PLC (CS) 526, 2012 MLD 1684, 2009 PLD 154, PLD 2006 Lah. 789, 2013 PLC (CS) 899, 2012 CLC 389, ref.

Mr. Muhammad Suleman, Advocate for Petitioner.

Miss Sadia Malik, Standing Counsel for Respondent.

Date of hearing: 5.12.2016.

Order

This order shall also decide Writ Petition No. 38191 of 2016 as well as instant petition as similar questions of law and facts are involved in both these writ petitions.

1. In above writ petitions, the petitioners are seeking direction against the Respondent, namely National Highway and Motorway Police, Islamabad, to appoint the petitioners as Junior Patrol Officer (BS-05) on Punjab Minority Quota.

2. Learned counsel for the petitioners submitted that the petitioners applied for the post of Junior Patrol Officer (BS-05) advertised by the respondent on Punjab Minorities Quota in which the petitioners appeared, qualified physical and written test and obtained 59 and 73.5 marks respectively in total. Further the petitioners submitted that the names were shown as qualified candidate at Serial No. 10 and Serial No. 159 respectively of the lists however, surprisingly later on in the next list the names of the petitioners were excluded by Balochistan Testing Service and names of other candidates were incorporated who have less marks than the petitioners without any lawful or just cause.

3. At the outset, the learned Law Officer has raised objection regarding the territorial jurisdiction of this Court and submitted that the direction is being sought against the Respondent, National Highways & Motorway Police whereas Balochistan Testing Service, Headquarter is at H. No. 146/528/A, Club Road, Quetta Cantt, Balochistan which falls within the territorial jurisdiction of Balochistan High Court and this Court has no jurisdiction to take cognizance of the matter.

4. Arguments heard. Record perused.

5. From the perusal of the record it reveals that prima facie the petitioners are aggrieved from the conduct of Balochistan Testing Service, Headquarter H.No. 146/528/A, Club Road, Quetta Cantt, Balochistan who allegedly excluded the names of the petitioners from the list of successful candidates and deprived them from their valuable rights of appointment as Junior Patrol Officer (BS-05) on Punjab Minority Quota which falls within the domain of territorial jurisdiction of Balochsitan High Court. Further, the only respondent in this Petition is National Highway & Motorway Police, Plot No. 2-A, G-13 Markaz Islamabad and the action against whom is sought is in Quetta as per Vacancy Announcement. In these writ petitions, the petitioners are seeking a direction against the respondent in Islamabad for the vacancy in Quetta. It is interesting to note that in the Vacancy Announcement (Annex-A), the petitioners were required to send the application form to the address in Quetta BTS Headquarter, H. No. 146/528-A, Club Road, Queta Cantt, Balochistan. Therefore, the relief sought is about a vacancy in Quetta of the respondent based in Islamabad.

6. The Honorable Supreme Court has elaborated the importance of territorial jurisdiction in the case of Sandalbar Enterprises (Pvt.) Limited v. Central Board of Revenue and others, PLD 1997 SC 334, that in order to determine the question of territorial jurisdiction, the dominant purpose behind recourse to law is to be taken into consideration. Further, it was also held that:

“A perusal of the above sub-clause (a)(i) of the above Article [199] indicates that a High Court has power to issue a direction to a person performing within its territorial jurisdiction functions in connection with the affairs of the Federation, a Province or a Local Authority to refrain from doing anything he is not permitted by law to do or to do anything he is required by law to do. Similarly, under sub-clause (a)(ii) a declaration without lawful authority or of no legal effect can be given by a High Court in respect of any act done or proceedings taken within its territorial jurisdiction by a person performing functions in connection with the affairs of the Federation, a Province or a Local Authority.”

Similarly, it was held in Sandalbar case supra that:

“We may observe that it has become a common practice to file a writ petition either at Peshawar, or Lahore, or Rawalpindi or Multan etc. to challenge the order of assessment passed at Karachi by adding a ground for impugning the notification under which a particular levy is imposed. This practice is to be depreciated. The Court is to see, what is dominant object of filing of the writ petition. In the present case, the dominant object was not to pay the regulatory duty assessed by a Customs official at Karachi. We are, therefore, not inclined to grant leave. Leave is refused.”

In Black’s Law Dictionary “dominant jurisdiction principle” has been defined as under:

“dominant jurisdiction principle. The rule that the Court in which a case is first filed maintains the suit, to the exclusion of all other Courts that would also have jurisdiction.”

1. Similarly, the honorable Sindh High Court has emphasized in the case of Subhan Beg and 18 others v. Pakistan State Oil Co. Ltd. Rawalpindi PLD 1980 Kar. 113 at Para 13 that:

“(13) A careful perusal of Article 199 of the Constitution would show that there is a two-fold limitation on the jurisdiction of the High Court under Article 199 of the Constitution in its territorial aspect. The first limitation seems to be that the power is to be exercised by the High Court throughout the territories in relation to which the High Court exercises jurisdiction. This means that the writ issued by the Hish Court cannot run beyond the territories subject to its jurisdiction. The second limitation appears to be that the person or authority, to whom the writ is issued, must be within the territories subject to the jurisdiction of the Hish Court which means that such person or authority must be amenable to the jurisdiction of the Hish Court either by residence or location within those territories.”

1. The Honorable Division Bench of Lahore High Court, in the matter of Muhammad Farhan Khan v. Federation of Pakistan and another, PLD 2016 Lahore 629, has held at Para 3 that:

“3.The authority of this Court to judicially review the vires of an act done or proceedings taken in connection with the affairs of the Federation, within its territorial jurisdiction cannot be doubted, however, the Constitutional arrangements contemplated under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 are to be faithfully observed in order to uphold the principle of judicial comity and harmony.”

1. It is a recognized principle of law that constitutional jurisdiction or jurisdiction of judicial review by High Court is exercised under Article 199 of the Constitution and not under any other instrument. The Lahore High Court is created by Constitution of Pakistan, thus, it can only exercise powers which are conferred upon it by or under the Constitution. High Court under Art. 199 of the Constitution enjoyed ample powers but it was mandatory upon High Court to confine itself to its territorial jurisdiction as provided in the Constitution, and no one should consider constitutional jurisdiction of High Court fragile to misuse or deviate from same to meet his own designs or suitability, (ref. Mirza Luqman Masud v. Government of Pakistan and 14 others, 2015 PLC (CS) 526 [Balochistan] - DB: Azad Hafeez Ltd v. Chairman, FBR and 5 others, 2012 MLD 1684 Islamabad; Ibrahim Fibres Ltd. v. Federation of Pakistan and 3 others, 2009 PLD 154 [Karachi] DB; Dr. Qaiser Rashid v. Federal Secretary, Ministry of Foreign Affairs, Government of Pakistan, Islamabad, PLD 2006 Lahore 789 - DB; Inaam Elahi Nasir and others v. National Bank of Pakistan and others 2013 PLC (CS) 899 [Islamabad]; Danish Kaneria v. Pakistan and others, 2012 CLC 389 [Sindh] DB; Mrs. Rohi Chaudhry and 2 others v. Federation of Pakistan and 3 others, 2010 PTD 1233 [Karachi]; High Noon Textile Ltd v. Saudi Pak Industrial and Agricultural Investment Co. (Pvt.) Ltd and 4 others, 2010 CLP 567 [Lahore]; Muhammad Maqsood Sabir Ansari v. District Returning Officer, Kasur and 3 others, 2007 CLC 1113 [Lahore]; Mst. Shahida Maqsood v. President of Pakistan and another, 2004 CLC 565 [Karachi] DB; Province of NWFP and another v. Abdur Rahman, Forest Contractor and others, 1991 SCMR 1321: Muhammad Nasim v. State Cement Corporation of Pakistan and others, 1989 CLC 1241 [Karachi] DB.

2. The Honorable Lahore High Court in Sethi and Sethi Sons vs. Federation of Pakistan, 2012 PTD 1869, has also held that:

“Requirement to determine the “dominant object” or primary grievance of the petitioner or the paramount purpose of the petition was essential for the purposes of identifying the actual ‘person’ against whom writ was being sought, which in turn became relevant for carrying out circumferential determination whether the ‘person’ fell within the territorial jurisdiction of the High Court.”

1. The word “territorial jurisdiction” has been defined by Justice (R) Fazal Karim in Judicial Review of Public Action, as follows:

“Territorial jurisdiction is the power of a Court or tribunal considered with reference to the territory within which it is to be exercised. It means the geographical limits within which the judgments and orders of a Court can be enforced and executed. The object of defining the territorial limits of the Courts and tribunals generally is to avoid a clashing of jurisdiction.”

1. From the perusal of the instant petition(s), arguments of the learned counsels and documents annexed therein, the primary dominant object of filing these constitutional petitions is the appointment at the position of Junior Patrol Officer on Minority Punjab Quota by the Respondent, addressed at Islamabad. Hence, after examining the facts and circumstances of the present case the Court is of the opinion that both institutions, the Respondent and Balochistan Testing Service, fall outside the territorial jurisdiction of this Court, do not function within the territorial jurisdiction of this Court, and are not amenable to the jurisdiction of this Court.

Importantly, issuance of writ is an extraordinary jurisdiction of High Court and is invoked when stipulations in the Constitution for its issuance are met. The petitioner(s) have failed to satisfy that this High Court could exercise jurisdiction against respondent who were neither appointed nor carrying out their duties, with respect to the matter at hand, within the territorial jurisdiction of this High Court, whereby this High Court could exercise jurisdiction.

1. This Court is, therefore, of the considered opinion that this Court does not have the jurisdiction to issue a writ in these constitutional petitions, and has no jurisdiction to issue direction to respondents in Islamabad for a vacancy in Quetta. The best course for the petitioners is to approach appropriate forum for the redressal of their grievances.

2. In view of above, these petitions being not maintainable and having failed to qualify the test of jurisdiction, are dismissed.

(R.A.) Petitions dismissed

PLJ 2017 Lahore 263 [Bahawalpur Bench Bahawalpur]

Present: Shahid Mubeen, J.

SHAHNAZ BIBI--Petitioner

versus

APPELLATE AUTHORITY, etc.--Respondents

W.P. No. 8191 of 2016, decided on 16.11.2016.

Punjab Local Government (Conduct of Elections) Rules, 2013--

----Rr. 12(8) & 14(7)--Constitution of Pakistan, 1973--Art. 199--Defect in nomination paper--Special seat of women--Rejection of nomination papers--Proposer had already proposed women candidate in same category--Challenge to--Proposer of petitioner has already proposed woman candidate in same category, nomination papers of petitioner will be deemed to be invalid and will be deemed to have not been filed--Nomination papers of petitioner were incapable to rectification and will be deemed to be null and void from beginning--Defect in nomination papers of petitioner is substantial in nature and does not allow R.O. to rectify same--Petitioner had failed to point out any illegality and jurisdictional defect in impugned orders passed by R.O. as well as appellate authority. [P. 266] A & B

PLD 2016 Lah. 101, ref.

Mr. Athar Bali Asim, Advocate for Petitioner.

M/s. Rao Nasir Mahmood and Mian Azhar Hussain Pirzada, Advocates for Respondents.

Mr. Imran Khan, Asstt. Returning Officer.

Date of hearing: 16.11.2016.

Order

Through instant writ petition, the petitioner has called into question the legality and validity of order dated 17.10.2016 passed by Returning Officer/Respondent No. 2 and order dated 21.10.2016 passed by Appellate Authority/Respondent No. 1.

1. Precisely, the facts of the case are that the petitioner submitted nomination papers for Special Seat of Women General Councillor in U.C. No. 44, Tiku Rampura Tehsil and District Bahawalnagar before Respondent No. 2 which were rejected on the ground that proposer of the petitioner has already proposed the woman candidate in same category and the nomination papers of the petitioner were received later on at Sr. No. 21 at about 01.15 p.m. vide impugned order dated 17.10.2016. Feeling aggrieved, the petitioner preferred an appeal before Respondent No. 1/Appellate Authority which also met with the same fate and was dismissed vide impugned order dated 21.10.2016. Hence, this writ petition.

2. Learned counsel for the petitioner submits that impugned order dated 17.10.2016 passed by the Returning Officer of U.C. No. 44 as well as impugned order dated 21.10.2016 passed by the Appellate Authority of Tehsil Bahawalnagar are against sub-rule (8) of Rule 12 of the Punjab Local Government (Conduct of Elections) Rules, 2013. Further contends that under sub-rule (7) of Rule 14 of the Rules ibid, the Returning Officer has the power to rectify the defect forthwith.

3. On the other hand, learned counsel for the respondents supported the impugned orders passed by the Returning Officer as well as Appellate Authority by contending that provisions of sub-rule (8) of Rule 12 of the Rules ibid are mandatory in nature and has been applied by the Returning Officer correctly.

4. I have heard the learned counsel for the parties and perused the record with their able assistance.

5. The nomination papers of the petitioner have been rejected by the Returning Officer while invoking the provisions of sub-rule (8) of Rule 12 of the Rules ibid, therefore, it will be advantageous to reproduce the said rule which is as under:

“(8) If any voter subscribes as a proposer or a seconder to more than one nomination papers in the same category of seats, all such nomination papers, except the one received first by the Returning Officer, shall be void.”

1. In this case, nomination papers of the petitioner have been rejected by the Returning Officer on the ground that her proposer has already proposed woman candidate in same category. In sub-rule (8) of Rule 12 of the Rules ibid the word ‘void’ is not without any significance. The word ‘void’ has not been defined in Punjab Local Government (Conduct of Elections) Rules, 2013 and Punjab Local Government Act, 2013, therefore, I would like to take the meaning of word ‘void’ from the Oxford Advance Learner’s Dictionary (7th Edition) as under:--

“Void:- noun: a large empty space, adjective: complete lacking, verb: to state officially that is no longer valid.

In Chambers 21st Century Dictionary, its meaning is as under:

“Void: Not valid or legally binding”

In Black’s Law Dictionary with Pronunciations (Sixth Edition), it reads as under:

“Void: Null; ineffectual; nugatory; having no legal force or binding effect; unable, in law, to support the purpose for which it was intended. Hardison v. Gledhill, 72 Ga.App. 432, 33 S.E.2d 921, 924. An instrument or transaction which is wholly ineffective, inoperative, and incapable of ratification and which thus has no force or effect so that nothing can cure it. In re Oliver, Bkrtcy. Minn, 38 B.R. 245, 248.”

1. The word ‘void’ came under discussion in recent judgment of the Hon’ble Supreme Court of Pakistan titled as “Dr. Mobashir Hassan and others v. Federation of Pakistan and others” (PLD 2010 Supreme Court 265). Relevant portion of the judgment is reproduced herein below:--

“Term “void” signifies something absolutely null, incapable of ratification or confirmation and, thus, having no legal effect whatsoever”. Similarly, the word ‘void ab initio’ has been defined as “null from the beginning”.

1. It is established from the record that nomination papers of the petitioner have been received by the Returning Officer after receiving the nomination papers of Mst. Jeshan Bibi wife of Muhammad Iqbal at Sr. No. 20 at about 1:10 p.m. whereas nomination papers of the petitioner have been received later on at Sr. No. 21 at about 1:15 p.m, therefore, keeping in view the fact that the proposer of the petitioner has already proposed the woman candidate in same category, nomination papers of the petitioner will be deemed to be invalid and will be deemed to have not been filed. The nomination papers of the petitioner were incapable to rectification and will be deemed to be null and void from the beginning.

2. The other argument of learned counsel for the petitioner that the defect in the nomination papers could be remedied forthwith by the Returning Officer has been completely answered by a Full Bench of this Court in case titled as “Barkhurdar v. Appellate Tribunal/Additional District and Sessions Judge and 3 others” (PLD 2016 Lahore 101). The relevant portion of the judgment is reproduced herein below:

“27. Defect of a substantial nature can also be gauged from the language of Rule 14(7) and the kinds of errors mentioned therein. The relevant part of which states: “.... including an error with regard to the name, serial number in the electoral roll or other particulars of the candidate or his proposed or seconder so as to bring them in conformity with the corresponding entries in the electoral rolls.” Applying the established interpretative canon of noscitur a sociis i.e., associated words bear on one another’s meaning, the nature of errors e.g. name and serial number, etc. are clerical and cosmetic. Similarly, applying the interpretative canon of ejusdem generis i.e., where general words follow an enumeration of two or more things, they apply only to persons or things of the same general kind or class specifically mentioned, to explain “or other particulars “in Rule 14(7), the same cannot go beyond the kind of errors which precede it, which as explained above as merely procedural. Even otherwise, these errors or defects do not have any statutory underpinning like Rules 12(2) and 14(3)(b) of the Rules, which require a proposer and a seconder to be from the same constituency.”

1. The defect in the nomination papers of the petitioner is substantial in nature and does not allow the Returning Officer to rectify the same.

2. Learned counsel for the petitioner has failed to point out any illegality and jurisdictional defect in the impugned orders passed by the Returning Officer as well as Appellate Authority.

3. Sequel to the above, this writ petition being devoid of any force is dismissed by upholding the impugned order dated 17.10.2016 passed by Returning Officer/Respondent No. 2 and order dated 21.10.2016 passed by Appellate Authority for Tehsil Bahawalnagar/ Respondent No. 1, with no order as to cost.

(R.A.) Petition dismissed

PLJ 2017 Lahore 267

Present: Shams Mehmood Mirza, J.

UNILEVER PAKISTAN FOODS LIMITED--Petitioner

versus

REGISTRAR TRADE UNIONS and others--Respondents

W.P. No. 28699 of 2015, decided on 23.9.2016.

Industrial Relation Acts 2012--

----Ss. 2(x) & 2(xxxii)--Punjab Industrial Act, 2010, S. 10--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Registration of union in case of trans-provincial establishment--Cancellation of registered union--Provincial registrar--Jurisdiction--Formation of trade unions of workers of trans-provincial establishment--Validity--Any company employing workmen for purpose of carrying on any business or industry and having its departments and branches in more than one province comes within definition of “trans-provincial”--Petitioner is a company incorporated under Companies Ordinance, 1984 and, therefore, its status as such shall be taken into consideration for purpose of determining whether it is a trans-provincial establishment--Petitioner being a trans-provincial establishment is accordingly governed by IRA, 2012 and unions operating in its various factories, offices and departments shall have to be registered with NIRC--Provincial registrar exceeded his jurisdiction in registering as trade union whereas petitioner being a trans-provincial jurisdiction vested with NIRC under IRA, 2012--Implication being that such members had no right to get themselves registered as a trade union--Other workers unions operating in factory/offices/departments of petitioner were registered with provincial registrar hardly provides any lawful justification for grant of similar status to respondent--Petitioner enjoyed trans-provincial status, controversy regarding law which governs registration of trade union of a trans-provincial establishment does not pose a serious problem--Registrar indeed misconstrued provisions of Factories Act, 1934 in registering union whereas it had no authority under law to do so.

[Pp. 273, 278, 279 & 280] A, D, E, F, G & H

Industrial Relations Act, 2012--

----S. 2(x)--Registration of trade union--Provincial registrar--Jurisdiction--Concurrent legislative list of constitution controlled all matters pertaining to labour disputes, trade unions and all labour laws were promulgated by federation--Promulgated by other provinces--Provincial laws could not deal with issues of labour disputes and trade unions in establishments having presence in more than one provinces and those establishments which were located in Islamabad territory, a need was felt for promulgation of a federal law covering these aspects. [P. 274] B

Interpretation of Statute--

----Practice to interpret meaning of words of a statute by importing definition of similar words used in a different statute is not valid--It is by now well settled principle that words and terms used in a statute have to be interpreted in context of that particular statute.

[P. 275] C

M/s. Tafazzal Haider Rizvi and Anwaar Hussain Janjua, Haider Ali Khan, Advocates for Petitioners.

Mr. Asjad Saeed, Ch. Muhammad Nasir and Ms. Samra Malik, Advocates for Respondent Best Traders.

M/s. Sumera Fazil Khan and Humera Fazil Khan, Advocates for Haider Traders.

M/s. Khalid Mehmood Watto and Liaqat Ali Butt, Advocates for Respondent No. 2.

Miss Sadia Malik, Standing Counsel for Federal Government.

Mr. Asmat Kamal, Advocate for Respondent No. 6.

Mrs. Samia Khalid, Assistant Advocate General.

Ms. Saleha Bashir, Deputy Registrar NIRC.

Date of hearing: 30.6.2016.

Judgment

Since the issues involved in this writ petition as well as Writ Petition No. 32931 of 2015 titled “Haider Traders v. Registrar of Unions etc” and Writ Petition No. 31928 of 2015 titled “M/s. Best Traders and another v. Registrar of Trader Unions etc.” are similar in nature, they have been taken up together and common order is being passed.

The essential question requiring determination by this Court is the forum and the law for registration of a union in case of trans-provincial Establishment.

1. The facts out of which this writ petition arises is that Unilever Pakistan Foods Limited, the petitioner, claims to be a trans-provincial Establishment within the meaning of Section 2(x) read with Section 2(xxxii) of Industrial Relation Act, 2012(IRA, 2012). On 01.03.2014, the office bearers of a proposed trade union filed Petition No. 41/2014 under Section 10 of Punjab Industrial Relations Act, 2010 (PIRA, 2010) before the Punjab Labor Court No. 2. In the said petition, it was inter alia prayed that the office bearers and members of the proposed union may not be transferred, dismissed etc. during pendency of registration of the proposed trade union. This was followed by filing of an application for registration of the trade union on 07.03.2014 in the name of Workers Welfare Union Haider, Best Traders before the Registrar Trade Unions, District Kasur, Respondent No. 1 (Provincial Registrar). On 24.03.2014, the Provincial Registrar rejected the application as the number of members required for registration of a trade union was deficient. On 29.03.2014, another application was presented before the Provincial Registrar for registration of Ittehad Workers Union, Unilever Pakistan Foods/Respondent No. 2. The Provincial Registrar called for an inquiry, the report whereof was submitted by the inquiry officer, Kasur on 07.05.2014. The Provincial Registrar on 13.05.2014 registered Respondent No. 2 as a trade union. In June 2014, the petitioner filed a petition before the Provincial Registrar for cancellation of Respondent No. 2 as a trade union in terms of Section 12 of PIRA, 2010. The cancellation of Respondent No. 2 was sought, amongst others, on the ground that the Provincial Registrar had no jurisdiction to register trade unions pertaining to the Petitioner. Similar petitions were also filed by the Respondents No. 4 and 5. As the matter was not being resolved by the Provincial Registrar, Respondents No. 4 and 5 filed Writ Petition No. 20770/2014 Haider Traders vs. Ishtiag Ahmed, RTU etc. and Writ Petition No. 20768/2014 Best Traders vs. Ishtiaq Ahmed, RTU etc. before this Court seeking directions to the Provincial Registrar to decide their applications. This Court disposed of the said petitions on 18.07.2014 with directions to the Provincial Registrar to decide the said applications filed by Respondents No. 4 and 5 in accordance with law. On 17.08.2015, only the petition of Respondent No. 4 was decided by the Provincial Registrar whereby he upheld the registration of Respondent No. 2. Through this writ petition, the petitioner has challenged order dated 13.05.2014 for registration of Respondent No. 2 as also order dated 17.08.2015 of upholding the registration thereof passed by the Provincial Registrar.

2. Pursuant to the notices issued by this Court, the concerned parties filed their parawise comments. Respondent No. 2 adopted the parawise comments filed by the Provincial Registrar. Mr. Khalid Mahmood Wattoo, Advocate representing Respondent No. 2 and Mr. Asmal Kamal representing Shaheen Workers Union and Employees Union, which was allowed to be impleaded as Respondent No. 6, filed their written submissions as also Mr. Taffazul Rizvi, the counsel for the petitioner.

3. The petitioner’s counsel made the following submissions:

a. National Industrial Relations Commission (NIRC) is the sole authority with the power to register trade unions and industry-wise trade unions pertaining to the Trans-Provincial Establishments and to make regulations in respect thereof [Section 2(xxxii), Section 54 & section 66 of IRA, 2012]. While referring to Section 87 of IRA, 2012, it was stated that the provisions of IRA, 2012 had the overriding effect notwithstanding anything to the contrary contained in any other law in force.

b. The nature of dispute does not confer jurisdiction on the relevant forum rather it is the status of the employer which is the determining factor. Since the petitioner is a trans-provincial Establishment, the Provincial Registrar had no jurisdiction to register Respondent No. 2 as a union as the jurisdiction rested with NIRC. Reliance in this regard was placed on a judgment reported as Pakistan Telecommunication Company Limited v. Member NIRC and Others 2014 SCMR 535.

c. Impugned order dated 13.05.2014 for registration of Respondent No. 2 and order dated 17.08.2015 for upholding the registration by the Provincial Registrar are coram non-judice, void ab-initio, ultra vires, as they violate the law and while passing the said orders, the Provincial Registrar exceeded his jurisdiction which is confined to the Province of Punjab only. Reliance in this regard was placed on a judgment reported as KESC and Others vs. N.I.R.C and Others PLD 2014 Sindh 553.

d. Inquiry Report dated 07.05.2014 submitted to the Provincial Registrar wrongly stated that the members of Respondent No. 2 were the employees of the Petitioner. The true fact is that the members of the Respondent No. 2 are the employees of independent third party contractors i.e. Respondents No. 3 & 4, which fact stood admitted in the Petition No. 41/2014 filed before the Punjab Labor Court. Later, the same members of Respondent No. 2 approached NIRC for regularization of their employments in the Petitioner Establishment and back benefits through a Grievance Petition. Reliance was placed on a judgment reported as Farid Ahmad vs. Pakistan Burmah-Shell Ltd. and Others 1987 SCMR 1463 and on Mehmood Hussain and another vs. Presiding Officer, Punjab Labour Court and Others 2012 SCMR 1539.

e. By relying on judgment reported as Muhammad Amin Qamar vs. The Bank of Punjab and others 2013 PLC 291, it was stated that exceeded his jurisdiction in granting registration to Respondent No. 1.

1. In rebuttal, it was argued by the learned counsel for Respondent No. 2 that the petitioner was in fact not a trans-provincial establishment and that perhaps some evidence will have to be recorded by the Labour Court for determination of this issue. It was also contended that the “factory” of the petitioner situated at Phool Nagar, District Kasur is an “Establishment” in itself having physical existence restricted to its precincts in district Kasur in terms of Section 2(i) of the Factories Act, 1934. Expanding on this theme, it was stated that by virtue of Rule 3 and Rule 95(1) of Punjab Factories Rules, 1978, submission of the Notice of Occupation on Form A and Certificate of Stability on Form K is mandatory for the Occupier. It was further stated that by virtue of the operation of the law applicable on a “Factory”, its geographical boundaries cannot be extended at other places except within its precincts as the Inspector of Factories has to verify implementation of law specially Health and Safety Standards and as such the status of a Factory is different from the other terms used in Section 2(x) of IRA, 2012 such as Office, Firm, Society Undertaking, Company Shop or Enterprise. It was also submitted that in a pure legal perspective, there could be no branch of a Factory for the purpose of considering it as a trans-provincial Establishment in terms of 2(xxxii) of IRA, 2012. It was also the case of Respondent No. 2 that ILO Conventions 87 & 98 were ratified by the State of Pakistan which gives a right to the workers at factory level to establish a union of workmen and to negotiate through collective bargaining with the Employer. The legislative competency of the Federal Government is also dependent on these Conventions in view of the entry at serial No. 32 of Federal Legislative list. Any interpretation of IRA, 2012 to curtail the right of workers at factory level to establish a union and exercise the right of collective bargain shall be against the settled principles of interpretation. Under Section 54(b) of IRA, 2010, NIRC has no jurisdiction to register a union at factory level, because the premises of a factory is not extendable by virtue of the restrictions imposed in the Factories Act, 1934. Mr. Asmat Kamal, Advocate, for Respondent No. 6 citing various provisions of the Factories Act, 1934 also stated that the office or any place where manufacturing process is not carried on is not part of the Factory and as such its employees are not workmen. The factory of Unilever Pakistan Foods Limited situated at Phool Nagar, District Kasur falls in the definition of “Factory” and except for the said factory there is no other factory of the petitioner manufacturing the food products anywhere in Pakistan. While referring to the definition of “Establishment”, he stated that the petitioner has no other factory in Pakistan where food products are manufactured and, therefore, it could safely be inferred that it is not a trans-provincial establishment. It was also his case that no trade union belonging to Unilever Pakistan Foods Limited has ever been registered with the NIRC as all the unions are situated in factory which in its own right is an establishment.

2. Before proceeding further in the matter, it would be useful to reproduce the definition of “Establishment” as provided by Section 2(x) of IRA, 2012:

Establishment” means office, firm, factory, society, undertaking, company, shop or enterprise, which employs workmen directly or through contractor for the purpose of carrying on any business or industry and includes all its departments and branches in the Islamabad Capital Territory or falling in more than one province, whether situated in the same place or in different places and except in section 62 includes a collective bargain unit, if any constituted by any establishment by any establishment or group of establishments:

Similarly, Section 2(xxxii) of IRA, 2012 defines “trans-provincial” as follows:

“trans-provincial” means any establishment, group of establishments, industry, having its branches in more than one province

The Act has separately defined “Establishment” and “trans-provincial”. According to Section 2(x) of IRA, 2012, a number of entities come within the definition of “Establishment”. If such entities have branches in more than one province, they shall be called trans-provincial Establishment. It is apparent that any company employing workmen for the purpose of carrying on any business or industry and having its departments and branches in more than one province comes within the definition of “trans-provincial”. Admittedly, the petitioner is a company incorporated under the Companies Ordinance, 1984 and, therefore, its status as such shall be taken into consideration for the purpose of determining whether it is a trans-provincial Establishment. The Annual Report for the year 2015 of the petitioner company prepared by its auditors clearly shows that its registered office is situated at Avari Plaza, Fatima Jinnah Road, Karachi. The petitioner having a factory at Phool Nagar, Kasur and various other offices in the Province of Sindh is thus clearly a trans-provincial Establishment. Although the status of the petitioner as trans-provincial Establishment was impugned, it is clear that the challenge had no merit. The Provincial Registrar did not deny such status in his parawise comments, which parawsie comments were adopted by Respondent No. 2 as is apparent from order dated 22.10.2015.

1. The narrow focus of the learned counsels for Respondents No. 2 and 6 on the term “factory” as used in Section 2(x) of the IRA, 2012 and their reliance on the provisions of Factories Act, 1934 for ascribing meaning thereto is not valid. Section 2(x) of IRA, 2012 contains a string of terms constituting “Establishment”. While construing the definition of “Establishment” in the context of the present case, however, the most apt term to consider from Section 2(x) of IRA, 2012 is “company” and not “factory” as the petitioner is a body corporate. It is furthermore clear that the expression “factory” and indeed all the other terms mentioned in Section 2(x) of IRA, 2012 have been used in their generic sense. It is a settled principle of statutory interpretation that a word or a phrase in an enactment must always be construed in the light of the surrounding text and that words, particularly general words, cannot be read in isolation as their colour and content are derived from the context of the enactment. There is no indication that the term “factory” in IRA, 2012 was borrowed from the Factories Act, 1934 and had any nexus with the meaning attributed to it under said Act.

2. According to Bennion on Statutory Interpretation Sixth Edition, the context of a statute, in addition to the other provisions of the Act, lies in the legislative history of that Act, the provisions of other Acts in pari materia and all facts constituting or concerning the subject matter of the Act. The overall context of the Act provides the colour and background to the words used, and thus helps the Court to arrive at the meaning intended by the Parliament. It is, therefore, necessary to give a brief legislative background to the promulgation of IRA, 2012. Prior to 2010, the concurrent legislative list of the Constitution controlled all the matters pertaining to labour disputes, trade unions etc and all labour laws were thus promulgated by the Federation. After the introduction of the Eighteenth Amendment in the Constitution on 26.10.2010, apart from others, the concurrent legislative list was abolished. Resultantly, Article 142 was amended by giving to the Parliament the exclusive power to promulgate laws with respect to matters mentioned in the federal legislative list and the Provincial legislatures were granted the powers to make laws with respect to any matter not enumerated therein. In addition thereto, Article 270AA was inserted in the Constitution for saving the existing laws etc. As the process of devolution of the matters enumerated in the abolished concurrent legislative list to the provinces was directed to be completed by 20.06.2011, the provincial assembly of the Province of Punjab enacted PIRA, 2010 on 09.12.2010. Similar enactments were also promulgated by other provinces. However, as the provincial laws could not deal with the issues of labour disputes and trade unions in establishments having presence in more than one provinces and those establishments which were located in Islamabad Capital territory, a need was felt for the promulgation of a federal law covering these aspects. The Parliament, therefore, enacted IRA, 2012. The preamble of IRA, 2012 is significant and also sheds light on the legislative intention. It states.

An Act to consolidate and rationalize the law relating to formation of trade unions, and improvement of relations between employers and workmen in the Islamabad Capital Territory and in trans-provincial establishments and industry.

Consistent with the preamble, Section 54 of the IRA, 2012, amongst others, states the functions of NIRC “to register trade unions and industry-wise trade unions of an establishment or group of establishments in Islamabad Capital Territory and trans-provincial and federations of such trade unions” The reading of the provisions of Factories Act, 1934, on the other hand, shows that it is concerning the regulation of labour in factories. There is, therefore, no parallel between IRA, 2012 and Factories Act, 1934 as each enactment has its own specific scope, object and distinctive features. The provisions of Factories Act, 1934 do not control and cannot regulate the registration of unions in a trans-provincial Establishment which is carried out in terms of Section 54 of IRA, 2012. The term “factory” has been defined in Factories Act, 1934 but not so in IRA, 2012. It is settled law that even if the definition of a word or expression is somewhat similar in two different statutes, the objects to be achieved by the enactments may be different. The term “Factory” and all the incidents attached thereto under the Factories Act, 1934 has no relation to the term “factory” appearing in Section 2(x) of the IRA, 2012. This Court is, therefore, not prepared to construe the expression “factory” in IRA, 2012 with reference to the Factories Act, 1934.

1. The practice to interpret the meaning of words of a statute by importing the definition of similar words used in a different statute is not valid. It is by now well settled principle that the words and the terms used in a statute have to be interpreted in the context of that particular statute. In a judgment reported as Mukhtar Hussain Shah v. Saba Imtiaz PLD 2011 SC 260, the Hon’ble Supreme Court established the following principle of interpretation of statute which is quite relevant to and apposite in the context of the present case.

A definition thus appearing in one Act cannot be used to interpret the same word appearing in another Act, until it is specifically so referred and borrowed with a clear command of law. Because, the context, the purpose, the object and the requirements of every statute may vary from other; the definition of a word from one statute can not be safely imported to another, which if so resorted to without ascertaining the clear intention of the legislation by following the rules of interpretation, just as a matter of routine and course, it shall not only be hazardous, rather may distort and frustrate the object of the law and violate the legislative intent which is absolutely impressible in law.

In Kohinoor Elastics (Pvt.) Limited v. Commissioner of Central Excise 2005 (7) SCC 528, the Indian Supreme Court had to deal with the meaning of the word “brand name” and “trade name” used in a Notification issued under Central Excise Act. The issue in the case was whether the afore-noted expressions could be interpreted with reference to Trade Marks Act. The Indian Supreme Court held that the context in which those terms had been used in the Trade Marks Act was not relevant for the purpose of interpreting their usage in the Notification issued under the Central Excise Act. It was held that the context of both the enactments being different, it was not permissible to import the meaning ascribed to certain terms in another Act for interpretation of those terms in the Central Excise Act.

1. Both PIRA, 2010 and IRA, 2012 have received considerable judicial scrutiny in a fairly small amount of time since these enactments were promulgated. The two judgments that will be cited below interpreted and laid down law that have settled a number of issues including the ones raised in these writ petitions. In Pakistan Telecommunication’s case, the Hon’ble Supreme Court had the occasion to dilate upon the two enactments and their scope. After reviewing the provisions of both PIRA, 2010 and IRA, 2012, it was held thus

2. After combined reading of the scheme of new labour laws, both Provincial and Federal, it may be concluded without any fear of rebuttal that two parallel forums have been created, one on a provincial basis whereas latter is federal level forum, called NIRC. Both these forums are having jurisdiction to deal with industrial disputes and unfair labour practice and other allied matters either attributable to the employer or the workers/workmen, however, the Federal Law has drawn a clear demarcation line of jurisdiction of these two different forums, i.e. Labour Courts in the Provinces and the other NIRC at the Federal Level. It is not the nature of dispute, particularly, unfair labour practice, which confers jurisdiction on one or the other forum but it is the status of the employer or the group of employers, which would determine the jurisdiction of the Provincial Labour Court and that of the NIRC. To be more clear on the point we have no hesitation to hold that once it is established through any means that the employer or group of employers has an establishment, group of establishments, industry, having its branches in more than one Provinces, then the jurisdiction of the NIRC would be exclusive in nature and of overriding and super imposing effects over the Provincial Labour Court for resolving industrial dispute including unfair labour practice, etc. related to the employers, having it establishment or branches or industrial units in more than one Province and re-course has to be made by the aggrieved party to the NIRC and not to the Provincial Labour Court.

3. Even otherwise under the provision of Articles 143 of the constitution of Pakistan, 1973, laws enacted by the Parliament have been given overriding and superimposing effects over the laws enacted by a Provincial Assembly of any of the Province and in case of any clash or repugnancy between the two, the laws enacted by the Parliament shall prevail. Thus, on the touchstone of the provision of Article 143 of the Constitution, the Act of Parliament has been placed on the high pedestal and any Provincial Law enacted by the Provincial Assembly shall give way to the Federal Law, enacted by the Parliament, if the former is inconsistent or repugnant to the latter. Therefore, it is held that the provision of Act X of 2012(the IRA, 2012) has overriding effect on all Provincial Labour Laws. Judged from this angle, we are of the firm view that in the present case, the learned Judge in Chamber of the Lahore High Court, Lahore while drawing the impugned judgment dated 26-11-2012 could not properly comprehend the intents and objects of the above provisions of law, rather misconstrued and misinterpreted the same, resulting into miscarriage of justice, the impugned judgment being not sustainable in the eye of law is liable to be set at naught, (emphasis supplied)

4. The issue of the vires of IRA, 2012 was deferred in the afore-mentioned judgment by the Hon’ble Supreme Court but it soon cropped up before this Court. A learned Division bench of this Court in ICA No. 53 of 2013 titled PTV Employees Ittehad Union Punjab v. Federation of Pakistan had the opportunity to delve in the matter. After tracing the history of Labour laws and a number of judgments on the subject, the vires of IRA, 2012 was upheld. While doing so, the determinations made by the learned Division bench of this Court were as follows:

(i) IRA, 2012 is applicable only to establishments located in Islamabad Capital Territory and Trans-Provincial Establishments and undertakings which have presence, factories and offices etc in more than one province.

(ii) The law has been promulgated to provide a mechanism for enforcement of a fundamental right i.e. freedom of association as enshrined in Article 17 of the Constitution to workers working in establishments operating in the Islamabad Capital Territory and in trans-provincial establishments and industry.

(iii) It is designed to provide a uniform and unified legal system and mechanism for enforcement of ILO Convention Nos. 87 and 98 throughout the country.

(iv) The law is aimed at providing a legal framework relating to formation of trade unions, federation of trade unions, determining collective bargaining agents, regulation of relations between employers and workers of establishments in the Islamabad Capital Territory and in trans-provincial establishments and industry considering that such mechanism would not be available under provincial laws which have reach and applicability only within the territorial limits of each province.

v) For the aforenoted purpose, Chapter 8 of the IRA, 2012 provides for constitution of a National Industrial Relation Commission (NIRC). It has the mandate to adjudicate and determine industrial disputes in Islamabad Capital Territory and relating to workmen of trans-provincial establishments, to register trade unions and industry wise trade unions and federations of such trade unions, to determine collective bargaining agents amongst trade unions and industry wise trade unions, to deal with cases of unfair labour practices etc. NIRC also advises the Federal Government on matters involving trade unions and industry wise trade unions in Islamabad Capital Territory and at a trans-provincial level in respect of education of workers in the essentials of trade unionism. This includes education in respect of their rights and obligations and to secure the provision of facilities required therefor and to apportion costs between Government, trade unions and federations of such trade unions and employers in such manner as may be considered equitable. The NIRC has exclusive jurisdiction in the aforesaid matters over establishments and group of establishments situated in Islamabad Capital Territory and trans-provincial establishments.

(Emphasis supplied)

1. The dicta laid down in the afore-mentioned judgments leaves no room for doubt that the formation of trade unions of the workers of a trans-provincial Establishment and the matters incidental thereto are regulated by IRA, 2012. The petitioner being a trans-provincial Establishment is accordingly governed by IRA, 2012 and the unions operating in its various factories, offices and departments shall have to be registered with NIRC. It may be stated that in view of the importance of the issue, NIRC also got itself represented through its law officer and filed a specific report in the light of order dated 22.06.2016 passed by this Court requiring NIRC to answer the query as to whether Respondent No. 2 being a union located in one factory of the petitioner can be registered with NIRC or not. NIRC in the additional report by relying upon the judgment Pakistan Telecommunication Company Limited v. Member NIRC and others 2014 SCMR 535 made it clear that it was the status of the petitioner which would determine the question of registration of Respondent No. 2 with NIRC.

2. In the present case there is no dispute that Respondent No. 2 has a right to register itself as a trade union. This right of Respondent No. 2 is not even disputed by the petitioner. The case of the petitioner is simply that the Provincial Registrar exceeded his jurisdiction in registering Respondent No. 2 as the trade union under the provisions of PIRA, 2010 whereas the petitioner being a trans-provincial Establishment, the jurisdiction vested with NIRC under IRA, 2012. This stance of the petitioner is supported both by NIRC and Federal Government.

3. It was also asserted that the members of Respondent No. 2 were not the employees of the petitioner but were in fact the employees of Respondents No. 4 and 5 who were the independent contractors, the implication being that such members had no right to get themselves registered as a trade union. This contention has no force in view of the clearly worded definition of “Worker” and “Workman” contained in Section 2(xxxiii) of IRA, 2012. Similarly, the fact that other workers unions operating in the factory/offices/ departments of the petitioner were registered with the Provincial Registrar hardly provides any lawful justification for the grant of similar status to Respondent No. 2.

4. This Court has already come to the conclusion that petitioner is indeed a trans-provincial Establishment based on the annual report 2015 brought on the record by the petitioner. Respondent No. 2 also did not seriously object to the said status of the petitioner. Having established that the petitioner enjoyed trans-provincial status, the controversy regarding the law which governs the registration of the trade union of a trans-provincial Establishment does not pose a serious problem as it is covered by the ratio of the afore-mentioned two judgments according to which the nature of dispute does not confer jurisdiction on the relevant forum rather it is the status of the employer which is the determining factor and that NIRC is the sole authority with the power to register trade unions and industry-wise trade unions pertaining to the trans-provincial Establishments. The Provincial Registrar/Respondent No. 1 indeed

misconstrued the provisions of Factories Act, 1934 in registering Respondent No. 2 whereas it had no authority under the law to do so. Order dated 17.08.2015 passed by the Provincial Registrar/Respondent No. 1 is, therefore, liable to be set aside.

1. In the result, this writ petition succeeds and orders dated 13.05.2014 and 17.08.2015 are set aside being without lawful authority and of no legal effect.

(R.A.) Petition accepted

PLJ 2017 Lahore 280 (DB)

Present: Syed Muhammad Kazim Raza Shamsi and Ali Baqar Najafi, JJ.

ZAHID HAFEEZ--Petitioner

versus

STATE and 2 others--Respondents

W.P. No. 3058 of 2015, decided on 6.4.2015.

Constitution of Pakistan, 1973--

----Art. 199--Travel Agents Act, 1976, Scope of--National Accountability Ordinance, 1999, Ss. 19 & 27--NAB reference--Bail, grant of--Harassment--Employee of travel agency--Suit for declaration, injunction and rendition of account for ascertaining actual liability--Tickets were issued under instructions of high ups of bank--Not beneficiary of any illegal transaction--Validity--Exact liability of petitioner on basis of minute scrutiny of air ticket issued and payment made has not been properly made by NAB authorities--Question like why payments were delayed, who consumed air tickets, how and in which circumstances payments were stopped and who authorized petitioner to release such amount in view of fact that she was working under nose of high-ups of bank, required further investigation and collection of evidence--Alleged amount were not traced out either in account of travel agency or personal account of petitioner raising question as to whether petitioners jointly of severely become beneficiaries of transaction--Allegation against petitioners relates to settlement of account, therefore, unless exact liabilities of petitioners are calculated, they cannot be held criminally responsible for their acts.

[Pp. 283 & 284] A, B, C & D

Ch. Sajid Ali Baig, Advocate for Petitioner.

Syed Faisal Raza Bukhari, Addl. D.P.G., NAB for State.

Date of hearing: 6.4.2015.

Order

This order shall dispose of W.P. No. 3058 of 2015 titled Zahid Hafeez vs. The State, W.P. No. 5191 of 2015 titled “Humaira Rafique vs. Chairman, NAB authorities as in both the petitions the petitioners have sought their release on bail. Writ Petition No. 6211 of 2013 filed by Zahid Hafeez has become infructuous as the petitioner was arrested on 21.01.2015.

1. Brief facts as contained in the writ petition are that the petitioner is Chief Executive of Air Borne Travels, Travel Agency bearing Licence No. 4260 issued on 13.11.2009 under Travel Agents Act, 1976. On account of his competitive rates and un-parallel services the travelling agency was able to make its presence felt in the travel business. Al-Baraka Bank was also of the petitioner’s patrons who established its relationship with the travel agency in the year 2009 during which it purchased a number of tickets for domestic and International route in the name of various passengers. An amount of Rs. 1,503,010/- was outstanding against the said Al-Baraka Bank for the air tickets purchased by it but the said amount was not paid to the petitioner. Meanwhile, on 15.09.2012, a civil suit for declaration, injunction and rendition of accounts was filed by the petitioner against the Bank. During the pendency, the petitioner received a notice dated 28.01.2013 under Sections 19 & 27 of NAB, Ordinance, 1999 in respect of some inquiry in response to which the petitioner appeared before the NAB authorities and furnish the required details. On account of humiliating treatment the petitioner filed a W.P. No. 6211 of 2013 on 12.03.2013 seeking restraining order against the harassment in which Al-Baraka Bank also becomes a party. The petitioner was again served a notice on 09.09.2013. Meanwhile, the respondent-NAB authorities managed to record statement of the employee of Travel Agency namely, Hafiz Muhammad Bilal, who although denied making such statement under free will before the NAB authorities through separate affidavit or any statement under his free will. Thereafter, NAB authorities issued four notices to the petitioner freezing bank account of the petitioner. They sent another notice dated 04.10.2013 offering a voluntary return option. On 21.01.2015 both the petitioners were arrested and their physical remand was given to the NAB authorities and in view of the fact that civil suit was filed and the matter relates to rendition of account, the petitioner was sent to judicial lock up who seeks his release on bail through this constitutional petitions.

2. Learned counsel for the petitioner contends that Al-Baraka Bank has not filed a suit for recovery of amount against the petitioner and till pendency of the suit for declaration, injunction and rendition of account filed by the petitioner for ascertaining the actual liability, the petitioner be released. Submits that the petitioner in the operating with the NAB authorities by presens the entire documents which shows that under instructions the relatives of the high-ups of the bank were issued air ticket. Contends that the petitioner is not the beneficiary of any illegal transaction and during the remand, only Rs. 7,00,000/- was recovered from the petitioner. Places reliance on Baig Muhammad vs. Chairman, National Accountability Bureau and others [2002 MLD 703], Muhammad Saeed Mehdi vs. the State (PLD 2002 Lahore 124) and The State and others v. M. Idrees Ghauri and others [2008 SCMR 1118].

3. Conversely, learned counsel for the Bank contends that Zahid Hafeez being the proprietor of Air Borne Travel Agency connived with Humaira Rafique, who prepared the fake travel invoices and scanned the signatures of the competent, authority on the fake approval sheets, forwarded it to the Finance Department of the Bank and by misusing her official position she prepared pay orders in the name of Air Borne Travel Agency and credited in the Bank account of Zahid Hafeez. Meanwhile, Hafiz Muhammad Bilal became approver and, therefore, pardoned then 20.01.2015 by the D.G.NAB whose statement was recorded before the Magistrate and according to him he prepared the fake invoices on the instructions of Humaira Rafique. Further contends that Humaira Rafique prepared 36 pay orders amounting to Rs. 12.676 million in the name of Air Borne Travel Agency. According to the NAB, claim of the petitioner of having issued 146 air ticket amounting to Rs. 8 millions to the official of Al-Baraka Bank and their relatives was not found correct as only 55 air ticket amounting to Rs. 2.7 millions approximately were issued to the official of Al-Baraka Bank but most of them were never presented before the Bank and in fact 37 air tickets amounting to Rs. 2.12 million approximately were issued in favour of official of Al-Baraka Bank and their relatives in the personal capacity but the official of Al-Baraka Bank who have already paid the amount in their personal capacity either to Humaira Rafique or to Zahid Hafeez and that the rest of the air ticket amounting to Rs. 3.285 million did not pertain to Al-Baraka Bank. In this way, in the year 2012 Zahid Hafeez received an amount of Rs. 12.676 million against the travel expenses of Rs. 2.7 million who was paid Rs. 9.9 million in excess.

4. Arguments heard. File perused.

5. The official of Al-Baraka Bank filed a complaint with the NAB authorities for legal proceedings under the NAB Ordinance, 1999 against Humaira Rafique (Ex-official of Al-Baraka Bank), Zahid Hafeez, (a proprietor of Air Borne Travel Agency) and Hafiz Muhammad Bilal (Accountant) relating to bank fraud in Al-Baraka Bank amounting to Rs. 12.00 million. According to the complaint, in the year 2012, Zahid Hafeez in connivance with Humaira Rafique prepared 36 fake invoices amounting to Rs. 12.676 millions mentioning incorrect and bogus air ticket numbers, passengers name, destination fare which was duly signed by Hafiz Muhammad Bilal (Accountant) on the instruction of Zahid Hafeez and sent to Humaira Rafique who scanned the signature of the competent authority namely, (Ahmad Shuja Kidwai, Khawajas Maaz Khairuddin & Shafqat Ahmed) on the approval sheet. Thereafter, she forwarded it to the Finance Department of the bank and then prepared pay orders in the name of Air Borne Travels. During investigation, Hafiz Muhammad Bilal (Accountant) was made approver who recorded his statement against the petitioner to the extent that all what he did was under the instruction of Zahid Hafeez.

6. According to NAB authorities, out of the claimed 146 air ticket of Rs. 8.00 millions issued to the official and the relatives of Al-Baraka Bank by Zahid Hafeez only 55 air tickets amounting to Rs. 2.7 millions were scrutinized and most of them were never presented before the Bank. The amount of other 37 air tickets equal to Rs. 2.12 million was already paid in the account either to Humaira Rafique or Zahid Hafeez, therefore, had no dispute. However, rest of the air tickets amounting to Rs. 3.285 million approximately do not pertain to Al-Baraka Bank and therefore, the complainant cannot have any claim against the same. According to calculation by NAB authorities Zahid Hafeez received Rs. 12.676 million against their travel of Rs. 2.7 millions and thereby caused loss of 9.9 millions to the bank.

7. Significantly, such a calculation without verification by the professional auditors either by the bank or otherwise cannot be totally relied on. Morevoer, the exact liability of the petitioner on the basis of minute scrutiny of air ticket issued and the payment made has not been properly made by NAB authorities. Even if it was, the same can be adjudicated upon latter. So far no reference was filed against the petitioner. The question like why the payments were delayed, who consumed the air tickets, how and in which circumstances payments were stopped and who authorized Humaira Rafique, petitioner to release such amount in view of the fact that she was working under the nose of high-ups of the bank, required further investigation and collection of evidence.

8. During investigation, the alleged amount of Rs. 9.9 millions were not traced out either in account of travel agency or personal account of the petitioner raising question as to whether the petitioners jointly or severely become beneficiaries of the said transaction.

9. In our considered view, allegation against the petitioners relates to the settlement of account, therefore, unless exact liabilities of the petitioners are calculated, they cannot be held criminally responsible for their acts. We place our reliance on The State and others vs. M. Idrees Ghauri and others [2008 SCMR 1118], the relevant extract is re-produced below:

“The prosecution of a person without distinction of criminal and civil liability in a transaction, is misuse of process of law and similarly stretching the law in favour of prosecution is unjust and unfair, therefore, the Courts without ascertaining the true character of the transaction and drawing the distinction in the civil and criminal liability, must not proceed to raise a presumption of guilt in terms of Section 14(d) of the NAB Ordinance.”

In our humble view, the petitioners have made out a case for bail for which we place reliance on Makhdoom Javed Hashmi vs. The State and 2 others [2003 P.Cr.LJ 266] wherein it has been held, as under:

“The concept of pre-trial release of the accused was developed on three presumptions; firstly the accused was presumed to be innocent till he was found guilty; secondly the accused should have a right to prepare his defence and prove his innocence before the Court of trial; and thirdly the accused should not be punished before the finding of his conviction was rendered by the Court.”

1. In this view of the matter, the Writ Petition Bearing No. 3058 of 2015 titled Zahid Hafeez vs. The State, W.P. No. 5191 of 2015 titled “Humaira Rafique vs. Chairman, NABauthorities are allowed and the petitioners are admitted to bail subject to their furnishing bail bonds in the sum of Rs. 5,00,000/- each with two sureties each in the like amount to the satisfaction of the trial Court.

(R.A.) Petitions allowed

PLJ 2017 Lahore 285[Multan Bench Multan]

Present: Syed Muhammad Kazim Raza Shamsi, J.

MUHAMMAD ASLAM--Petitioner

versus

RPO, etc.--Respondents

W.P. No. 12277 of 2016, decided on 11.11.2016.

Constitution of Pakistan, 1973--

----Art. 199--Pakistan Penal Code, (XLV of 1860), Ss. 302 & 34--Constitutional petition--Change of investigation--After taking cognizance of case by Court--Validity--Police authority after changing investigations first time, have no authority to order change of investigation at stage has taken cognizance in instant case. [P. 286] A

Rana Asif Saeed, Advocate for Petitioner.

Mirza Muhammad Saleem Baig, Addl. A.G. and Ch. Faisal Nauman Ghazi, Advocate for Respondents.

Date of hearing: 11.11.2016.

Order

The grievance of the petitoiner as canvassed in this constitutional petition is that the police officials after awarding First change of investigation of case FIR No. 126/2016, registered under Sections 302 & 34, P.P.C. with Police Station Noor Shah, District Sahiwal, have no authority to continue with the change of investigation successively requested by the accused of the case on the ground that all the accused persons are facing charge before the learned trial Court and the law contained in the cases reported as Muhammad Nasir Cheema vs. Mazhar Javaid and others (PLD 2007 SC 31) and Qari Muhammad Rafique vs. Additional Inspector General of Police (Inv.) Punjab and others (2014 SCMR 1499) does not authorize the further investigation in the case.

1. Learned counsel for the respondent concurred with the proposition laid down by the learned counsel for the petitioner that after first change of investigation and after taking the cognizance of the case, by the Court, the investigations cannot be ordered to be changed in view of the afore-noted judgments of the Hon’ble Supreme Court. He also assented to the first change of investigations which were ordered to be changed before taking the cognizance by the Court.

2. In view of the afore-noted legal proposition, the petition in hand is disposed of by observing that the police authority after changing the investigations first time, in view of afore-cited case law, have no authority to order the change of investigation at stage when the Court has taken cognizance in the case.

(R.A.) Petition disposed

PLJ 2017 Lahore 286

Present: Shahid Waheed, J.

Rana MUHAMMAD ASLAM--Petitioner

versus

ADDITIONAL SESSIONS JUDGE/APPELLATE AUTHORITY, FAISALABAD and 5 others--Respondents

W.P. No. 33263 of 2016, decided on 27.10.2016.

Punjab Local Govt. Act, 2013--

----S. 27--Pakistan Penal Code, (XLV of 1860), S. 21--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Stamp vendor--Disqualified--Nomination paper--Seat reserved for category of peasant--Issuance of license by D.C. stamp vendor fell within definition of public servant--Validity--Petitioner was in service of Government’ entrusted with performance of public duty falls within ambit of public servant and thus, stood disqualified to contest election for seat reserved for category of peasant/worker.

[P. 288] A

Mr. Shahid Shaukat Chaudhary, Advocate for Petitioner.

Hafiz Muhammad Saleem, Advocate/Legal Adivsor of ECP.

Mr. A.D. Bhatti, Advocate for Respondent No. 5.

Mr. Khalid Mehmood, ARO.

Date of hearing: 27.10.2016.

Order

This constitutional petition calls into question the decision dated 22.10.2016 of the learned Appellate Authority reversing the decision dated 17.10.2016 of the Returning Officer whereby the nomination paper of the petitioner was accepted.

1. Briefly the facts of the case are that name of the petitioner was proposed for election to the seat reserved for the category of Peasant/Worker. On scrutiny the Returning Officer accepted the nomination papers of the petitioner. Against the said decision the Respondent No. 5 preferred an appeal before the learned Appellate Authority on the ground that the petitioner being a stamp vendor could not be allowed to contest the election for the seat reserved for the category of Peasant/Worker. This plea prevailed upon the learned Appellate Authority and consequently the appeal was accepted and nomination paper of the petitioner was rejected vide decision dated 22.10.2016.

2. The petitioner is aggrieved by the afore noted decision. Learned counsel for the petitioner has pleaded that although the petitioner is a stamp vendor yet does not fall within the category of public servant as defined in Section 21 of the Pakistan Penal Code; and, that the nomination papers of the petitioner have been erroneously rejected by the learned Appellate Authority. He places reliance upon the case law titled “M. Nazir Ahmad versus Muhammad Aslam and others”(2013 SCMR 363) and “Munawar Hussain Bukhari versus Appellate Authority/Tribunal Alipur District Muzaffargarh and others” (2016 SCMR 1087).

3. On the other hand learned counsel appearing on behalf of the Respondent No. 5 has vehemently opposed this petition and submitted that since the petitioner is a stamp vendor, he stood disqualified under Section 27 of the Punjab Local Government Act, 2013.

4. The arguments canvassed by learned counsel for the Respondent No. 5 are seconded by the learned legal advisor appearing on behalf of Election Commission of Pakistan.

5. After hearing I have found no substance in the arguments canvassed by the learned counsel for the petitioner. Admittedly the petitioner is a stamp vendor. It has been held by this Court in the case of “Abdul Ghaffar versus The State and another” (2012 P.Cr.LJ. 255) that a stamp vendor appointed by the District Collector receives the stamp from the Government Treasury for sale to the public and receives commission out of the public revenue for performance of his work. He is also duty bound to maintain the correct account and record of all such receipts and sale of stamp papers on the register prescribed for this purpose. On the basis of above it was concluded that with the issuance of license by the District Collector the stamp vendor fell within the definition of public servant in terms of clause ninth of Section 21, PPC. According to the principle settled in the case of Abdul

Ghaffar (Supra) it can be easily held that the petitioner is in the service of the Government entrusted with performance of public duty falls within the ambit of public servant and thus, stood disqualified to contest the election for the seat reserved for the category of Peasant/worker. The decision rendered by the learned Appellate Authority is, thus, free from any legal defect and, therefore, no interference therewith is called for.

1. In the sequel this petition is dismissed.

(R.A.) Petition dismissed

PLJ 2017 Lahore 288 [Multan Bench Multan]

Present: Farrukh Gulzar Awan, J.

SHAFIQUE AHMAD--Petitioner

versus

STATE and 2 others--Respondents

W.P. No. 14531 of 2015, decided on 26.10.2015.

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

----Ss. 174 & 176--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Order was passed without adopting procedure--Legality of--Magistrate without adopting procedure under Section 176, Cr.P.C., passed impugned order--Case was remanded with direction to decide matter afresh after inquiry as required under Section 176, Cr.P.C. [P. 289] A

Rana Muhammad Asif Saeed, Advocate for Petitioner.

Hafiz Abid Yousaf Ghori, Advocate for Respondent No. 3.

Mr. Aziz-ur-Rehman Khan, Asst. A.G. for Respondents.

Date of hearing: 26.10.2015.

Order

Shafique Ahmad petitioner has filed this constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973 calling in question the legality of order dated 15.9.2015 passed by the learned, Magistrate Section 30, Khanewal whereby SHO concerned was directed to proceed in accordance with law as provided under Sections 174 & 170, Cr.P.C.

1. Learned counsel for Respondent No. 3 assisted by learned DPG for the State have gracefully conceded that the learned Area Magistrate without adopting procedure under Section 176, Cr.P.C., passed the impugned order dated 15.9.2015 in haste.

2. In view of above, writ petition in hand is allowed, impugned order dated 15.9.2015 is set aside and the case is remanded to the learned Judicial Magistrate concerned with the direction to decide the matter afresh after inquiry as required under Section 176, Cr.P.C. within a period of one month from the date of receiving certified copy of this order.

(R.A.) Petition allowed

PLJ 2017 Lahore 289 (DB) [Multan Bench Multan]

Present: Syed Muhammad Kazim Raza Shamsi and Ali Baqar Najafi, JJ.

HAMEED ULLAH KHAN, etc.--Appellant/Petitioner

versus

DIVISIONAL SUPERINTENDENT PAKISTAN RAILWAYS, MULTAN and 3 others--Respondents

I.C.A. No. 311 and C.M. No. 2 of 2016, decided on 20.10.2016.

Limitation Act, 1908 (IX of 1908)--

----S. 5--Law Reforms Ordinance, 1972, S. 3--Intra Court Appeal--Condonation of delay--Delay in filing intra Court appeal was condoned--Sufficient cause--Policy for license of un-agricultural purposes where major efforts for investment is required--Question of extension of license period--Lease agreement--Opinion for renewal of agreement for 5 years--No intention to extend lease period for 5 years--Validity--Lease of shops initially granted for 10 years has already been extended to 5 years to similarly placed persons--Government is within its right to apply any beneficial terms and conditions in policy for leasing out land but it would not prejudice rights of existing lease holders already acknowledged as such by government--Prayer made in writ petition in respect of policy is to be allowed--Intra Court appeal, therefore, stands allowed. [P. 293] A, B & C

1992 SCMR 1652, rel.

Rana Asif Saeed, Advocate for Petitioner/Appellant.

Mian Muhammad Ishfaq Hussain, Advocate for Respondent.

Date of hearing: 20.10.2016.

Order

C.M. No. 2/2016

As both the learned counsel for parties, have argued on the point of limitation, therefore, this application under Section 5 of the Limitation Act for condonation of delay is being taken, up first.

1. After hearing the learned counsel for the parties, we have noted that the office had sent the copy of the impugned order dated 07.06.2016 to respondents on 19.07.2016 after when it reached in the office during the summer vacation. The applicant applied for the issuance of certified copy on 28.07.2016 and on the same day it was prepared and delivered to the applicant and the ICA was filed on 04.08.2016. i.e. within 20 days and during the summer vacation. Since the file was transmitted to the office on 12.07.2016, though the applicant applied on 28.07.2016, therefore, delay in filing the ICA is condoned as there is sufficient cause to file the I.C.A. after the expiry of 20 days without any fault of the applicant. This C.M., therefore, is allowed.

I.C.A. No. 311/2016.

1. This single order shall dispose of the instant appeal as well as I.C.A. No. 312 of 2016 titled “Ghulam Rasool etc. versus D.S. Pakistan Railways etc.” and I.C.A. No. 313 of 2016 titled “Khalil-ur-Rehman etc versus D.S. Pakistan Railways”,as all these appeals have arisen out of one order deciding common question of law and facts.

2. This Intra Court Appeal under Section 3 of the Law Reforms Ordinance, 1972 is directed against order dated 07.06.2016 passed by learned Single Judge in Chamber whereby through a single; order the writ petition filed by the appellants was dismissed alongwith other Writ Petition Nos. 4262 and 4043 of 2016 praying for declaring the policy of 2014 as not applicable to them and also for holding that the impugned advertisement dated 25.02.2016 was illegal, without jurisdiction and lawful authority with a further prayer to restrain the respondents from auctioning the land interfering into the possession of the appellants.

3. Brief facts giving rise to the filing of this Intra Court Appeal are that respondent/Pakistan Railways put to auction the land for construction of shops in the year 2004 under the policy dated 24.04.2002 initially for a period of 10 years with a renewal option for one-time extension of 5 years with 5% increase every year. The appellant being the highest bidder in the public auction advertised through the newspaper, was declared the successful bidder who deposited the money including the annual increase as per schedule and policy as well as the security. According to the appellants, after the completion of initial period of 10 years, a request was made to respondents to further extend the period for 5 years but they had taken the stand that vide the then existing policy dated 14.04.2014, extension of the period beyond 10 years was banned and thereafter shops were put to auction. The appellant challenged the said policy through the writ petition on the ground that it could not operate retrospectively to their dis-advantage. However, the writ petition was dismissed by learned judge, in Chamber primarily on account of the fact that it involved disputed question of facts and that the arbitration clause was available in the agreement for resolution of such disputes-arising out between the parties.

4. Rana Asif Saeed, Advocate learned counsel for the appellants contends firstly, that no notice was issued to the appellants of termination of lease agreement; secondly; said policy of 2014 would not be applicable to the appellants as it had already been declared as policy without a retrospective effectvide order dated 15.04.2015 passed in Writ Petition No. 4644 of 2015; thirdly, the agreement between the appellants and respondents was made on the basis of policy of the year 2002 which clearly stipulates for one time extension for 5 years; fourthly, by accepting the lease amount by respondents subsequent to the expiry of 10 years and by retention of the possession by appellants and security by the respondents they had impliedly admitted the extension of lease period and fifthly, submits that appellants are being discriminated as against other similarly placed persons who have been granted 5 years extension vide Letter No. 469-W/Auction/SDK issued in the month of April 2015.

5. Conversely, Mian Muhammad Ishfaq Hussain, Advocate, learned counsel for respondents contends that the order passed by learned Judge in Chamber is legal. Adds that as per prevalent policy dated 09.05.2016, the property of Pakistan Railways is to be leased out, therefore, it needs to be dismissed straightway.

6. Arguments heard. Filed perused.

7. After hearing the learned counsel for the parties we have straightway observed that policy dated 24.04.2002 “for license of UN-CULTIVATED BARREN RAILWAY LAND FOR AGRICULTURAL PURPOSES WHERE MAJOR EFFORTS FOR INVESTEMENT IS REQURIED” the land was allotted to the appellants for 10 years, with 5 years renewal option. However, before the expiry of the said period the “REVISED POLICY FOR LEASING OF CULTIVABLE/BARREN AGRICULTURAL LAND” was promulgated on 14.04.2014 with immediate effect stipulating as follows:

“The above said policy will be immediately enforced and no farther extension beyond ten (10) years will be granted in case of already leased barren land”.

It signifies that it was immediately enforceable and no extension beyond the period of 10 years was to be granted to the existing lease holders. (underlining is for emphasis.)

1. We have also read the order dated 15.04.2015 passed by Single Judge of this Court in Writ Petition No. 4644 of 2015 titled “Raja Riffat Hayat versus Pakistan Railways through Chairman etc.” wherein policy dated 10.7.2014 regarding Railways agricultural land measuring 4000 acres was already declared to operate prospectively. In this context, the learned counsel for the respondents has drawn the attention of this Court to “POLICIES FOR EXTENSION IN LICENSE PERIOD AND AUCTION OF ALREADY CONSTRUCTED PREMIUM SHOP” dated 09.05.2016 regarding the question of extension of license period of already constructed premium shops whose license was not extended to 5 years, permits only subject to deposit of 50% of the DC rates of area as premium, with 30% increase in rent of the previously paid annual rent. However, as its vires is not challenged before us, therefore, we will-restrain commenting upon it.

2. As per clause 3 of the lease agreement between the parties, a lease period of 10 years was extendable to 5 years subject to enhancement, at the rate of 5% of last, year rental charges. Clause 3 of the agreement is reproduced as under:--

3. NOW THIS INDENTURE WITNESSTH that in pursuance of the said agreement and in consideration of the rent hereby reserved and the conditions and convents hereinafter contained and to be observed by the lessee, the lessor do hereby demise unto the lease of the said shop(s) hereinbefore mentioned to hold the same unto, the lessee for a period of 10 years extendable for another term of five years with the consent of both the parties, subject to enhancement of the rent @ 5% after the expiry of each year.

The option for renewal of agreement for 5 years was also provided in Clause 15 which is reproduced as under:

1. That the lessee shall have to apply with the lessor three month before the expiry of the agreement showing his intention for extension of the agreement for another term of five years. Lessor will consider the application of the Lessee on merit and according to rules of the department. If approved by the competent authority, the agreement will be renewed on enhanced rate of 5% of the last year’s rental charges. The Lessee shall deposit the yearly rental charges in full, in advance, with Station Master/Divisional Accounts officer, Pakistan Railways under the authority letter issued by the Divisional Superintendent Pakistan Railways, Multan in this regard.”

Importantly, nowhere in the agreement the unilateral change in the terms and conditions was allowed to respondents.

1. Admittedly, 10 years lease period of the appellants had already expired but they have retained the possession and have also been paying the rent to the government treasury besides retaining their security in the account of respondents/department. We have also noticed that lease of the sops at Railway Market, Sadiqabad initially granted for 10 years has already been extended to 5 years to similarly placed persons vide Letter No. 469-W/Auction/SDK issued in the month of April 2015 from Pakistan Railways Sukkur, Division.

2. The respondents have not issued any notice to the appellants to vacate the shops or even intimated them that they have no intention to extend the lease period for 5 years. Under clause 15 of the agreement, although it was required of the appellants to have applied for such extension but their intention can also be ascertained and gathered through the above said admitted facts. The similarly placed persons were already extended the lease period for 5 years. Needless to observe that the government is within its right to apply any beneficial terms and conditions in the policy for leasing out the land but it would not prejudice the rights of the existing lease holders already acknowledged as such by the government. Here reliance can be placed upon Messrs Army Welfare Sugar Mills Ltd. and others versus Federation of Pakistan and others (1992 SCMR 1652).

3. Keeping in view the above facts, we are of the firm view that prayer made in the writ petition in respect of the policy dated 15.07.2014 is to be allowed and we hereby hold that it operates prospectively and not to the appellants. This Intra Court Appeal, therefore, stands allowed.

(R.A.) I.C.A. allowed

PLJ 2017 Lahore 294

Present: Ch. Muhammad Masood Jahangir, J.

FESCO through Chief Executive and 5 others--Petitioners

versus

TEHSIL MUNICIPAL ADMINISTRATION, SHAHPUR through Tehsil Nazim Shahpur, District Sargodha--Respondent

C.R. No. 224 of 2008, decided on 27.9.2016.

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

----S. 115--Revisional jurisdiction--Consumer of energy supply--Utility bill--Challenge to--Defective, slowness of meter--Ulterior motive--Correction of errors of facts and law--Consumer of energy supply is a public department and it cannot be believed that for ulterior motive, equipment/meter could be tampered by its functionaries for saving payment to be made out of allocated budget for consumed units--Equipment/meter could be defective due to its life as well as weather or its mechanism--No iota of evidence is available on suit file to believe that meter was damaged by respondents for any ulterior motive--Meter might have gone slow when same was checked, but case history of equipment reflects that prior to issuance of disputed bill neither any complaint qua meter was made nor any notice was ever served upon any official of respondents--Report regarding its slowness is available on suit file, but maker of the-same was not got examined by petitioners and contents of same could not be proved as per law--Scope of interference in revisional jurisdiction by High Court is restricted and narrower, which is only meant for correcting errors of facts and law, if are found to have been committed by subordinate Courts in discharge of their judicial functions. [Pp. 295] A, B & C

Mr. Siddique Ahmad Chaudhary, Advocate for Petitioners.

Mian Tahir Maqsood, Advocate for Respondent.

Date of hearing: 27.9.2016.

Judgment

Ch. Muhammad Masood Jahangir, J.--The admitted facts of the case are that the respondents being public functionaries were consumers of energy supply, who instituted a declaratory suit against the petitioners while challenging the vires of utility bill for the month of May, 2004 with the averments that the same contained extra units and prayed for its cancellation/rectification. The said suit was resisted by the petitioners with the stance that on the surprise checking, the equipment/meter was found to be defective while reflecting slowness of 30%. The learned trial Court after completing the trial and appreciating the material available on the file, decreed the suit through judgment and decree dated 14.4.2007, which was also maintained when the learned lower appellate Court dismissed the appeal preferred by the petitioners vide impugned judgment and decree dated 2.11.2007, which have been assailed by filing the instant civil revision.

1. Arguments heard. Record perused.

2. Admittedly, the consumer of the energy supply/respondents is a public department and it cannot be believed that for ulterior motive, the equipment/meter could be tampered by its functionaries for saving the payment to be made out of the allocated budget for the consumed units. The equipment/meter could be defective due to its life as well as weather or its mechanism. No iota of evidence is available on suit file to believe that the meter was damaged by the respondents for any ulterior motive. The meter might have gone slow when the same was checked, but case history of the equipment reflects that prior to issuance of disputed bill neither any complaint qua the meter was made nor any notice was ever served upon any official of the respondents. Even otherwise, there is no evidence that defective meter was sent to the concerned laboratory and same was examined in presence of respondents or any agent authorized by them. Moreover, no doubt, report regarding its slowness is available on the suit file, but maker of the same was not got examined by the petitioners and contents of the same could not be proved as per law. In such facts and circumstances, the Courts below were quite justified to decree the suit through the impugned judgments and decrees.

3. The learned counsel for the petitioners has failed to point out any illegality or irregularity in the impugned judgments and decrees or that these are reflective of any misreading and non-reading of evidence. The concurrent findings of fact on the face of record have been eminently arrived at by both the learned Courts below. The scope of interference in revisional jurisdiction by this Court is restricted and narrower, which is only meant for correcting errors of facts and law, if are found to have been committed by the subordinate Courts in the discharge of their judicial functions. Safe reliance can be placed on the judgments passed by the august Supreme Court of Pakistan reported as “Aurangzeb through L.Rs. and others vs. Muhammad Jaffar and another” (2007 SCMR 236) and “Bashir Ahmed vs. Ghulam Rasool” (2011 SCMR 762).

4. Sequel of the above discussion is that the instant civil revision is devoid of any merit and force, which is hereby dismissed.

(R.A.) Revision dismissed

PLJ 2017 Lahore 296 [Multan Bench Multan]

Present: Masud Abid Naqvi, J.

ASGHAR ALI BHATTI and others--Petitioners

versus

ELECTION TRIBUNAL, MULTAN and 6 others--Respondents

W.P. Nos. 8497 6933, 9485, 7662, 8717, 16045 and 10094 of 2016, decided on 14.11.2016.

Punjab Local Government Act, 2013--

----S. 46--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Interlocutory orders of election tribunals--Recounting of votes--Objection of maintainability of petition--Petitions filed against interlocutory orders of election tribunals constituted under Punjab Local Government Act, 2013 are not maintainable under Art. 199 of Constitution and uphold impugned orders--Petitions were dismissed. [P. 299] A

M/s. Muhammad Khalid Farooq, Rana Muhammad Asif Saeed, Mian Ashfaq Ahmad Sial and Mughees Aslam Malik, Advocates for Petitioners.

M/s. Ch. Muhammad Ashraf Sidhu, Malik Muhammad Latif Khokhar, Rana Meraj Khalid, Ch. Muhammad Yasin, Rana Muhammad Asif Saeed and Sardar Ashfaq Ahmad Baloch, Advocates for Respondents.

Mr. Naeem Khan, Advocate/Legal Advisor Election Commission of Pakistan.

Date of hearing: 14.11.2016.

Order

Through this single order, I propose to decide instant writ petition alongwith connected Writ Petitions No. 6933, 9485, 7662, 8717, 16045 and 10094 of 2016 as common question of law is involved in all these writ petitions.

1. Aggrieved from the orders of re-counting, passed by the Election Tribunal in the above-mentioned writ petitions, the petitioners have filed the writ petitions to challenge the validity and the legality of the impugned orders.

2. Learned counsels for the petitioners submit that Election Tribunal passed the impugned orders without any basis, without properly observing the method & procedure as enunciated in Punjab Local Government Act, 2013 and on the vague allegations. To supplement his arguments, learned counsel for the petitioners relies on the cases reported as Zia-ur-Rehman v. Ahmed Hussain (2014 SCMR 1015), Ghazanfar Abbas Shah v. Khalid Mehmood Sargana (2015 SCMR 1535), Muhammad Ashraf v. Tariq Javed (2007 SCMR 34), Bashir Ahmad v. Deputy District Education Officer (2005 SCMR 1040), Jam Madad Ali v. Asghar Ali Junejo (2016 SCMR 251), Moan Mohammad Farooq v. Election Tribunal (1988 MLD 2949), Zuifiqar Ali v. Election Tribunal (2000 MLD 746). Conversely, the learned counsels for the private respondents state that the petitioner have a right of appeal under Section 46 of the Act and neither the said provision nor any other in the Act provides for the filing of an appeal or writ petition against an interlocutory order. Hence, the writ petitions are not maintainable. In support of their arguments, they have also drawn my attention to the dictum laid down by the Honourable Supreme Court of Pakistan in CPLA No. 1138/2016 & CPLA No. 1139/2016 as well as reported judgments i.e. Mohammad Naeem Kasi and others v. Abdul Latif and 7 others (2005 SCMR 1699), Mohammad Asim Kurd alia Gailoo v. Nwabzada Mir Lashkari Khan Raisani and 11 other (1998 SCMR 1597) and Muhammad Raza Hayat Hiraj v. Election Commission of Pakistan (2015 SCMR 233).

3. Objection with regard to non-maintainability of writ petitions against the interlocutory order of the Tribunal is correct as per scheme of the Act and legal position enunciated in the case-law on the subject matter while cases referred to by the learned counsels for the petitioners the same are distinguishable. Since they pertain to decisions after the election disputes had been finally decided. The Hon’ble Apex Court has educatively held in CPLA No. 1138/2016 & CPLA No. 1139/2016:

“…….The Act governs the subject and attends to the filing of election petitions (Section 38), constitution of election tribunals (Section 39), powers vesting in election tribunals (Section 40) and the decisions of election tribunal (Section 41). Section 46 of the Act, which provides for an appeal against final orders of an election tribunal, is reproduced hereunder:

1. Appeal against the orders of Election Tribunal.

“(1) Any person aggrieved by a final order of an Election Tribunal may, within thirty days of the communication of such order, prefer an appeal to the Lahore High Court.

(2) The Lahore High Court shall decide an appeal preferred under sub-section (1) within three months.”

Section 46 of the Act provides that against the “final order of an Election Tribunal” an appeal can be preferred to the High Court, significantly, it does not provide for an appeal against any order or interlocutory order. Mr. Babar Awan contends that since the status does not permit an appeal against an interlocutory order therefore the constitutional jurisdiction of the High Court under Article 199 of the Constitution can be invoked. We cannot bring ourselves to agree with the learned counsel because it will not only defeat the specific language of the Act but would also unnecessarily delay the disposal of election petitions the early disposal of which the legislature has mandated by stipulating in sub-section (2) of Section 46 that appeals shall be decided within a period of three months. The tenure of elected persons is of a limited duration therefore the early decision of election disputes must not be thwarted, if challenges are permitted to be made to interlocutory orders, through petitions filed before the High Court which may eventually also come before this Court, then the remedy of an election petition and an appeal will be rendered illusory because in a probability the term of the person whose election has been challenged would have been completed or it would be close to completion. In any event a three member Bench of this Court in the case of Muhammad Raza Hayat Miraj (above) held (paragraph 36, page 253) that:

“It follows from the above discussion that the interlocutory orders passed by the Election Tribunal impugned before the High Court were not liable to be set aside in its constitutional jurisdiction as the petitioners before the Court, had a remedy available to them by way of appeal under section 67 of the Act after disposal of the election petitions. The impugned judgment of the Lahore High Court dated 28.2.2014, therefore, is maintained and similar opinion of the High Court of Sindh Ali Gohar Khan Mahar’s case (supra) and of the High Court of Balochistan in Dur Muhammad Khan Nasar’s case (supra); is affirmed.

There is no reason for us to hold that me aforesaid principle is not applicable to local body elections…….”

1. By examining the record in the light of the provisions of the Act, I am therefore of the considered opinion that the writ petitions filed against the interlocutory orders of the Election Tribunals constituted under the Punjab Local Government Act, 2013 are not maintainable under Article 199 of the Constitution of the Islamic Republic of Pakistan and uphold the impugned orders. Consequently, these petitions are dismissed.

(R.A.) Petitions dismissed

PLJ 2017 Lahore 299

Present: Ch. Muhammad Masood Jahangir, J.

FESCO through Chief Executive Officer, etc.--Petitioners

versus

ADDL. DISTRICT JUDGE, etc.--Respondents

W.P. No. 22166 of 2011, heard on 13.10.2016.

Constitution of Pakistan, 1973--

----Art. 199--Civil Procedure Code, (V of 1908), S. 115--Constitutional jurisdiction--Remedy--Consumer of electricity connection--Disconnected--Detection bill--Either any show-cause notice was issued--Period of 90 days having been already expired--Validity--It is settled principle that in presence/availability of alternate appropriate remedy, constitutional jurisdiction of High Court cannot be invoked--Writ petition can also be converted into revision petition, but that would be hit by limitation, which cannot be condoned automatically unless delay of each and every day is specifically explained by moving an application in that behalf and same was lacking in instant case--Petition was dismissed. [P. 301] A

Mian Muhammad Javed, Advocate for Petitioners.

Mr. Hussain Ahmed Madni, Advocate for Respondents No. 4 to 9.

Date of hearing: 13.10.2016.

Judgment

This writ petition is directed against the judgment and decree dated 10.12.2009 passed by the learned Addl. District Judge, Jhang, whereby, appeal filed by Respondents No. 2 and 3 was allowed, the judgment and decree dated 7.7.2009 of the learned trial Court was set aside and their suit for declaration was decreed as prayed for.

1. In brief, the facts of the case are that Respondents No. 2 and 3, after purchase of weaving factory from Respondents No. 4 to 9, became consumers of the disputed electricity connection and at that time, the same was disconnected, but subsequently, it was got restored by them after paying arrears amounting to Rs. 17,340/- and they started paying the monthly bill regularly for the energy consumed by them. Afterwards, the petitioners issued detection bill of Rs. 48850/- against Respondents No. 4 to 9, who assailed the same through institution of a declaratory suit styled as “Muhammad Ishaq vs. WAPDA, etc.”, which remained fail and detection bill was ultimately paid in installments to the petitioners in pursuance of order passed by the learned District Judge, Jhang. In this view of the matter, there was left nothing on the part of premises or consumers of the utility, but in June, 2000, the petitioners again sent a detection bill of Rs. 55,135/- on the basis of an audit note No. 46 dated 05.07.1995 without issuance of any show-cause notice, which was assailed by Respondents No. 2 and 3 through institution of suit.

2. The learned trial Court after collecting stock of evidence of the parties and appreciating the same, dismissed the suit of Respondents No. 2 and 3, whereas it was decreed in appeal by the Addl. District Judge through judgment and decree referred to above in para-1 ante, which is the subject matter before this Court.

3. Arguments heard and record perused.

4. There was nothing available on record that prior to initiation of proceedings against Respondents No. 2 and 3 on the basis of audit report, either any show-cause notice was issued to them or they were joined in the said proceedings to justify the audit report. This Court in a case reported as Water and Power Development Authority, etc. v. Umaid Khan (1988 CLC 501) has already held that audit objection is neither binding on the consumer nor the consumer can be held responsible for the fault of the department as pointed out in the audit report and there is considerable force in the contention of learned counsel for the respondents that the amount was added to their account without issuing any show-cause notice or affording them opportunity of hearing to declare them liable for the payment of the questioned amount. In this view of the matter, I am satisfied that the learned lower appellate Court was quite justified to decree the suit of the respondents/plaintiffs on the valid reasons.

5. There is yet another aspect of the case that the impugned judgment and decree dated 10.12.2009, at the most, was revisable against which the remedy was available under Section 115 of the Civil Procedure Code, 1908, but the period of 90 days prescribed for the same having been already expired, even the petition for obtaining certified copy was moved on 18.3.2011, which was supplied on 22.08.2011 and apparently to avoid the said lapse, the petitioner chose to file the instant constitutional petition on 26.09.2011. It is settled principle that in the presence/availability of the alternate appropriate remedy, the constitutional jurisdiction of this Court cannot be invoked. This Court is cognizant of the fact that this writ petition can also be converted into revision petition, but that would be hit by the limitation, which cannot be condoned automatically unless the delay of each and every day is specifically explained by moving an application in this behalf and the same is lacking in the instant case.

6. Resultantly, the instant writ petition being not maintainable as well as on merits is dismissed in limine.

(R.A.) Petition dismissed

PLJ 2017 Lahore 301 (DB) [Multan Bench Multan]

Present: Mazhar Iqbal Sidhu and Asjad Javaid Ghural, JJ.

MUHAMMAD MAJID--Petitioner

versus

STATE and 16 others--Respondents

W.P. No. 183 of 2016, heard on 19.1.2017.

Constitution of Pakistan, 1973--

----Art. 199--Criminal Procedure Code, (V of 1898), S. 561-A--Anti-Terrorism Act, (XXVII of 1997), S. 6--Transferred case to Court of ordinary jurisdiction--Varies of order was challenged--Elimination of terrorism, sectarian violence and for expeditious dispensation of justice--Personal enmity--No residential house was found in all four sides--Cross firing--Validity--Specific motive intent for commission of offence is quite relevant conferring jurisdiction on A.T.C.--Act committed must be designed to create sense of insecurity and to destabilize public at large as envisaged under Section 6 of Act but in instant case no such sense of insecurity had been created to destabilize general public, same was allegedly under personal vendetta and enmity on land dispute which resulted alleged occurrence--Petition was dismissed. [P. 304] A

Rana Muhammad Nadeem Kanjoo, Advocate for Petitioner.

Rana Muhammad Arif Kamal Noon, Advocate for Respondents Nos. 4, 5 & 7 to 9.

Mr. Mazhar Jameel Qureshi, AAG for State.

Date of hearing: 19.1.2017.

Judgment

Asjad Javaid Ghural, J. Through this Constitutional petition, under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 read with Section 561-A, Cr.P.C., petitioner Muhammad Majid has challenged the varies of order dated 17.12.2015 passed by the learned Special Judge Anti-Terrorism Court-I Multan, whereby the learned Special Judge has transferred the case to the Court of ordinary jurisdiction.

1. Brief facts of the care are that the petitioner got lodged a case FIR No. 132/2015 dated 19.04.2015 in respect of offences under Sections 302, 324, 148, 149, 109, 404, 337-F(vi), 411, PPC & 7-ATA, 1997 of the Anti-Terrorism Act, 1997 at Police Station Saddar District Lodhran , alleging therein that the property of the sister of complainant Mst. Kousar Bibi is situated in Mouza Kamal Pur Jatyal. On 19.04.2015, the complainant along with her sister, his nephew namely Asghar Hasnain alias Raju present in their field to look after their wheat crops. In the meanwhile, eight nominated accused namely, Tasadaq Hussan, Khizer Hussain Shah, Sabir, Luqman, Mehran, alias Keemi, Nazir Ahmed, Afzal, Tariq and eight unknown accused persons armed with fire-arm weapons entered into the fields of the complainant and started harvesting the wheat crop of the complainant. On resistance Khizar Shah accused made fire shot which hit at the left shoulder and neck of Asghar Hasnain alias Raju. On seeing the occurrence Ali Shehzad, Shehbaz, Jam Munir were attracted at the place of occurrence upon which Tasadaq Hussain accused made a fire, which landed at left thigh and right leg of Ali Shehzad. Mst. Kausar Bibi also sustained injuries at the hands of Luqman alias Chotu accused. Ali Shehzad and Asghar Husnain alias Raju succumbed to the injuries at the spot, whereas Muhammad Afzal from the accused side also sustained injuries and died at the spot. After hearing the firing in the vicinity sense of fear and insecurity created in the general public. Hence, this case was registered.

2. After completion of investigation the challan was submitted before the learned Special Judge Anti-Terrorism Court Multan, by the Investigating Officer and challan in cross-version had also been submitted in the said Court, where an application on behalf of the accused persons of FIR was preferred before the Trial Court under Section 23 of the Act ibid for transfer of above said case into the Court of ordinary jurisdiction. Ground urged that as no such provision of Anti-Terrorism Court was attracted in this case which could bring the case under the ambit of any of the provisions of Anti-Terrorism Act, 1997. The said application was accepted, while exercising of powers under Section 23 of the Act ibid. Both the challans of FIR and that of the cross-version were sent to the District Public Prosecutor Lodhran for its submission to the Court of ordinary jurisdiction vide impugned order dated 17.12.2015.

3. Learned counsel for the petitioner submits that it was a highhandedness of the accused party of the FIR; that they were sixteen in numbers and had made indiscriminate firing after having entered into the land of the complainant; that they had tried to forcibly cut the wheat crop by means of harvester and on resistance, they committed the murder of two innocent persons and also caused injuries to Kausar Bibi sister of the complainant. Though one of the accused persons had also been murdered at the place of occurrence but that was due to firing of his own companions. It is further contended that from the day one the FIR was lodged under Section 7-ATA along with other enabling provisions of Pakistan Penal Code, the challan was also submitted in said Sections and to transfer the case to the Court of ordinary jurisdiction is without any force. Due to firing of accused persons sense of insecurity in the general public had been created especially the persons residing in the vicinity. It was a fit case of terrorism as defined under Section 6 of the Act ibid. Learned counsel for the petitioner has placed reliance on the case titled “Mirza Shaukat Bag vs. Shahid Jamil” PLD 2005 S.C 530.

4. Learned Deputy Prosecutor Prosecutor-General assisted by the learned counsel for the complainant have argued that the Trial Court has rightly exercised his powers vested under Section 23 of the Act ibid and transmitted the case to the Court of ordinary jurisdiction; that the place of occurrence was an open area and no residence near the place of occurrence has been shown in the site-plan; that the village abadi and main road was at least eight to ten kilometers away from the place of occurrence and the occurrence has taken place due to land dispute between the parties. Learned counsel for the accused claimed to be their own land where the instant occurrence has taken place. Learned Law Officer strongly supported the impugned order while placing reliance on the case titled “Khuda-E-Noor vs. The State” (PLD 2016 S.C 195).

5. I have heard the learned counsel for the petitioner, learned Deputy Prosecutor General assisted by the learned counsel for the respondents and have perused the record.

6. It is an admitted fact that the occurrence had taken place due to personal enmity between the parties and the place of occurrence was an open area where no residential house was found in all the four sides. The Abadi Deh and main road is at least eight to ten kilometers away from the place of occurrence. It was a cross firing between two rival groups, where two persons have allegedly been murdered from the petitioner’s side and one from the respondents. Police came at the spot who secured one empty of 30-bore pistol and three of .12-bore gun from the place of occurrence and during the course of investigation some of the nominated accused had been found not involved in the alleged occurrence. From the facts and circumstances of the case the provision as contained in Section 6 of the Anti-Terrorism Act 1997 cannot be incorporated in the alleged occurrence. The words “designed to” create a sense of fear and insecurity in the mind of the general public can only be adjudged by taking in view the impact of the alleged offence and manner of the commission of alleged offence. The Anti-Terrorism Court Act was brought into force for the prevention and elimination of terrorism, sectarian violence and for expeditious dispensation of justice in a heinous offences as stipulated in the Act itself.

7. The specific motive intent for commission of the offence is quite relevant conferring jurisdiction on the Anti-Terrorism Court. The Act committed must be designed to create sense of insecurity and to destabilize the public at large as envisaged under Section 6 of the Act ibid but in the case in hand no such sense of insecurity had been created to destabilize the general public, the same was allegedly under personal vendetta and enmity on land dispute which resulted the alleged occurrence. The place where this occurrence had taken place and the reasons behind the occurrence constrained us not to interfere in the order impugned. We do not find any illegality strong irregularity or perversity in the impugned order which is unexceptional and ‘do not warrant any interference, therefore, the petition in hand is dismissed without having any substance.

(R.A.) Petition dismissed

PLJ 2017 Lahore 305 [Multan Bench Multan]

Present: Mudassir Khalid Abbasi, J.

BANK OF PUNJAB, etc.--Petitioners

versus

ADDITIONAL DISTRICT JUDGE, etc.--Respondents

W.P. No. 18653 of 2016, decided on 4.1.2017.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Principle of merger--Execution petition--Limitation--Question of--Whether period of limitation for filing of execution petition shall be reckoned from date of decision--Determination--Principle of merger shall not apply and date of decree by trial Court shall be taken into account for purposes of filing execution petition--Where first appellate Court had decided appeal on merits, principle of merger shall apply. [P. 307] A & B

2013 SCMR 5, ref.

Limitation Act, 1908 (IX of 1908)--

----Ss. 48 & 181--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Execution petition--Limitation--Inadvertence--Period of three years shall govern for filing of execution petition of decree--Validity--Period between dismissal of appeal by first appellate Court and filing of execution petitions is around four months which is well with time for purpose, of filing an execution petition--Executing Court has, probably, due to inadvertence mentioned Section 48 of Limitation Act, instead of Art. 181 of Act. [P. 308] C & D

Rana Asif Saeed, Advocate for Petitioners.

Date of hearing: 4.1.2017.

Order

This single order will dispose of Writ Petitions No. 18653 of 2016 and 18654 of 2016 involving common questions of law and facts.

1. Through these constitutional petitions, petitioners have challenged the legality of orders dated 16.09.2016 passed by Respondent No. 2 whereby objection petitions filed by petitioners were dismissed and judgment dated 28.11.2016 whereby appeals filed by petitioners against the said orders, were also dismissed.

2. Precise summary of the case is that in two separate suits for recovery filed by Respondent No. 2 in both the petitions, learned trial Court passed decree amounting to Rs. 14,80,000/- and Rs. 1,60,000/- in their favour respectively Execution petitions were filed before Respondent No. 2/executing Court, on 27.02.2016. Petitioners filed objection petitions against the same, inter alia on the grounds that these are hopelessly time barred and proper parties have not been impleaded Respondent No. 3 (in both the writ petitions), resisted the objection petitions and filed written replies. Through impugned orders dated 16.09.2016, Respondent No. 2 dismissed these objection petitions, filed by the petitioners. Appeals filed by the petitioners against the said orders were also met with the same fate vide impugned judgments dated 28.11.2016 passed by Respondent No. 1. Resultantly, petitioners have filed the present petitions only to the extent of question of limitation.

3. Learned counsel for petitioners argued that impugned judgments and orders passed by Respondents No. 1 & 2 respectively, in both the writ petitions are against the law and facts of the ease. Further argued that execution of decree could have been brought within three years of passing the decree and there is a delay of about one and half year. Therefore, the impugned orders dated 16.09.2016 and judgments dated 28.11.2016 passed by Respondents No. 1 and No. 2 respectively are liable to be set aside. Learned counsel has placed reliance on “Pakistan Burma Shell Company Now/Shell Pakistan Ltd through Legal Advisor/General Attorney Shell Pakistan Shell. Karachi v. Messrs Nawaz and sons through Proprietor and another” (2016 MLD 1779), “Manzoor Ellahi Qareshi through Legal Heirs v. Muhammad Bilal Abbas and 2 others” (2012 CLC 1227) and “Mahboob Khan v. Hassan Khan Durrani” (PLD 1990 SC 778).

4. Arguments heard. Record perused.

5. At the outset, learned counsel for the petitioners was confronted with the maintainability of these writ petitions, however, without dilating upon technical knockout, I would prefer to decide the controversy on merits as these writ petitions are filed within a period in which the petitioners could have availed the opportunity of revision under Section 115, CPC.

6. Primary and critically important question involved in these cases is that as to whether the period of limitation for filing of execution petition shall be reckoned from the date of decision of appeal by the lower appellate Court/Respondent No. 1 i.e. 26.10.2015 or 12.11.2011, the date, when both the suits were decreed by the trial Court.

7. Learned counsel for the petitioners has placed reliance on a judgment of this Hon’ble Court cited as “Pakistan Burma Shell Company Now/Shell Pakistan Ltd through Legal Advisor/General Attorney Shell Pakistan Shell Karachi v. Messrs Nawaz and sons through Proprietor and another” (2016 MLD 1779), which in my opinion is of no help to the petitioners on two Counts, firstly because in the said judgment appeal filed before the first appellate Court was neither modified nor reversed nor affirmed as the appeal was withdrawn.

Therefore, it was observed that in such eventuality principle of merger shall not apply and the date of decree by the trial Court shall be taken into account for the purposes of filing execution petition. Secondly, contrary to the stance of the petitioner, in this judgment it has been explicitly and categorically observed that where the first appellate Court had decided the appeal on merits, principle of merger shall apply. This view has been affirmed in judgment cited as “Bakhtiar Ahmed v. Mst. Shamin, Aktar and others” (2013 SCMR 5) as under:

“Limitation for filing execution application to commence from date of accrual of right--Partial decree was passed in favour of plaintiff (petitioner) by the High Court on 17-3-2003--Defendant (respondent) filed petition for leave to appeal before the Supreme Court which was dismissed on 31-3-2005 and leave was refused--Execution petition was filed by plaintiff on 3-12-2007 but it was dismissed by the Executing Court being time barred--First Appellate Court and High Court upheld order of Executing Court and dismissed appeals filed by plaintiff--Contention of plaintiff was that after dismissal of defendant’s petition for leave to appeal, he filed execution petition within the allowed time of three years, and that under Ss. 47 & 48(2), C.P.C. execution petition could be filed within six year Defendant’s petition for leave to appeal was dismissed on 31-3-2005 and no stay was granted by the Supreme Court--Plaintiff could have filed execution petition within three years w.e.f. 17-3-2003, the date of judgment of the High Court which, had attained finality--Under Art. 181 of the Limitation Act, 1908, period of limitation of three years for filing of execution application would commence from the date of accrual of right, which, in the present case, was 17-5-2003 when partial, decree was passed by the High Court:

In another judgment cited as 2003 SCMR 436, it has been observed that:

“Appeal being continuation of suit decree, in suit would only be finalized on the disposal of appeal as the decree of Court of first instance would merge into decree of Appellate Court, which alone could be executed. However, till the time, appeal or revision was not filed or such proceedings were pending and no stay order was issued, the decree would remain capable of execution, but if the decree was under challenge in pending appeal or revision and was not executable, the decree ultimately passed by the Court of last instance in appeal or revision as the case may be, would be executed irrespective of the fact that decree of the lower Court was modified, affirmed or reversed. Thus, if decree, was under challenge in appeal and could, not be executed, the limitation for filing an execution petition would not run against the decree-holder pending disposal of appeal.”

1. Learned counsel for the petitioners while vehemently arguing his case has placed reliance on (PLD 1990 SC 778) titled as “Mehboob Khan v. Hassan Khan Durrai” which according to my view is inapt and not applicable to the case in hand reason being, that Section 48 of Civil Procedure Code is the subject matter of the said judgment which deals with an altogether different situation. Moreover, it has only been observed in this judgment that residuary Article 181 of Limitation Act prescribing a period of three years shall govern for filing of execution petition of’ a decree. As to whether limitation shall commence from the date of decision of the appellate Court, keeping in view the principle of merger, was not the subject matter of said pronouncement.

2. Now coming to the legal as well as factual aspect of the case in hand, admittedly, both the decrees were passed on 12.11.2011 by the learned trial Court/civil judge and appeals were dismissed on 26.10.2015 by Respondent No. 1/first appellate Court, in between according to the counsel for the petitioner, decree remained suspended. Whereas execution petitions were filed by the decree holders/ Respondent No. 3 in both the petitions on 27.02.2016. Period between dismissal of appeal by the learned first appellate Court/Respondent No. 1 and filing of execution petitions is around four months which is well within time for the purpose of filing an execution petition. I may observe here that the executing Court in the impugned order dated 16.09.2016 has, probably due to inadvertence mentioned Section 48 of the Limitation Act instead of Article 181 of the Act ibid.

3. Keeping in view the law laid down in the afore-cited judgments and what has been discussed above, I am not persuaded to interfere with the judgments/orders of both the Courts below. Consequently, both these petitions do not succeed and dismissed in limine with no order as to cost.

(R.A.) Petition dismissed

PLJ 2017 Lahore 309

Present: Shahid Karim, J.

FAISALABAD ELECTRIC SUPPLY COMPANY through Director--Petitioner

versus

MUHAMMAD JAMIL and 6 others--Respondents

W.P. No. 32696 of 2016, decided on 31.10.2016.

Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997--

----S. 38(3)--General Clauses Act, 1897, S. 24-A--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--No jurisdictional defect--Order of NEPRA was challenged--Complaint was filed against officer not against company--Invalid and incompetent--There is no requirement in law that company ought to be made a party to proceedings and no complaint before NEPRA can be filed in respect of officers of FESCO--Impugned order passed by NEPRA is not a speaking order and offends rule enshrined in Section 24-A of General Clauses Act, 1897--Order is based on reasons, and in fact order passed by electric inspector has been set-aside on two counts.

[P. 310] A, B & C

Ch. Faiz Ahmad Sangherah, Advocate for Petitioner.

Date of hearing: 31.10.2016.

Order

This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 seeks to challenge the order dated 11.05.2016 passed in appeal by National Electric Power Regulatory Authority (“NEPRA”). The appeal was filed against the order passed by the Provincial Office of Inspection/Electric Inspector/Faisalabad Region, Faisalabad under Section 38(3) of the Regulation of Generation, Transmission and Distribution of the Electric Power Act, 1997 (“Act, 1997”).

1. I have heard the learned counsel for the petitioner and do not find any jurisdictional defect to have crept in the concurrent findings of fact rendered by the Electric Inspector and affirmed by the Appellate Board of NEPRA in appeal.

2. The learned counsel for the petitioner submitted that there was an outer time limit of 90 days for decision by the Electric Inspector which has not been observed and which rendered the decision of the Electric, Inspector a nullity. This submission of the learned counsel has been dealt with by the Appellate Board and in any case is fallacious. The short and simple answer rendered by the Appellate Board was that the decision was made under Section 38 of the Act, 1997 and not in terms of Section 26 of the Electricity Act, 1910. Therefore, the outer time limit of 90 days was inapplicable.

3. The learned counsel next contended that the complaint had to be filed against the company (the petitioner herein) and the fact that it was filed against the officers and not against the company renders it invalid and incompetent. This submission of the learned counsel once again is without any basis. A perusal of the complaint shows that the FESCO has been made Respondent No. 1 and has been sued through its Chief Executive Officer. Thus the company which is the petitioner is a party to the proceedings.

4. Be that as it may, there is no requirement in law that the company ought to be made a party to the proceedings and no complaint before NEPRA can be filed in respect of the officers of FESCO.

5. Lastly, the learned counsel submitted that the impugned order passed by NEPRA is not a speaking order and offends the rule enshrined in Section 24-A of the General Clauses Act, 1897. However, a reading and analysis of the impugned order passed by NEPRA would show that the order is based on reasons, and in fact the order passed by the Electric Inspector has been set-aside on two counts at least which shows an application of independent mind. The learned counsel for the petitioner has relied upon case law which need not be adverted to as the precedents cited by the learned counsel are not applicable to the facts and circumstances of this case.

6. In view of the above, this petition is without merit and is dismissed.

(R.A.) Petition dismissed

PLJ 2017 Lahore 311 (DB) [Multan Bench, Multan]

Present: Qazi Muhammad Amin Ahmed and Ch. Mushtaq Ahmad, JJ.

NAB through D.G. NAB Lahore--Petitioner

Versus

JUDGE ACCOUNTABILITY COURT, etc.--Respondents

W.P. No. 10834 of 2016, decided on 16.11.2016.

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

----Ss. 9 & 10--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Corruption and corrupt practices--Fundamental rights--Process of law--NAB reference--Summoning at pre-judgment stage--Ill-gotton gains and retention by proxies cannot be determined after announcement of guilty verdict--Validity--Any such determination adversely impinging upon proprietary rights of a person is to be adjudged on strength of evidence during course of trial itself after affording him an opportunity to defend his title; it cannot be held in abeyance to a stage subsequent to announcement of judgment--Question of retention of assets/properties by a person other than accused, having nexus with indictment and believed to have been acquired through corruption or corrupt practices is to be essentially agitated during trial so as to be decided alongside indictment--Order is set aside with a direction to attend issue after affording opportunity of hearing. [Pp. 312 & 313] A & C

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

----S. 369--National Accountability Ordinance, 1999, S. 17--Corruption and corrupt practices--Mutatis mutandis application--Piecemeal adjudication and issue was remainded for decision afresh--After announcement of judgment, bar provided under Section 369 of Cr.P.C. would come into play and no alteration with regard to punishment in terms of forfeiture could be made therein.

[Pp. 312 & 313] B

2009 SCMR 790, 2010 SCMR 713 & 2012 PCr.LJ 1983, rel.

Messrs Muhammad Rasheed Qamar, DPG and Muhammad Akram Rao, Special Prosecutor, NAB.

Mr. Muhammad Nawaz Choudhry, Advocate for Respondents No. 4 and 6.

Mr. Muhammad Suleman Bhatti, Advocate as amicus curiae

Date of hearing: 16.11.2016

Order

Impugned herein is order dated 19-5-2016 passed by the learned Judge Accountability Court Multan whereby he declined to send for the respondents in pending NAB Reference No. 4 of 2014 being “Bainamidarans” of Qutab Ali accused confronting indictment before him on the ground that their summoning at pre-judgment stage would bring them into the array of accused and that “if at the end accused is convicted and sentence of forfeiture of his assets is likely to be imposed, then such “Bainamidaran” may be asked to explain their position and such a sentence of forfeiture of assets of an accused”.

Learned Law Officer contends that issue of trial of an accused for ill-gotten gains and retention thereof by his proxies cannot be determined/decided in piecemeal, as according to him, after announcement of a guilty verdict, the Court would become functusofficio and as such it needs to be simultaneously adjudicated at the time of announcement of a judgment after affording an opportunity of hearing to a person likely to be adversely effected therefrom; the same view has been canvassed by Mr. Muhammad Suleman Bhatti appointed as an amicus curiae by the Bench.

The respondents have contested the plea on the ground that properties owned by them had no nexus with the charges being contested by the accused.

1. Heard. Record perused.

2. Corruption and corrupt practices as defined in Section 9 of the National Accountability Ordinance, 1999, hereinafter referred to as the Ordinance, include retention of assets either by the accused himself or through his proxies i.e. dependents/Bainamidars incommensurate with ostensible means and in addition thereto, Section 10 of the Ordinance ibid provides forfeiture thereof in the event of a guilty verdict and as such the determination of the issue is an integral part of the trial being indissolubly linked with the indictment with repercussions on fundamental rights guaranteed under Articles 23 & 24 of the Constitution of Islamic Republic of Pakistan, 1973 and thus can only be taken away under due process of law, therefore, any such determination adversely impinging upon the proprietary rights of a person is to be adjudged on the strength of evidence during the course of trial itself after affording him an opportunity to defend his title; it cannot be held in abeyance to a stage subsequent to announcement of judgment. Yet another reason is mutatis mutandis application of provisions of the Code of Criminal Procedure 1898 (Act V of 1898) under Section 17 of the Ordinance, in view whereof, after announcement of the judgment, the bar provided

under Section 369 of the Code ibid would come into play and no alteration with regard to punishment in terms of forfeiture could be made therein. Reliance is placed in the cases of Syed Qaim Shah vs. The State (2009 SCMR 790), Syed Zahir Shah & others vs. National Accountability Bureau and others (2010 SCMR 713) and Tariq Sultan & others vs. National Accountability Bureau through Chairman & 2 others (2012 P.Cr.L.J. 1983). In the last case, a learned Division Bench of this Court after acquittal of accused quashed issuance of notices to the Bainamidars, called upon to justify ownership of assets/properties suspected to have been acquired through means other than valid. In the case of SyedZahir Shah & others supra, piecemeal adjudication was set aside and the issue was remanded for decision afresh. Thus, we feel no hesitation to hold that question of retention of assets/properties by a person other than the accused, having nexus with indictment and believed to have been acquired through corruption or corrupt practices is to be essentially agitated during the trial so as to be decided alongside the indictment. Consequently, order dated 19-5-2016 is set aside with a direction to the learned trial Court to attend the issue after affording opportunity of hearing to the respondents for decision in accordance with law.

(R.A.) Order accordingly

PLJ 2017 Lahore 313 (DB)

Present: Shahid Karim and Jawad Hassan, JJ.

NATIONAL BANK OF PAKISTAN through President National Bank of Pakistan, Karachi and 2 others--Appellants

versus

IFTIKHAR RASOOL ANJUM and others--Respondents

I.C.A. NoS. 120 and 128 of 2016, decided on 16.1.2017.

Official Gazette--

----Scope--Publication of notification in official gazette was not sine qua non for its legal validity, efficacy and its non-publication was of no consequence. [P. 333] A

Banks Nationalization Act, 1974 (XIX of 1974)--

----S. 20--Non-publication of notification in official gazette--Validity--Being statutory in nature, cannot be set aside or not to be implemented merely on ground of non-publication in official gazette, being a procedural formality. [P. 333] B

1991 SCMR 104, ref.

Superannuation Pension--

----Scope of--Amount of pension payable is determined by length of completed years of qualifying service put in by Government servant, subject to formula then in existence providing mode of calculation of pension as prescribed by rules--Right to receive pension flows directly out of rules applicable and not out of any order of any officer or authority, though for purposes of determining or quantifying amount it may be necessary for authorities to pass such order. [P. 335] C

Constitution of Pakistan, 1973--

----Arts. 23 & 24(1)--National Bank of Pakistan Ordinance, 1949, Scope of--N.B.P. Employees Pension Provident and Guarantee Rules, 1958, Scope--National Bank of Pakistan (Staff) Service Rules, 1973--Scope of--Superannuation pension--Retired officials of bank--New pension scheme--Right to receive pension by government servant--Right to receive pension by a Government servant is property so as to attract Arts. 23 and 24(1) of Constitution and any illegal denial to a Government servant to receive same would affect his fundamental right guaranteed under provisions of Constitution--Existing provisions and any change or revision in scale of pension may hereafter be made by Federal Government, which shall also apply to officers/executives of NBP--Acts performed by Government while using statutory powers deserve due regard by Courts and every possible explanation for their validity would be explored and whole gamut of powers which Government act or perform their functions and discharge its duties should also be examined.

[Pp. 335 & 337] D, E & F

Banks Nationalization Act, 1974 (XIX of 1974)--

----S. 20--Employees of bank--Superannuation pension--Decision of board of directors, no value in presence of statutory provisions and guarantees--Validity--No decision detrimental to interest of employees could have been taken without bringing amendments in statute and board of directors through arbitrary, colourable and illegal exercise of authority surprised and shocked employees by reducing pension factor and started paying same even without approval from Federal Government--Decision of board of directors was unprecedented, polluted, offensive to Constitutional guarantees and was in violation of principles of natural justice and fanciful--Hence, decision was set aside. [Pp. 338 & 339] G

Pension--

----Employees of NBP--Board of director--Employees of NBP are entitled to same pension as is announced by Government circular and board of directors of NBP is bound to follow such announcement of Government in respect of such employees, rather than reducing same through their own order. [P. 339] H

Civil Servants Act, 1973 (LXXI of 1973)--

----Ss. 3(ii) & 9(b)--Department circular--Terms and conditions of service--Pension--No lawful authority to lay down policy, unless same was approved by established division with Rules of Business--Status of statutory instrument--Ex-post facto approval to such circular would not make circular valid and legal which had no legal backing--Board of bank in garb of its general empowerment of policy making, superintendence and managing affairs of business could not rescind, replace, substitute and/or vitiate 1977 Circular and 1977 notification--Circular had not been composed/enforced with prior approval of Government or any subsequent benediction was conferred to those by Government--It is an admitted and undisputed factual reality that after commencing day of 1977 notification and 1977 Circular, they were validly in force and for all intents and purposes were serving as conclusive terms and conditions in regard to pension of NBP Officers--Intention behind issuing same was to discontinue existing schemes of pension, implemented through notification and 1977 Circular, and was to be made them inoperative qua employees of NBP--Only Government had powers to fix an amount of pension, increase same, bring about changes therein from time to time and prescribe method for its calculation in absence of any bar or restriction--Circular having not been approved by Government is devoid of its legal status and is, therefore, of no legal authority as to 1977 Notification and 1977 Circular--Department had no lawful authority to lay down policy, unless same was approved by Government in accordance with relevant law on subject--Board of directors they in their capacity had got no lawful authority to rescinded earlier statutory decision without following course of law.

[Pp. 340, 341, 342 & 343] I, J, K, L, M, N & O

Banks Nationalization Act, 1974 (XIX of 1974)--

----S. 20--Pension--Superannuation--Employees of bank--Power of federal government--Substitute statutory rules--Powers of Federal Government under Section 20, Act remains intact to that day and any act accomplished in exercise of powers would continue to occupy field and Board cannot conceivably have powers to override that act of Government--If such were permitted, it would be tantamount to making a mockery of exercise of statutory powers by Federal Government--There is no cavil that Board will have all powers conferred upon it and 1997 amendment merely applies only to limit that they do not come in conflict with powers of Federal Government. [P. 343] P

Restoration of Pension--

----Scope of--Contention--Matter of restoration of pension formula in accordance with policy of Government had been a disputed matter and demand of officers was under consideration when at last final decision was made which was too not in accordance with Government policy. [P. 345] Q

Pension--

----Limitation--In case of pay and pension no question of limitation arises. [P. 345] R

Financial Nature--

-----Limitation--Where cause of grievance was continual and of financial nature, limitation could not be applied. [P. 347] S

Rule of Laches--

----Condonation of delay--Question of--Whether person invoking Constitutional jurisdiction of Supreme Court has been utterly indolent in agitating his right and has slept over--Findings cannot be set aside on technical grounds--Court would, therefore, refrain from disturbing findings of single judge--Question was not raised before judge and hence, cannot be raised at appellate forum--Impugned judgment has been passed in consonance with spirit of law and does not suffer from any legal infirmity, as such same is hereby upheld--I.C.A. as well as appeals were hereby dismissed.

[P. 349] T & U

Khawaja Haris Ahmad, Senior Advocate, Kh. Muhammad Farooq Mehta, Senior Advocate Mr. Isaam Bin Haris, Mr. Ghulam Subhani & Mr. Abid Hussain, Advocates for Appellants.

Mr. Salman Akram Raja, Ch. Muhammad Akhtar, Mr. Umar Hayat Khawaja, Mr. Adnan Ahmad Khawaja, Sardar Faiz Rasool Khan Jalbani, Ms. Tabinda Islam, Mr. Tariq Bashir, Mr. Bilal Bashir, Ch. Zulfiqar Ali & Mr. Anis Ali Hashmi, Advocates for Respondents.

Dates of hearing: 21, 22, 26, 27 & 28.12.2016.

Judgment

Jawad Hassan, J.--Through this Intra Court Appeal, the Appellant, namely the National Bank of Pakistan (NBP), has called in question judgment rendered in Constitutional Petitions, including W.P. No. 8260/2014, W.P. No. 31187/2013, W.P. No. 19765/2010, W.P. No. 13400/2010, W.P. No. 13401/2010, W.P. No. 21843/2010, W.P. No. 22757/2010, W.P. No. 8730/2013, W.P. No. 8731/2013, W.P. No. 25207/2013, W.P. No. 27942/2013, W.P. No. 28452/2013, W.P. No. 29211/2013, W.P. No. 29217/2013, W.P. No. 29717/2013, W.P. No. 30704/2013, W.P. No. 32081/2013, W.P. No. 1111/2014, W.P. No. 1112/2014, W.P. No. 2588/2014, W.P. No. 2590/2014, W.P. No. 3209/2014, W.P. No. 3209/2014, W.P. No. 5903/2014, W.P. No. 5907/2014, W.P. No. 7246/2014, W.P. No. 8724/2014, W.P. No. 8798/2014, W.P. No. 8956/2014, W.P. No. 8958/2014, W.P. No. 9029/2014, W.P. No. 9551/2014, W.P. No. 10590/2014, W.P. No. 10925/2014, W.P. No. 2259/2013 and W.P. No. 19091/2015, which were heard on 30.7.2015 and 15.10.2015, and a consolidated judgment was pronounced on 15.01.2016 by the learned Single Judge in Chamber (the “Impugned Judgment”), whereby Constitutional Petitions filed by the Respondents/ Petitioners were allowed and the Appellant/Respondent was directed to release pensionary benefits of the Respondents/Petitioners in accordance with Circular No. 228 (C) dated 26.12.1977 issued by the Appellant/Respondent within two months from the date of the decision.

1. This judgment shall also render decision on connected Appeals bearing numbers I.C.A. No. 121/2016, I.C.A. No. 122/2016, I.C.A. No. 123/2016, I.C.A. No. 124/2016, I.C.A. No. 125/2016, I.C.A. No. 126/2016, I.C.A. No. 127/2016, I.C.A. No. 128/2016, I.C.A. No. 129/2016, I.C.A. No. 130/2016, I.C.A. No. 131/2016, I.C.A. No. 132/2016, I.C.A. No. 133/2016, I.C.A. No. 134/2016, I.C.A. No. 135/2016, I.C.A. No. 136/2016, I.C.A. No. 137/2016, I.C.A. No. 138/2016, I.C.A. No. 139/2016, I.C.A. No. 140/2016, I.C.A. No. 141/2016, I.C.A. No. 142/2016, I.C.A. No. 143/2016, I.C.A. No. 144/2016, I.C.A. No. 145/2016, I.C.A. No. 146/2016, I.C.A. No. 148/2016, I.C.A. No. 149/2016, I.C.A. No. 150/2016, I.C.A. No. 151/2016, I.C.A. No. 152/2016, I.C.A. No. 153/2016, I.C.A. No. 154/2016, I.C.A. No. 155/2016, I.C.A. No. 156/2016, I.C.A. No. 460/2016, I.C.A. No. 461/2016, I.C.A. No. 462/2016, I.C.A. No. 463/2016, I.C.A. No. 464/2016, I.C.A. No. 991/2016.

2. Brief facts for the disposal of instant Intra Court Appeals filed under Section 3 of Law Reforms Ordinance, 1972 are that the Respondents/Petitioners are retired officials/officers of Appellant/ Respondent which was constituted under the National Bank of Pakistan Ordinance, 1949 and was governed by the NBP Employees Pension Provident and Guarantee Rules, 1958 and the National Bank of Pakistan (Staff) Service Rules, 1973 made thereunder, duly approved by the Federal Government of Pakistan. During their service with the NBP, the Federal Government launched a new pension scheme which was circulated by NBP vide Instruction Circular No. 228 (C) dated 26.12.1977. As per Clause 4(b) of the said Circular, the pension of the retired employees of NBP was to be enhanced at the rate of 70% of average emoluments on completion of 30 years qualifying service. The Respondents/Petitioners opted for the aforesaid Scheme. In para-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 officers/executives of the Bank. In the year 1999, the Management of the NBP issued another Instruction Circular No. 37/1999 dated 16.06.1999, whereby the pension was reduced to almost 33% as against 70% and basic pay was increased, which was assailed in the Constitutional Petitions, which ultimately were allowed through the Impugned Judgment. Hence, this Intra Court Appeal.

3. After hearing the arguments of the parties at length on 21.12.2016, 22.12.2016, 26.12.2016, 27.12.2016 and 28.12.2016 following moot points arising out of instant Intra Court Appeals requiring determination upon which through this judgment, the decision shall be rendered by us:

A. Whether the Instruction Circular No. 228 (C) dated 26.12.1977 is a statutory instrument, having backing of law, or merely executive instrument issued by the Federal Government?

B. Whether the Instruction Circular No. 37/1999 dated 16.06.1999 issued by the Board of Directors of NBP repeals and overrides the Circular No. 228(C) dated 26.12.1977?

C. Whether the principle of Estoppel is attracted in the instant appeal?

D. Whether the petitions suffer from Laches and are liable to be dismissed?

1. Before proceeding further with the matter for determination of above-mentioned points, it is essential to briefly have a look upon the legislative history of entire NBP laws, rules, regulations and circulars:

A. THE ESSENTIAL HISTORY OF LAWS RELATING TO THE NATIONAL BANK OF PAKISTAN:

(i) On 09.11.1949, the first legislation in respect of the National Bank of Pakistan (NBP) was promulgated, namely National Bank of Pakistan Ordinance, 1949 (the “1949 Ordinance”), to extend banking facilities generally and under Section 3 of the 1949 Ordinance, NBP was constituted to carry on the business of banking. Under Section 12 of the 1949 Ordinance, “the general superintendence and direction of the affairs and business of the Bank shall be entrusted to the Central Board, which may exercise all powers and do all such acts and things as may be exercised or done by the Bank and are not by this Ordinance expressly directed or required to be done by the bank in general meeting.” Further, under Section 26(A)(2) of the 1949 Ordinance, the NBP was authorized to “grant or subsidise, from time to time, pensions, gratuities, bonuses or other funds created for the benefit of its officers and staff or their dependents”. Further, under Section 32 of the 1949 Ordinance, the Central Board was authorized, with the previous approval of the Federal Government (Central Government at that time), to make bye-laws not inconsistent with this Ordinance. It was made clear in Section 32(2)(xxviii) of the 1949 Ordinance that such bye-laws may provide for “the recruitment of officers and staff of the bank including the terms and conditions of their service, and the constitution and management of staff and superannuation funds for the officers and servants of the Banks”.

(ii) In 1958, the NBP Employees Pension Provident and Guarantee Rules, 1958 (the “1958 Rules”) were made by the Central Board under Bye-Law 18(a)(V) of the NBP Bye Laws, with the prior approval of the Central Government. The 1958 Rules created ‘the National Bank of Pakistan Employees’ Pension Fund’, with the objective to provide every employee, who was a member of the Fund with a pension, the amount of which was to be ascertained according to 1958 Rules. Importantly, Rule 17 of the 1958 Rules stated that the pension shall be payable at the rate of one seventieth part for every year’s service of the average monthly pay drawn during the last three years of service on the date of retirement. Further, Rule 18 of the 1958 Rules put a ceiling by declaring that the maximum pension shall in no case exceed Rs. 650/- per mensem.

(iii) Thereafter, in 1973, the National Bank of Pakistan (Staff) Service Rules, 1973 (the “1973 Rules”) were made by the Central Board under Bye-Law 18(a)(iii) of the National Pakistan Bye-Laws, with prior approval of the Central Government. Importantly, under Rule 4 of the 1973 Rules, the Central Board was given powers to amend, modify or omit all or any of the 1973 Rules, with the prior approval of the Federal/Central Government, as may be found necessary from time to time. As per Rule 41 of the 1973 Rules, all employees in the permanent service of NBP became members of the Bank’s Provident and Pension Funds excluding those who (i) were on contract basis, (ii) had attained age of 35 years at the time of appointment (iii) were in permanent service of NBP and drawing pension from another source.

(iv) However, on 11.03.1974, the Banks Nationalization Act, 1974 (the “1974 Act”) was enacted in public interest to provide for nationalization of the banking business in Pakistan, and Section 9 of the 1974 Act constituted/established the Pakistan Banking Council (PBC), having functions under Section 9(4) of the 1974 Act, including to make policy recommendations to the Federal Government for directing banking activities towards national socio economic objectives and for formulating policy guidelines for the banks. Section 11 of the 1974 Act provided that the Bank shall have an Executive Board consisting of a President and not less than two and not more than four other members to be appointed by the Federal Government, for general direction and superintendence of the affairs and business of the banks. Section 13 of 1974 Act provided that “… all officers and other employees of a bank, shall continue in their respective offices and employments on the same terms and conditions, remuneration and rights as a to pension and gratuity, as were applicable to them immediately before the commencing day”. Further, Section 20 of the 1974 Act provided that “The Federal Government may, by notification in the Official Gazette make rules to provide for all matters for which provision is necessary or expedient for the purpose of giving effect to the provision of this Act.”

(v) On 31.11.1977, the Government of Pakistan Finance Division (Internal Finance Wing), vide Letter No. 17(9)-IF.XI/77 (the “1977 Notification”), addressed to Chairman Pakistan Banking Council conveyed the decision to introduce pension and retirement benefits for the officers/executives of banks along the lines of those introduced by the Federal Government for civil servants and to discontinue the existing scheme of pension in NBP Contributory Provident and Gratuity Fund. The date of effect of these new Pension and retirement benefits was stipulated as May, 1977 at the replica rate and scale mentioned in below 1977 Circular.

(vi) On 26.12.1977, an Instruction Circular No. 228(C) (the “1977 Circular”) was issued, in respect of ‘Establishment of Pensions and Retirement Benefits for Officers/Executives of Banks’ (as have been introduced by the Federal Government for Civil Servants) and it was provided in Para 2 of the 1977 Circular that “ … The contribution made by the bank towards the Contributory Provident Fund shall be withdrawn as that service shall now count for the purpose of pension …” Further, Clause 4, 10 and 11 of the 1977 Circular reads as follows:

“B- RATE AND SCALE OF PENSION

1. (a) Pension shall be payable if the total service of an officer/executive at the time of retirement or death is 10 years or more. ….

(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. 1000/- shall be reduced by 50%...

…………………….

C- GRATUITY FOR SERVICE OF LESS THAN 10 YEARS BUT NOT LESS THAN 5 YEARS

1. ………………….

D- GRATUITY AND COMMUTATION FOR PENSIONERS RETIRING AFTER 10 YEARS SERVICE

1. ….

E- FAMILY PENSION

1. …………………

F- PENSIONS/GRATUITIES FOR INJURY OR DEATH IN COURSE OR CONSEQUENCE OF DUTY

1. …………………

2. …………………

3. 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 hereinafter be made by the Federal Government shall also apply to the officers/executives of the Banks.

4. The existing schemes of Pensions, Contributory Provident Fund and Gratuity shall be discontinued.”

(vii) On 18.08.1979, the Bank (Nationalization) (Amendment) Ordinance, 1979 (the “1979 Amendment”) was enacted to amend Section 9, whereby further functions of overseeing foreign operations, establishing a Research Department, establishing a Central Training Institute, acting as arbiter in inter-bank disputes, appointing lead banks in respect of consortium loans, watching the progress of the implementation of the rulings made in SPB’s inspection report were entrusted to the Pakistan Banking Council. Through the 1979 Amendment, Section 11 was also amended and sub- Sections 4-A, 4-B and 4-C were inserted as follows:

“4-A. A bank shall have a Board of Directors consisting of the President and all the other members of the Executive Boards, one member of the Council to be nominated by the Council and an official of the Ministry of Finance to be nominated by the Federal Government.

4-B. The Board of Directors shall be responsible for overall policy making in respect of the bank’s operations…….

4-C……………………”

(viii) On 01.01.1980, the National Bank of Pakistan Staff Service Rules, 1980 (the “1980 Rules”) were made by the Executive Board under bye-law 18(a) (iii) and (iv) of NBP Bye-Laws, read with Section 11(4) of the 1974 Act. While the 1980 Rules did not provide any formula for pension fixation, Rule 41 of the 1980 Rules provided that “All employees in the permanent service of the Bank shall become members of Bank’s provident Fund, Benevolent Fund, Pension/Gratuity and Group Insurance Scheme”.

(ix) On 12.01.1983, the Respondent No. 1 opted for the Item No. 2, the new retirement benefits w.e.f. 01.05.1977/01.07.1977, in exercise of the option afforded under the announcement of Instruction Circular No. 228(I) dated 03.07.1978 regarding ‘Retirement Benefits of Officers/Executives’.

(x) On 08.09.1983, another amendment vide Banks (Nationalization) (Amendment) Ordinance, 1983 (the “1983 Amendment”), was introduced by which Section 11(7-A) was inserted and it was provided that “the Chairman and a member of the Council and the President and a member of an Executive Board shall be liable to such disciplinary action and penalties, to be awarded in such manner and by such authorities, as may be prescribed”.

(xi) On 24.07.1985, an Instruction Circular No. 804(N) (the “1985 Circular”) was issued, in respect of ‘Further Liberalization of Pensions Rules, Indexation of Pension and other Allied Matters – Officers/Executives and Clerical/Non-Clerical Staff of the Bank’.

(xii) On 9.9.1986, an Instruction Circular No. 804(ZD) (the “1986 Circular”) was issued, in which further concession in pension were granted to all categories of Officers/ Executives and Clerical/Non-Clerical staff of NBP.

(xiii) On 22.09.1988, another amendment vide Banks (Nationalization) (Amendment) Ordinance, 1988 (the “1988 Amendment”) was promulgated and Section 5(6) was inserted highlighting that “the Federal Government or a corporation owned or controlled by the Federal Government may from time to time, sell all or any of its shares in the capital of a bank, other than the State Bank, to such persons, and on such terms and conditions, as it may determine.” Further, Section 9 of the 1974 Act was amended to give more power to the Banking Council, and Section 11 of 1974 Act was amended by substituting subsection (1) through which composition of Board of Directors of every bank was changed by adding, inter alia members of Banking Council and eminent persons from private sector. Further, a new sub-section 1-A was inserted which provided that “the Board shall have an Executive Committee consisting of its President, three Directors and such other senior executives of the banks as the Board may, from time to time, decide and the Executive Committee shall exercise such powers, and perform such functions as may be delegated to it by the Board from time to time.” Moreover, sub-sections (4-A) to (4-C) (earlier inserted vide 1979 Amendment) were deleted.

(xiv) On 24.01.1989, the Banks (Nationalization) (Amendment) Ordinance, 1989 (the “1989 Amendment”) was promulgated whereby Section 9 was amended and functions of Banking Council were added, while by amending Section 11. Board of Directors was constituted for every bank consisting of Executives of Banks, Chief Executives of development financial Institutions, members of Pakistan Banking Council, eminent persons from private sector and Directors from Federal Government.

(xv) On 23.11.1991, the Banks (Nationalization) (Amendment) Act, 1991 (the “1991 Amendment”) was promulgated, whereby new Sections 5-A (Sale of Shares) and 5-B (Section 5-A to have effect notwithstanding any other law etc) were inserted. Further, functions of the Council under Section 9 were revised and Section 11 was substituted, whereby Section 11(1) provided that “A bank shall have a Board of Directors consisting of the President and six other members to be nominated by the Federal Government”. Further, Section 11(2) also provided that “the general direction and superintendence of the affairs, and business of a bank, and overall policy making in respect of its operations, shall vest in the Board which may exercise all such powers and do all such acts, deeds and things as the bank was competent….to exercise or do in a meeting of the Board of Directors”.

(xvi) On 19.08.1996, an Instruction Circular No. 73/96 (the “1996 Circular”) was issued, in respect of Pension Benefits after Retirement, and it was specified that it has been decided in meeting of Presidents of NCB at PBC on 18.04.1996 to allow some benefits of revision of pay scales in pension/commutation to those Banks employees, who have retired one year preceding the revision of pay scales in Banks.

(xvii) On 10.06.1997, the Banks (Nationalization) (Amendment) Act, 1997 (the “1997 Amendment”) was enacted whereby Section 9 was replaced to dissolve Pakistan Banking Council forthwith, and all assets, properties, rights of the Council, all liabilities and encumbrances were transferred to State Bank. Further, Section 11 was also substituted, under which sub-section (4) provided that “the general direction and superintendence of the affairs and business of a bank, and overall policy making in respect of its operations, shall vest in its Board.” Importantly, new sub-section (1) of Section 11 provided that “All selections, promotions and transfers of bank except the President and decisions as to their remuneration and benefits shall be made by the President in accordance with the evaluation criteria and personnel policies determined by the Board”.

(xviii) On 16.06.1999, an Instruction Circular No. 37/99 (the “1999 Circular”) was issued, through which the Board of Directors of the NBP approved revised pay structure of executives and officers effective from 01.01.1999, and it was further stated that parameters of revised pay scales would be periodically revised to reflect the market movements and costs of living changes. (Note: this revision of pay structure entailed drastic increase in basic pay e.g. SEVP’s existing pay scale was Rs. 9070 to 15375 which was revised to 43,500 to 108,750) Further, as per Part V of the 1999 Circular, it was stated that “Monthly Gross Pension under the new retirement benefits will be calculated on the basis of Revised Basic Pay (x) Number of years of Service (x) 1.10%. However, the amount of gross pension on the basis of existing Basic Pay and existing formula is protected and will not adversely affect the present amount of pension as on 31.12.1998 with this change in the formula. Other terms and conditions of pension scheme will continue to be the same.”

(xix) On 8.5.2000, the NBP issued Instruction Circular No. 28/2000 to sanction w.e.f 1.7.1999 an increase in pension to the retired Executives/Officers and Clerical/Non-Clerical staff.

(xx) On 15.7.2002, the NBP issued Instruction Circular No. 43/2002 to sanction w.e.f. 1.1.2002 an increase in pension to all the retired Executives/Officers and Clerical/Non-Clerical staff.

(xxi) On 21.5.2004, the NBP issued Instruction Circular No. 54/2004 to grant approval of increase in pension being drawn by Bank’s retired Executives/Officers and Clerical./Non-Clerical Staff including family Pensioners with effect from 1-1-2004.

(xxii) On 1.02.2005, the NBP issued an Instruction Circular No. 23/2005 and 24/2005 to approve revision of pay, allowances and other benefits of Clerical, Non-Clerical Staff, and executives/officers.

(xxiii) On 24.04.2006, Instruction Circular No. 27/2006 was issued whereby BOD approved grant of increase in Gross Pension plus increases from time to time to the Bank’s retired Executive Officers and Clerical/Non-Clerical staff at the following rates w.e.f. 1.1.2006.

(xxiv) On 10.07.2006, the NBP issued an Instruction Circular No. 53/2006 (the “2006 Circular”) in which it was highlighted that the Bank’s management is pleased to approve the revision pay, allowances and other Clerical and Non-Clerical staff for the year 2006 to 2007, after having detailed meeting with authorized representative of CBA’s and in pursuance of settlement reached with them all over Pakistan.

(xxv) On 10.07.2006, the NBP issued an Instruction Circular No. 54/2006 to approve revision of pay, allowances and other benefits of executives and officers.

(xxvi) On 30-11-2007, Instruction Circular was issued by NBP to approve grant of increase in Net Pension of NBP pensioners w.e.f. 1-7-2007.

(xxvii) Another amendment in Section 11(1) and 11(3) was introduced vide the Banks (Nationalization) Amendment Ordinance, 2007 (the “2007 Amendment”).

(xxviii) On 15.02.2008, Instruction Circular Nos. 15/2008 and 16/2008 was issued by NBP after detailed discussion with the representatives of CBAs, the Bank’s Management was pleased to revise pay, allowances and other benefits to clerical/non-clerical staff, executives and officers.

(xxix) On 01.07.2008, Circular No. 58/2008 was issued through which the Management of the NBP revised the aforenoted pension factor from 1.10% to 1.25% for service after 01.01.2004. Moreover, it was decided to reduce the monthly contribution of 2.5% of the basic pay of each employee to 18% per month employee basic pay.

(xxx) On 12.08.2008, through the Information Circular No. 205/2008, NBP constituted the high powered committee of four Group Chiefs to look into the issues raised by employees representatives with regard to revision of pension formula and some other related matters.

(xxxi) On 1.4.2009, the committee hold meeting with employee representative and after due deliberations recommendations were prepared for a settlement which recommendations were prepared for a settlement which recommendations were duly signed by the President of CBAs.

(xxxii) On 1.4.2010, all CBAs functioning in all provinces signed a MoU and a revised formula for pension was prepared which was to take affect from 1.1.2010.

(xxxiii) On 3.4.2010, an office note based on the said formula was duly issued by the Bank vide Circular No. 33/2010 revising the rate/formula of pension agreed upon between the parties. With effect from 01.01.2010 pension of retired employees is being calculated on the basis of said formula.

(xxxiv) On 18.9.2008, the President CDA (Trade Unions Federation) wrote a letter to the President of NBP to uphold the legitimate rights of the bank employees and restore the pension and the benefits since reduced vide Instruction Circular 32/99 dated 17.5.1999 and No. 37/99 dated 16.6.1999 and continue allowing the pensions/benefits as allowed to the employees of NCBs in line with government servants besides restoring all their benefits protected vide Section 13(1) of 1974 Act. It was further requested that the management should increase the pension of the employees in proportion to the present inflationary and economic hardship.

(xxxv) On 11.11.2009, the Respondent No. 1 sent a letter to the President of NBP requesting that his pension may fairly and graciously be fixed according to the Pension Rules of 1977 as reflected in 1977 Circular.

(xxxvi) On 3.04.2010, NBP issued another Instruction Circular No. 33/2010 whereby it was intimated that management is pleased to announce the revision in Pension Formula for the calculation of Gross Pension of employees who have retired or shall be retiring on or after 1.1.2010.

(xxxvii) Furthermore, clauses (i), (ii) and (iv) were omitted in Section 11-A vide the Banks (Nationalization) Amendment Act, 2011 (the “2011 Amendment”).

(xxxviii) On 16.11.2012, the Instruction Circular No. 97/2012 was issued by NBP to announce increase in Net Pension to all NBP Pensioners/Families of deceased NBP Pensioners retired on or before 31-12-2011.

1. In view of the above mentioned history of the NBP and banking laws and keeping in view the arguments advanced by the learned counsels for the parties, the issues mentioned in Paragraph 4 were considered which mostly are interlinked, hence, we will deliberate and decide these issues by merging them into following issues (A & B) and then (C&D):

A. Whether the Instruction Circular No. 228 (C) dated 26.12.1977 is a statutory instrument, having backing of law, or merely executive instrument issued by the Federal Government?

B. Whether the Instruction Circular No. 37/1999 dated 16.06.1999 issued by the Board of Directors of NBP repeals and overrides the Circular No. 228(C) dated 26.12.1977?

APPELLANT’S SUBMISSIONS:

1. The arguments on behalf of the Appellant were led by Khawaja Haris Ahmad, Senior Advocate Supreme Court and Kh. Muhammad Farooq Mehta, Senior Advocate Supreme Court, who argued that the 1977 Circular was neither issued by Federal Government, nor it was published in Official Gazette, therefore, the same could not be presumed to constitute statutory rules under Section 20 of the 1974 Act. Further, it was argued without prejudice, that the 1977 Circular was relied upon by the learned Single Judge for granting the relief of increase in pension at the same rate as is admissible in case of Civil Servants, the learned Single Judge in Chamber has failed to take note of the fact that the 1977 Circular had become an archaic document and had lost its legal efficacy and was not in effective operation since the 1980s as it was superseded by NBP's own circulars prescribing increase in pension and supervening acts and events delinking the Bank from Federal Governments' administrative control on account of amendments made in the 1974 Act and offering of its shares to public for sale. The direction given in the impugned judgment is bound to adversely affect the interest of the private share-holders.

2. The learned counsel of the Appellant further argued that the 1999 Circular consisted of two parts; one relates to enhancement of basic pay of writ petitioners including other financial benefits, while the other relates to reduction of the percentage of pension. It was submitted that the Petitioners/Respondents have gained benefit of this huge enhancement of the amount pertaining to basic pay scale under the said Circular and could not complain of reduction in “percentage of basic pay scale” on which Pension was to be calculated pursuant to the said circular, in that this is not inequitable, it is violative of the principle that a person cannot be allowed to approbate and reprobate at the same time.

3. It was further argued by the learned counsel of the Appellant that the 1977 Circular was not the only document, relating to the terms and conditions of service or pension of the NBP's Employees, which was neither made/promulgated by the Federal Government, nor published in the official Gazette, rather a number of other Circulars dealing with the terms and conditions of its Employees were also similarly issued by the NBP, both prior as well as subsequent to the date of issuance of the said Circular, and that the Petitioners/Respondents, having taken advantage of the benefits given by the said Circulars, could not be permitted to challenge any portion of any one of the very same Circulars at their whims by pleading that the same was not made or notified in accordance with the Statutory provisions.

4. It was argued that as a matter of fact the increase in the pension amount was brought about by the 1999 Circular was considerably more than the increase in the amount of Pension payable to Federal Government Employees during the corresponding period. Further, the NBP had, through 1999 Circular introduced a new package of terms and conditions of service benefits for its employees. The learned counsel of the Appellant submitted that numerous increases in rates of pension by NBP from 1999 onwards have been totally omitted from consideration though duly brought on record. Hence, the impugned judgment suffers from perversity for non-reading of the record, and may be set aside.

RESPONDENTS’ SUBMISSIONS:

1. The arguments on behalf of the Respondents were led by Mr. Salman Akram Raja, Advocate Supreme Court, who argued that on nationalization of Banks in the year 1974, service terms and conditions of the Respondents were protected and secured under Section 13 of the 1974 Act and as per Section 20 of the 1974 Act, the Federal/Central Government was authorized to make rules by notifying in Official Gazette. In exercise of these powers, the Federal Government issued 1977 Notification, whereby new rules of pension and gratuity were introduced. Further, in pursuance of the 1977 Notification, NBP, with a view to give effect to the 1977 Notification, issued its own 1977 Circular, whereby the Pension and Gratuity Rules were adopted and implemented. Hence, the 1977 Circular was a statutory instrument, having backing of 1977 Notification. The learned counsel of the Respondent relied on Saghir Ahmed v. Province of Punjab and others (PLD 2004 Supreme Court 261) to establish that provisions of a statute for the publication of a notification in official Gazette are generally regarded as directory where their strict non-compliance does not provide any consequence.

2. The learned counsel for the Respondents argued that 1999 Circular was issued arbitrarily by management of NBP and without sanction and approval of the Federal Government. As such, reduction in pension could not be made a part of this circular. This indicates mala fide on the part of NBP management and the officers/executives/employees of NBP have protested against this decision (1999 Circular) of the Bank’s Board of Directors being without jurisdiction and detrimental to the benefit of the retiring employees. He relied on Muhammad Tariq Badar and another v. National Bank of Pakistan and others (2013 SCMR 314), in which it was held that the Board having powers of policy making, superintendence and managing the affairs and business of the bank, could not rescind, replace, substitute and/or vitiate 1973 Rules, being statutory instruments. He further relied on Rasheed Baig and others v. Zarai Taraqiati Bank Limited (2013 PLC (C.S.) 1444 [Islamabad]), and argued that Board of Directors of Bank had reduced the pension factor to the disadvantage of employees vide 1999 Circular, even though Board of Directors of Bank was not competent to alter statutory terms and conditions of service to the disadvantage of employees. Further, statutory regulations namely 1977 Circular relating to pension and gratuity still held the field and decision of Board of Directors carried no value in presence of statutory provisions and guarantees. Hence, the decision of Board of Directors of NBP reducing pension factor must be set aside. He further relied on the case titled Khawaja Abdul Hameed Nasir and others v. National Bank of Pakistan and others (2003 SCMR 1030) and Akram Ul Haq Alvi v. Joint Secretary (R-II) Government of Pakistan, Finance Division, Islamabad and others (2012 SCMR 106).

3. Ch. Muhammad Akhtar, Advocate Supreme Court, while appearing in ICAs 120, 129, 133, 153 on behalf of the Respondents, emphasized on Tariq Badar and Khawaja Abdul Hameed Nasir cases supra and further relied on Siddiq Akbar, A.S.I. and others v. Sandbar Khan, A.S.I. and others, (1998 SCMR 2013), in which it was held that standing order issued by the Inspector-General of Police having not been approved by the Provincial Government was devoid of its legal status and was of no legal authority. He further cited the case titled Muhammad Ilyas Khokhar and 24 others v. Federation of Pakistan and others (2006 SCMR 1240), in which it was held that the Auditor-General in his capacity has got no lawful authority to lay down the policy unless it is approved by the Establishment Division, in accordance with the Rules of Business as well as the relevant law on the subject. He further relied on I.A. Sharwani and others v. Government of Pakistan and others (1991 SCMR 1041) and stated that the right to a pension depends upon statutory provisions and therefore, the existence of such right in particular instances is determinable primarily from the terms of the statute under which the right or privilege is granted. The right and extent of the pension amount depends on the language of the relevant statute or the rules framed thereunder. The right to receive pension flows directly out of the rules applicable and not out of any order of any officer or authority. He further stated that the alleged scheme of pension in 1999 Circular is discriminatory as among the same category of retired employees, one group received pension @ 70% and other @ 33%, and presently NBP is paying pension to retired employees at four different rates.

4. Ms. Tabinda Islam, Advocate Supreme Court, while appearing in ICA 145 on behalf of the Respondent, cited the Rasheed Baig case supra and relied on its principle. Rest of the learned counsels appearing in their respective ICAs adopted the arguments of Mr. Salman Akram Raja, Advocate to the extent that the conclusion of the learned Single Judge was right but reasoning was wrong.

DETERMINATION:

1. We have considered the contentions of both the parties and gone through the impugned judgment as well as record appended with these appeals. We have noticed that the Respondents/Petitioners are retired officials/officers of NBP, constituted under 1949 Ordinance, and were governed by the statutory 1958 Rules and 1973 Rules, duly approved by the Federal Government of Pakistan at that time.

2. However, the Federal Government passed the 1974 Act, whereby all the Banks were nationalized in public interest and the Pakistan Banking Council was established under Section 9 of the 1974 Act for directing Banking activities towards national socio economic objectives and for formulating policy guidelines for the banks. Importantly, the officers and employees of NBP were in true sense and spirit secured and protected, without shadow of any doubt, under Section 13 of 1974 Act on the same terms and conditions, remuneration and rights in regard to pension and gratuity, as were applicable to them. Further, the Federal Government was empowered under Section 20 of the 1974 Act to make rules by notification in the Official Gazette to provide for all matters for the purpose of giving effect to the provision of the 1974 Act. It is suffice to state that according to the provisions of Section 20 of the 1974 Act, the rule making power is conferred upon the Federal Government in the terms as under:

“Powers to make Rules. The Federal Government may, by notification in the official Gazette, make Rules to provide for all matters for which provision is necessary or expedient for the purpose of giving effect to the provisions of this Act.”

1. It is evident from the record that the Government issued the 1977 Notification, addressed to Chairman of the Pakistan Banking Council, to convey the decision to introduce pension and retirement benefits for the officers/executives of banks along the lines of those introduced by the Federal Government for civil servants and to discontinue the existing scheme of pension in NBP Contributory Provident and Gratuity Fund. However, the 1977 Notification was not published in Official Gazette.

2. Further, this Court also find force in the arguments of the learned counsel of the Respondent in highlighting the case titled Saghir Ahmed v. Province of Punjab and others (PLD 2004 Supreme Court 261), in which it was clearly established that publication of the notification in the official Gazette was not sine qua non for its legal validity, efficacy and its non-publication was of no consequence. In this respect, Para 10 of the Saghir Ahmad case may be relied upon, which is reproduced hereunder:

“10. Even otherwise, the provisions of a statute for the publication of a notification in official Gazette are generally regarded as directory where their strict non-compliance does not provide any consequences. The legal certainty also requires that ordinarily a statutory instruments should not be treated as invalid because of a failure on the part of public functionaries to publish it in the official Gazette. There may be many things done on the basis of such an instrument. It would seem unfortunate where the things so done were held to be invalid if it was at some stage discovered that there had been failure by a public Authority to go meticulously by the manner and mode of publication of an instrument or notification in official Gazette….”

1. In view of Saghir Ahmad case supra, it is essential to note that under Section 20 of the 1974 Act, no consequence for non-publication of the notification of the Federal Government in Official Gazette was provided and 1977 Notification has also been implemented in letter and spirit in many instances. Further, the Appellant has also not highlighted any prejudice if caused to the Respondents/Petitioner, for non-publication of the notification. Therefore, we find no cavil to the preposition that the 1977 Notification and 1977 Circular, being statutory in nature, cannot be set aside or not to be implemented merely on the ground of non-publication in the Official Gazette, being a procedural formality.

2. At this point, it is essential to see the definition of ‘pension’ and the root through which such rights arises in light of the case cited by the Respondent, titled I.A. Sharwani and others v. Government Of Pakistan and others (1991 SCMR 1041). Importantly, the relevant excerpt of this case is reproduced hereunder:

“Pensions are periodic payments, usually for the natural life of a person who retires because of age or disability. Sometimes the term refers to periodic payments to wives, widows or children of a primary or deceased person or pensioner; occasionally, a pension will be conveyed solely as an honour for conspicuous service or valour. Pensions are provided by Government in three guises: (1) as compensation or recompense to war veterans and families for old age or for disability or death, usually from service causes; (2) as disability or old age retirement benefits for civilian employees of government; (3) as social security payments for the age, disabled or deceased citizenry based on past employment history of subject to current evidence of need. …

Except as limited by the Constitution the establishment of a pension system is within the scope of the legislative power. The granting of pensions to public officers or public employees serves the public purpose, and is designed to induce competent persons to enter and remain in the public service or employment, and to encourage the retirement from public service of those who have become incapacitated from performing their duties as well as they might be performed by younger or more vigorous persons. It has also been stated that a pension system is intended to promote efficient, continued and faithful service to the employer and economic security to the employees and their dependents, by an arrangement under which, by fulfilment of specified eligibility requirements, pensions become property of the individual as a matter of right upon the termination of public service.

…..

The right to a pension depends upon statutory provisions and therefore, the existence of such right in particular instances is determinable primarily from the terms of the statute under which the right or privilege is granted. The right to a pension may be made to depend upon such conditions as the grantor may see fit to prescribe.

………….

A person who enters Government service has also something to look forward after his retirement, to what are called retirement benefits, grant of pension being the most valuable of such benefits. Pension like salary of a civil servant is no longer a bounty but is a right acquired after putting in satisfactory service for the prescribed minimum period. A fortiori, it cannot be reduced or refused arbitrarily except to the extent and in the manner provided in the relevant rules. Conversely full pension admissible under the rules is not to be given as a matter of course unless the service rendered has been duly approved. If the service has not been thoroughly satisfactory, the authority sanctioning the pension is empowered to make such reduction in the amount as it may deem proper. This power is however exercisable only before pension is actually sanctioned.”

1. While considering the above definition of pensions, it was held in I.A. Sharwani case supra that a Government employee's claim to pay and allowances is regulated by the rules in force at the time in respect of which the pay and allowances are earned, whilst his claim to pension is regulated by the rules in force at the time when he retires, resigns, or is invalided, or is compulsorily retired, or is discharged from service, or is injured, or sudden death whilst in service, depending upon the type of pension claimed. In respect of superannuation pension, the amount of pension payable is determined by the length of completed years of qualifying service put in by the Government servant, subject to the formula then in existence providing the mode of calculation of pension as prescribed by the rules. The right to receive pension flows directly out of the rules applicable and not out of any order of any officer or authority, though for the purposes of determining or quantifying the amount it may be necessary for the authorities to pass such order. The right to receive pension by a Government servant is property so as to attract Articles 23 and 24(1) of the Constitution and any illegal denial to a Government servant to receive the same would affect his fundamental right guaranteed under the said provisions of the Constitution.

2. This Court finds force in the argument of the learned counsel of the Respondents that to give validating effect to the 1977 Notification of the Government, the NBP issued the 1977 Circular, terms and conditions of which were replica of the 1977 Notification in respect of establishment of pensions and retirement benefits for officers/executives of NBP. Under Clause 4(b) of the 1977 Notification and 1977 Circular, the pension of the officers was to be calculated at the rate of 70% of average emoluments on completion of 30 years qualifying service. Further, it was made clear in Clause 10 of the 1977 Notification and 1977 Circular that since the rates of pension given above have been fixed by the Pay Commission for Banks and Financial Institutions on the same lines as obtaining on the side of Federal Government, the existing provisions and any change or revision in the scale of pension may hereafter be made by the Federal Government, which shall also apply to the Officers/Executives of NBP. Clause 10 of the 1977 Notification and 1977 Circular reads as follows:

“10. 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 hereinafter be made by the Federal Government shall also apply to the officers/executives of the banks.”

1. From the perusal of above arguments and discussion, it is clear that the 1977 Circular of NBP was issued in pursuance to the 1977 Notification of the Government, which was issued under Section 20 of the 1974 Act, thus, had statutory backing of law and enjoys the status of a statutory instrument. Further, the Federal Government was only authorized to change or revise the said formula for grant of pension to the officers/executives of NBP. Importantly, 1977 Notification and/or 1977 Circular has not been expressly set aside or repealed by any other instrument of the Government till today.

2. As a baseline question, it must be determined as to what status must be conferred on the 1977 Notification. If the Federal Government issued the 1977 Notification, it must necessarily have a legal pedigree. NBP followed and implemented the tenor of 1977 Notification without demur for the next twenty years and it is not NBP’s case that these were invalid or incompetently issued. The Federal Government did not issue 1977 Notification in the air and the document surely had a basis in law. Section 9 of 1974 Act relates to the powers of the Banking Council and not of the Federal Government. The only powers that resides in the Federal Government is entrusted by Section 20 of 1974 Act to make rules. Thus it follows logically that the Federal Government was exercising its powers under Section 20 of 1974 Act while issuing the 1977 Notification. Here, we are concerned with the source of the powers and not the form of document that emerged ultimately. The source is the rule- making powers and therefore, the document must, in the fiscal analysis, be termed as rules and nothing else.

3. Hence, 1977 Notification is the legislative command of the Government under the delegated powers to make rules and sovereign commitment, and in absence of repeal of 1977 Notification and 1977 Circular, the provisions of 1977 Notification and 1977 Circular shall prevail and anything inconsistent thereto, even through any other non-statutory instrument in respect of pension shall be subservient to them and has to give way.

4. For the purpose of highlighting the importance of the sovereign commitment, the principle highlighted and established in the case of Dewan Salman Fibre (Pvt.) Ltd. v. Federation of Pakistan and others (2015 PTD 2304 Islamabad) may be borrowed, which states at Para 19 that:

“19. We lay great stress on the impotence of the Government adhering to sovereign commitments made by it, whether in the form of the statutory orders or notification issued by it or in the shape of policies announced by it. The commitments made on behalf of the Government of the Islamic Republic of Pakistan should neither be lightly disregarded nor deliberately ignored. The orderly development of a civilized society requires that citizens should be entitled to place implicit faith and confidence on representations which are made by or on behalf of the duly constituted governmental authorities. The importance of this underlies the sustained thrust towards the industrialization of the country in which both the nationals of Pakistan as well as nationals of foreign countries should have complete confidence that official commitments will be duly honored and acted upon in letter and spirit.”

1. In order to strengthen this argument, the case titled Shafique Ahmad Khan and others v. NESCOM and others (PLD 2016 SC 377) may also be relied upon, which established the principle as follows:

“certain Rules or Regulations were framed without the approval of the Federal Government was not the sole criteria to term them as non-statutory in nature. It was indeed their nature and area of efficacy which were determinative of their status. Rules dealing with instructions for internal control or management were treated as non- statutory while those whose area of efficacy was broader and were complementary to the parent statute in the matters of crucial importance were statutory.”

1. Therefore, this Court is of the view that the provisions of 1977 Notification and 1977 Circular are commitments made on behalf of the Government of Pakistan and cannot be lightly disregarded nor deliberately ignored to shatter the implicit faith and confidence of the Respondents/Petitioner, upon which these provisions are applicable. Similarly, the 1977 Notification and 1977 Circular have broader efficacy and were not merely for internal control or management of NBP. The 1977 Notification and 1977 Circular were statutory in nature on all accounts and by every attribute and were also efficacious, effective and complementary to the 1974 Act in matters of crucial importance. Further, it is also essential to note that acts performed by the Government while using statutory powers deserve due regard by the Courts and every possible explanation for their validity should be explored and the whole gamut of powers in pursuance of which the Government act or perform their functions and discharge its duties should also be examined.

2. At this point, it is also important to observe case law in hand and to rely on Muhammad Tariq Badar and another v. National Bank of Pakistan and others (2013 SCMR 314), in which it was held at Para 8 that

“… it is not only the legal position, but has also been conceded by the counsel for both the sides that, if the rules of a statutory establishment/body are statutory in nature, the employees (who are covered by the rules) of such organization may invoke the constitutional jurisdiction of the High Court for the redressal of their service grievance.”

It was further held at Para 9 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 subjects 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 [statutory] 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. The counsel of the Respondent further relied on Rasheed Baig and others v. Zarai Taraqiati Bank Limited (2013 PLC (C.S.) 1444 [Islamabad]), in which it has been held that Board of Directors of Bank was not competent to alter terms and conditions of service to the disadvantage of employees because statutory regulations relating to pension and gratuity still hold the field. Decision of Board of Directors carried no value in presence of statutory provisions and guarantees, and Board of Directors had no authority under the law to assume the legislative role. No decision detrimental to the interest of employees could have been taken without bringing amendments in the statute and Board of Directors of the Bank through arbitrary, colourable and illegal exercise of authority surprised and shocked the employees by reducing pension factor and started paying the same even without approval from the Federal Government. Decision of Board of Directors for all practical intents and purposes resulted into structural change in the accrued rights of pension of the employees, for which approval of the Federal Government was also not granted. Decision of Board of Directors was unprecedented, polluted, offensive to the Constitutional guarantees and was in violation of principles of natural justice and fanciful. Hence, decision of Board of Directors of Bank reducing pension factor was set aside.

2. It was held in the case of Akram Ul Haq Alvi v. Joint Secretary (R-II) Government of Pakistan, Finance Division, Islamabad and others (2012 SCMR 106) that government under S. 19 of Civil Servants Act, 1973 had powers to fix an amount of pension, increase the same, bring about changes therein from time to time and prescribe method for its calculation. In absence of any bar or restriction, Government was free to decide whether to grant increase in pension on gross or net pension. Previous mode of increase on gross pension could not restrain Government from changing same. While defining pension, it was held as follows:

“Pension was part of a civil servant’s retirement benefit and was not a bounty or an ex-gratia payment but a right acquired in consideration of his past service which was a vested right with legitimate expectation. Right to pension was conferred by law which could not be arbitrarily abridged or reduced except in accordance with law.”

1. Hence, the employees of NBP are entitled to the same pension as is announced by the Government of Pakistan through 1977 circular and the Board of Directors of NBP is bound to follow such announcement of the Government in respect of such employees, rather than reducing the same through their own order.

2. Another case, titled Siddiq Akbar, A.S.I. and others v. Sandbar Khan, A.S.I. and others, (1998 SCMR 2013), was also highlighted by the counsel for the Appellant which established that under Section 12 of the Police Act, the Inspector-General of Police may, from time to time, and subject to the approval of the Provincial Government, frame such orders and rules as he deems expeditious relating to the organization, classification and distribution of police force and for rendering such force efficient in the discharge of its duty. Power of Inspector-General to make rules is subject to the “approval” of the Provincial Government. Standing Order 11 of 1987 issued by Inspector-General of Police having not been approved by the Provincial Government is devoid of its legal status and is, therefore, of no legal authority. It was further held which is reproduced as follows:

“the word ‘approval’ occurring in Section 12 of the Act implies the act of passing judgment, the use of discretion, and a determination as a deduction therefrom, to confirm, rectify, sanction or to consent to some act or thing done by the Inspector- General of Police. The word ‘approval’ implies exercise of sound judgment, practical sagacity, wise discretion and final direct affirmative action. Merely because a Standing Order has held the ground for a number of years is not sufficient to assume the grant of ‘approval’ of the issuance of the Standing Order by the Provincial Government.”

1. The counsel for the Respondents has also cited case titled Muhammad Ilyas Khokhar and 24 others v. Federation Of Pakistan and others (2006 SCMR 1240) in which it was held that Departmental Circular varying the terms and conditions of service was in violation and in conflict with Ss.3(ii) & 9(b), of Civil Servants Act, 1973 as department had no lawful authority to lay down policy, unless the same was approved by the Establishment Division in accordance with the Rules of Business as well as the relevant law on the subject. Ex-post facto approval to such circular by the Establishment Division would not make the circular valid and legal which had no legal backing. It was held at Para 7 which is reproduced below and as follows:

“… It may be noted that as far as the Auditor-General is concerned, he in his capacity has got no lawful authority to lay down the policy unless it is approved by the Establishment Division, its accordance with the Rules of Business as well as the relevant law on the subject.”

1. It is manifest to note that no notification, backing 1999 Circular, has been placed on record by any of the party. It is an admitted position that 1999 Circular has not been issued as per the mandate of law ibid, particularly Section 20 of 1974 Act, and inasmuch no notification was issued by the Federal Government, it was neither made by the Federal Government nor published in the official gazette. Hence, 1999 Circular had not been composed/enforced with the prior approval of the Government nor subsequent benediction was conferred to them by the Government, 1999 Circular had been formulated by the Board of the Bank pursuant to its authority in the nature of management/superintendence of the affairs of the Bank and/or policy making power. Hence, 1999 Circular, at best could be termed as guidelines or domestic instructions of the bank for the purpose of highlighting, elucidating or beneficially revamping the service structure of Bank’s employees for their advantage. Further, 1999 Circular did not enjoy the status of a statutory instrument, hence Board of the Bank in the garb of its general empowerment of policy making, superintendence and managing affairs of business could not rescind, replace, substitute and/or vitiate 1977 Circular and 1977 Notification.

2. There is also no cavil/quibble that the 1999 Circular have not been composed/enforced with the prior approval of the Government or any subsequent benediction was conferred to those by the Government. Rather (admittedly) 1999 Circular has been formulated by the Board of NBP constituted under Section 11 of the 1974 Act, which stipulates the general power of the Board pertaining to policy making and the administration and management of the nationalized banks.

3. Section 11(4) thereof specifically provides as follows:

“The general direction and superintendence of the affairs and business of a bank, and overall policy making in respect of its operations, shall vest in its Board”. Furthermore, as per Section 11(5) of the 1974 Act, the Board shall determine “personal policies of the bank, including appointment and removal of officers and employees” and in accordance with Section 11(10) of 1974 Act, “All selections, promotion and transfer of employees of banks except the President and decisions as to their remuneration and benefits shall be made by the President in accordance with the evaluation criteria and personnel polices determined by the Board”.

1. From the above, it is unequivocally clear that the 1999 Circular has been issued by the Board of the Bank pursuant 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, 1999 Circular 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 1977 Notification and 1977 Circular, but nothing more than that can be imputed to those; and in any case the 1999 Circular does not enjoy the status of a statutory instrument. This has not been disputed by the parties, therefore, the legal question which eminently calls for the resolution, is that whether non-statutory rules (though we have herein construed these as mere instructions etc.) have, and/or can repeal, rescind or displace the statutory rules of 1977 Notification and 1977 Circular?

2. It is an admitted and undisputed factual reality that after the commencing day of 1977 Notification and 1977 Circular, they were validly in force and for all intents and purposes were serving as the conclusive terms and conditions in regard to pension of the NBP Officers etc. Further, it is clear from a bare reading of the 1999 Circular as a whole that the intention behind issuing the same was to discontinue the existing schemes of pension, implemented through 1977 Notification and 1977 Circular, and was to be made them inoperative qua the employees of the NBP. Such instrument (1999 Circular) is to be constructed keeping in view the real intention behind them for taking such decision which should be explored by scrutiny of the attending circumstances and in particular the instrument as a whole. It is clear from the 1999 Circular that the board of NBP has tried to discontinue legislative instrument (1977 Notification) by their own operation, while it was not dependent upon the exercise of option by them in their favour and while service of employees was already pensionable under 1977 Notification and were given benefit to the same as per its own force.

3. It is to be noted that only the Government had powers to fix an amount of pension, increase same, bring about changes therein from time to time and prescribe method for its calculation in absence of any bar or restriction. Hence, the respondents, who were the employees of NBP, will be entitled to the same pension as is announced by the Government of Pakistan and the Board of Directors of NBP was bound to follow such announcement of the Government in respect of such employees, or could have given backing to 1999 Circular through approval of the Government, as was done through 1977 Notification. The approval implies the act of passing judgment, the use of discretion, and a determination as a deduction therefrom, to confirm, rectify, sanction or to consent to some act or thing done by the government. It further implies exercise of sound judgment, practical sagacity, wise discretion and final direct affirmative action and merely an executive instrument is not sufficient to assume the grant of ‘approval’ by the Government.

4. On account of opinion of this Court in view of the applicable law and case law discussed above, there does not seem much difficulty in providing an answer that 1999 Circular having not been approved by the Government is devoid of its legal status and is, therefore, of no legal authority as to the 1977 Notification and 1977 Circular. Further, 1999 Circular varying the terms and conditions of service was in conflict with 1977 Notification and 1977 Circular as department had no lawful authority to lay down policy, unless the same was approved by the Government in accordance with the relevant law on the subject. It may also be noted that as far as the Board of Directors is concerned, they in their capacity have got no lawful authority to rescinded earlier statutory decision without following the course of law.

5. If the 1997 Notification is to be labeled as rules, properly enacted by the Federal Government, then this begs the question: can the 1999 Circular issued in the executive authority of the Board of NBP cast aside and undo the statutory rules issued by the Federal Government? The answer is clearly in the negative. Here, the ratio of Muhammad Tariq Badar case supra, would come into play and define the outcome of these appeals. The nub of the conclusion in these case was that the Board of NBP in its general managerial powers could not rescind or substitute statutory rules. This is the essence of this case as well. The powers of the Federal Government under Section 20 of 1974 Act remains intact to this day and any act accomplished in the exercise of the powers would continue to occupy the field and the Board cannot conceivably have the powers to override that act of the Federal Government. If this were permitted, it would be tantamount to making a mockery of the exercise of statutory powers by the Federal Government. There is no cavil that the Board will have all the powers conferred upon it and the 1997 Amendment merely applies only to the limit that they do not come in conflict with the powers of the Federal Government.

6. It is candidly held that 1977 Notification and 1977 Circular are applicable, as they have been considered and construed herein to be the rules envisaging the terms and conditions of pension of NBP employees throughout in force, because these were not repealed, replaced or annulled as held earlier. Therefore, it shall be ludicrous and discriminatory to hold that the Respondents/employees should not enjoy the benefit, protection and security of statutory rules and instead be deprived and governed through an executive instrument being 1999 Circular.

7. Therefore, in view of the above, it has been sufficiently established that the argument of the learned counsel for the Appellant in this context have no force, which are hereby repelled; and the proposition is accordingly answered.

C. Whether the principle of Estoppel is attracted in the instant appeal?

D. Whether the petitions suffer from Laches and are liable to be dismissed?

APPELLANT’S SUBMISSIONS:

1. The learned counsel of the Appellant argued that the Writ Petitions were disposed of by one common judgment suffered from laches and were liable to be dismissed on that ground alone. The respondents had retired from the service of the Bank more than 10 years prior to the filing of the Writ Petitions during which period they kept on receiving pensionary benefits in accordance with the various circulars issued by the appellant from time to time after the 1977 Circular. The 1977 Circular was never challenged prior to filing of the Writ Petitions decided through the impugned judgment. Thus the Writ Petitions suffered both from laches and also exhibit acquiescence on the part of the respondent in new rates of pension prescribed by the appellant from time to time during the period of more than 10 years.

2. It was further argued that the claim for pension at the rate prescribed under the 1977 Circular was not a recurring cause of action as observed by the learned Judge in chamber in the Impugned Judgment. The amount of pensionary benefits payable to the respondents was worked out at the time of retirement and payment was duly received by them. The cause of action, if any arose at the time of respondents on retirement had come to the knowledge of the Respondents when payment of commuted portion of pension was received by him. Therefore, the concept of recurring cause of action is not applicable to the facts and circumstances of the case.

3. It was argued that the Apex Court has ruled that if a petition suffers from laches the Court is fully competent to dismiss the same without proceeding to decide the merits of the case. It was further argued that the learned Single Judge in Chamber has failed to appreciate that a party which has not been vigilant about its rights is not entitled to invoke the discretionary jurisdiction under Article 199 of the Constitution. For this purpose, the counsel relied on Muhammad Din v. Abdul Ghani and another (2012 SCMR 1004); Dilawar Hussain and others v. Province of Sindh and others (PLD 2016 Supreme Court 514), and State Bank of Pakistan through Governor and another v. Imtiaz Ali Khan and others, (2012 SCMR 280).

4. The learned counsel of the Appellant, while relying on MCB Bank, Ltd. v. State Bank of Pakistan and 2 others (2010 CLD 338 [Lahore]), argued that pay package of 1999 Circular was acted upon and employees derived all benefits under said package, they were estopped on principle of estoppel by conduct, acquiescence and waiver to challenge the package. Further, the learned counsel of the Appellant, while relying on Allied Bank Ltd. v. Muhammad Ilyas (2010 PLC 13 [Lahore]) argued that in this case with a disadvantage, a major advantage was also given to the employees in shape of major jump in their salary package. It was held that it could not be allowed to partly accept the Scheme and partly disown to the portion which was disadvantageous to him although he had taken all the benefits in shape of increased pay. While relying on the judgment titled, Pakistan International Airlines Corporation v. Aziz-Ur-Rehman Chaudhry and another (2016 SCMR 14), the counsel of the Appellant argued that where the Respondents accepted the terms and condition of his/their re-employment and continued in service for 13 years and accepted and received retirement benefits his/their claim for back benefits was hit by the doctrine of past and closed transaction.

RESPONDENTS’ SUBMISSIONS:

1. The learned counsel for the Respondents submitted that the matter of restoration of pension formula in accordance with the policy of Government had been a disputed matter and demand of the Officers was under consideration when at last final decision was made on 03.04.2010 which was too not in accordance with the Government policy. As such the writ petition was filed well in time and there is no question of limitation raised by the counsel of the Respondents at the time of writ petition. Further the principle as laid down by the apex Courts of law is that in case of pay and pension no question of limitation arises. The counsel of the Respondents relied on judgments titled, Managing Director, Sui Southern Gas Company Ltd. v. Ghulam Abbas and others (PLD 2003 Supreme Court 724); Chief Executive Progressive Paper Limited v. Sh. Abdul Majeed and another (2005 PLC (C.S.) SC 1439) and Amjad Hussain v. Secretary, Finance Division, Ministry of Finance Islamabad and 2 others (1998 SCMR 1442). It was further argued by the counsel of the Respondents by relying on a case, NLR 1993 TD (Service) 190 that limitation time would not run against an order which is without jurisdiction. It was further stated that although the Respondents accepted the pay increase, however, they have been raising the issue of pension with the Appellant from time to time and had also raised objection in respect of the pension.

2. Mr. Salman Akram Raja, Advocate has also filed applications, (CM No. 9795/2016 and C.M. No. 9796/2016) to place on record certain documents. Learned counsel submitted that the documents of the applicant established that after the 1999 Circular, these issues were agitated with the Appellant and various meetings were held on this issue from 1999 till 2010 the timing of filing the writs, and further, the Appellant has also issued various letters by showing that they were looking into this matter and considering the issue.

DETERMINATION:

1. We have considered the contentions of both parties and have gone through the impugned judgment as well as record appended with the appeal. This Court has noticed that while there is plenty of case law on the contention supported by the learned counsel of the Appellant, some of which has also been highlighted by the counsel of the Appellant, stating that High Court on finding Constitutional petition to be barred by laches, would not be required to decide on merits the issue raised therein. Reliance is placed on (Muhammad Din v. Abdul Ghani and another (2012 SCMR 1004)) It was also held in the case of Dilawar Hussain and others v. Province of Sindh and others (PLD 2016 Supreme Court 514) that if the land owners thought they were entitled to the additional amount of compensation, they should have moved the Collector to give them such compensation and this could have been done within the time prescribed by law, and if not so prescribed, then within a reasonable period of time. In fact, the respondents kept silent and slept over their rights for over fourteen years whereafter they decided to invoke the Constitutional jurisdiction of the High Court directly which was discretionary in nature. Rule of laches was duly attracted to the matter in hand because the respondents had been unable to explain as to what steps they took to ascertain and agitate their right on the basis of the Section 28-A (since repealed) before the competent authority before the filing of the Constitutional petition. It was also held in the case of State Bank of Pakistan through Governor and another v. Imtiaz Ali Khan and others, (2012 SCMR 280) which is reproduced below:

“laches is a doctrine whereunder a party which may have a right, which was otherwise enforceable, loses such right to the extent of its enforcement, if it is found by the Court of a law that its case is hit by the doctrine of laches/limitation. Right remains with the party, but he cannot enforce it. The limitation is examined by the Limitation Act, 1908 or by special laws which have inbuilt provisions for seeking relief against any grievance within the time specified under the law and if party aggrieved does not approach the appropriate forum within the stipulated period/time, the grievance though remains, but it cannot be redressed because if on the one hand there was a right with a party which he could have enforced against the other, but because of principle of limitation/laches, same right then vests/accrues in favour of the opposite party.”

1. However, in the case in hand, it is clear that the matter of pension under 1977 Circular and 1977 Notification was agitated by the Respondents before the Appellant bank and was pending till 2010 before the Appellant. Hence, the question of laches does not arise because the petition was filed within time. Learned counsel for the Respondents Mr. Salman Akram Raja, Advocate through C.M. No. 9795/2016 and C.M. No. 9796/2016 has placed certain documents i.e. the letters written by the Respondents to the Appellant Bank and the Appellant made commitment to them that it is considering the issue of pension. In this regard while examining the file we have noticed that Mark-II is the letter written by the Respondents to the Appellant on 29.11.1999 and then on 13.10.2001. Mark-III is a letter dated 01.02.2005 by the Appellant Bank in which in clause 15 it was written as follows:

“15) BENEVOLENT FUND GRANT AND PENSION:

The demand raised by the NBP Officers Association regarding enhancement in Benevolent Fund Grant and Pension will be discussed separately.”

1. Mark-IV and V are also the letters written by the Appellant whereas Mark-VI is the letter dated 12.08.2008 of the Appellant through which it constituted a Committee to resolve the issue of pension raised by the Respondents. Thereafter, from Mark-VII to Mark-X are Minutes of the Meeting and other letters written by the Appellant. Hence, the issue of laches does not come as these were the correspondence between the Appellant and the Respondents regarding the issue of pension. When the compliance of the commitment by the Appellant was not made to the Respondents, they filed the Writ Petitions in the year 2010 and onward which do not suffer from any legal infirmity in this regard.

2. Even otherwise, we tend to accept this stance put forth by the learned counsel for the Respondents in relying on the judgment of Managing Director, Sui Southern Gas Company Ltd. v. Ghulam Abbas and others (PLD 2003 Supreme Court 724), in which it was held that the only limitation on the powers of the Service Tribunal is that it should satisfy the test of reasonableness, and if an employee of the company had filed a departmental appeal or representation, and if some delay had been caused due to waiting the result of representation the same period was liable to be condoned. It was also held that decision of the cases on merits always to be encouraged instead of non-suiting the litigants for technical reasons including on limitation. Further, it has been decided that where the cause of grievance was continual and of financial nature, the limitation could not be applied.

3. It was also held in the case of Amjad Hussain v. Secretary, Finance Division, Ministry of Finance, Islamabad and 2 others (1998 SCMR 1442) that the Respondents should not raise such technical objection when the question of payment of salary of a civil servant is involved. The salary which a civil servant is entitled to cannot be denied on any technical ground. On the other hand, it is the duty of the Government to pay the salary as per rules. Since the status of the appellant remained as that of a civil servant in view of the above judgments rendered by this Court, he was entitled to invoke Fundamental Rule 22(A)(i) for protection of his salary which he was drawing in his parent department.

In the case of Muhammad Azram v. National Institute of Health and others, (2015 PLC (C.S.) 537 [Islamabad]), it was held that Constitutional jurisdiction of High Court was discretionary and same would rest on the foundation of equity. Law of limitation was not attracted and no time was prescribed for invoking the extraordinary jurisdiction of High Court. Jurisdiction under Art.199 of the Constitution was subject to the bar known as laches. High Court had to decide whether discretionary relief should be granted or refused keeping in view various facts of the case when there was a delay. Laches would not be a bar in granting the relief when there was a continuous wrong. Similarly, in the case of Nanik Ram and 3 others v. Jurio Mal and 7 others (2014 YLR 2508 [Sindh]), it was held at Para 10 which is as follows:

“As far as question of laches is concerned, as raised by the learned counsel for respondents, I may observe that in matter of filing of constitutional petition, lapse of time or question of laches is to be examined on equitable principle for the reason that exercise of constitutional jurisdiction is always discretionary with the Court and the relief so granted is always in the nature of equitable relief. It is settled principle that in case the High Court comes to a conclusion that equity leans in favour of the petitioner, the Court must exercise discretion in favour of such party. Issue of delay or laches is to be considered with reference to the facts of each case and no hard and fast rule can be laid down in this behalf.”

Moreover, in the case of Muhammad Mustafa v. Syed Azfar Ali and 3 others (PLD 2014 Sindh 224), it was held as follows:

Constitutional jurisdiction is discretionary and extraordinary which has not been restricted by time factor. Issue of limitation is not attracted in matters involved in constitutional jurisdiction, however question of laches has to be examined but it does not deny grant of right or remedy unless grant of relief in addition to being delayed must also perpetuate injustice to another party.”

1. Even otherwise, the rule of laches has been evolved by Courts and has to be weighed in each case. It is a discretion vesting in the superior Courts and has to be construed accordingly. The decisive factor is whether the person invoking the constitutional jurisdiction of this Court has been utterly indolent in agitating his rights and has slept over them. Yet if he has been raising his voice in any manner and at any forum, he cannot be shut out on the plea of laches. The question as to condonation of delay being in the discretion of the Court, the findings cannot be set aside on technical grounds alone. This Court would, therefore, refrain from disturbing the findings of the single Judge in Chambers. Even otherwise, the question was not raised before the learned Single Judge and hence, cannot be raised at this appellate forum.

2. Learned counsel for the Respondents Mr. Salman Akram Raja, Advocate shown his agreement with the conclusion of the decision of the learned Single Judge in Chamber but not with the reasoning because it did not discuss the issue in detail.

3. In view of the above discussion, we are of the opinion that the impugned judgment by the learned Single Judge in Chamber has been passed in consonance with the spirit of law and does not suffer from any legal infirmity, as such the same is hereby upheld. Consequently, the instant Intra Court Appeal as well as the abovementioned connected Appeals are hereby dismissed.

(R.A.) I.C.A. dismissed

PLJ 2017 Lahore 349 [Multan Bench Multan]

Present: Habib Ullah Amir, J.

IQBAL BEGUM--Petitioner

versus

FAIZ MUHAMMAD etc.--Respondents

C.R. No. 731-D of 2011, heard on 7.2.2017.

Sale-deed--

----Transaction of property--Fraud was committed--Pardanashin old lady--Marginal witness of sale-deed--In admissible piece of evidence--Failed to produce original sale-deeds and never sought permission for secondary evidence--Appreciation of evidence--Question of--Whether she is parda observing or not--Determination--Burden of proof--Exceptional character--Protection has been extended on consideration that parda observing, old and illiterate women can easily swallow bait and cautious approach is required when parties happen to be close relatives--Old and illiterate ladies would be entitled to same protection, which is available to parda observing ladies--Burden of proof lies heavily on person relying upon a document to prove that executant of her own free will, full understanding of implications entered into transaction in his favour especially when such person being close relative of lady was in a position to attain her confidence. [P. 355] A

Sale-deed--

----Beneficiary of sale under law--Transaction of sale was genuine and plaintiff has categorically alleged against defendant that he committed fraud with her, as he made her to attest document i.e. disputed sale-deeds and subsequently mutated property in his favour and in such like situation when there is statement on oath by plaintiff that sale-deed was based on fraud and misrepresentation, onus would shift to defendants to prove that sale-deed had been executed by vendor in accordance with law.

[P. 355] B

Contract--

----Scope of--Essential elements of sale--Relationship--Under law, a contract for sale of immovable property is a contract that sale of such property is taken place on terms settled between parties and sale of ownership in exchange for a price paid or promised part paid or part promised while essential elements of sale are: (i) parties (ii) subject-matter, (iii) transfer of all conveyance (iv) price and consideration--Where transaction is inter se parties having very close relationship beneficiary is always burdened to establish sale.

[P. 355] C

Registered Sale-deed--

----Document of sale--Witness of transaction--Adverse presumption--Nature of transaction--Defendant being beneficiary when his real mother who was an illiterate parda observing lady was a party to transaction which would affect her right and interest in immovable property was obliged to establish affirmatively that plaintiff substantially understood nature of transaction and had benefit of independent advice in that regard which could have been above board and unimpeachable--Neither scribe of sale nor any person before whom plaintiff received consideration price was produced in witness box despite of fact that defendant/vendee being beneficiary was bound to prove execution of agreement to sell in accordance with law and adverse presumption may be drawn that had such witnesses been examined, they would have not supported defendants’ case. [P. 356] D & E

2007 SCMR 1884, for.

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

----Art. 78--Document--Sale deed--Inadmissible in evidence--Nature of transaction--Handwriting or signature or thumb mark of alleged executant--Execution of document--Burden to prove--Execution of document would not only mean mere signing or putting thumb impression but something more than mere signing or putting thumb impression by executant--It must be proved that thumb-mark was made in presence of witness in whose presence document was written and read over and it was understood by vendor and would not only be limited to merely signing a name or placing thumb-impression upon a blank sheet of paper so as to prove document to have been executed whose identification would also be proved by reliable and authentic evidence that a person who had affixed thumb- mark or signature was same person who owned land and sold same to vendee--Execution would mean series of acts, which would complete execution--Mere signing or putting thumb-mark would not amount to execution in terms of Art. 78 of Q.S.O.--A document which is not proved is inadmissible in evidence, unless strict proof of it is waived--Sale deeds were executed by plaintiff out of her freewill and that contents of same were read over to her and nature of transaction was explained to her and that at time of execution of documents she had an independent advice of her close relatives but despite burden to prove this fact, defendant has failed to discharge his onus by not explaining nature of transaction to plaintiff. [Pp. 356 & 357] F & G

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

-----S. 54--Sale deed--Registered document--Marginal witness of sale-deeds--Possession of property was handed over was not proved--Ingredients of--A sale mutation confirming fulfillment of these ingredients is a sale but defendants have not produced any evidence establishing that sale price was received by plaintiff from defendant and that possession of property was also handed over at time of registration of sale-deed. [P. 357] H

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

----Art. 76--Sale deed--Certified copies of sale-deeds and registered documents in evidence--Question of--Whether secondary evidence could be produced depends upon satisfaction of conditions--Presumption of correctness--Certified copy of a registered document may prove contents of original document, but merely showing as to what were contents of original document, is not sufficient in absence of proof of execution of original document--Defendants had failed to produce scribe, sub-registrar and stamp vendor before trial Court to prove contents and execution of sale-deeds and witnesses were available to defendants but they withheld said witnesses that if witnesses were produced they would not support their version--Defendants did not produce original sale-deeds and have tendered attested copies of same without seeking permission of Court and evidentiary value of a certified copy of sale-deed would lose its importance and copy would not be sufficient to prove execution of original documents--Onus was on defendants to prove that valid sale-deeds had been executed and defendants have failed to prove execution of sale-deeds and finding of Courts below that plaintiff could not produce scribe, marginal witnesses and presumption was drawn against plaintiff--Allegation of fraud was made by plaintiff and onus was on defendants to prove genuineness of sale transaction as it was duty of defendants to produce marginal witnesses before trial Court. [Pp. 357 & 358] I, J & K

Limitation Act, 1908 (IX of 1908)--

----Art. 120--Limitation--Sale deed--Fraud--Date of discovery of fraud--Knowledge about fraudulent entries in revenue record--Under law, time begins to run from date when right to sue accrues and suit to declare sale void and ineffective on ground of fraud, right to sue accrues from date of discovery of fraud--Period of limitation would be computed from time, when right to sue accrues to a party and suit filed within 2/3 days from date of gaining knowledge about fraudulent entries in revenue record would be well within time, where such entries were found to be without jurisdiction, void and nullity in eye of law, then question of limitation would not come in way of plaintiff in challenging such fraudulent action of defendants--Fraud was unearthed three days before institution of suit when plaintiff was expelled out of house and when fraud had been alleged against, time computes from date when fraud comes into knowledge of aggrieved party--Suit is barred by limitation is against law--Disputed sale could not be proved by any stretch of imagination and onus to prove valid execution of sale-deeds was upon beneficiary/ defendants who failed to discharge said burden.

[Pp. 358 & 359] L, M, N & O

Makhdoomzada Syed Najam-us-Saqib, Advocate for Petitioner.

Ch. Abdul Ghani, Advocate for Respondents.

Date of hearing: 7.2.2017.

Judgment

Through this revision petition, petitioner has assailed judgments and decrees dated 20.4.2010 passed by learned Civil Judge, Muzaffargarh and dated 04.5.2011 passed by learned Additional District Judge, Muzaffargarh, whereby suit of petitioner for declaration with consequential relief has been dismissed.

1. The facts, in brief, of this case are that petitioner instituted a suit for declaration and perpetual injunction against respondentsqua the property fully described in plaint contending therein that she being widow of Ghulam Qadir was a pensioner of railway department. The department used to demand ‘No Marriage Certificate’ occasionally from widow pensioners and her son Faiz Muhammad (Respondent No. 1 herein) used to render help in this regard and it was averred that Faiz Muhammad used to get the petitioner’s pension papers verified and in a fraudulent manner procured her thumb impressions on sale-deeds Nos. 1065 and 1066 dated 24.7.1984 and in collusion with revenue staff, further implemented sale in Mutations Nos. 6863 and 6864 dated 17.12.1984, whereafter he executed general power of attorney in favour of his wife for alienation of suit property. Petitioner’s suit was resisted by respondents/defendants and after recording evidence and hearing the parties, learned Civil Judge, Muzaffargarh dismissed the suit vide judgment and decree dated 20.4.2010. Feeling aggrieved, petitioner filed an appeal which remained pending in the Court of learned Additional District Judge, Muzaffargarh which met the same fate of dismissal, hence this revision petition.

2. Learned counsel for petitioner contends that impugned judgments and decrees are against law, facts of case and suffer from illegality and material irregularity of jurisdiction; the same are based on surmises and conjectures and findings of learned Courts below on the issues are legally and factually erroneous and unsupported by any legal evidence. It has failed to be appreciated that petitioner was Pardanashin old lady and respondents were obliged to prove the factum of sale; that respondents were obliged to produce marginal witnesses of the sale-deeds, scribe and stamp vendor but they failed to do so; that respondents could not produce original sale-deeds and never sought permission for secondary evidence, thus inadmissible piece of evidence was taken into account; that learned Courts below have given undue credence to the evidence of respondents and it has failed to be appreciated that suit was not barred by limitation.

3. On the other hand, revision petition in hand has been controverted by learned counsel for respondents.

4. I have heard learned counsel for parties and perused the file.

5. Iqbal Begum, plaintiff/petitioner through her suit has averred that on the demand of ‘No Marriage Certificate’ by railway department from her being widow, Respondent No. 1/defendant Faiz Muhammad used to get pension documents attested and by finding opportunity got the thumb impressions of plaintiff on sale-deeds Nos. 1065 & 1066 and with the collusion of the officials of registry branch got mutated land in his favour vide Mutations Nos. 6863 and 6864 and in order to further transfer the property got prepared forged power of attorney on 01.9.2001. On the other hand, defendants/respondents controverted the suit on different grounds including that Defendant No. 1 was residing in Libya and he had never got attested pension papers of plaintiff but actually plaintiff sold away the disputed property to him for consideration of Rs. 20,000/- whereafter Mutation Nos. 6863 and 6864 were attested. They also added that Defendant No. 1 was in Libya, therefore, he appointed his wife Mst. Rehmat Bibi, Defendant/Respondent No. 2 as his attorney and after purchasing the disputed property, by spending Rs. 200,000/- got constructed house and rented the same to Niaz Ahmad whereas by spending Rs. 3,50,000/- got constructed another house. It is also on record that Faiz Muhammad etc. submitted amended written statement wherein it was averred that Defendant No. 1 had transferred 11010 American Dollars through Account No. 2325 of United Bank Limited, Multan Road Branch Muzaffargarh which amount was received by plaintiff. In addition, he had also given money to plaintiff and that he asked Niaz Ahmad to vacate the house but he refused and at his instigation, plaintiff instituted the suit.

6. Plaintiff has challenged Sale-Deeds Nos. 1065 and 1066 registered on 24.7.1984 and subsequent Mutation Nos. 6863 and 6864 which were attested in favour of Defendant No. 1 and she averred in suit that on the pretext of attestation of pension papers and by committing fraud, Defendant No. 1 Faiz Muhammad got attested disputed sale-deeds despite that she never sold her property to him and that she had not received consideration price. Petitioner is the real mother of Defendant No. 1 Faiz Muhammad and she has deposed in evidence that she is an old lady and under the law every illiterate woman, whether she is parda observing or not, is protected unless circumstances suggest that she was of an exceptional character and able to manage her affairs independently. The protection has been extended on the consideration that parda observing, old and illiterate women can easily swallow the bait and cautious approach is required when the parties happen to be close relatives. Old and illiterate ladies would be entitled to the same protection, which is available to the parda observing ladies. Burden of proof lies heavily on person relying upon a document to prove that the executant of her own free will, full understanding of the implications entered into the transaction in his favour especially when such person being close relative of the lady was in a position to attain her confidence. To strengthen this point, reliance can be placed on the case reported as “Muhammad Afzal v. Muhammad Zaman and others” (PLD 2012 Lahore 125). Defendant No. 1 being real son of plaintiff and beneficiary of sale is under the law obliged to prove that transaction of sale was genuine and in this case plaintiff has categorically alleged against Defendant No. 1 that he committed fraud with her, as he made her to attest document i.e. disputed sale-deeds and subsequently mutated property in his favour and in such like situation when there is statement on oath by plaintiff that sale-deed was based on fraud and misrepresentation, onus would shift to defendants to prove that sale-deed had been executed by vendor in accordance with law. In this connection, reliance can be made to the case reported as “Mirza Allah Ditta alias Mirza Javed Akhtar v. Mst. Amna Bibi and another” (2004 Y L R 239). Plaintiff has categorically deposed as P.W.1 that on the pretext of attestation of pension documents, she was taken to Kachehry where she was made to put thumb impressions on documents and she was not produced before any officer while she had neither sold her property nor received consideration price.

7. Under the law, a contract for sale of immovable property is a contract that sale of such property is taken place on terms settled between the parties and sale of ownership in exchange for a price paid or promised part paid or part promised while the essential elements of sale are: (i) parties (ii) subject-matter, (iii) transfer of all conveyance (iv) price and consideration. In case where transaction is inter se the parties having very close relationship the beneficiary is always burdened to establish the sale. Defendant No. 1 in order to prove genuineness of sale transaction, has appeared in the witness box and deposed that plaintiff had come to Kachehry alongwith her son Riaz and stamp papers were purchased by her mother (plaintiff) and before Sub-Registrar she recorded her statement and he paid Rs. 20,000/- to plaintiff. In his support, he produced Saeed Ahmad as D.W.2. However, he has conceded that he did not join the proceedings when sale-deed was registered and at that time he was residing separately. He also admitted that his mother had to furnish ‘No Marriage Certificate’ after every four/six months to receive pension. Defendant No. 1 being beneficiary in the circumstances when his real mother who was an illiterate Parda observing lady was a party to transaction which would affect her right and interest in the immovable property was obliged to establish affirmatively that plaintiff substantially understood the nature of transaction and had the benefit of independent advice in this regard which could have been above board and unimpeachable. However, no evidence in this regard has been produced by defendants and it has not been brought on record as to whether plaintiff had an independent advice in respect to transaction before the registration of sale-deeds. Moreover, the documents of sale, i.e. Exh.D.1 and Exh.D.2 have unveiled that Riaz Ahmad, Malik Ahmad Bakhsh along with Syed Jalal Abbas Kazmi are witnesses of transaction of sale but it is surprising to note that none from the marginal witnesses had been produced in witness box. Similarly neither the scribe of the sale nor any person before whom plaintiff received consideration price was produced in the witness box despite of the fact that Defendant No. 1/vendee being beneficiary was bound to prove execution of agreement to sell in accordance with law and adverse presumption may be drawn that had such witnesses been examined, they would have not supported defendants’ case. In this connection, I am fortified by the view laid down in the case reported as “Syed Shabbir Hussain Shah and others v. Asghar Hussain Shah and others” (2007 SCMR 1884). It has also been laid down in the above case-law that execution of a document is to be proved to be in the handwriting or signature or thumb-mark of the alleged executant, which would mean signing or putting thumb-mark over a document as consenting party thereto. Execution of document would not only mean mere signing or putting thumb impression but something more than mere signing or putting thumb impression by the executant. It must be proved that thumb-mark was made in the presence of witness in whose presence the document was written and read over and it was understood by the vendor and would not only be limited to merely signing a name or placing thumb- impression upon a blank sheet of paper so as to prove the document to have been executed whose identification should also be proved by reliable and authentic evidence that a person who had affixed thumb- mark or signature was the same person who owned the land and sold the same to the vendee. Execution would mean series of acts, which would complete the execution. Mere signing or putting thumb-mark would not amount to execution in terms of Article 78 of Qanun-e- Shahadat Order, 1984. A document which is not proved is inadmissible in evidence, unless strict proof of it is waived. Defendant No. 1 was also obliged to prove that sale-deeds were executed by plaintiff out of her freewill and that contents of same were read over to her and nature of transaction was explained to her and that at the time of execution of the documents she had an independent advice of her close relatives but despite burden to prove this fact, Defendant No. 1 has failed to discharge his onus by not explaining the nature of transaction to plaintiff. To strengthen this point, reliance can be placed on the judgment reported as “Ch. Muneer Hussain v. Mst. Wazeeran Mai alias Mst. Wazir Mai” (PLD 2005 S.C. 658). Admittedly defendantNo. 1 neither produced any marginal witness of the sale-deeds nor proved that consideration price was paid to plaintiff. Similarly it has also not been proved that possession of disputed property was handed over by plaintiff to Defendant No. 1. Essential elements of sale envisaged in Section 54 of the Transfer of Property Act, 1882 have also not been proved by defendants as the sale means payment of money and delivery of possession. A sale mutation confirming fulfillment of these ingredients is a sale but defendants have not produced any evidence establishing that the sale price was received by plaintiff from Defendant No. 1 and that possession of property was also handed over to defendants at the time of registration of sale-deed.

8. Another aspect of this case is that defendants have produced certified copies of the sale-deeds and registered documents in evidence. The certified copy of a registered document may prove the contents of the original document, but merely showing as to what were the contents of the original document, is not sufficient in absence of the proof of execution of the original document. Therefore, at best it is secondary evidence of the contents of the original. Still the question whether such secondary evidence could be produced depends upon the satisfaction of the conditions laid down in Article 76 of the Qanun-e- Shahadat Order, 1984. Defendants have failed to produce the scribe, Sub Registrar and stamp vendor before the trial Court to prove the contents and execution of sale-deeds and said witnesses were available to defendants but they withheld said witnesses that if witnesses were produced they would not support their version. Defendants did not produce the original sale-deeds and have tendered attested copies of the same without seeking permission of the Court and evidentiary value of a certified copy of sale-deed would lose its importance and said copy would not be sufficient to prove execution of original documents. To support this version, reliance can be placed on case reported as “Syed Mansoor Ahmad v. Mst. Maqbool Begum and others” (1990 SCMR 1259). It has been held in the case reported as “Imam Din and 4 others v. Bashir Ahmed and 10 others” (PLD 2005 S.C. 418) that in absence of original document, its certified copy is not admissible in evidence and notwithstanding the presumption of correctness being attached with certified copy of a document pertaining to the official record, if the availability or existence of document is disputed and original is not produced, its certified copy would not be admissible in evidence without proving the non-availability of the original. Onus was on the defendants to prove that valid sale-deeds had been executed and defendants in this case have failed to prove the execution of sale-deeds and the finding of learned Courts below that plaintiff could not produce the scribe Riaz Ahmad, Marginal witnesses and presumption was drawn against plaintiff. However, it has been ignored that allegation of fraud was made by plaintiff and onus was on defendants to prove genuineness of the sale transaction as it was the duty of defendants to produce the marginal witnesses before trial Court.

9. Sale-deeds having been challenged by plaintiff were registered on 24.7.1984 while mutations were attested on 17.12.1984 and general power of attorney was executed by Faiz Muhammad in favour of Mst. Rehmat Bibi, Defendant No. 2 on 01.9.2001 while the suit was filed on 12.10.2001 and plaintiff through her suit has specifically averred that three days before she was expelled from the house by defendants by proclaiming that she had no concern whatsoever with the disputed property and on coming into knowledge of sale transactions and disputed mutations she filed suit. Under the law, time begins to run from date when right to sue accrues and suit to declare the sale void and ineffective on ground of fraud, right to sue accrues from date of discovery of fraud. In this connection, reliance can be made to the judgment passed in the case of “Fatahuddin v. Zarshad and another”(1973 SCMR 248). Under Article 120 of the Limitation Act, 1908 period of limitation would be computed from the time, when right to sue accrues to a party and suit filed within 2/3 days from date of gaining knowledge about fraudulent entries in revenue record would be well within time, where such entries were found to be without jurisdiction, void and nullity in the eye of law, then question of limitation would not come in the way of plaintiff in challenging such fraudulent action of defendants.

10. In this case, petitioner/plaintiff has alleged that fraud was committed and the material on record in this regard has not been considered and it has failed to be appreciated that fraud of defendants was unearthed three days before the institution of suit when plaintiff was expelled out of house and when fraud has been alleged against, the time computes from the date when fraud comes into the knowledge of aggrieved party. The findings of learned Courts below that suit is barred by limitation is against law. Both learned Courts below committed irregularity and illegality while passing the impugned

judgments and decrees which are also reflective of misreading and non-reading of evidence. Disputed sale could not be proved by any stretch of imagination and onus to prove valid execution of sale-deeds was upon beneficiary/defendants who failed to discharge the said burden.

1. For what has been discussed above, this revision petition is accepted, impugned judgments and decrees passed by both learned Courts below are set aside and suit filed by petitioner/plaintiff for declaration with consequential relief is decreed by leaving the parties to bear their own costs.

(R.A.) Petition accepted

PLJ 2017 Lahore 359

Present: Shahid Bilal Hassan, J.

ABDUL QAYYUM KHAN--Appellant

versus

Sheikh MUHAMMAD AZEEM--Respondent

R.S.A. No. 18 of 2009, heard on 27.1.2017.

Punjab Pre-emption Act, 1991 (IX of 1991)--

----S. 3--Commercial properties--Right of pre-emption--Sale deed--Ostensible sale price only to debar from exercising right of pre-emption--Question of--Whether commercial property is pre-emptible or not--Determination--Commercial properties are not pre-emptible; even otherwise, the right of pre-emption is only to safeguard the privacy of Muslim families and same cannot be enforced in case of commercial properties because question of disagreeable neighbor in such cases does not arise. [P. 362] A

PLD 1986 SC 360, PLD 1990 Kar, 387, rel.

Pre-emptible Property--

----Scope of--Performance of talbs--Requisite talbs--Evidence--It is admitted that property in question is pre-emptible, even then respondent had to prove performance of requisite talbs in accordance with law, as in order to succeed in such a suit, performance of talbs and proving of same in accordance with mandate of law by producing unimpeachable and confidence inspiring evidence is necessary and any lacuna, even slightest, turns fatal to pre-emptor. [P. 363] B

Punjab Pre-emption Act, 1991--

----S. 13--Sale-deed--Right of pre-emption--Talbs--Notice of talb-i-ishhad--Attesting witness--When evidence produced by parties is looked into, it appears that when appellant/defendant has specifically denied receipt of any notice of talb-i-ishhad, it was imperative upon respondent/plaintiff to prove dispatch and delivery of notice but he has badly failed in that regard as none of attesting witnesses has uttered a word as to sending notice under registered cover A.D. as well as receiving of same by present appellant, even they failed to attest their signatures on alleged notice--Not a single suggestion had been put to appellant that he had received notice A.D. and copy of postal receipt A.D. had been exhibited in counsel’s statement, therefore, it emerges that dispatch of notice is neither alleged nor proved; thus, talb has not been proved, whereas performance and proving of same is sine qua non--If it is admitted that respondent performed and proved talb-e-muwathibat, non-proving of second talb i.e. talb-e-ishhad is sufficient to disbelieve version of respondent, as performance and proving of all talbs is essential in order to succeed in such suit--When respondent/plaintiff has failed to prove performance of talbs, as per requirement of law enunciated under Section 13 of Punjab Pre-emption Act, no decree for possession on basis of pre-emption, even if pre-emptor enjoys superior right, can be passed in his favour.

[P. 363] C, D & E

2011 SCMR 762, 2007 SCMR 1105, 2013 SCMR 866, 2014 UC 201 & 2015 SCMR 222, ref.

Mr. Hamid Iftikhar Pannu,Advocate for Appellant.

Syed Kaleem Ahmad Khurshid and Mr. Muhammad Akbar Hayat, Advocates for Respondents.

Date of hearing: 27.1.2017.

Judgment

Succinctly, the facts leading to filing of the instant regular second appeal are as such that the appellant purchased a Shop No. F-426, which was owned by Noor Jahan Begum and others through a sale-deed dated 2.9.2003 in lieu of Rs. 500,000/-, however, allegedly ostensible sale price was shown as Rs. 725,000/-, only to debar the respondent from exercising right of pre-emption. The respondent allegedly gained knowledge about the transaction in question on 22.09.2003 through Fateh Muhammad (P.W.2) in presence of Sheikh Ameer Hashim (P.W.3) and Muhammad Fayyaz, there and then he made jumping demand, whereafter on the same day he sent notice of Talb-e-Ishhad (P-1) to the appellant, but on refusal, he instituted suit for possession on the basis of pre-emption being Shafi Shareek.

The suit was contested by the appellant through filing written statement. Out of the divergent pleadings of the parties, as many as 09 issues including “Relief” were framed by the learned trial Court. Both the parties were invited to lead their evidence, which was adduced in pro and contra. The learned trial Court vide impugned judgment and decree dated 8.10.2007 decreed the suit in favour of the respondent and against the present appellant. The appellant being aggrieved of the said judgment and decree preferred an appeal, but the same was dismissed vide impugned judgment and decree dated 11.11.2008.

1. Opening brief the learned counsel for the appellant has submitted that the impugned judgments and decrees are against law and facts of the case; the same suffer from gross misreading and non-reading of the material available on the record. Contends that the learned Courts below have acted mechanically while decreeing the suit of the respondent regarding a commercial property, which is not sustainable in the eye of law as the learned Courts below have failed to apply Section 3 of the Punjab Pre-emption Act, 1991 in its true spirit, because the commercial property is not open to pre-emption as per the spirit of Islamic Law, hence, the transaction was not pre-emptible. Adds that the right of pre-emption cannot be enforced in case of commercial properties because a question of privacy of property or disagreeable neighbor as envisaged by Islam, does not arise in such case; as such the findings of the learned Courts below on Issues No. 1 and 3 are erroneous. States that the findings on Issues No. 7 are also not maintainable as the appellant has proved his stance through confidence inspiring evidence. Maintains that the learned Courts below have failed to exercise vested jurisdiction in accordance with law and by travelling beyond the same, non-suited the appellant mere on the basis of surmises and conjectures. Submits that even if the right of pre-emption is admitted for the sake of arguments, the respondent has failed to perform and prove the requisite talbs as per mandate of Section 13(3) of the Punjab Pre-emption Act, 1991. Therefore, by allowing the appeal in hand, impugned judgments and decrees may be set aside and suit instituted by the respondent may be dismissed with costs throughout. Relies on Mst. Hameeda Begum and others v. Mst. Irshad Begum and others (2007 SCMR 996), Muhammad Bashir and others v. Abbas Ali Shah (2007 SCMR 1105), Bashir Ahmed v. Ghulam Rasool (2011 SCMR 762), Allah Ditta through L.Rs. and others v. Muhammad Anar (2013 SCMR 866).

2. Contrarily, the learned counsel appearing on behalf of the respondent by favouring the impugned judgments and decrees has prayed for dismissal of the appeal in hand. Adds that in the grounds of appeal it was not alleged that notice was not received, therefore, this plea cannot be agitated before this forum. Relies on Muhammad Farooq v. Abdul waheed siddiqui and others (2014 SCMR 630), Muhammad Iqbal v. Mehboob Alam (2015 SCMR 21), Dost Muhammad (Deceased) through L.Rs. v. Muhammad Yousaf and others (2008 SCMR 1339) and Abdul Rehman and others v. Mahar Bakhsh and others (2005 SCMR 1364).

3. Heard.

4. First of all this Court has to dilate upon the question whether commercial property is pre-emptible or not, as Section 5 of the Punjab Pre-emption Act, 1913 exempts a shop, Sarai or Katra from the right of pre-emption, whereas Section 3 of the Punjab Pre-emption Act, 1991 provides that In the interpretation and the application of provisions of this Act, the Court shall seek guidance from the Holy Qur’an and Sunnah, meaning thereby the interpretation made in this regard in a reported judgment Haji Muhammad Ameen etc. v. Islamic Republic of Pakistan and others (PLD 1981 FSC 23) is applicable to the present case, as when a question with regard to repugnancy of Section 5 of the Punjab Pre-emption Act, 1913 came before the Hon’ble Federal Shariat Court, it was held:

‘Now Section 5 of the Punjab Pre-emption Act exempts commercial properties like shop, Sarai or Katra from the operation of the Act. There is no specific tradition of the Prophet (P.B.U.H.) conferring right of pre-emption on such properties. The specific right of pre-emption has been held to accrue on sale of house, garden or land only. For this reason the provision is not repugnant to the Sunnah of the prophet. Even otherwise no Zarar is caused by the sale of such properties to strangers.’

When the above ratio is read with Section 3 of the Punjab Pre-emption Act, 1991 (prevalent Act), it can safely be observed and held that the commercial properties are not pre-emptible; even otherwise, the right of Pre-emption is only to safeguard the privacy of Muslim families and the same cannot be enforced in case of commercial properties because the question of disagreeable neighbor in such cases does not arise. In this regard reliance can safely be placed on Government of N.-W.F.P. through Secretary, Law Department v. Malik Said Kamal Shah (PLD 1986 Supreme Court 360) and Messrs M.R. Sons v. M/s. Junaid Associates (Private) Ltd. (PLD 1990 Karachi 387). Moreover, the law of pre-emption is not a way of accumulating wealth, because our religion (Islam) stresses upon distribution of properties and does not support monopoly of certain person(s).

1. Apart from the above, if for the sake of arguments, it is admitted that the property in question is pre-emptible, even then the respondent had to prove performance of requisite talbs in accordance with law, as in order to succeed in such a suit, performance of talbs and proving of the same in accordance with the mandate of law by producing unimpeachable and confidence inspiring evidence is necessary and any lacuna, even the slightest, turns fatal to the pre-emptor.

In the present case, when the evidence produced by the parties is looked into, it appears that when the appellant/ defendant has specifically denied the receipt of any notice of Talb-i-Ishhad, it was imperative upon the respondent/plaintiff to prove the dispatch and delivery of notice to the appellant/ defendant; but he has badly failed in this regard as none of the attesting witnesses has uttered a word as to sending notice under Section 13 of the Act under registered cover A.D. as well as receiving of the same by the present appellant, even they failed to attest their signatures on the alleged notice. Moreover, the scribe of the notice was also not produced and even no detail of sale was given by P.W.1. In addition to the above, not a single suggestion had been put to the appellant that he had received notice A.D. and the copy of postal receipt A.D. had been exhibited in counsel’s statement, therefore, it emerges that dispatch of notice is neither alleged nor proved; thus, this talb has not been proved, whereas performance and proving of the same is sine qua non. In this regard light can be sought from case of Bashir Ahmed v. Ghulam Rasool (2011 SCMR 762), Muhammad Bashir and others v. Abbas Ali Shah (2007 SCMR 1105), Allah Ditta through L.Rs. and others v. Muhammad Anar (2013 SCMR 866), Muhammad Jamil Lambardar v. Ghulam Bheek (Deceased) through His Legal Heirs (2014 UC 201) and Dayam Khan and others v. Muslim Khan (2015 SCMR 222).

1. Pursuant to the above discussion, even if it is admitted that the respondent performed and proved Talb-e-Muwathibat, non-proving of second talb i.e. Talb-e-Ishhad is sufficient to disbelieve the version of the respondent, as performance and proving of all talbs is essential in order to succeed in such suit. When the respondent/plaintiff has failed to prove performance of Talbs, as per requirement of law enunciated under Section 13 of the Punjab Pre-emption Act, 1991, no decree for possession on the basis of pre-emption, even if the pre-emptor enjoys superior right, can be passed in his favour. Reliance is placed on Mst. Sahib Jamala v. Fazal Subhan and 11 others (PLD 2005 Supreme Court 977).

2. As far as, the case law relied upon by the learned counsel for the respondent is concerned, with utmost respect, the same does not apply to the present case, as the peculiar facts and circumstances of the case in hand are different from that which are narrated in the said precedents; therefore, it does not render any assistance or help to the respondent’s case.

3. For the foregoing reasons, while placing reliance on the judgments supra, it is observed that the learned Courts below have failed to appreciate evidence and law on the subject in its true perspective and have failed to exercise jurisdiction vested in them in accordance with law; as such, material illegalities and irregularities have been committed while passing the impugned judgments and decrees. Resultantly, by allowing the appeal in hand, the impugned judgments and decrees passed by the learned Courts below, being not sustainable in the eye of law are set aside; consequent whereof the suit instituted by the respondent/plaintiff stands dismissed. No order as to the costs.

(R.A.) Appeal allowed

PLJ 2017 Lahore 364 [Multan Bench Multan]

Present: Mudassir Khalid Abbasi, J.

MEPCO, etc.--Petitioners

versus

ADVISORY BOARD, PUNJAB, LAHORE etc.--Respondents

W.P. No. 3439 of 2009, heard on 31.1.2017.

Electricity Act, 1910 (IX of 1910)--

----Ss. 26(a) & 36--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Consumer in respect of electric connection--Electric inspector--Jurisdiction--Audit report--Objection regarding deduction bill--Subsequent detection bill on basis of audit objection that previously detection bill was less charged and recommended impugned amount--Function and power of electric inspector--Validity--Electric inspector can only determine disputes relating to defective meter or otherwise--In any case amount payable on account of audit objection, may be originating from dishonest abstraction, does not, in any manner fall within purview of electric inspector. [Pp. 368 & 369] A & B

PLD 1995 Lah. 56 & PLD 2012 SC 371, rel.

Mehr. Irshad Ahmad Arain, Advocate for Petitioners.

Mr. Muhammad Aurangzeb Khan, Assistant Advocate General alongwith Muhammad Khurram Zahoor, Asstt. Electric Inspector for Respondents No. 1 & 2.

Date of hearing: 31.1.2017

Judgment

None has entered appearance on behalf of Respondent No. 3 inspite of the fact that various modes were adopted for his service, therefore, said respondent is proceeded exparte.

1. Through this constitutional petition, petitioners have called in question the legality of decision dated 12.11.2004 passed by Respondent No. 2/Electric Inspector to Government of the Punjab, Multan Region, Multan and decision dated 03.01.2009 passed by Respondent No. 1/ Advisory Board, Punjab, Lahore.

2. Brief facts of the case are that Respondent No. 3 is a consumer of MEPCO/WAPDA in respect of electric connection under reference No. 21-5132-28351008 Tarrif B-1 (Industrial) with 15-KW connected load.

3. Meter was checked at site by the Regional Surveillance Team of MEPCO/WAPDA in the month of July, 2000 who communicated detected discrepanciesvide Memo No. 44154-57 CE/MEPCO/Multan/DDCS dated 17.08.2000 that the meter is dead stop on running load 7.3 Amp+500 Watts, MSS open and Supply is also being used for commercial purpose. Surveillance Team in the light of the said detected discrepancies recommended to charge the detection bill against 4784 net chargeable units for three months by applying 15% load factor on the basis of 15-KW connected load but Respondent No. 3 with the connivance of the some officials got the figures of 4784 units altered the same as 1498 units with connected load as 5-KW instead of 15-KW and through adjustment Note No. 80, 3286 units were less debited towards the account of Respondent No. 3, and paid the less charged detected bill as Rs. 6946/-. Meter of Respondent No. 3 was not changed and remained dead stop which is not recording the consumption of energy at the site and due to which less consumption was recorded as 211 units in August, 408 units in September and 40 units.

4. In the month of October, 2000, local Audit Party M-15, during the scrutiny of the record, vide Audit Note No. 58 dated 24.11.2000, observed discrepancies regarding the detection less charged to the tune of Rs. 36,017/- against 7555 net chargeable units, therefore, said amount was debited in the account of Respondent No. 3. A legal notice was also issued to Respondent No. 3 vide Memo No. 4095-96 dated 07.04.2004. Respondent No. 3 challenged the said bill before Respondent No. 2/Electric Inspector of Government of the Punjab Multan Region, Multan through an application under Section 38 of NEPRA Act and Section 26 & 26(2) of the Electricity Act, 1910. Petitioners contested the application by filing written reply. Respondent No. 2/Electric Inspector of Government of the Punjab, Multan Region, Multan, vide impugned decision dated 12.11.2004 accepted the application of Respondent No. 3 while declaring the detection charges as illegal and unjustified with the direction to petitioners to withdraw the detection bill for the cost of 7555 units amounting to Rs. 36,017/- and to overhaul the account of Respondent No. 3. Being aggrieved, petitioners preferred an appeal before Respondent No. 1 which was rejected vide impugned decision dated 03.01.2009. Consequently, this constitutional petition has been filed.

5-A. Learned counsel for petitioners has argued that impugned decisions are against the law and facts on the record. Further argued that Respondents No. 1 and 2 have committed material irregularity and illegality, while passing the impugned decisions. Contends that Respondent No. 3, earlier, has not raised any objection regarding the detection bill as well as status of meter and he paid the same, however, after correction of the same by audit committee, he cannot raise objection by filing application regarding the same. Further contends that Respondents No. 1 and 2 have no jurisdiction to decide the matter. States that detection charges have been assessed u/S. 26-A of the Electricity Act, 1910 which do not call for interference by the Electric Inspector in the light of decision of this Court reported as “Water and Power Development Authority and others v. Mian Muhammad Riaz and another” (PLD 1995 Lahore 56). Further states that no notice as required under the Act ibid has been served upon the petitioners before filing the same. Contends that impugned decisions have been passed without application of mind, therefore, same are liable to be set aside.

5-B. Conversely, learned Assistant Advocate General contends that both decisions are according to law and the facts on the record and no irregularity and illegality has been committed. Further contends that Section 26 of Electricity Act, 1910 and Section 38 of the Regulation of General, Transmission and Distribution of Electric Power Act, 1997 fully provide jurisdiction to Respondents No. 1 and 2 to adjudicate such matters. Argued that petitioners never accused the consumer to be involved in dishonest abstraction rather declared the meter as dead stop and they continued issuing bills on the basis of reading/consumption, therefore, dispute raised did not relate to Section 26-A. Contends that plea of petitioners is an afterthought as no such objections were raised before Respondents No. 1 & 2. Argued that bill adjustment note for charging detection bill was also prepared for the same cost of units as mentioned on the detection bill proforma and it was charged/debited to consumer’s account after approval of XEN MEPCO/competent authority. Reliance has been placed on “Authority, etc. v. Umaid Khan” (NLR 1988 Civil 28).

1. I have given my conscious thought to the submissions made by learned counsel for the parties and perused the record.

2. In order to resolve the legal question involved in this case it would be appropriate to comprehend the real controversy between the parties. Respondent No. 3 moved a written application before Respondent No. 2 stating therein that being occupant of premises, in year 2000 a detection bill was served upon him on account of dead meter. Petitioners agitated the matter, however, utility bills were being sent to Respondent No. 3 as advance reading. These bills were regularly paid by Respondent No. 3. Suddenly, after the lapse of three years another detection bill amounting to Rs. 40,338/- was served upon Respondent No. 3 on the pretext of an audit objection that previously less amount was deducted.

3. Respondent No. 2/Electric Inspector while adjudicating upon the controversy has declared the said deduction bill, raised on the basis of audit objection/note as illegal and directed the appellants/petitioners to withdraw the said deduction bill, vide order dated 12.11.2004. This was assailed by the petitioners before Respondent No. 1 which was upheld in the impugned decision vide judgment dated 03.01.2009.

4. It has been observed that both the forums below have discussed subsequent detection bill imposed on Respondent No. 3 on the basis of an audit objection that previously the detection bill was less charged and recommended the impugned amount.

5. Besides the merits of the case stance taken by the petitioners/MEPCO throughout, has been that impugned decisions are without lawful authority because Section 26-A of the Electricity Act, 1910 does not vest with the jurisdiction to Electric Inspector to adjudicate such matters. Therefore, Section 26(6) of the Act does not confer jurisdiction to scrutinize the amount demanded. This seems to be correct, particularly, when the dispute relates to the charging of less amount on account of an audit objection.

6. Office of the Electric Inspector has been constituted in terms of Section 36 of the Electricity Act, 1910 whereas the Section 26 envisages the functions and power of Electric Inspector. Section 26(6) reads as under:

“Where any difference or dispute arises between a licensee and a consumer as to whether any meter, maximum demand indicator or other measuring apparatus is or is not correct the matter shall be decided, upon the application of either party, by an Electric Inspector, within a period of ninety days from the date of receipt of such application, after affording the parties an opportunity of being heard, and where the meter, maximum demand indicator or other measuring apparatus has, in the opinion of the Electric Inspector, ceased to be correct, the Electric Inspector shall estimate the amount of energy supplied to the consumer or the electrical quantity contained in the supply, during such time as the meter, indicator or apparatus has not, in the opinion of the Electric Inspector, been correct, and, where the Electric Inspector fails to decide the matter of difference or dispute within the said period or where either the licensee or the consumer decline to accept the decision of the Electric Inspector, the matter shall be referred to the Provincial Government whose decision shall be final.”

Plan reading of the said provision reveals that dispute related to the amount of charge is somewhat different from the determination of dispute regarding the measuring apparatus. In other words, Electric Inspector can only determine the disputes relating to the defective meter or otherwise.

1. So far as Section 26-A of the Act is concerned, it only speaks of charging/imposition of amount by the licensee upon consumer, regarding dishonest abstraction and consumption of electricity. It may not be through the tempering in the metering equipment, however, in any case amount payable on account of audit objection, may be originating from dishonest abstraction, does not, in any manner fall within the purview of electric inspector. Reliance is placed on “Water and Power Development Authority and others v. Mian Muhammad Riaz and another” (PLD 1995 Lahore 56), relevant portion of which is reproduced herein below:

“Determination of electricity charges made by Water and Power Development Authority under S.26, Electricity Act, 1910 for dishonestly extracted electricity---Electric Inspector in contemplation of S.26-A, Electricity Act, 1910, whether vested with jurisdiction to adjudicate upon such matter---Dispute between parties related to amount of charges demanded in a bill sent to consider for payment for dishonest consumption of electricity---Provision of S.26(6), Electricity Act, 1910, provides for seeking determination of dispute as to whether measuring apparatus (meter) was or was not correct---Provision of S.26(6), Electricity Act, 1910, thus, could not be read as conferring jurisdiction or power on Electricity Inspector to scrutinize the amount demanded under S.26-A of the Act for dishonest abstraction or consumption of energy.”

1. More explicitly, in “Water and Power Development Authority and others v. Messrs Kamal Food (Pvt.) Ltd. Okara and others” (PLD 2012 SC 371), it has been observed in following terms:

“Electric Inspector for possessing special expertise in examining the working of metering equipment and other related apparatus had jurisdiction to entertain reference under S.26(6) of Electricity Act, 1910 only in case of dishonest consumption of energy by consumer through deliberate manipulation of or tampering with metering equipment or other similar apparatus---Electric Inspector would have no jurisdiction in matter of theft by means other than tampering or manipulation of metering equipment etc. falling exclusively under S. 26-A of Electricity Act, 1910.

What has been discussed above, both the impugned orders/decisions passed by Respondent No. 1 and 2 dated 03.01.2009 and 12.11.2004, respectively are set aside. This petition is allowed. No order as to costs.

(R.A.) Petition allowed

PLJ 2017 Lahore 370 [Bahawalpur Bench, Bahawalpur]

Present: Tariq Iftikhar Ahmad, J.

Mst. UZMA BIBI--Petitioner

versus

ADDITIONAL DISTRICT JUDGE, etc.--Respondents

W.P. No. 6399 of 2013, decided on 24.1.2017.

Interpretation of Dower--

----Prompt dower--Mehr-e-mujjal--Immediate before consummation--Every dower which becomes due at time of marriage is called dower. [P. 373] A

Prompt Dower--

----Scope of--Divorce without consummation wife--Moment nikah is completed such dower becomes payable no matter marriage has not been consummated yet but if husband pronounces divorce without consummation wife shall then have to give half of dower back to him--Husband is required to pay dower at demand made from wife and in case of failure to pay wife can knock doors of justice to recover it. [P. 373] B

Deferred Dower--

----Subsequent after consummation--Payable on demand--When payment of dower depends on happening of some event or on accruals of anytime is called deferred dower--Such dower may become payable at time of dissolution of marriage or on happening of some event or at expiry of a particular period. [P. 373] C

Nikah-nama--

----Cross examine--Failed to--Entries in nikah nama--It is well established principle of law that when a person fails to cross-examine witness on specific portion, it would be considered to admitting his statement as correct. [P. 374] D

Islamic Law--

----Definition of dower--Not mandatory--There must be a divorce between parties or dissolution of marriage then wife can claim dower, it is against spirit of ordains of Qur’an and precepts of Prophet (P.B.U.H.) because when marriage accrued between parties it is vested right of a woman to take dower forthwith but it was subsequently provided a convenience to man by bifurcating term dower as prompt and deferred. [P. 374] E

Dowery Articles--

----Receipts of dowry--Entries contained in nikah nama--In view of customs of our society every parents gives dowry articles to their daughters according to their limits and resources--Dowry articles and maintenance keeping in view status of parties and entries contained in nikah-nama whereas appellate Court without applying its judicious mind modified well-reasoned judgment of trial Court.

[P. 375] F

Restitution of Conjugal Rights--

----Suit for--Vested rights--It was just an attempt to hamper lawful rights of petitioner and used modus operandi in order to deprive of her vested rights. [P. 375] G

Reconciliation--

----Nikah nama--If husband was sincere in reconciliation he would have paid dower to petitioner as per commitment incorporated in nikah nama--Thus, intention of husband proved otherwise and speaks volume about his credibility. [P. 375] H

Mr. Rashid Mehmood Naich, Advocate for Petitioner.

Mian Muhammad Bashir, Advocate for Respondent No. 2.

Date of hearing: 24.01.2017

Order

Through this common order, I intend to dispose of Writ Petition No. 6399 of 2013 titled “Mst. Uzma Bibi v Additional District Judge, etc.” and Writ Petition No. 331 of 2014 titled Muhammad Shafique v. Additional District Judge, etc. “arising out the same judgments and decrees.

1. The petitioner has called in question the legality and vires of the judgment and decree dated 03.09.2013, handed down by the learned Additional District Judge, Ahmadpur East, District Bahawalpur, by virtue of which appeal filed by Respondent No. 2 was partially accepted and modified the decree passed by learned Judge Family Court.

2. Briefly, the facts of the case are that petitioner got married with Respondent No. 2 on 27.07.2009 and at the time of Nikah, cash to the tune of Rs. 5000/- one house consists of five marla situated in Millat Colony, Bahawalpur valuing Rs. 15,00,000/- 10 tola gold ornaments valuing Rs. 400,000/- was fixed as dower which was not paid. Further averred that at the time of marriage, parents of petitioner gave dowry articles detail of which has been given in Para 2 of the plaint worth valuing Rs. 6,60,000/-. It was further alleged that the petitioner started living with Respondent No. 2 who habitually gave beatings to her and ultimately turned out the petitioner from his house in wearing apparels. The petitioner filed suits for recovery of dower, dowry articles and maintenance titled “Mst. Uzma Bibi v Muhammad Shafique”. Contrary to this, Respondent No. 2 filed suit for restitution of conjugal rights titled “Muhammad Shafique v. Mst. Uzma Bibi”. The said suits were contested by the opposite parties respectively. The learned Judge Family Court after framing of issues, recorded evidence led by both the parties and proceeded on to decree the suit filed by the petitioner and dismissed the suit filed by Respondent No. 2, vide judgment and decree dated 08.05.2012 which were assailed in appeal by both the contesting parties and the learned lower appellate Court vide impugned judgment and decree dated 03.09.2013 partially set aside the decree granted in favour of the petitioner.

3. Learned counsel for the petitioner contends that act of learned lower Court while partially setting aside the well-reasoned judgment and decree of learned Family Court and that too without appreciating the evidence available on record is not warranted by law. Learned counsel for the petitioner while making reference to the entries of Nikah Nama submits that learned lower appellate Court has also erred in law while holding that no cogent evidence with regard to the gold ornaments as deferred dower is available on record.

4. On the other hand, learned counsel for the contesting respondent while controverting the submissions made by learned counsel for the petitioner, defended the impugned judgment and stated that it was passed according to facts and law and there was no (sic).

5. After hearing learned counsel for the parties I have gone through the record.

6. As the petitioner is aggrieved of judgment passed by the appellate Court by modifying the judgment of the trial Court, it was the case of the petitioner that the appellate Court was not justified to modify the claim of the petitioner viz: dower, maintenance and dowry articles.

7. Before dealing the above said issues it is better and appropriate to deal these terms in a seriatim.

The term ‘Dower’ under discussion needs proper interpretation so before evolving the issue in hand it is aptly to know about the etymology of the term “Dower” which has been described by the various international jurists, including Muslim jurists particularly, one renowned name i.e. D.F. Mulla.

“Dower is sum of money of other property which the wife is entitled to receive from the husband in consideration of marriage”.

“Mahr is a token of love and assurance given by the groom to his would be wife at the time of marriage”.

Allah (SWT) said “And give unto the women (whom ye marry) free gift of their marriage portions. But if they of their own accord remit unto you a part thereof, then ye are welcome to absorb it (in your wealth)” (4:4)

1. In Islam the dower has been elaborately defined by the different jurists but we can take guideline from the precepts of Hazrat Muhammad ﷑. Now in order to thresh the word dower, which contains two divisions i.e. PROMPT DOWER AND DEFERRED DOWER.

PROMPT DOWER: (Mehr-e-Muajjal); Forthwith, immediate before consummation. Every dower which becomes due at the time of marriage is called dower. The moment Nikah is completed this dower becomes payable no matter the marriage has not been consummated yet but if husband pronounces divorce without consummation wife shall then have to give half of the dower back to him. Husband is required to pay the dower at demand made from wife and in case of failure to pay wife can knock the doors of justice to recover it.

DEFERRED DOWER: (Mehr-e-Mawajjal); subsequent, after consummation. Payable on demand. It is laid down in Hadaya that when the payment of dower depends on the happening of some event or on the accruals of anytime this is called deferred dower. Such dower may become payable at the time of dissolution of marriage or on the happening of some event or at the expiry of a particular period.

1. The term dower has been defined in Law Lexicon as under:

“According to English Law dower in its proper sense means applicable only to real property and to the widow’s life estate therein, but it is sometimes applied in statutes, wills or contracts to a widow’s share in the personal property of her deceased husband”.

1. From the perusal of the contents of the record it is crystal clear that Respondent No. 2 failed to cross-examine the plaintiff about the entries of Nikah-Nama, it is well established principle of law that when a person fails to cross-examine the witness on specific portion, it would be considered to admitting his statement as correct. Reference in this regard can be made to “Zafar Iqbal v. Imtiaz Hussain Phulpoto” (1986 MLD 2001), “Land Acquisition Collector, WAPDA SCAR P-VI, Rahim Yar Khan and another v. Quresh Muhammad and 17 others “ (1990 MLD 2123) and “Rehman Ullah v Wazirzada” (2011 YLR 3045). Thus, in the case in hand Respondent No. 2 could not properly substantiate the contents of the Nikah and as such the learned appellate Court arbitrarily acted in the matter while modifying the judgment without getting through every inch and aspect of the case.

2. Now it is the case of Respondent No. 2 that he intended to rehabilitate his matrimonial tie with the petitioner, so he filed suit for restitution of conjugal rights but from the other side he could not substantiate the stance given by the petitioner that when she raised demand of her dower as incorporated in the Nikah Nama, Respondent No. 2 became furious and in order to quench his personal vendetta ousted the petitioner from her marital domicile, and so she was constrained to file the suit for recovery of the dower, maintenance and dowry articles. She also properly deposed in her statement when she appeared as PW-1 that on rasing the demand of dower her husband adopted cruel attitude and nourished grudge against her and kicked her out from his house. This aspect of evidence was not properly scanned by the learned appellate Court and without any justification upset the findings of the learned Judge Family Court which were recorded on the facts and circumstances.

3. According to the contents and definition of dower asserted (supra) it was not mandatory that there must be a divorce between the parties or dissolution of marriage then the wife can claim dower, it is against the spirit of ordains of Qur’an and precepts of Prophet ﷺ because when the marriage accrued between the parties it is the vested right of a woman to take dower forthwith but it was subsequently provided a convenience to the man by bifurcating the term dower as prompt and deferred. It does not mean that it gives liberty to a man and excuse that he intends to rehabilitate matrimonial life. It is suffice to give consideration to the woman in the shape of dower because she completely surrenders her corpse before man, including her chastity, youth and loyalty, so, in the case in hand the learned appellate Court did not even bother to take into considerations the settled norms and

in a slip shot manner delivers the judgment and erroneously set aside the judgment passed by the learned trial Court.

1. Record transpires that petitioner-plaintiff produced receipts of dowry articles to substantiate her claim. In view of the customs of our society every parents gives dowry articles to their daughters according to their limits and resources. The learned trial Court rightly concluded issues i.e. dower, dowry articles and maintenance keeping in view the status of the parties and entries contained in the Nikah-Nama whereas the learned appellate Court without applying its judicious mind modified the well-reasoned judgment of learned trial Court.

2. So far as the claim of Respondent No. 2 with regard to institution of suit for restitution of conjugal rights is concerned, it appears that it was just an attempt to hamper the lawful rights of the petitioner and used the modus operandi in order to deprive of her vested rights. If Respondent No. 2 was sincere in reconciliation he would have paid the dower to the petitioner as per commitment incorporated in the Nikah Nama. Thus, the intention of Respondent No. 2 proved otherwise and speaks volume about his credibility.

3. Learned counsel for Respondent No. 2 has failed to point out any illegality, material irregularity or jurisdictional error on the part of learned Judge Family Court.

4. In view of above discussion, the instant petition is allowed and the judgment and decree dated 03.09.2013 of appellate Court is set aside restoring the judgment and decree dated 08.05.2012 passed by learned Judge Family Court.

(R.A.) Petition allowed

PLJ 2017 Lahore 375

Present: Shahid Bilal Hassan, J.

MUHAMMAD HUSSAIN and 2 others--Petitioners

versus

Mst. ZARINA AKBAR and 6 others--Respondents

W.P. No. 38404 of 2016, decided on 8.2.2017.

Limitation Act, 1908 (IX of 1908)--

----Arts. 181 & 164--Civil Procedure Code, (V of 1908), O.I, R. 10--Ex-parte decree--Absence of--Provisions of Art. 181 instead of Art. 164, Limitation Act attracts--Validity--Courts below had failed to appreciate law on subject properly; said observations being beyond mandate of law and not sustainable are reversed, set aside; application for setting aside of ex-parte judgment and decree was well within time. [P. 378] A

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

----O. I, R. 10--Ex-parte proceedings--Jurisdiction--When ex-parte proceedings were initiated against petitioners, date was fixed for arguments on application filed under Order I, Rule 10 of C.P.C., therefore, at most, trial Court ought to have proceeded and decided application in absence of petitioners, rather to initiate ex-parte proceedings against them in suit; therefore, such order and subsequent ex-parte judgment and decree cannot be said to be legal one, rather it is without jurisdiction and void. [P. 378] B

Power of Rectify--

----Constitutional jurisdiction--When order is patently illegal and has been passed in violation of law--Constitutional jurisdiction--Power to rectify--Initial order was void and against mandatory provisions of law, subsequent superstructure could not stand on same and High Court has ample power to rectify such jurisdictional error--Petition was allowed. [P. 379] C & D

Rana Muhammad Anwar, Advocate for Petitioners.

Mr. Aftab Hussain Bhatti, Advocate for Respondents No. 1 to 4.

Mr. Wasim Mumtaz Malik, Addl. Advocate General

Date of hearing: 8.2.2017.

Order

Tersely, the Respondents No. 1 to 3 instituted a suit for declaration against the present petitioners (Defendants No. 3 to 5) and Respondents No. 4 & 5 (Defendant No. 2 and 1, respectively) regarding the suit property. The Defendant No. 2/Respondent No. 4 submitted written statement and conceded the plaint. The petitioners moved an application under Order I, Rule 10 of the C.P.C. for deleting the Province of Punjab being unnecessary party. Allegedly, the matter was settled in Punchayat that the plaintiffs would withdraw their suit and Defendant No. 2 would give them their share out of remaining six acres, but the plaintiffs continued their proceedings and ultimately on 04.11.2015, ex-parte proceedings were ordered against the petitioners/Defendants No. 3 to 5 and resultantly, on 08.01.2016, ex-parte judgment and decree was passed in favour of the plaintiffs/ Respondents No. 1 to 3. The petitioners filed an application for setting aside the order dated 04.11.2015 with regard to initiation of ex-parte proceedings and ex-parte judgment & decree dated 08.01.2016, which was contested and the same was dismissed vide impugned order dated 13.04.2016, which necessitated in filing of the civil revision before the learned lower Revisional Court, but it was dismissed vide impugned order dated 18.11.2016.

1. The main thrust of the learned counsel for the petitioners is upon the fact that on the fateful date i.e. 04.11.2015, the suit was fixed for arguments on the application filed under Order I, Rule 10 of the C.P.C. and at the most, due to absence of the petitioners and their counsel, the learned trial Court ought to have decided the fate of the said application instead of initiating ex-parte proceedings against the present petitioners, as such, the learned Court committed illegality as well as failed to consider law on the subject, which resulted in miscarriage of justice. Relies on Qazi Muhammad Tariq v. Hasin Jahan and 3 others (1993 SCMR 1949) and Hashim Khan v. National Bank of Pakistan (1992 SCMR 707). Submits that when the initial order dated 04.11.2015 is illegal, void ab-initio, without jurisdiction and without lawful authority, the ex-parte judgment and decree dated 08.01.2016 based on the said void order is nullity in the eye of law. Relies on Water and Power Development Authority through Chairman and 3 others v. Mir Khan Muhammad Khan Jamali and another (2006 CLC 92 Quetta). Adds that the learned Courts below have passed the impugned orders and ex-parte judgment and decree clearly in violation of the principles laid down by the Higher Courts. Further adds that law leans in adjudication of cases on merits rather on technicalities. Asserts that the learned Courts below have committed jurisdictional error, which needs to be rectified in exercise of constitutional jurisdiction. As such, by allowing the writ petition in hand, the impugned orders and ex-parte judgment and decree may be set aside and the matter may be remanded to the learned trial Court for decision afresh in accordance with law. It has further been prayed that application filed under Order I, Rule 10 of the C.P.C. may also be accepted. Relies on Messrs Eastern Steels v. National Shipping Corporation (1984 CLC 2778-Karachi), Assistant Controller of Imports and Exports and 2 others v. Muhammad Iqbal Bhirviya (1989 CLC 398-Karachi), Qazi Laeeq v. Najeeb-ur-Rehman and others (2012 MLD 50-Peshawar), Muhammad Anwar v. Muhammad Masood Akhtar and others (1993 MLD 1889 Lahore) and Syed Qaim Ali Shah through Attorney v. Election Commission of Pakistan through Secretary and 3 others (PLD 2015 Sindh 408).

2. Naysaying the above submissions, the learned counsel for the Respondents No. 1 to 4, by favouring the impugned orders, ex-parte judgment and decree, has prayed for dismissal of the writ petition in hand. Relies on Honda Atlas Cars (Pakistan) Ltd. v. Honda Sarhad (Pvt.) Ltd. and others (2005 SCMR 609), Shahid Pervaiz alias Shahid Hameed v. Muhammad Ahmad Ameen (2006 SCMR 631) and Secretary Education Department, Government of N.-W.F.P., Peshawar and others v. Asfandiar Khan (2008 SCMR 287).

3. Heard.

4. In the present case, the provisions of Article 181 of the Limitation Act, 1908 attracts instead of Article 164 of the Act, as the petitioners joined the proceedings, submitted their written statement and when the suit was fixed for arguments on the application filed under Order I, Rule 10 of the C.P.C., due to their absence, they were proceeded against ex-parte and later on ex-parte judgment and decree was passed against them; as such, the period for filing application for setting aside of ex-parte judgment and decree is three years under the above said Article of the Act. Hence, the learned Courts below have failed to appreciate law on the subject properly; the said observations recorded by the learned Courts below being beyond mandate of law and not sustainable are reversed, set aside; it is held that the application for setting aside of ex-parte judgment and decree was well within time.

5. Admittedly, when ex-parte proceedings were initiated against the petitioners, the date was fixed for arguments on the application filed under Order I, Rule 10 of the C.P.C., therefore, at the most, the learned trial Court ought to have proceeded and decided the said application in absence of the petitioners, rather to initiate ex-parte proceedings against them in the suit; therefore, such order and subsequent ex-parte judgment and decree cannot be said to be legal one, rather it is without jurisdiction and void. Illumination in this regard can be sought from reported case Hashim Khan v. National Bank of Pakistan (1992 SCMR 707) and Qazi Muhammad Tariq v. Hasin Jahan and 3 others (1993 SCMR 1949), which speaks:

‘It seems difficult to support the order dated 27-3-1986 of the trial Court and the orders of the Additional District Judge and the High Court. A perusal of the record indicates that the suit of the appellant was dismissed on a day which was not fixed for its hearing; it was day appointed for hearing arguments on the application for temporary injunction filed by the appellant. In the absence of the appellant all that the learned trial Judge could do was to dismiss the application for temporary injunction. It could not proceed beyond that and dismissed the suit as well. Quite clearly its order in this regard was without jurisdiction and void.’

When the order is patently illegal and has been passed in violation of law, this Court has powers to rectify the same while exercising its constitutional jurisdiction; in this regard reliance can be placed on Muhammad Anwar and others v. Mst. Ilyas Begum and others (PLD 2013 Supreme Court 255), wherein it has been held:

‘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 tantamounts 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…………..’

1. So far as the case law relied upon by the learned counsel for the respondents is concerned, with utmost respect, the same is on different ratio, therefore, the same does not enhance the cause of the respondents. Even otherwise, each and every case has its peculiar facts and circumstances and the Courts have to evaluate and adjudge the same with an independent mind so as to administer safer justice.

2. Compendium of the above discussion is that as the initial order dated 04.11.2015 was void and against the mandatory provisions of law, the subsequent superstructure could not stand on the same and this Court has ample power to rectify such jurisdictional error. As such, the instant writ petition is allowed, the impugned orders dated 04.11.2015, 13.04.2016 passed by the learned trial Court and ex-parte judgment and decree dated 08.01.2016 and order dated 18.11.2016 passed by the learned Revisional Court, being based on wrong assumption of law are declared illegal and void as well as without jurisdiction and are set aside. Case is remanded to the learned trial Court, where the suit shall be deemed to be pending alongwith application filed under Order I, Rule 10 of the C.P.C., with a direction to decide the same afresh on merits in accordance with law. The adversaries are directed to appear before the learned trial Court on 11.03.2017. No order as to the costs.

(R.A.) Petition allowed

PLJ 2017 Lahore 380

Present: Atir Mahmood, J.

SHEHZAD ALI KHAN--Petitioner

versus

ELECTION COMMISSION OF PAKISTAN etc.--Respondents

W.P. No. 40835 of 2016, heard on 16.1.2017.

Punjab Local Government Act, 2013 (XVIII of 2013)--

----S. 27--Provincial Insolvency Act, 1920, S. 6--Punjab Local Government Ordinance, 2001, S. 154--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Undischarged insolvent--Being member and chairman of municipal committee--Disqualification--Decree regarding loan obtained by bank--Declared as returned candidate--Ground of non-dislcosure of decree--Not specifically mentioned decree--Not committed any of acts of insolvency cannot be termed as undischarged insolvent--Repealed--Validity--Election commission submitted that non-repealing of Section 154 was an interim arrangement only in order to protect day-to-day affairs of local bodies and it has no bearing in election matters--When new law on a subject has come into force, there is no fun to continue previous law on same subject. [Pp. 387 & 388] B

2016 SCMR 430, 2016 MLD 846, 2016 SCMR 893 & 2016 SCMR 1215, rel.

Interpretation of Statute--

----High Court cannot legislate but interpret law or statute passed by legislature--High Court cannot legislate but interpret law or statute passed by legislature--Therefore, prayer of petitioner in that regard is not acceded to. [P. 387] A

Mr. Hafeez Saeed Akhtar, Advocate for Petitioner.

Mr. Azam Nazir Tarar, Advocate, Barrister Lehrasip Hayat Dahar, Advocate, Mazhar Ali Ghallu, Advocate, Ch. Naveed Akhtar Bajwa, Advocate for Respondent No. 3.

Mr. Nasir Javaid Ghuman, Advocate and Amer Raza, Returning Officer for Election Commission.

Date of hearing: 16.1.2017

Judgment

Through this constitutional writ petition, the petitioner seeks disqualification of Respondent No. 3 (hereinafter called “the respondent”) from being the Member and Chairman of Municipal Committee, Teshil Daska, District Sialkot while asserting that a decree regarding loan taken by the respondent duly stands against him which has not been declared by him while filing the nomination papers. The petitioner has also prayed that Section 27 of the Punjab Local Government Act, 2013 be declared ultra vires to the Constitution of Islamic Republic of Pakistan, 1973.

1. Learned counsel for the petitioner submits that the petitioner is a voter of Ward No. 23 of the Municipal Committee, Tehsil Daska; that the respondent obtained loan from the National Bank; that since the respondent did not return the said loan to the bank, a suit was filed wherein a decree of Rs. 11,743,159/- has been passed against the respondent vide judgment dated 12.04.2016 but the same has not been mentioned by him while filing the nomination papers; that the respondent being an ‘undischarged insolvent’ is liable to be disqualified; that Section 27 of the Punjab Local Government Act, 2013 being against Articles 62 and 63 of the Constitution be declared ultra vires the Constitution. He has relied upon the law laid down in cases titled Ch. Muhammad Yusaf Kaselia v. Peer Ghulam Mohy-ud-Din Chishti and others (PLD 2016 SC 689), Muhammad Ahmad Chatta v. Iftikhar Ahmad Cheema and others (2016 SCMR 763), Allied Bank Ltd. through Authorized person v. Inam Ullah Khan and another (2013 CLC 1310 Lahore), Worker’s Party Pakistan through General Secretary and 6 others v. Federation of Pakistan and 2 others (PLD 2013 SC 406), Rana Muhammad Hayat Khan v. Rana Imtiaz Ahmad Khan (PLD 2008 SC 85), Rana Muhammad Arshad v. Additional Commissioner (Revenue), Multan Divison and others (1998 SCMR 1462), Ch. Tanvir Khan v. President, Cantt. Board, Rawalpindi and 2 others (1999 MLD 721 Lahore), Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer, No. A. 158, Naushero Feroze and others (1994 SCMR 1299), 3. On the other hand, learned counsel for the respondent as well as learned counsel for the Election Commission have vehemently opposed this writ petition on legal as well as factual grounds. He has relied upon the law laid down in cases reported as Zahid Iqbal v. Hafiz Muhammad Adnan and others (2016 SCMR 430), Liaquat Ali and others v. Returning Officer and others (2016 MLD 846), Muhammad Mujtaba Abdullah and another v. Appellate Authority/Additional Sessions Judge Tehsil Liaquatpur District Rahim Yar Khan and others (2016 SCMR 893) and Abdul Rasheed and another v. Election Appellate Authority and others (2016 SCMR 1215).

2. Arguments heard. Record perused.

3. Scanning of record reveals that the respondent filed nomination papers alongwith others for contesting the seat of Councillor, Municipal Committee, Tehsil Daska, District Sialkot. He was declared as the Returned Candidate. Then he contested for the seat of Chairman, Municipal Committee and was elected so. The petitioner is a voter of the Halqa.

4. Main emphasis of learned counsel for the petitioner is on the point that the respondent while filing the nomination papers has since failed to mention the decree passed against him, he is not entitled to hold the Office of the Member as well as Chairman of the Municipal Committee. In this regard, he has referred to sub-rule (5) of Rule 12 of the Punjab Local Government (Conduct of Elections), Rules, 2013 (hereinafter called “the Rules”). I have gone through the said provision of law which duly demands for declaration of the assets and liabilities by the contesting candidate. I have also perused the nomination papers filed by the respondent, a copy of which has been placed before this Court. There is Annexure A to the nomination form which is regarding declaration of assets and liabilities. After declaring the assets in Annexure A, the respondent has mentioned regarding his liability while submitting that there is a house mortgaged with the National Bank, Sialkot and the amount in this regard is yet to be paid, although he has not given details of the loan. In this view of the matter, I am not in consonance with argument of learned counsel for the petitioner that the respondent has not mentioned the liability of loan to be paid by him.

5. Section 14 of the Rules being relevant in this case is reproduced below:

“14. 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 inquiry 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.

(4) The rejection of a nomination paper shall not invalidate the nomination of a candidate by any other valid nomination paper.

(5) The Returning officer may, for purposes of scrutiny, require any agency or authority to produce any document or record.

(6) In case of joint candidacy, the rejection of the nomination of either a Chairman or a Vice Chairman or a Mayor or a Deputy Mayor shall be construed as rejection of nomination of all those joint candidates.

(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.

(8) The Returning Officer shall not enquire into the correctness or validity of any entry in the electoral roll.

(9) The Returning Officer shall endorse on each nomination paper his decision accepting or rejecting it and, in case of rejection, record brief reasons therefor.

(10) An appeal against the decision of the Returning Officer rejecting or accepting the nomination paper of the candidate(s) may be preferred by any person present at the time of scrutiny under sub-rule (1) to the appellate authority, who shall be the District and Sessions Judge or any other judicial officer, appointed for the purpose by the Election Commission.

(11) The appeal under sub-rule (10) shall be summarily decided within such time as may be notified by the Election Commission and any order passed thereon shall be final.

(12) An appeal not disposed of within the period as notified by the Election Commission shall be deemed to have been rejected.”

(Emphasis provided)

Perusal of sub-rules (1) and (2) of Rule 14 of the Rules reflects that these provisions do not restrict objections by a contesting candidate, a proposer or a seconder, rather they state that any person or even a voter of the constituency can raise objection to the nomination papers of a contesting candidate. Such objections are required to be looked into by the Returning Officer which may lead to acceptance or rejection of nomination papers. Against decision of the Returning Officer, an appeal before the appellate authority appointed by the Election Commission in light of sub-rule (10) of the Rules can also be made. Admittedly, the petitioner is a voter of the concerned Halqa. He had every right to raise objection upon nomination papers of the respondent at the time of scrutiny of the nomination papers but he did not do so. Nor he went to the appellate authority for redressal of his grievance. Even the petitioner has not disclosed as to when and how he came to know about liability of the respondent. This leads me to the conclusion that the petitioner has not approached this Court with bona fide intention rather he has approached the Court with some mala fide or for the benefit of some other candidate. It is well settled law that any person not approaching the Court bona fidely is not entitled to any relief. Therefore, this writ petition is liable to be dismissed on this score alone.

1. As far as the contention of learned counsel for the petitioner that a decree has been passed against the respondent which has not been mentioned in the column of liabilities by him is concerned, suffice it to say that the respondent has challenged the validity of the decree passed against him by filing RFA No. 916/2016 which is still pending decision. It is well-settled proposition of law that an appeal is continuation of the proceedings in the suit, therefore, the decree passed by the banking Court being under-challenge cannot be said to be the final decree against the respondent. The decision in appeal may come in favour of or against the respondent. If the respondent is disqualified on the basis of the said decree but the decree awarded against him is set aside at a later stage, there will be no compensation available for the respondent for the intervening period when he is out of the said offices. Even otherwise, clause (j) regarding the disqualification of a candidate on the basis of default specifically provided under sub-section (1) of Section 152 of Local Government Ordinance, 2001 has been excluded in the Local Government Act, 2013. This Court can only interpret the statue but cannot circumvent the intention of the legislator. In this view of the matter, I am not inclined to upset the election of the respondent merely on the basis of the decree which is under challenge so far.

2. Another aspect of the matter is that an election petition on the same allegation of non-disclosure of the liabilities against the respondent is pending adjudication before the Election Tribunal. If this Court in its constitutional jurisdiction disqualifies the respondent from the positions of the Member and the Chairman, the election petition on the same set of facts and allegations filed against the respondent will become infructuous and the purpose of the remedy available before the Election Tribunal will stand circumvented. Moreover, parallel proceedings for one and the same cause are not permitted under the law. The petitioner either should approach the Election Tribunal for redress of his grievance or wait for decision of the Election Tribunal and then approach this Court for redressal of his grievance if still persists at that time.

3. On one hand, the petitioner on the strength of Section 27 of the Punjab Local Government Act, 2013 has sought disqualification of the respondent on the ground that he is a “discharged insolvent” whereas on the other hand, he has prayed that the said section be declared ultra vires to the Constitution. So far as the disqualification of the respondent on the ground of non-disclosure of the decree passed against him is concerned, no such ground is provided under sub-section (2) of Section 27 of the Act which deals with disqualification of a returned candidate. The disqualification of the respondent under Section 27(2)(c) of the Act, i.e. on the ground of “undischarged insolvent”, there is no definition provided in the Punjab Local Government Act of “undischarged insolvent”. In absence of definition of “undischarged insolvent” in the Act, the applicable law is the Provincial Insolvency Act, 1920 (hereinafter called the PIA, 1920”) which deals with the subject of insolvency. Section 6 of the Act ibid being relevant is reproduced as under:

“6. Acts of insolvency. A debtor commits an act of insolvency in each of the following cases namely:--

(a) if, in the Provinces and the Capital of the Federation or elsewhere, he makes a transfer of all or substantially all his property to a third person for the benefit of his creditors generally;

(b) if, in the Provinces and the Capital of the Federation or elsewhere, he makes a transfer of his property or of any part thereof with intent to defeat or delay his creditors;

(c) if, in the Provinces and the Capital of the Federation or elsewhere, he makes any transfer of his property, or of any part thereof, which would, under this or any other enactment for the time being in force, be void as a fraudulent preference if he were adjudged an insolvent;

(d) if, with intent to defeat or delay his creditors,---

(i) He departs or remains out of the Provinces and the Capital of the Federation;

(ii) He departs from his dwelling-house or usual place of business or otherwise absents himself;

(iii) He secludes himself so as to deprive his creditors of the means of communicating with him;

(e) If any of his property has been sold in execution of the decree of any Court for the payment of money;

(f) If the petitions to be adjudged an insolvent under the provisions of this Act;

(g) If he gives notice to any of his creditors that he has suspended, or that he is about to suspend, payment of his debts; or

(h) If he is imprisoned in execution of the decree of any Court for payment of money.”

The minute perusal of the above provisions coupled with the allegation levelled by the petitioner against the respondent that he has not specifically mentioned the decree passed against him clearly reveals that the respondent has not committed any of the acts of insolvency detailed in Section 6 of the PIA, 1920, as such, he cannot be termed as “undischarged insolvent”. Therefore, the respondent, in my opinion, cannot be disqualified on the said ground of insolvency in constitutional jurisdiction of this Court. The case law reported as Liaqat Ali and others v. Returning Officer and others (2016 MLD 846 Lahore) is referred in this regard.

1. Regarding assertion of learned counsel for the petitioner that Section 27 of the Punjab Local Government Act, 2013 is ultra vires to the Constitution, the same matter came before the apex Court in case reported as Zahid Iqbal v. Hafiz Muhammad Adnan and others (2016 SCMR 430) wherein it has been held that:

“It is not the function of the Court to read into any provision and or words that are not part of the statute, unless imported or made applicable specifically as has been done under the Sindh Local Government Act, 2013, wherein Section 36(j) clearly imports disqualification “under any law it reads for the time being in force”. It is neither the duty nor the function of the Court to read into or delete any word and or provisions in an enactment, unless specifically adopted or imported by reference. Courts do no legislate but interpret statute according to their ordinary and plain meaning and do not import and or supply word or provisions from “any other law”, no matter how laudable and desirable it may appear to be. In this view of the matter, disqualification prescribed under “any law” or even in “The Constitution” unless as noted above are specifically made applicable or adopted by reference, specially penal and or castigatory provisions contained in “any law” cannot be imported, read into or inflicted on a person who put forth his candidature to be elected as a Member or to hold an elected office of Punjab Local Government but his qualification and or disqualification for any office of the Punjab Local Government is to be adjudged strictly under the provisions of “the Act, 2013” only.”

(Underline is mine)

In view of the dictums laid down by the Hon’ble Supreme Court of Pakistan in the above case, this Court cannot legislate but interpret the law or statute passed by the legislature. Therefore, the prayer of the petitioner in this regard is not acceded to.

1. The argument of learned counsel for the petitioner is that Section 154 of the Punjab Local Government Ordinance, 2001 has not been repealed in the Punjab Local Government Act, 2013 as per notification dated 13.09.2013. When confronted with, learned counsel for the respondent as well as learned counsel appearing on behalf of the Election Commission submit that non-repealing of Section 154 ibid

was an interim arrangement only in order to protect day-to-day affairs of the local bodies and it has no bearing in the election matters. Even otherwise, when the new law on a subject has come into force, there is no fun to continue the previous law on the same subject. The said argument of learned counsel for the respondents has force which is accordingly accepted. The case law relied upon by learned counsel for the petitioner pertains to the elections of Members of National and Provincial Assemblies as well as that of the Senate and is not applicable to the case in hand.

1. For what has been discussed above, this writ petition has no force, hence dismissed.

(R.A.) Petition dismissed

PLJ 2017 Lahore 388 [Bahawalpur Bench, Bahawalpur]

Present: Tariq Iftikhar Ahmad, J.

SHAHZAD ASHRAF--Petitioner

versus

RAUF AHMAD--Respondent

C.R. No. 224 of 2014, decided on 26.1.2017.

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

----O. XXXVII, R. 2--Specific Relief Act, 1877), S. 39--Litigations--Suit for recovery on basis of cheque and suit for cancellation of cheque--Application for transfer of suits to one Court in order to avoid conflict of judgment was allowed--Challenge to--Validity--In order to settle controversy launched in instant petition, it is appropriate to scan order passed by District Judge--No doubt, suit of summary was based upon same cheque which had been challenged in his suit for cancellation of documents i.e. cheque, agreement and compromise deed--It was strong likelihood of conflict of judgments coupled with sheer wastage of time--If suits were allowed to be proceeded in two different Courts, definitely controversy put forth in both suits might be aggravated in nature. [P. 390] A

Administrative Powers--

----Scope of--Exercise of--Validity--Exercise of powers, by any stretch of imagination cannot be said to be illegal--Exercise of powers, by any stretch of imagination, cannot be said to be illegal. [P. 391] B

Mr. Muhammad Aslam Khan Dhukkar, Advocate for Petitioner.

Mr. Muhammad Imran Pasha, Advocate for Respondent.

Date of hearing: 26.1.2017

Order

This revision petition is directed against the order dated 19.03.2014, penned by learned District Judge, Rahim Yar Khan, allowed application for transfer of suits to one Court in order to avoid conflict of judgments.

1. The facts relevant for the disposal of the instant civil revision are, that suit for recovery of Rs. 50,00,000/- was filed by respondent under Order XXXVII Rule 2 of the Code of Civil Procedure, 1908 (Hereinafter called the Code) on the basis of Cheque No. 2839378 of Account No. 0001046328, U.B.L. pending in the Court of learned Additional District Judge, Sadiqabad. The petitioner also filed a suit under Section 39 of The Specific Relief Act for cancellation of Cheque No. 2839378 of U.B.L. pending in the Court of learned Civil Judge, Sadiqabad. Thereafter, respondent also filed an application before learned District Judge, Rahim Yar Khan, for consolidation of above-mentioned suits and entrustment of the same in one and the same Court for further proceedings. Learned District Judge allowed application vide impugned order dated 19.03.2014, on the ground that both the parties are litigating against each other on one disputed cheque.

2. Learned counsel for the petitioner submits that suit filed by the respondent for recovery of money on the basis of cheque issued by the petitioner under Order XXXVII Rule 2 of the Code before learned Additional District Judge, whereas the petitioner also filed suit for cancellation of two cheques and two other documents before learned Civil Judge wherefore both the suits were different in nature and could not be consolidated and entrusted to one Court. The learned District Judge was not justified to pass such impugned order resulting miscarriage of justice and grave injury to the petitioner, so the same may be set at naught and an appropriate order may be passed for proceedings of each suits separately. Further submits that the mandate of Order XXXVII Rule 2 of the Code is different from the connotation of cancellation of instrument, so the learned District Judge did not take into consideration and negated the provisions while passing the impugned order whimsically, surreptitiously, fancifully and even without application of judicious mind. Learned counsel seeks help from the dictum laid down in “A.B.L. v. Khalid Mehmood” (2009 CLC 308).

3. On the other hand, learned counsel for the respondent while defending the order impugned submits that the learned District Judge rightly exercised power as envisaged in the Code of Civil Procedure, 1908 and correctly perceived the situation of the litigation pending between the parties, because there was same cause of action and the same cheque was in dispute, thus, the revision petition may be dismissed maintaining the impugned order. Learned counsel for the respondent has placed reliance on the case of “Messrs First Women Bank Limited v. Registrar, High Court of Sindh, Karachi and 4 others” (2004 SCMR 108) and “Sh. Iqbal Hussain v. Anwar Hussain” (2005 YLR 181).

4. I have heard learned counsel for the parties and gone through the available record.

5. In order to settle the controversy launched in the instant revision petition, it is appropriate to scan the order passed by the learned District Judge. No doubt, the suit of summary was based upon the same cheque which had been challenged by the respondent in his suit for cancellation of documents i.e. cheque, agreement and compromise deed etc. It was strong likelihood of conflict of judgments coupled with sheer wastage of time. If both the suits were allowed to be proceeded in two different Courts, definitely the controversy put forth in both the suits might be aggravated in nature, so, reliance is placed upon “Messrs First Women Bank” (supra) wherein it was held as under:

“After examining the material on record and going through the impugned judgment we are convinced that the order passed by the High Court is just, fair and equitable on the face of it. It does not suffer from any inherent defect or error of jurisdiction. We are of the view that the trial of both the suits would not only be expedient in the interest of justice but also in the interest of both the parties as joint trial of both the suits would certainly obviate the possibility of a conflict of judgment. In our view apprehensions expressed by the petitioner-Bank’s counsel are without any basis and no finding can be given on mere surmises.”

1. So far as the contention raised during the course of arguments by leaned counsel for the petitioner that by virtue of the impugned order either of parties rights’ have been prejudiced as in case any appeal or revision arises out of civil suit, the first forum of appeal cannot be availed. I am afraid this contention has no merit in

view of the dictum laid down by the Apex Court in “Messrs First Women Bank” (supra), relevant portion of which is reproduced hereunder:

“Trial of both the suits together would not only be expedient in the interest of justice but also in the interest of both the parties as joint trial of both the suits would obviate the possitility of a conflict of judgments----”.

1. Even otherwise, perusal of the order impugned reveals that the learned District Judge also exercising his administrative powers proceeded on to transfer the case. The said exercise of powers, by any stretch of imagination, cannot be said to be illegal.

2. No illegality has been pointed out in the order impugned.

3. The instant revision petition being devoid of force stands dismissed with no order as to costs.

4. Before parting with the order, it is expected that the learned transferee Court will decide the matter expeditiously, preferably within a period of three months, even if it has to be proceeded on day to day basis.

(R.A.) Petition dismissed

PLJ 2017 Lahore 391 [Multan Bench Multan]

Present: Aslam Javed Minhas, J.

ALI RAZA--Petitioner

versus

JUSTICE OF PEACE/ADDL. SESSIONS JUDGE, RAJANPUR and 6 others--Respondents

W.P. No. 18227 of 2015, decided on 23.2.2016.

Constitution of Pakistan, 1973--

----Art. 199--Criminal Procedure Code, (V of 1898), Ss. 22-A & 22-B--Pakistan Penal Code, (XLV of 1860), S. 489-F--Registration of FIR--Dishonour of cheque--Justice of Peace--Commission of cognizable offence--Challenge to--Copy of cheque as well as dishonor slip is annexed with file and SHO was directed to record statement of petitioner and proceed strictly in accordance with law--Petition stands dismissed. [P. 392] A

Mr. Muhammad Ali Ahmed Buzdar, Advocate for Petitioner.

Rana Asif Saeed, Advocate for Respondent No. 3.

Mehr Nazar Abbas Chawan, AAG for Respondents.

Date of hearing: 23.2.2016.

Order

Through this petition, the petitioner has challenged the vires of order dated 04.11.2015 whereby on the application filed under Section 22-A & 22-B, Cr.P.C. by the Respondent No. 3. the learned Justice of Peace directed the SHO to register case against the petitioner.

1. Learned counsel for the petitioner contended that, from the contents of the application filed by the Respondent No. 3 commission of cognizable offence was not made out yet the learned Justice of Peace illegally and wrongly passed the impugned order. He further contended that the petitioner lodged case F.I.R No. 211/2015 dated 29.05.2015 under Section 489-F, PPC Police Station Kot-Mithan, District Rajanpur and due to this revenge the complainant has tried to involve the petitioner and proforma-respondents in false criminal case. He next contended that no MLC was annexed by the Respondent No. 3 to prove his version that petitioner caused injury to him, hence, impugned order is liable to be set-aside.

2. On the other hand, learned A.A.G assisted by learned counsel for the Respondent No. 3 vehemently opposed this petition and supported the impugned order of the learned Justice of Peace.

3. I have heard the learned counsel for the parties and perused the record as well as impugned order passed by the learned Justice of Peace.

4. I do not feel hesitation in endorsing the view taken by the learned Justice of Peace that copy of the cheque in question as well as dishonor slip is annexed with the file and Respondent No. 2 was directed to record the statement of the Respondent No. 3/petitioner and proceed strictly in accordance with law. I see no illegality or infirmity in the impugned order dated 04.11.2015, therefore, this petition has no force and the same stands dismissed.

(R.A.) Petition dismissed

PLJ 2017 Lahore 393 [Multan Bench Multan]

Present: Amin-ud-Din Khan, J.

MUHAMMAD ABBAS BUKHARI, etc.--Petitioners

versus

APPELLATE AUTHORITY/DISTRICT COUNCIL ELECTION, MULTAN, etc.--Respondents

W.P. No. 17972 of 2016, decided on 20.12.2016.

Punjab Local Government Act, 2013--

----Ss. 34 & 37--Punjab Local Government (Resignation) Rules, 2016, R. 14(8)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Election of Local Government--Resignation from chairmanship of union council--Not eligible to contest election of chairman Distt. Council--Notification of election--Government has also not notified resignation or removal of name from Electoral Rolls prepared for election of seats of chairman/vice-chairman--If resignation was not properly addressed, but it was forwarded to election commission irregularity was rectified, such finding is also based upon misconception as election commission is also not an authority before whom resignation was to be tendered--At time of resignation no local government was in existence, even election of reserve seats was not yet held at that time, therefore, resignation could have been tendered at that time--Resignation admittedly has not been acted upon, name of petitioner exists in electoral rolls prepared for election of seats of chairman/vice-chairman--Order passed by appellate authority being against law and without jurisdiction, is declared as such, same is not sustainable under law.

[Pp. 396, 397 & 398] A, D & E

Electoral Rolls Act, 1974 (XXI of 1974)--

----S. 20--Election of chairmanship of Distt. Council--Entries of voter list can be challenged before promulgation of schedule of election--Resignation was tendered before assistant director but copy was sent to secretary union council--Electoral Rolls list has never been challenged before election commission--Election schedule was promulgated on 01.12.2016--If there was any defect same has been cured when copy has been sent to Union Council. [P. 397] B & C

M/s. Rana Asif Saeed and Arshad Arain, Advocate for Petitioners.

Mr. Muhammad Naeem Khan, Advocate for Election Commission of Pakistan alongwith AsharJaved, ARO.

Mian Azhar Saleem Kamlana, Advocate for Respondents Nos. 3 to 7.

Date of hearing: 20.12.2016.

Order

Through this writ petition petitioners have challenged the order dated 15.12.2016 passed by the Appellate Authority Election District Council. Multan/District & Sessions Judge, Multan whereby appeal filed by Respondents Nos. 3 to has been accepted and order of acceptance of nomination papers, filed by the petitioners, passed by the Returning Officer/District Council, Multan has been set aside, nomination papers have been rejected.

1. Brief facts of the case are that joint nomination papers were filed by the petitioners, Petitioner No. 1 filed nomination papers for the office of Chairman and Petitioners Nos. 2 to 5 as Vice Chairman, District Council, Multan before the Returning Officer/Respondent No. 2. After scrutiny nomination papers were accepted. It is pleaded that after the acceptance of nomination papers and after closing of working hours at 4:40 p.m. Respondents Nos. 3 to 7 filed objections to the nomination papers mainly against Petitioner No. 1 on the ground that he has resigned from the office of Chairman Union Council on 18.2.2016 in order to contest the election of National Assembly, as such he was no longer the member of Electoral college for the abovesaid reasons, therefore, nomination papers filed by the petitioners be rejected. Respondent No. 2 passed an order mentioning that the objections have been filed after the prescribed time. The Returning Officer noting that no de-notification showing cancellation of Chairmanship of Petitioner No. 1 for Union Council No. 180 has been issued by the Election Commission Office, Multan or Election Commission of Pakistan and it is further noted that the objector Umar Farooq could not substantiate his objection, therefore, the nomination paper were accepted. Respondents Nos. 3 to 5 opted to prefer an appeal before the appellate authority against the acceptance of nomination papers of the petitioners. Appeal has been accepted vide order dated 15.12.2016 and nomination papers have been rejected. Hence, this writ petition by the petitioners.

2. Learned counsel for the petitioners argues that a single question is involved in this petition that whether a valid resignation has been tendered before the competent authority. States that the order of the appellate authority is absolutely without jurisdiction as the appeal has been accepted on the basis of alleged ethical grounds and not on the legal grounds. Prays for acceptance of the writ petition while referring various provisions of the Punjab Local Government Act, 2013, Punjab Local Government (Conduct of Election) Rules, 2013 and the Punjab Local Governments (Resignation) Rule, 2016 as well as case law on the subject.

3. On the other hand, learned counsel for the Election Commission of Pakistan/Respondents Nos. 1 & 2 as well as learned counsel representing Respondents Nos. 3 to 7 have vehemently opposed the writ petition and argued that the order passed by the appellate authority is in accordance with law, same has been passed rightly and the order of Returning Officer accepting the nomination papers of the petitioners has been set aside.

4. I have heard learned counsel for the parties at length and gone through the record.

5. The objection raised by Respondent No. 3 against the submission of nomination papers by the petitioner was that Petitioner No. 1 after he was elected as Chairman Union Council No. 180, Alipur, opted to contest the Bye-Election of National Assembly for the Constituency NA-153, therefor”, he resigned from the Chairmanship of the said Union Council, therefore, he is not eligible to contest the election of Chairman District Council.

6. The Punjab Local Government Act, 2013 will be mentioned as “Act” and Punjab Local Government (Conduct of Election) Rules, 2013 will be referred as “Rules” in the later part of the order.

7. According to the facts surfaced on the record, Petitioner No. 1 on 18.2.2010 tendered his resignation. As per language of resignation from the office of Union Council, the resignation was addressed and presented to Assistant Director, Local Government, Multan, which was forwarded in original to the District Election Commission, Multan for information and action as per endorsement. The case of the petitioner is that the resignation was not addressed nor presented to the proper authority in accordance with Section 34 of the “Act”, therefore, it was having no value and the resignation tendered before a wrong forum cannot be considered to be a valid tendering of resignation and when a valid resignation has not been tendered before the appropriate forum then no question of effect of resignation. As per learned counsel for the petitioners the resignation was returned by the Government of the Punjab, Local Government & Community Development Department vide letter dated 21.10.2016, before further dilating upon the matter in issue, it will be appropriate to consider the relevant provisions of law.

8. A list of the elected members eligible to vote is provided by the Election Commission to the Returning Officer in accordance with Rule 48 of the Rules, ibid, for the election of Chairman and Vice Chairman and in accordance with the list issued by the Election Commission of Pakistan the name of Petitioner No. 1 is mentioned at Sr. No. 112 for the Electoral rolls for the election of seats of Chairman/Vice Chairman, District Council, Multan. In accordance with sub-rule (8) of Rule 14 the Returning Officer has no authority to inquire into the correctness or validity of the entry in the electoral roll. At this stage it will be appropriate to observe that the Punjab Local Government (Resignation) Rules, 2016 have been promulgated on 4th of August, 2016, whereas, the event of tendering resignation is dated 18.2.2016. It is consensus between learned counsel for both the parties that these rules do not apply on the matter in issue, therefore, it is the consensus that Section 34 of the Act governs the matter in issue. It will be appropriate to note here that the qualifications and disqualifications for candidates and elected members are mentioned in Section 27 of the Act, the case of the petitioners does not fall in the disqualification mentioned in section. The attack by the respondents was about the fact that Petitioner No. 1 is no more a voter member but it has been admitted that it was never moved by the objector/respondent before the Election Commission for removal of the name of Petitioner No. 1 From the Electoral Rolls prepared for the election of seats of Chairman/Vice Chairman District Council, Multan. There is a specific provision available in the Act for notification of election, resignation and removal under Section 37 of the Act. Admittedly, the resignation of Petitioner No. 1 has never been notified by the Election Commission and his name has not been removed from the list of Electoral Rolls prepared for the election of seats of Chairman/Vice Chairman District Council, Multan. In accordance with sub-section (2) of the said section whereby the Government has to notify the same. Admittedly, the Government has also not notified the resignation or removal of name of Petitioner No. 1 from the Electoral Rolls prepared for the election of seats of Chairman/Vice Chairman District Council, Multan. Needless to state that in accordance with Section 20 of the Electoral Rolls Act (XXI) of 1974 the entries of the voter list can be challenged before the promulgation of the schedule of election. In the instant case the Electoral Rolls list has never been challenged before the Election Commission. The election schedule was promulgated on 01.12.2016. In accordance with sub-rule (5) of Rule 4 of the Punjab Local Government (Resignation) Rules, 2016 the Government shall, notify the vacation of the office owing to resignation under sub-section (2) of Section 37 of the Act. Admittedly, there is no such notification of the vacancy. The argument that at the time of participating in the reserved seats by Petitioner No. 1 on 12.11.2016 no one has raised the objection with regard to eligibility of Petitioner No. 1 for casting the vote has value. The argument of learned counsel for the contesting Respondents Nos. 3 to 7 that the resignation was though tendered before the Assistant Director, Local Government but copy was sent to the Secretary Union Council, therefore if there was any defect same has been cured when the copy has been sent to the Secretary Union Council, I am unable to agree with these arguments on the basis of the judgment of the august Supreme Court of Pakistan reported as “Mian Muhammad Nawaz Sharif versus President of Pakistan and others'' (PLD 1993 Supreme Court 473) because a resignation tendered before the wrong forum should not have been received and in the instant ease the resignation has not been acted upon and it never reached to the forum where it was to be tendered.

9. As per the learned appellate authority the resignation has been tendered before the Returning Officer, I am unable to understand that how it was a valid tender in accordance with Section 34 of the Act. The discussion of the fact of submission of nomination papers by Petitioner No. 1 for Bye-Election of N.A.153 Multan VI is not directly relevant and the learned appellate authority on the basis of presumptions non-suited the Petitioner No. 1 which is not permissible under the law. Even otherwise case of Petitioner No. 1 is that he opted to retire from the election of NA-153 on 11.3.2016 whereas polling day was 17.3.2016. The findings of learned appellate authority that if the resignation was not properly addressed, but it was forwarded to Election Commission of Pakistan, the irregularity was rectified, this finding is also based upon misconception as Election Commission of Pakistan is also not an authority before whom the resignation was to be tendered. There comes another important question that at the time of resignation no local government was in existence, even the election of reserve seats was not yet held at that time, therefore, I have a doubt in my mind that resignation could have been tendered at that time.

10. In view of the above discussion, the order passed by the learned Appellate Authority by ignoring the provisions of law referred supra, when name of Petitioner No. 1 is available in the Electoral Rolls prepared for the election of seats of Chairman/Vice Chairman District Council, Multan, the resignation has not been tendered before the Local Government of which he is a Chairman. Unless a resignation is tendered in accordance with sub-section (1) of Section 34 no question of deeming clause of sub-section (2) of Section 34 of the Act arises. The resignation admittedly has not been acted upon, the name of Petitioner No. 1 exists in the Electoral Rolls prepared for the election of seats of Chairman/Vice Chairman District Council, Multan. In this view of the matter, the order passed by the appellate authority dated 15.12.2016 being against the law and without jurisdiction, is declared as such, same is not sustainable under the law. In view of the above, instant writ petition is accepted and the result would be that the order dated 10.12.2016 passed by the Returning Officer regarding acceptance of the nomination papers of Petitioner No. 1 as well as Petitioners Nos. 2 to 5 will hold the field.

(R.A.) Petition accepted

PLJ 2017 Lahore 398 (DB) [Bahawalpur Bench, Bahawalpur]

Present: Muhammad Sajid Mehmood Sethi and Tariq Iftikhar Ahmed, JJ.

Mst. IRSHAD BEGUM & another--Petitioners

versus

GOVERNMENT OF PUNJAB & others--Respondents

W.P. No. 8708 of 2015/BWP, heard on 12.1.2017.

Punjab Civil Servants Act, 1974--

----S. 9--Constitution of Pakistan, 1973, Art. 212--Civil servant school teacher--Services were surrendered/relieved placed at disposal of D.O. education--Transfer--Terms and conditions of service--Maintainability--Matter in dispute relates to transfer and posting of petitioners which falls within preview of Section 9 of Punjab Civil Servants Act, 1974--It is now well-settled that Art. 212 of Constitution bars jurisdiction of High Court to entertain any matter which relates to terms and conditions of services of civil servants--Since petitioners are civil servants and matter in issue pertains to terms and conditions of their service, as such it is not tenable in constitutional jurisdiction of High Court owing to bar contained in Art. 212 of Constitution--Constitutional petition under Art. 199 of Constitution by a civil servant in relation to any matter connected with terms and conditions of service, in respect whereof service tribunal has jurisdiction, is not maintainable.

[Pp. 404 & 409] A & F

1985 SCMR 63, 1990 SCMR 999, 1992 SCMR 365, PLD 1994 SC 539, 1997 SCMR 167, 1997 SCMR 169, 1998 SCMR 60, PLD 2004 SC 317, ref.

Punjab Civil Servants Act, 1974--

----S. 9--Civil servant--School teacher--Recommendation of headmistress--Transfer--Competent authority--Every civil servant is liable to serve anywhere within or outside province in any post under Government of Punjab or Federal Government or any Provincial Government or a local authority or a corporation or a body set up or established by any such Government, within contemplation of provisions of law--Office order surrendering/ relieving services of petitioners, can be considered a recommendation of headmistress to competent authority and, thereafter, competent authority transferred petitioners for reasons recorded in impugned order. [P. 406] B

Constitution of Pakistan, 1973--

----Art. 199 & 212--Transfer of civil servant--Interim order--Right of appeal--Jurisdicdtion--Statute exercising a right of appeal from interim order could not be bypassed by bringing under attack such interim order in constitutional jurisdiction--Party effected thereto had to wait till it matures into final order and then to attack it in proper exclusive form--Under law, when final order cannot be interfered with by High Court, interference qua interim order will manifestly frustrate object of law and delay disposal of main case--Any forum or Court, which had no jurisdiction to decide main matter in a case before it, had no jurisdiction to decide any ancillary or incidental matter. [Pp. 406 & 407] C

1996 SCMR 1165, 2013 SCMR 338, 2000 PLC (CS) 118 & 2010 CLC 475, ref.

Up-gradation--

----Issue of up-gradation did not form part of terms and conditions of service of civil servants. [P. 407] D

Civil Servant--

----Transfer policy--Violation of fundamental rights--Petitioners cannot bypass service tribunal by adding a ground of assailing rules or violation of fundamental rights--Service tribunal is competent to adjudicate upon question of vires of rules framed by department, even if same were challenged on basis of violation of fundamental rights of civil servant. [P. 407] E

M/s. Bilal Ahmad Qazi, Jamshed Akhter Khokhar and Samina Qureshi, Advocates for Petitioners.

M/s. Malik Mumtaz Akhter, Additional Advocate General, Saeed Ahmad Chaudhry, Assistant Advocate General and Muhammad Yasin Ataal, Advocate for Respondents.

Date of hearing: 12.1.2017.

Judgment

Muhammad Sajid Mehmood Sethi, J.--This consolidated judgment shall decide instant petition along with following connected petitions as common questions of law and facts are involved in these cases:--

1. W.P. No. 6606 of 2013/BWP titled Hina Ashraf v. Government of Punjab & others

2. W.P. No. 4895 of 2014/BWP titled Syed Muhammad Nadeem Tahir v. District Coordination Officer, Rahim Yar Khan and others

3. W.P. No. 9678 of 2015/BWP titled Sardar Muhammad Aslam v. District Coordination Officer, Bahawalpur & others

4. W.P. No. 9716 of 2015/BWP titled Abdul Haq v. Secretary, School Education, Government of the Punjab & others

5. ICA No. 31 of 2015/BWP titled Farzana Kausar v. Executive District Officer (Education) Bahawalnagar & others

6. W.P. No. 435 of 2016/BWP titled Allah Bakhsh v. The District Coordination Officer, Bahawalpur & others

7. W.P. No. 1279 of 2016/BWP titled Naeem Rizwan v. Executive District Officer (Education), Bahawalnagar & others

8. W. P. No. 1410 of 2016/BWP titled Muhammad Hafeez v. Executive District Officer (Education), Bahawalnagar & others

9. W. P. No. 1689 of 2016/BWP titled Sameena Iqbal v. District Coordination Officer, Rahim Yar Khan & others

10. W. P. No. 1991 of 2016/BWP titled Shabana Sadiq v. Government of Punjab & others

11. W. P. No. 2048 of 2016/BWP titled Muhammad Afzal v. District Coordination Officer, Rahim Yar Khan & others

12. W.P. No. 2089 of 2016/BWP titled Muhammad Idrees v. District Coordination Officer, Rahim Yar Khan and others

13. W.P. No. 2209 of 2016/BWP titled Rana Shahid Mehmood v. District Coordination Officer, Bahawalnagar & others

14. W.P. No. 3348 of 2016/BWP titled Yousuf Ali & another v. The District Coordination Officer, Bahawalnagar & others

15. W.P. No. 3674 of 2016/BWP titled Liaquat Ali v. District Education Officer (S.E.) Bahawalpur & another

16. W.P. No. 3716 of 2016/BWP titled Mrs. Gulnaz Kausar v. Headmistress, Government Girls Elementary School, Tehsil Sadiq Abad & others

17. W. P. No. 4588 of 2016/BWP titled Muhammad Asif v. Government of Punjab & others

18. W.P. No. 7202 of 2016/BWP titled Jam Muhammad Rafique v. Government of Punjab & others

19. W.P. No. 8527of 2016/BWP titled Muhammad Abdul Mujtaba Saeedi v. Executive District Officer (Education), Bahawalpur & others

20. W.P. No. 8724 of 2016/BWP titled Sardar Muhammad Aslam v. The District Coordination Officer, Bahawalpur and others

21. W.P. No. 9239 of 2016/BWP titled Mst. Rubina Shaheen v. Secretary, School Education, Government of Punjab and others

22. Brief facts of the case are that petitioners were serving in Govt. Girls Elementary School, Chak No. 4/FW, Tehsil Chishtian, District Bahawalanagar (GGES), where Respondent No. 6 was the Headmistress. Respondent No. 6, on certain charges, passed order dated 18.09.2015, whereby services of petitioners were surrendered/ relieved from GGES and placed at the disposal of District Officer (Education), Bahawalnagar. On the complaint of teachers/staff members of GGES, an inquiry was conducted by District Education Officer (SE), Bahawalnagar, who recommended that petitioners as well as Respondent No. 6 be transferred from GGES,vide report dated 03.10.2015. Relying upon said report, District Coordination Officer, Bahawalnagar directed E.D.O. (Education) to transfer petitioners as well as the Headmistress against the seats mentioned against their names, vide order dated 20.10.2015, in compliance whereof, Executive District Officer, (Education), Bahawalnagar, approved the transfers of petitioners and Respondent No. 6, vide order dated 13.11.2015. Through instant petition, petitioners have assailed orders dated 18.09.2015, 20.10.2015 and 13.11.2015.

23. Learned counsel for petitioners submit that Respondent No. 6/ Headmistress, Govt. Girls Elementary School, Chak 4/FW, Tehsil Chishtian, is neither the appointing authority nor competent to relieve/surrender the petitioners. They further submit that the D.C.O./Respondent No. 2 stands nowhere in the scheme of law, hence, impugned orders are not sustainable in the eye of law. They add that petitioners have neither been served any Show Cause Notice nor provided opportunity of personal hearing to them, which are conditions precedent as provided in Clause (b) of Para 4 (iii) of the Transfer Policy, 2013. They contend that transfer/surrender of teachers cannot be made on disciplinary or administrative ground except coupled with inquiry under the Punjab Employees Efficiency, Discipline and Accountability Act, 2006 (PEEDA). They argue that impugned orders are tainted with malice and have been passed during the ban on transfer of teaching staff. They further contend that terms and conditions of service are contained in Sections 3 to 21 of the Punjab Civil Servants Act, 1974. They add that “surrender and relieving” do not come within the purview of terms and conditions of service of a civil servant, therefore, the bar contained in Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973 (the Constitution) does not apply in the instant matter. In support of their contentions, they have placed reliance upon Regional Commissioner Income Tax, Northern Region, Islamabad and another v. Syed Munawar Ali and others (2016 SCMR 859).

24. On the other hand, learned Law Officers, assisted by learned counsel for respondent, submit that petitioners have challenged their transfer and posting which relates to the terms and conditions of service, so, the matter may be agitated before the Punjab Service Tribunal, thus, these petitions are not maintainable. They add that petitioners were creating problems in GGES, as a result thereof they were transferred to different secondary schools of Tehsil Chishtian on administrative grounds in the interest of students of said school, by Respondent No. 2 being competent authority to transfer teachers serving in BPS-11 to BPS-18 within the district, as provided under Para 12 of the Transfer Policy, 2013. They further submit that this Court has no jurisdiction to entertain these petitions in view of the bar contained in Article 212 of the Constitution. In support of their contentions, they relied upon Iqan Ahmed Khurram v. Government of Pakistan and others (PLD 1980 Supreme Court 153), Zahid Akhtar v. Government of Punjab through Secretary, Local Government and Rural Development, Lahore and 2 others (PLD 1995 Supreme Court 530), Khalid Mehmood Wattoo v. Government of Punjab and others (1998 SCMR 2280), Pervaiz Aslam v. Ilyas Hussain Shah and another (1999 SCMR 784), Peer Muhammad v. Government of Balochistan through Chief Secretary and others (2007 SCMR 54), Government of Sindh through Secretary Education and Literacy Department and others v. Nizakat Ali and others (2011 SCMR 592), Abdul Bari v. Government of Pakistan and 2 others (PLD 1981 Karachi 290), Khalil-ur-Rehman and others v. Government of Pakistan and others (PLD 1981 Karachi 750) and Nisar Ahmad v. Government of the Punjab and another (1992 PLC (C.S.) 1020).

25. Arguments heard. Record perused.

26. Surrendering/relieving order dated 18.09.2015 passed by Headmistress, only provided basis for initiation of an inquiry in the matter and basing on inquiry report/recommendations, D.C.O. directed E.D.O. (Education) to transfer petitioners and Respondent No. 6 and ultimately, E.D.O. (Education), Bahawalnagar passed the transfer order dated 13-11-2015 transferring Respondent No. 6 as well as petitioners, which is reproduced below for ready reference:

“In compliance with the decision announced/passed on 20.10.2015 by the worthy District Coordination Officer Bahawalnagar in Writ Petition No. 7771 of 2015 titled Irshad Begum etc VS DCO whereby he is pleased to approve the following transfers of teachers on Administrative Grounds in public interest for the benefit of educational institute i.e. Govt. Girls Elementary School 4/FW, Chishtian with immediate effect.

| | | | | | --- | --- | --- | --- | | Sr. No. | Name of Teacher with Designation & Place of Posting | Transferred/Posted at: | Remarks | | 1. | Mst. Nusrat Noor, SST/Head Teacher Govt. Girls E/S 4/FW, Chishtian | As SST (G) Govt. Girls H/SS Dahranwala Tehsil Chishtian | Against Vacant Post | | 2. | Mst.Irshad Begum, EST Govt. Girls E/S 4/FW, Chishtian | As EST at Govt. Girls H/S 95/F (S) Tehsil Chishtian | Against Vacant Post | | 3. | Mst. Zahida Nazir, PST Govt. Girls E/S 4/FW, Chishtian | As PST at Govt. Girls H/S 123/M, Chishtian | Against Vacant Post |

DEO (EE-W) & DEO (SE) Bahawalnagar are directed to ensure compliance of these orders accordingly and put up proposals of vigilant teachers for adjustment against the resultant vacancies at Govt. Girls Elementary School 4/FW, Chishtian. Furthermore, all the above mentioned transferred teachers are strictly WARNED to be careful in future.”

1. Perusal of the impugned order shows that matter in dispute relates to transfer and posting of the petitioners which falls within the preview of Section 9 of the Punjab Civil Servants Act, 1974. It is now well-settled that Article 212 of the Constitution bars the jurisdiction of this Court to entertain any matter which relates to the terms and conditions of services of civil servants. Since petitioners are civil servants and the matter in issue pertains to the terms and conditions of their service, as such it is not tenable in the constitutional jurisdiction of this Court owing to the bar contained in Article 212 of the Constitution. Reference in this regard can be made to Muhammad Sadiq Khokhar v. Engineer-in-Chief Pakistan Army, G.H.Q. and another (1985 SCMR 63), Rana Muhammad Sarwar v. Government of Punjab through Services, General Administration and Information Department and another (1990 SCMR 999), Imam Bakhsh and 4 others v. Deputy Commissioner, Layyah and 16 others (1992 SCMR 365), Muhammad Anis and others v. Abdul Haseeb and others (PLD 1994 Supreme Court 539), Miss Rukhsana Ijaz v. Secretary, Education, Punjab and others (1997 SCMR 167), Ayyaz Anjum v. Government of Punjab, Housing and Physical Planning Department through Secretary and others (1997 SCMR 169), Habib Bank Limited and others v. Syed Zia-ul-Hassan Kazmi (1998 SCMR 60), Province of Punjab and another v. Ch. Muhammad Ashraf and another (2000 PLC (C.S.) 118) and Government of the Punjab and others v. Muhammad Zafar Bhatti and others (PLD 2004 Supreme Court 317). This Court is not supposed to entertain and adjudicate such dispute due to bar contained under Article 212 of the Constitution, and law laid down by the Hon’ble Supreme Court in Ali Azhar Khan Baloch and others v. Province of Sindh and others (2015 SCMR 456), the operative part of which is reproduced as under:--

“149. Article 212 of the Constitution ousts the jurisdiction of High Courts and civil Courts in respect of the matters pertaining to terms and conditions of civil servants. In other words, the provisions of Article 212 do not confer a concurrent jurisdiction to civil Courts, High Courts and Tribunals. The ouster contemplated under the said Article is a Constitutional command, and, therefore, of necessity restricts the jurisdiction of civil Courts and High Courts on the subject, which squarely falls within the exclusive domain of Tribunals.

1. The High Court of Sindh has completely overlooked the intent and spirit of the Constitutional provisions relating to the terms and conditions of service, while entertaining Civil Suits and constitution petitions filed by the civil servants, which are explicitly barred by Article 212. The expression 'Terms and Conditions' includes transfer, posting, absorption, seniority and eligibility to promotion but excludes fitness or otherwise of a person, to be appointed to or hold a particular post or to be promoted to a higher post or grade as provided under Section 4(b) of the Sindh Service Tribunals Act, 1973. Surprisingly, it has been ignored that it is, by now, a settled principle of law that the civil and writ jurisdictions would not lie in respect of the suits or petitions filed with regard to the terms and conditions of Civil Servants, and yet some of the learned Judges of High Court of Sindh have erroneously exercised both civil and writ jurisdictions with regard to the terms and conditions of civil servants.

2. We, for the aforesaid reasons, conclude that the exercise of jurisdiction by way of suit and Constitution petition filed by a civil Servant with regard to his terms and conditions of service is violative of Articles 175, 212 and 240 and the law.”

3. Learned counsel for petitioners has argued that impugned orders under challenge, having been passed without lawful authority, are without jurisdiction and based on mala fide, but despite accepting it legally correct, the bar under Article 212 of the Constitution restricts this Court from taking cognizance of the matter. Reference in this regard can be made to the cases of Khalid Mehmood Wattoo and Muzaffar Hussain supra. Even the plea of mala fide does not confer upon this Court jurisdiction to act in the matter as Service Tribunal is the appropriate forum, having full jurisdiction to interfere in such like matters.

4. The next argument of learned counsel for petitioners that terms and conditions of a civil servant are defined in Sections 3 to 21 of the Punjab Civil Servants Act, 1974 (the Act of 1974), which do not include “surrender and relieving”, is misconceived. In terms of Section 9 of the Act of 1974, every civil servant is liable to serve anywhere within or outside the province in any post under the Government of the Punjab or the Federal Government or any Provincial Government or a local authority or a corporation or a body set up or established by any such Government, within the contemplation of said provisions of law. Office order dated 18.09.2015, surrendering/relieving services of the petitioners, can be considered a recommendation of Headmistress to the competent authority and, thereafter, the competent authority transferred the petitioners for the reasons recorded in the impugned order. Reference can be made to judgment passed in the case titled Pathan v. The State (2015 SCMR 315) wherein Hon’ble Supreme Court of Pakistan observed that head teacher had no authority to transfer a teacher of his school to another, but he can only recommend his transfer to the Education Officer of the District. Initial recommendation of Headmistress stood merged in the final order passed by the competent authority and is no more in field under the doctrine of merger. Reference can be made to Sahabzadi Maharunisa and another v. Mst. Ghulam Sughran and another (PLD 2016 SC 358). Initial or final order, whether illegal, without jurisdiction and corum non judice, remedy still lies before the Service Tribunal on account of bar contained in Article 212 of the Constitution. Therefore, office order dated 18.09.2015, surrendering/relieving services of the petitioners, cannot be assailed through constitutional petition under Article 199 of the Constitution.

5. Even otherwise, statute exercising a right of appeal from interim order could not be bypassed by bringing under attack such interim order in constitutional jurisdiction. Party effected thereto had to wait till it matures into final order and then to attack it in proper exclusive form. Under the law, when final order cannot be interfered with by this Court, interference qua interim order will manifestly frustrate the object of law and delay the disposal of main case. Any forum or Court, which had no jurisdiction to decide the main matter in a case before it, had no jurisdiction to decide any ancillary or incidental matter thereto. Reference, in this regard, is made to Syed Saghir Ahmad Naqvi v. Province of Sindh through Chief Secretary, S & GAD Karachi and another (1996 SCMR 1165), S.M. Waseem Ashraf v. Federation of Pakistan through Secretary M/O Housing and Works, Islamabad and others (2013 SCMR 338), Province of Punjab and another v. Ch. Muhammad Ashraf and another (2000 PLC (C.S.) 118), Muzaffar Hussain v. The Superintendent of Police, District Sialkot (2002 PLC (C.S.) 442) and Osman Khan through Attorney v. Aisha Naz and 2 others (2010 CLC 475).

6. Undeniably, the issue of upgradation did not form part of terms and conditions of service of civil servants as held by the Hon’ble Supreme Court in the case of Syed Munawar Ali and others supra, relied upon by the petitioners, but it has not been shown that the matter relating to transfer/posting/placement/repatriation/surrender does not come within the ambit of terms and conditions of service.

7. It needs to be emphasized that even any matter connected with the terms and conditions of service is also barred under the said provisions of the Constitution. The said ouster clause creates a bar with regard to all the matters falling within the ambit of authority of Service Tribunal. Even the vires of the rules on the plea of alteration of terms and conditions of service can be challenged before the Service Tribunal and bar of Article 212 of the Constitution in such case is applicable with full force. Petitioners cannot bypass Service Tribunal by adding a ground of assailing rules or violation of fundamental rights. The Service Tribunal is competent to adjudicate upon the question of vires of rules framed by the department, even if the same were challenged on the basis of violation of fundamental rights of the civil servant. As in the instant case, the Transfer Policy, 2013 has been challenged in some of the petitions, such rules/notification could be termed as an order within the contemplation of the provisions of the Punjab Service Tribunals Act, 1974 and could be challenged in appeal before the Service Tribunal. Reference, in this regard, is made to Iqan Ahmed Khurram v. Government of Pakistan and others (PLD 1980 Supreme Court 153), I. A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others (1991 SCMR 1041), Ms. Anyesha Bashir Wani and others v. Government of Pakistan and others (2012 PLC (C.S.) 31), Muhammad Asghar v. Government of Balochistan through Chief Secretary Balochistan and 6 others (2012 PLC (C.S.) 142), Abdul Khaliq v. Government of Balochistan through Chief Secretary, Civil Secretariat and 3 others (2012 PLC (C.S.) 1211) and Engineer Musharaf Shah v. Government of Khyber Pakhtunkhwa through Chief Secretary and 2 others (2015 PLC (C.S.) 215).

8. In somewhat identical matter, the learned Division Bench of this Court in Fazal Ahmad Ranjha and 28 others v. Government of the Punjab through Secretary Education (Schools), Lahore and 39 others [2016 PLC (C.S.) 1209], in the matter of transfer, posting and placement, has ruled as under:

“15. Keeping in view the aforenoted it is held that appellants are civil servants and were transferred/posted/placed as DTEs through different orders. Transfer/posting/placement is part of their terms and conditions of service. Therefore, in case they have been sent back/transferred/posted/ repatriated, they cannot assert any right before this Court in view of the bar contained in Article 212 of the Constitution of the Islamic Republic of Pakistan. We are guided by the dictum laid down by the Honourable Supreme Court of Pakistan in judgments reported as Secretary to Government of the Punjab Health Department, Lahore and others vs. Dr.Abida Iqbal and another (2009 SCMR 61), Peer Muhammad vs. Government of Balochistan through Chief Secretary and others (2007 SCMR 54), Syed Mazher Hussain Bukhari vs. Secretary, Government of Punjab, Local Government and Rural Development, Department, Lahore and others (1998 SCMR 1948), Asadullah Rashid vs. Haji Muhammad Muneer and others (1998 SCMR 2129) and Khalid Mahmood Wattoo vs. Government of Punjab and others (1998 SCMR 2280).

1. Apart from dealing with the question of transfer/posting of a civil servant, the Honourable Apex Court in the aforenoted judgments has dealt with the question that even if an order passed by a departmental authority qua terms and conditions of service of a civil servant is mala fide, coram non judice, ultra vires or without jurisdiction, this Court has no mandate to look into or decide about the vires of such an order.

2. While discussing the bar contained in Article 212 of the Constitution, the Honourable Supreme Court of Pakistan has held in unequivocal and clear terms that the bar is absolute in view of the fact that under the aforenoted Article, respective Service Tribunals have been constituted to adjudicate upon and decide exclusively about the matters and issues pertaining to terms and conditions of service of a civil servants. Therefore, resort to this Court by invoking Article 199 of the Constitution of the Islamic Republic of Pakistan cannot be made. The words in which Article 212 of the Constitution is couched, gives it an overriding effect over the other Articles qua the terms and conditions of service, whereas the jurisdiction exercised under Article 199 being subject to the Constitution would be ousted insofar as the terms and conditions of services of a civil servant are concerned. Reliance can be placed on the judgments reported as “Ali Azhar Khan Baloch and others v. Province of Sindh and others (2015 SCMR 456) and National Assembly Secretariat v. Manzoor Ahmed and another (2015 SCMR 253).”

3. Needless to observe here that underlying object of incorporation of Article 212 in the Constitution and establishment of Service Tribunal by legislation was to provide expeditious and inexpensive remedy to civil servants for redressal of their grievances arising out of violation of terms and conditions of their service. Establishment of Service Tribunal aimed at prevention of intrusions into or inroad on terms and conditions of civil servants by departmental authorities. Unlike constitutional jurisdiction of this Court under Article 199 of the Constitution confined to question of law without venturing upon resolution of factual controversies, it was within the jurisdiction of Service Tribunal and it was its obligation to decide all questions of law and facts raised by petitioners in instant petitions. Civil servants could be transferred/surrendered/posted/ repatriated during period of service anywhere, which would fall under terms and conditions of service or matters connected therewith and jurisdiction of this Court, under Article 212 of the Constitution, is explicitly barred. Case of petitioners fall within the ambit of Transfer Policy which, for all intents and purposes, forms part of terms and conditions of their service or matters connected therewith. Constitutional petition under Article 199 of the Constitution by a civil servant in relation to any matter connected with the terms and conditions of service, in respect whereof Service Tribunal has jurisdiction, is not maintainable in view of the provisions of Article 212 ibid. Reference can be made to case of Pervaiz Aslam supra.

4. In view of above, this petition as well as connected petitions, being not maintainable, are hereby dismissed with no order as to costs.

(R.A.) Petitions dismissed

PLJ 2017 Lahore 410 [Bahawalpur Bench Bahawalpur]

Present: Tariq Iftikhar Ahmad, J.

MUHAMMAD NASIR MAJEED--Petitioner

versus

ADDITIONAL DISTRICT JUDGE, BAHAWALPUR, etc.--Respondents

W.P. No. 7905 of 2016/BWP, decided on 19.1.2017.

Punjab Rented Premises Act, 2009--

----S. 15--Ejectment petition--Non registration of rent agreement--Effect of--Initially it was not got registered with concerned authority but subsequently it was done so, respondent paid penalty and got rent agreement regularized, therefore, non-registration of rent agreement at initial stage is not creating any negative effect upon claim of respondent. [P. 412] A

NLR 2013 Civil 404, rel.

Ejectment Petition--

----Technical defect--Wrong forum--Effect of rights--Ejectment petition was addressed to Civil Judge and not to Court of rent tribunal but if it is position, then it was only a technical defect and cannot effect rights of respondent as were acknowledged by Courts below and for technical mistake, if committed, by respondent, cannot stand against basic right. [P. 413] B

PLJ 2014 Lah. 995, rel.

Punjab Rented Premises Act, 2009--

----S. 22--Constitution of Pakistan, 1973, Arts. 4 & 18--Ejectment petition--Fundamental rights--Fair trial--Ultra vires to constitution--Validity--It deprived petitioner of his right to have a fair trial and it also affected his fundamental rights as guaranteed under Constitution, therefore, S. 22 of Act is to be struck down from statute by High Court is exercise of its constitutional jurisdiction--Petitioner himself opted to avail opportunity under Section 22 of Act and filed application for leave to contest, when failed he filed an appeal without raising any objection that Section 22 of Act is ultra vires to Constitution, therefore, now in instant petition, he for first time has raised this legal objection which is not sustainable. [Pp. 413 & 414] C & E

Punjab Rented Premises Act, 2009--

----Scope of--High Court is not inclined to endorse view point of counsel because Act is special law which provides comprehensive legal frame work to regularize legal matters between landlord and tenant vis-a-vis rented premises. [P. 414] D

Mr. Abdul Mughni Farani, Advocate for Petitioner.

Mr. Abdul Jaleel Khan, Advocate for Respondent No. 3.

Date of hearing: 17.01.2017

Order

Ejectment petition under Section 15 of the Punjab Rented Premises Act, 2009 (hereinafter called The Act) was filed by Mubarak Ali, Respondent No. 3 (hereinafter called the respondent) against petitioner Muhammad Nasir Majeed on the grounds of default in payment of monthly rent and personal need. The petitioner filed an application for leave to contest under Section 22 of The Act, he denied the relation of landlord and tenant and contended therein that he is in possession of the disputed premises under an agreement to sell dated 26.01.2013 and that rent deed dated 06.05.2011 was cancelled. Learned Rent Tribunal vide impugned order dated 26.04.2016 dismissed the application and ordered petitioner’s ejectment from the disputed premises. Aggrieved with the order, the petitioner filed an appeal which was also dismissed by the learned lower appellate Court vide impugned order dated 26.09.2016.

1. Now the petitioner had filed instant writ petition challenging the validity of the impugned order/judgment on the ground that these are result of misreading and non-reading of evidence; that learned trial Court could not proceed into the ejectment petition as question of title of the disputed property was subjudice between the parties before Court of competent jurisdiction; that order passed by the two Courts below under Section 22 of The Act is violative to the Constitutional guarantees enshrined under Articles 4 and 8 regarding protection of fundamental rights and fair trial and that petitioner was deprived of his legal rights.

2. Learned counsel for the petitioner contended that petitioner denied relationship of landlord and tenant, as after cancelling rent agreement, he entered into agreement to sell with the respondent and on the strength of said agreement, the possession of the petitioner over the disputed property is as owner but both Courts below failed to appreciate this fact and without allowing leave to contest or framing of issues and recording of evidence decided the factual controversy on the basis of surmises and conjectures. Further contended that rent agreement was not got registered in terms of Sections 8 and 9 of The Act, as such, the ejectment petition was not proceedable. Also contended that after entering into the agreement to sell, petitioner’s status was changed from tenant as to owner of the disputed premises and in this respect he also filed a suit for specific performance of the agreement, which according to him, barred the jurisdiction of the Rent Tribunal but this clear legal position was overlooked by both Courts below. Learned counsel concluded his arguments while seeking that both impugned order/judgment may be declared illegal and without any effect and further that Section 22 of The Act may be declared as illegal and ultra vires to Articles 4 and 10(a) of The Constitution of Islamic Republic of Pakistan, 1973.

3. On the other hand, learned counsel for respondent defended impugned order/judgment and contended that Respondent No. 3 landlord is living abroad and after handing over possession of the disputed premises on rent to the petitioner left the country. The petitioner taking the advantage of his absence refused to pay monthly rent has taken false plea that he is in possession on the basis of agreement to sell, whereas, agreement does not create any right unless it is enforced vis-à-vis ownership of the property. He added that suit filed by the petitioner for specific performance had been dismissed and that the learned Courts below correctly appreciated law and facts and passed justified legal and effective order/judgment, whereas, this petition is filed without any legal backing; hence, deserve to be dismissed.

4. I have heard the arguments of learned counsel for the parties and perused the record.

5. It is an admitted fact between the parties that rent agreement in respect of disputed premises was executed between the parties on 06.05.2011. Initially it was not got registered with the concerned authority but subsequently it was done so, respondent paid penalty and got the rent agreement regularized, therefore, non-registration of the rent agreement at the initial stage is not creating any negative effect upon the claim of the respondent. Reliance can be placed on the dictum laid down in “Rana Abdul Hameed Talib versus Additional District Judge, Lahore and others” (NLR 2013 Civil 404).

6. The main contention of the learned counsel for the petitioner was that as there was an agreement to sell executed between petitioner and the respondent and in this respect a civil suit for specific performance was also filed, therefore, the jurisdiction of the learned Rent Tribunal was ousted. It is noteworthy that respondent in Para No. 4 of the ejectment petition specifically taken the stance that petitioner prepared a fraudulent agreement showing that he agreed to sell the disputed premises to him for consideration and also received earnest money. It may be added here that the petitioner filed a civil suit on 26.05.2015 for specific performance of alleged agreement dated 26.01.2013, however, said civil suit was dismissed on 19.07.2016 by the learned trial Court. Though, appeal against said judgment and decree was filed by the petitioner on 02.08.2016 in which the learned appellate Court passed injunctive order from 02.08.2016 to 6.08.2016 but the petitioner has not placed on record any document to show that said stay or injunctive order was extended. Leaving these facts aside principally speaking manner entering into agreement to sell is not creating ownership rights in favour of the alleged vendee unless such agreement is enforced in due course of law. In this respect reliance is placed on the case law of this Court reported as “Ghulam Hussain vs. Malik Muhammad Niaz and others” (2012 YLR 1464 Lahore) and “Syed Tamtarraq Mohsan Shah vs. Additional District Judge, Sahiwal and 6 o thers” (PLJ 2011 Lahore 728). At the most, the contention of the learned counsel for petitioner can be considered only his version but unless it is proved, established and enforced, he cannot get any benefit out of it. Learned counsel for the petitioner also argued that ejectment petition was addressed to the learned Civil Judge and not to the Court of Rent Tribunal but if it is the position, then it was only a technical defect and cannot effect the rights of the respondent as were acknowledged by two Courts below and for this technical mistake, if committed, by the respondent, cannot stand against basic right and in this respect reliance is placed on the case law of this Court reported as “Muhammad Nayab vs. Addl. District Judge, etc.” (PLJ 2014 Lahore 995)

7. It is also appropriate to mention here that though it is contention of the petitioner that rent agreement was rescinded/ cancelled by the parties, it is noteworthy that this expression is also recorded in the alleged agreement to sell dated 26.01.2013, which has vehemently been denied by the respondent, therefore, rescinding tenancy agreement is only version without any proof and of no benefit to the petitioner.

8. The last contention raised and prayer made by the learned counsel for the petitioner is that as Section 22 of The Act is ultra vires to Articles 4 and 8 of The Constitution of Islamic Republic of Pakistan, 1973 as it deprived the petitioner of his right to have a fair trial and it also affected his fundamental rights as guaranteed under the Constitution, therefore, the said section is to be struck down from the statute by this Court is exercise of its constitutional jurisdiction.

9. This Court is not inclined to endorse view point of the counsel because The Act is special law which provides comprehensive legal frame work to regularize legal matters between landlord and tenant vis-a-vis rented premises.

10. Section 22 of The Act is reproduced here:--

11. Leave to contest.----(1) A Rent Tribunal shall not allow a respondent to defend the application unless he obtains leave to contest.

12. Subject to this Act, a respondent shall file an application for leave to contest within ten days of his first appearance in the Rent Tribunal.

13. An application for leave to contest shall be in the form of a written reply stating grounds on which the leave is sought and shall be accompanied by an affidavit of the respondent, copy of all relevant documents in his possession and, if desired, affidavits of not more than two witnesses.

14. The Rent Tribunal shall not allow leave to contest to a respondent unless the application discloses sufficient grounds for production of oral evidence.

15. The Rent Tribunal shall decide the application for leave to context within a period of fifteen days from the date of its filling.

16. If the leave to contest is refused or the respondent has failed to file application for leave to contest within the stipulated time, the Rent Tribunal shall pass the final order.

17. Perusal of above section reveals that this section of The Act is integral and very important part of the entire scheme of the special law and same cannot be taken in isolation without considering the other provisions of law. In the instant matter, the petitioner himself opted to avail opportunity under Section 22 of The Act and filed application for leave to contest, when failed he filed an appeal without raising any objection that Section 22 of The Act is ultra vires to the Constitution, therefore, now in the instant writ petition, he for the first time has raised this legal objection which is not sustainable. Accordingly, the contentions of the learned counsel for the petitioner are repelled.

18. A careful analysis of the entire record, I do not see any jurisdictional error committed by the Courts below.

19. Writ petition being devoid of force stands dismissed accordingly with no order as to costs.

(R.A.) Petition dismissed

PLJ 2017 Lahore 415 (DB) [Bahawalpur Bench, Bahawalpur]

Present: Muhammad Sajid Mehmood Sethi and Tariq Iftikhar Ahmad, JJ.

UNITED BANK LIMITED--Appellant

versus

M/s. HASSAN MUHAMMAD COTTON INDUSTRIES & OIL MILLS and others--Respondents

F.A.O. No. 117 of 2014/BWP, decided on 24.1.2017.

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

----O. VII, R. 10--Financial Institutions (Recovery of Finances) Ordinance, 2001, S. 9--Return of plaint--Suit for recovery--Application for leave to defend suit--Plaint could not be rejected/returned without deciding application--Validity--Plaint can be returned at any stage of suit, to be presented to Court having jurisdiction and Order VII Rule 11, C.P.C. provides that plaint can be rejected on grounds: lack of cause of action, under-valuation, insufficient Court fees and barred by law--Application has to be either rejected or allowed by Banking Court, not to be disposed of in manner as has been done through impugned order--Banking Court did not adopt procedure as prescribed in statute and had gone outside scope of Section 10 (8) & (10) of FIO, 2001.

[Pp. 418 & 419] A, B & C

Financial Institution (Recovery of Finances) Ordinance, 2002--

----Scope of--FIO, 2001 is a special law and provides procedure to deal with banking suits. [P. 420] D

Sanction Advice--

----Document for showing cause of action--Legality--Non-production of sanction advice--It is well-settled that sanction advice is an internal document of bank, which could be seen only to know what was approved by bank--Financial institution cannot be non-suited on basis of mere non-production of sanction advice as there is no such requirement of law--Sanction advice becomes valid and enforceable contract only once grant of loan has been made, giving rise to certain rights in favour of both rights--Suit was not maintainable on account of non-production of sanction advice, was not tenable in eye of law. [P. 421] E & F

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

----O. VII, R. 10--Financial Institution (Recovery of Finances) Ordinance, 2002, Ss. 9 & 10--Rejection of plaint--Suit for recovery--Application for leave to defend suit--Lack of valid reasons--Mandatory requirements--It is duty of a Court of law, while dealing with rights and obligations of litigants, to give valid reasons in its orders which are likely to affect adversely against them--Impugned order lacks explicit and legally valid reasons thus, is not sustainable in eye of law--Even if there was no application for leave to defend suit or leave was refused to defendant, that his plaint was competent with all mandatory requirements of Section 9 of FIO, 2001, and suit was not barred by any law. [P. 421] G, H & I

2014 CLD 1458, 2004 CLD 716, 2005 CLD 1489, 2014 CLD 1518, 729, PLD 2013 Sindh 104, 2011 CLD 970 & 2009 CLD 856, ref.

Mr. Muhammad Basit Babar Chughtai, Advocate for Appellant.

Mr. Muhammad Bilal Bhatti, Advocate for Respondents.

Date of hearing: 24.1.2017.

Judgment

Muhammad Sajid Mehmood Sethi, J.--Through instant appeal, order dated 18.9.2014 passed by learned Judge Banking Court, Bahawalpur, has been assailed, whereby plaint of the suit filed by appellant-bank was returned under Order VII Rule 10 C.P.C.

1. Brief facts of the case are that appellant-bank filed a suit, under Section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (FIO, 2001) for recovery of Rs. 7,521,320.22 against respondents, which was contested by Respondents No. 1 & 2 by filing application for leave to defend the suit whereas Respondents No. 3 & 4 were proceeded against ex- parte owing to their non-appearance. Learned Judge Banking Court, Bahawalpur, after hearing the arguments of learned counsel for parties, proceeded to pass the impugned order, whereby plaint was returned by invoking provisions of Order VII Rule 10 C.P.C., vide order dated 18.09.2014. Through instant appeal, said order has been assailed.

2. Learned counsel for appellant-bank submits that plaint of the suit disclosed cause of action within the contemplation of law, and learned Judge Banking Court has wrongly invoked provisions of Order VII Rule 10 C.P.C. He adds that learned Judge was obliged under the law, first to decide application for leave to defend the suit, as plaint could not be rejected/returned without deciding said application.

3. On the other hand, learned counsel for Respondents No. 2 & 4 defends the impugned order and submits that appellant has failed to point out any illegality or legal infirmity in the impugned order.

4. Arguments heard. Record perused.

5. The operative part of impugned order is reproduced hereunder:--

“3. On these observations that despite the fact that all the defendants in their respective leaves to defend and even this Court had gone as far as to appoint a commission on 26.11.2013, the mandatory documents as per Section (2) and (3) have not been complied with. For ready reference, Section 9(2)&(3) is noted as following:--

(2) The plaint shall be supported by a statement of account which in the case of a financial institution shall be duly certified under the Bankers Books Evidence Act, 1891 (XVII of 1891), and all other relevant documents relating to the grant of finance. Copies of the plaint, statement of account and other relevant documents shall be filed with the Banking Court in sufficient numbers so that there is one set of copies for each defendant and one extra copy.

(3) The plaint, in the case of a suit for recovery instituted by a financial institution, shall specifically state---

(a) the amount of finance availed by the defendant from the financial institution;

(b) the amount paid by the defendant to the financial institution and the dates of payment; and

(c) the amount of finance and other amounts relating to the finance payable by the defendant to the financial institution up to the date of institution of the suit.

1. As, presently, the Court observes that there is violation of the aforesaid provisions and despite separate opportunities had been granted to the bank in order to provide the sanction advice upon which the loan is disbursed and the agreement is made between the parties having not been filed or complied with, the bank has miserably failed. Besides, this point has already been initiated and has been the stance of the defendants in their leave to defend. Sanction advice is the most vital document on the basis of which a suit for recovery can be filed under the FIO 2001, which becomes and endorses the actual cause of action against the loanee, by the bank. In the case at hand there does exists ambiguity as to the cause of action, which needs to be clarified, as per law. Accordingly, this Court come to the conclusion that although the loan is admitted but when and how the cause of action arose is not supported by a vital document that is “sanction advice”, which is in direct violation of the provisions of Section 9 of FIO, 2001.

2. In view of this matter, as the Court has already observed the above noted facts, concludes that the objections raised in the leaves to defend are genuine enough, therefore, these applications are disposed of in the manner that the plaint being defective due to ambiguity in the cause of action is returned under Order 7, rule 10.”

3. The above reproduced part of the impugned order shows that learned Judge Banking Court proceeded to return the plaint by observing that provisions of sub-sections (2) & (3) of Section 9 of FIO, 2001, were not complied with, sanction advice was not produced and there was ambiguity as to cause of action. Application for leave to defend was disposed of in terms of returning the plaint by invoking provisions of Order VII Rule 10 C.P.C.

4. It would be useful to go through relevant provisions of the Code of Civil Procedure, 1908 (C.P.C.), dealing with return/rejection of a plaint. Under Order VII Rule 10 C.P.C., plaint can be returned at any stage of the suit, to be presented to the Court having jurisdiction and Order VII Rule 11 C.P.C. provides that plaint can be rejected on the grounds: lack of cause of action, under-valuation, insufficient Court fees and barred by law. These provisions are reproduced hereunder:--

Order VII Rule 10 C.P.C.

“10. Return of plaint.--(1) The plaint shall at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted.

Procedure on returning plaint.--(2) On returning a plaint the Judge shall endorse thereon the date of its presentation and return, the name of the party presenting it, and a brief statement of the reasons for returning it.”

Order VII Rule 11 C.P.C.

“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-valued, 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.”

1. Section 10 of the FIO, 2001, provides the procedure to deal with application for leave to defend the suit. Banking Court had to determine, in the first instance, whether or not the defendant should be granted leave to defend the suit. The Banking Court is obliged to answer all the questions raised in the leave application and if proceeds to accept the same, shall frame issues as to substantial questions of law or fact, invite evidence and only then, dispose of either the suit or the leave application. Banking Court, therefore, could not have disposed of the suit vide impugned order as it had to exercise jurisdiction strictly in accordance with the FIO, 2001. Even disposal of application for leave to defend is completely alien and contrary to spirit and provision of FIO, 2001. The said application has to be either rejected or allowed by the Banking Court, not to be disposed of in the manner as has been done through the impugned order. Learned Banking Court did not adopt the procedure as prescribed in the statute and had gone outside the scope of Section 10 (8) & (10) of the FIO, 2001. Reference can be made to Habib Bank v. Messrs Qayyum Spinning Ltd. (2001 MLD 1351) and Umer Shariq v. Messrs SME Bank Limited (2016 CLD 1821). Under the law, no one could be left without remedy and if a wrong had been committed with him and he was in search of some redress against such wrong, there must be some forum available to entertain his claim and to adjudicate upon proceedings instituted by such person. After return of plaint from Banking Court, it has not been suggested as to which Court has jurisdiction to entertain the suit, in violation of the afore-referred provisions of law. Reliance is placed upon Haji Muhammad Nawaz Khokhar v. United Bank Limited through President and 3 others (2012 CLD 1709).

2. The FIO, 2001 is a special law and provides procedure to deal with banking suits. Section 4 of the FIO, 2001 lays down that provisions of the Ordinance ibid will override all other laws and require strict consequences within the contemplation of said Ordinance. Reference is made to Apollo Textile Mills Ltd. and others v. Soneri Bank Ltd. (PLD 2012 Supreme Court 268 = 2012 CLD 337). Section 9 of the FIO, 2001, provides remedy in shape of institution of suit before the Banking Court by a customer or a financial institution, if there is any default in fulfillment of any obligation from either side. For facility of reference, said provision of law is reproduced hereunder:--

“9. Procedure of Banking Courts. (1) Where a customer or a financial institution commits a default in fulfillment of any obligation with regard to any finance, the financial institution or, as the case may be, the customer, may institute a suit in the Banking Court by presenting a plaint which shall be verified on oath, in the case of a financial institution by the Branch Manager or such other officer of the financial institution as may be duly authorized in this behalf by power of attorney or otherwise.”

The above provision of law details certain requisite preconditions for the exercise of jurisdiction of Banking Court viz- a-viz, the plaintiff should be either financial institution or the customer, cause of action or default in fulfillment of any obligation and such obligation must be with regard to a finance. Reference is made to Majeed A. Tahir v. United Bank Limited through President and 3 others (2008 CLD 1162).

1. Jurisdiction of any Court with regard to any matter to which the jurisdiction of Banking Court extends including a decision as to the existence or otherwise of a matter of finance, is excluded under the proviso of Section 7 (4) of the FIO, 2001. The said provision of law runs as under:--

“7. Powers of Banking Courts.

(1) ….

(2) ….

(3) ….

(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 existence or otherwise of a finance and the execution of a decree passed by a Banking Court.”

1. The findings of learned Judge Banking Court that sanction advice is a vital document for showing cause of action, are perverse and absolutely illegal. It is well-settled that sanction advice is an internal document of the bank, which could be seen only to know what was approved by the bank. Agreement overrides all arrangements. Sanction advice, in the presence of the agreement, vis-a-vis the customer cannot be construed to disadvantage to the customer. Agreement is the document signed by both the parties and its contents have to be seen. The financial institution cannot be non-suited on the basis of mere non-production of sanction advice as there is no such requirement of law. Sanction advice becomes valid and enforceable contract only once grant of loan has been made, giving rise to certain rights in favour of both the rights. Thus, the observation that suit is not maintainable on account of non-production of sanction advice, is not tenable in the eye of law. Reliance, in this regard, is placed upon United Bank Limited v. Messrs Central Cotton Mills Ltd. And 5 others (2001 MLD 78), United Bank Ltd., Karachi v. Messrs Gravure Packaging (Pvt.) Ltd. and 4 others (2001 YLR 1549) and Messrs Qayyum Spinning Ltd. supra.

2. It is the duty of a Court of law, while dealing with rights and obligations of litigants, to give valid reasons in its orders which are likely to affect adversely against them. To have protection of law and to be treated in accordance with law is an inalienable right of every citizen and for determination of his civil rights and obligations, he is also entitled to due process of law, within the purview of Article 10-A of the Constitution of the Islamic Republic of Pakistan, 1973. The impugned order lacks explicit and legally valid reasons thus, is not sustainable in the eye of law.

3. Needless to observe here that in order to succeed in application for leave to defend, defendant was to show that his application was competent with all mandatory requirements of Section 10 of FIO, 2001. Likewise, plaintiff was to show, even if there was no application for leave to defend the suit or leave was refused to defendant, that his plaint was competent with all mandatory requirements of Section 9 of the FIO, 2001, and suit was not barred by

any law. Reference is made to Apollo Textile Mills Ltd.’s case (supra), Messrs Sadia Industries and others v. Soneri Bank Ltd. (2014 CLD 1458), Allied Bank of Pakistan Ltd. v. Mohib Fabric Industries Ltd. through Chief Executive (2004 CLD 716), Shahid Farooq Sheikh v. Allied Bank of Pakistan Limited (2005 CLD 1489), Silkbank Limited v. Messrs AZM Chemical Company through Proprietor and others (2014 CLD 1526), KASB Bank Limited v. Muhammad Ahmed Ansari (2014 CLD 1518), Habib Metropolitan Bank Limited v. Century 21 Textile and Sportswear (Pvt.) Limited and others (2014 CLD 729), Habib Metropolitan Bank Ltd. v. Mian Abdul Jabbar Gihllin and another (PLD 2013 Sindh 104), Royal Bank of Scotland Ltd. v. Saeed Abbas (2011 CLD 976) and Faysal Bank Limited v. Genertech Pakistan Ltd. and others (2009 CLD 856).

1. In view of the above discussion, this appeal is allowed and impugned order is set aside. The matter is remanded to learned Judge Banking Court, whereby suit as well as application for leave to defend the suit shall be deemed to be pending and shall be decided afresh strictly in accordance with law.

(R.A.) Appeal allowed

PLJ 2017 Lahore 422 [Bahawalpur Bench, Bahawalpur]

Present: Tariq Iftikhar Ahmad, J.

Mst. RAEESA BEGUM--Petitioner

Versus

KHALEEQ-UR-REHMAN, etc.--Respondents

C.R. No. 656-D of 2015, decided on 8.2.2017.

Islamic Law--

----Gift--Tamleek--Essentials--Necessary ingredients of gift/tamleek under the D.F. Mulla’s Islamic Law are, “offer, acceptance and delivery of possession from the donor to donee”. [P. 426] A

Gift--

----Scope--Had the donor no intention to make gift in favour of petitioner, he should not have executed gift/tamleek nama--After making of gift he lived few years in the world but never impliedly or expressly denied gift-deed. [P. 427] B

Donor and Donee--

----Relationship of--Husband and wife--Issueless--Validity--Definitely, it was ultimately good relations between spouses basing for making of gift in favour of his wife, who with devotion, dedication and in supreme interest of maintaining health and nourishment of her husband exhausted every inch of her effort and wasted her energy just like a spend thrift child and consoled her husband and in token whereof got a gift which was emblem of generosity and loyalty of lady who served her husband. [P. 427] C

Gift--

----Possession of property was not delivered as result of gift--It is well cardinal principle of law that when gift is between spouses or blood relations, they are living together then there is no requirement of formal delivery of possession in consequence of gift--It is also admitted that petitioner is still in possession at least one portion of disputed property. [P. 428] D

Registration Act, 1908 --

----Ss. 17 & 49--Un-registered documents--Donor and donee--Concept of tamleek--Essentials of--Donor and donee were Muslims by faith and under the Muslim concept of tamleek/gift, definition of which, has been mentioned irrespective of written gift-deed, same is valid and with yardstick as of an oral gift which fulfilled all three legal requirement, thus, created rights in favour of petitioner.

[P. 428] E

Malik Muhammad Javed Akhtar, Advocate for Petitioner.

Mr. Muhammad Ibrahim Khan, Advocate for Respondents.

Date of hearing: 19.1.2017

Judgment

Mst. Raeesa Begum (hereinafter called the petitioner) filed civil suit for declaration. Another suit titled “Mst. Nafeesa Begum etc. v Rasheeda Begum etc. for partition of Ihata No. 81-C, was filed. Both the suits involved same property and decided through consolidated judgment by both the Courts below. Consolidated facts of these cases are as under:

1. As per facts of the first suit, the petitioner claimed that her husband Khalil-ur-Rehman (late) was owner of 1/4th share of Ihata bearing No. 81/C, measuring 9 marlas 8 sarsai (disputed property), as no child was born out of the wedlock of petitioner and Khalil-ur-Rehman, her husband out of love and affection for the petitioner executed tamleek/gift deed in favour of his wife (present petitioner) on 30.05.1997 in presence of witnesses who signed the same in acknowledgment of its correctness. During life time, Khalil-ur- Rehman could not get the said document registered and died one year before filing of the suit (19.07.2006). It is petitioner’s contention that on the basis of document/tamleek/gift deed dated 30.05.1997, she is in possession as owner of the disputed property without any objection/ interference from anyone. The petitioner also stated that on the north side of the disputed property in the same Ihata a portion was owned by Jamil-ur-Rehman (late) predecessor in interest of respondents namely Fozia Jameel, Saher Gul Jameel and Khaleeq-ur-Rehman. Khalil-ur-Rehman, the deceased with mutual consent of the respondents effected partition inter-se of the portions of the Ihata and started living in their respective portions. Thereafter, the respondents started extending threats to the petitioner to vacate the disputed property gifted to her by her deceased husband and handed over its possession to them while refusing to admit tamleek/gift and also got sanctioned mutation of inheritance No. 4551 dated 16.09.2008 after the death of Khalil-ur-Rehman as his legal-heir, the petitioner sought declaration from the learned trial Court that she on the basis of tamleek/gift be declared as owner in possession of the disputed property in respect of which the respondents have no legal rights and that Mutation No. 4551 may also be declared illegal, against the law, facts and ineffective qua her rights.

2. It is appropriate to mention here that according to the contents of the instant revision petition, the respondents also filed a suit for the partition of entire Ihata No. 81 measuring 9 marlas and 8 sarsai against the petitioner and other owner of ½ share namely Haq Nawaz, etc.

3. Learned trial Court consolidated both the suits, framed issues on 12.10.2011 and after recording evidence through detailed judgment dated 19.12.2011 decreed petitioner’s suit for declaration and also passed preliminary decree in the partition suit. Respondents filed an appeal against the consolidated judgment of the learned trial Court, the learned appellate Court below vide judgment dated 25.06.2015 allowed the appeal and dismissed the suit for declaration and directed the learned trial Court to summon record of the suit for partition, further that same should be deemed to be pending at the stage of framing of issues and to proceed further in accordance with law for the disposal of said suit. The reason prevailed with the learned appellate Court below was that since the petitioner failed to prove tamleek/gift dated 30.05.1997, therefore, share which she could avail was only as legal-heir i.e. widow of Khalil-ur-Rehman.

4. Against the judgment rendered by learned lower appellate Court, petitioner has come up in this civil revision on different grounds legal and factual and sought that impugned judgment and decree of the appellate Court dated 25.06.2015 may be set aside and that of learned trial Court dated 19.12.2011 be restored.

5. Learned counsel for the petitioner contended that the petitioner being issueless lady won over love and affection of her husband Khalil-ur-Rehman, owner of 1/4th share of the disputed Ihata, who validly executed a tamleek/gift on 30.05.1997, which was fuly proved and established by the petitioner on the strength of cogent evidence, which was correctly appreciated by the learned trial Court, however, the learned appellate Court below erred in law and facts while setting aside the judgment of learned trial Court only on the ground that gift deed dated 30.05.1997 was not registered. Learned counsel further contended that according to settle principle of Islamic Law, even oral gift is effective, if it is fulfilling three ingredients i.e. offer, acceptance and delivery of possession. In this respect, learned counsel sought support from the case law reported as “Muhammad Amin v Mst. Shaista and 30 others” (2015 MLD 296) and “Muhammad Ejaz and 2 others v Mst. Khalida Awan and another” (2010 SCMR 342). He further contended that learned appellate Court failed to appreciate the evidence and adopted pick and choose approach, which is not legally correct and no finding can be recorded in this way. In support of this argument, he has placed reliance on the case law reported as “Budhoo v. Liaqat Hussain and 18 others” 1986 CLC 2958). Learned counsel concluded his submissions and sought that this revision petition may be allowed and impugned judgment of appellate Court may be set aside and restored that of trial Court.

6. On the other hand, learned counsel for the respondents defended the judgment rendered by learned appellate Court by contending that petitioner while appearing as a witness herself admitted that her deceased husband Khalil-ur-Rehman was not willing to get alleged tamleek/gift registered in favour of the petitioner, therefore, the contention of the petitioner relating to offer, acceptance and even delivery of possession went in the air. Further stated that undoubtedly the petitioner being widow is living in the disputed property being wife of its original owner to the extent 1/4th share but that position cannot be considered sufficient to prove alleged gift. The mandatory registration under the law was not done by Khalil-ur-Rehman, donor, as such the petitioner was not able to prove her claim, therefore, the impugned judgment of the learned appellate Court is in accordance with law and evidence and this revision may be dismissed.

7. I have heard learned counsel for the parties and perused the record with their able assistance.

8. No doubt, the entire controversy revolves around the validity of gift/tamleek (Ex.P1). For just decision it is appropriate to visualize gift/hiba and difference between gift and tamleek in juxtaposing position.

“Tamleek, Gift or Hiba”. It means a transfer of property made immediately and without any exchange by one person to another and accepted by or on behalf of the latter.

“The only line of distinction which can be drawn between “Gift” and “Tamleek” is that in the former, the donor can transfer property to anybody else, but where the property is to be transferred under the latter, the condition precedent is that same should be amongst the family members/legal heirs”.

Necessary ingredients of Gift/Tamleek under the D.F. Mulla’s Islamic Law are, “offer, acceptance and delivery of possession from the donor to done”

1. From scanning the testimonies of both the parties it is also crystal clear that the petitioner who was plaintiff examined Muhammad Iqbal (PW-1), stamp vendor, as well as scribe of gift/tamleek (Ex.P1). Out of the marginal witnesses Muhammad Arshad son of Abdul Karim who appeared as pW-2 and other Muhammad Rafiq son of Muhammad Hussain who died and his son Muhammad Shafiq appeared as PW-5. Both the said witnesses categorically deposed and made statement about the correctness of the gift deed (Ex.P1) and it is also worth mentioning that they also identified the signatures of marginal witnesses. Abdul Sattar Khan, PW-3, Notary public, and Abdul Hameed Iftikhar, PW-6, were also produced for evidence and they with unanimity stated and proved that Ex.p1 was duly executed reflecting true intention of the donor and the donee regarding gift.

On the other hand, the respondents examined Faiz-ul-Hassan as (DW-1), Jamil Ahmad (DW-2) and Khaliq-ur-Rehman as (DW-3). They simply deposed that no gift was made by Khalil-ur-Rehman, donor, in favour of the petitioner Mst. Raeesa Begum. Further deposed that deceased donor was not facing any financial problem to get the gift deed registered and further that relationship between the deceased and the petitioner as spouses was strained.

1. The learned trial Court rightly decreed the suit of the petitioner after scanning the material available on record and justified that respondents had failed to prove sufficient evidence regarding gift/tamleek (Ex.P1) dated 30.05.1997, and could not prove that it was result of fraud and forgery. The learned appellate Court without adverting to the facts and circumstances of the case surreptitiously reversed the findings of the learned trial Court which was arrived at after scanning and recording the evidence of the parties and learned appellate Court did not give any sanctity to the proceedings of the learned trial Court. Mere relying upon the few sentences clean chit from reply submitted by petitioner as PW-4 which is as under:

“At the time of writing of the document, her husband stated that he would not transfer the disputed property in her name and same would be sold”.

It is the duty of the Court to scan and visualize each and every limb of the case and mere reliance upon some sentences cannot deliver a solid judgment, so the learned appellate Court was not justified in setting aside the well-reasoned consolidated judgment passed by the learned trial Court. Had the donor no intention to make gift in favour of the petitioner, he should not have executed Gift/Tamleek Nama. Even after making of gift he lived few years in the world but never impliedly or expressly denied the gift-deed. Reliance can be placed on “Ali Bahadur v. Muhammad Ishaq” 2013 YLR 2555).

1. Another important limb of the case is that as regards relationship between the donor and donee which was admitted as husband and wife though they were issueless, but there was not an iota of any evidence that their relations remained strained or any aversion was created between the spouses. Definitely, it was ultimately good relations between the spouses basing for making of the gift in favour of his wife, who with devotion, dedication and in the supreme interest of maintaining the health and nourishment of her husband exhausted every inch of her effort and wasted her energy just like a spend thrift child and consoled her husband and in token whereof got a gift which was emblem of generosity and loyalty of the lady who served her husband. It is also on the record that the petitioner was also nominated to receive pension of the donor (her deceased husband) and she is still receiving the same. All these facts and circumstances persuaded the learned trial Court tending judgment and decree in favour of petitioner whereas the learned appellate Court did not take any heed towards these important issues and whimsically set aside the well-reasoned judgment of the learned trial Court.

2. It is also on record that both the Courts dealing with two cases; first, for declaration which is discussed in detail and second for partition of un-divided Ihata No. 81, half portion of which was owned by the donor and his deceased brother (Jameel-ur-Rehman), predecessor-in-interest of the respondents and the other half portion was owned by Haq Nawaz and Muhammad Naseer, successors-ininterest of Hashmat Ali and the trial Court granted preliminary decree through consolidated judgment dated 19.12.2011. However, the appellate Court set aside the same and directed the learned trial Court while remanding the case to this extent to re-assess the shares of the parties. The findings of the learned appellate Court in view of above are also liable to be set aside and declared illegal.

3. Learned counsel for the respondents vehemently stressed that actually the possession of the said property was not delivered to the petitioner as a result of gift. It is well cardinal principle of law that when the gift is between the spouses or blood relations, they are living together then there is no requirement of formal delivery of possession in consequence of gift, It is also admitted that the petitioner is still in possession at least one portion of the disputed property. It is also on record as appeared from the appraisal of the evidence that petitioner’s possession was disturbed by the respondents and she approached the police for an action which was not taken and this fact had also been admitted by the respondents in evidence.

So far as sanctioning of impugned Mutation No. 4551 is concerned, same was also correctly decided by the trial Court and findings were wrongly reversed by the appellate Court, are also set aside.

1. As regards the contention of learned counsel for the petitioner that the impugned document was not registered so it was hit by Sections 17 and 49 of The Registration Act, it has no merit because it is an admitted fact that both donor and donee were Muslims by faith and under the Muslim concept of Tamleek/Gift, definition of which, has been mentioned above irrespective of written gift-deed, the same is valid and with yardstick as of an oral gift which as discussed above, fulfilled all the three legal requirement, thus, created rights in favour of the petitioner. This Court may seek guideline from the dictum laid down by the Apex Court in “Muhammad Ejaz and 2 others v Mst. Khalida Awan and another” (2010 SCMR 342) and it was observed at page 347 of the Report as under:

“Under the Mahommedan Law, a gift, in order to be valid and binding upon the parties, must fulfill the following three conditions:

(a) a declaration of gift by the donor;

(b) acceptance of gift by the donee; and

(c) delivry of possession of corpus.

On the fulfillment of the above three ingredients, a valid gift comes into existence. A valid gift can be effected orally, if the pre-requisites are complied with. Written instrument is not the requirement under the Muslim Law nor is the same compulsorily registrable under the Registration Act, 1908”. (underlining is mine)

1. In view of the above discussed facts and the law, the instant civil revision is allowed with the result that judgment of learned lower appellate Court dated 25.06.2015, is set aside and the suit filed by the petitioner for declaration is decreed and she is declared owner of the property as donee and the mutation of inheritance of the deceased is set aside. Resultantly, the consolidated suit for partition titled “Mst. Nafeesa Begum etc. v Mst. Raeesa Begum etc.” in which preliminary decree was passed is also restored and the learned trial Court is directed to proceed further in accordance with law.

(R.A.) Revision allowed

PLJ 2017 Lahore 429

Present: Jawad Hassan, J.

Dr. MASROOR ELAHI--Petitioner

versus

UNIVERSITY OF VETERINARY & ANIMAL SCIENCE etc.--Respondents

W.P. No. 13239/2016, decided on 8.2.2017.

Higher Education Commission Plagiarism Policy--

----R. 9(c)--Higher Education Commission Ordinance, 2002, Ss. 3 & 4--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Plagiarism--Two penalties for self plagiarism, warning and ban on foreign travel relating to research for a period of one year--Recommendations--Received an anonymous e-mail regarding plagiarism in publication of research paper in different journals by facility--Challenge to--Violation of--Jurisdiction--HEC Policy regarding plagiarism has been adopted by syndicate after due consideration and has also been approved by Chancellor--HEC Policy, having broader area of efficacy and complementary to HEC Ordinance and University Ordinance on matter of crucial importance, may be considered statutory in nature--Action taken under HEC Policy may be challenged under constitutional jurisdiction of High Court--Petitioner was not informed about cogent reasons for notification imposing two penalties--However, only findings of Committee have been provided in notice which was served to petitioner for appearance before syndicate for personal hearing--Syndicate has not passed a well-reasoned order after application of its mind, thus has violated famous principle of providing petitioner with procedural propriety--Therefore, order was liable to be set aside. [Pp. 436 & 437] A, B & C

2009 SCMR 339, 2007 SCMR 229, 2011 PLC (CS) 419 & 2011 SCMR 1, ref.

Hafiz Tariq Naseem, Advocate for Petitioner.

Syed Bilal Haider, Advocate for Respondents Nos. 1 to 3.

Mr. Ashfaq Ahmad Kharral, Assistant Advocate-General.

Date of hearing: 8.2.2017

Order

Through this petition, the Petitioner has prayed that the impugned Notifications dated 17.07.2014 & 26.01.2016 (the “Impugned Orders”) may be declared as illegal, coram non-judice, void ab-initio and be set aside accordingly.

1. Brief facts for the disposal of this constitutional petition are that Respondent No. 1, received an anonymous e-mail dated 27.1.2013 regarding plagiarism in publication of research papers in different journals by the faculty. Pursuant to that complaint, the Respondent No. 1 constituted a Plagiarism Standing Committee, who inquired into the matter and recommended two penalties upon the Petitioner for ‘self-plagiarism’, i.e. (1) warning, and (2) ban on foreign travel relating to research for a period of one year. This recommendation was approved by the Syndicate of the University in its meeting held on 27.06.2014. The Petitioner assailed the said order through appeal before the Chancellor, which was dismissed vide Notification dated 26.01.2016.

2. It is contended by learned counsel for the Petitioner that since the complaint was anonymous, therefore, no action could be taken against the Petitioner under Rule 7 of Higher Education Commission Plagiarism Policy (the “HEC Policy”); that the Impugned Orders are in complete violation of Rule 9(c) of the HEC Policy and that Impugned Orders are violative of the principle of natural justice because in the meeting of Syndicate where the impugned penalties were approved, the members of Plagiarism Standing Committee were also participant. Further, the counsel submitted that second penalty imposed on the Petitioner is alien to HEC Policy, and the act of the Petitioner does not fall under the definition of ‘self-plagiarism’. The counsel has relied on the judgments titled Shafique Ahmed Khan and others v. NESCOM through Chairman, Islamabad and others (PLD 2016 Supreme Court 377); Government of Pakistan and others v. Farheen Rashid (2011 SCMR 1); Faisal Sultan v. E.D.O. (Education) and others (2011 PLC (C.S.) 419 [Lahore]); Azizullah Memon v. Province of Sindh and another (2007 SCMR 229); Muhammad Haleem and another v. General Manager (Operation) Pakistan Railways Headquarter, Lahore and others (2009 SCMR 339); and Judgment of the Lahore High Court passed in the case titled Allah Ditta v. Province of Punjab and 2 others in W.P. No. 36681/2015.

3. On the other hand, counsel for the Respondents has taken the same stance in his arguments as enumerated in the report and parawise comments. It is reflected from perusal thereof that the Higher Education Commission, Islamabad, vide its letter dated 21.09.2007 forwarded a Plagiarism Policy stating therein that a number of teachers have been indulging in cheating by copying the work of others and publishing it as their own in journals. Consequently, in terms of the said letter, proceedings were initiated against the Petitioner. It is mentioned in the comments that Petitioner himself admitted before the University Plagiarism Standing Committee that he signed on the undertaking for Pakistan Journal of Zoology (PJZ) verifying that the material has not been submitted anywhere else, but the fact was that the material was under consideration with Pakistan Journal of Agricultural Research (PJAR) and two publications have 90% similarity with each other. In the first publication of 2007 published in 2009 in PJAR, the Petitioner has no authorship whereas same is plagiarized in 2010 in PJZ in which the Petitioner is an author despite the fact that the same material has been published in 2002 in 7th World Congress in France.

4. It was further argued that the Petitioner himself admitted before the Committee that while sending the research paper in question for publication in PJZ, the Petitioner as a second author had submitted an undertaking that the same material/paper was not sent for publication elsewhere. Whereas, the record reveals that the Petitioner knew that the Principal Author Dr. Akhtar Qureshi had submitted his research paper with same title and material for publication in PJAR in year 2007. Lastly, the Respondents have concluded that hearing officer was not the competent authority to decide representation of the Petitioner, as he was only responsible for hearing the Petitioner and the university on behalf of the Governor/Chancellor and recording facts of the case for perusal and orders of the Governor/Chancellor. It is important to mention that Livestock Department while submitting summary to the Governor simply reproduced views of the hearing officer. The Chief Minister advised the Governor/Chancellor to decide the case in the light of report of hearing officer on its merits. The Governor/Chancellor after perusal of record and facts of the case upheld the decision of Syndicate. Lastly, he prayed for dismissal of the writ petition.

5. Arguments heard and record perused.

6. From the perusal of the record, it is to be noted that the Petitioner was a Professor at Department of Livestock Production at University of Veterinary and Animal Sciences (the “University”). On 27.01.2013, the Vice Chancellor of the University received an anonymous email complaining about plagiarism of some faculty members of the University. Therefore, on 30.01.2013, the Vice Chancellor constituted an Inquiry Committee, comprising of three members, who submitted their report on 25.07.2013.

7. Therefore, on 05.08.2013, the Vice Chancellor constituted the University Plagiarism Standing Committee (the “Committee”) to investigate the matter regarding involvement of faculty members in Plagiarism. Further, the Dean/Convenor of the Committee informed the Petitioner on 21.12.2013 that the Committee has been assigned to probe into a matter of plagiarism as per the HEC Policy for the publication with name of Petitioner as co-author and the Petitioner was required to appear before the Committee alongwith written statement. After detailed inquiry and providing the Petitioner with opportunity of hearing, the Committee issued report on 26.12.2013, which was forwarded to the Registrar, UVAS on 8.01.2014 for further necessary action.

8. On 09.04.2014, the Deputy Registrar issued a notification to the Petitioner to inform that report and recommendations of the Committee were placed before the Syndicate in its meeting held on 11.03.2014 for consideration and approval, and it was established that clear negligence on part of the Petitioner has taken place which resulted in Plagiarism because more than 90% of the contents are same in these publications. Further, the Petitioner was issued notices to appear before the Syndicate in its next meeting for personal hearing.

9. Thereafter, the Syndicate in its meeting held on 27.06.2014, after giving the chance of personal hearing, perusal of the recommendations of the Committee and the HEC Policy, approved two penalties on the Petitioner, and notice for the same was issued on 17.07.2014. Therefore, the Petitioner filed an appeal before the Governor/Chancellor on 8.8.2014, and the Petitioner was awarded opportunity of hearing for the said appeal by the Hearing Officers appointed by the Chancellor/Governor on 18.03.2015, and the Petitioner was asked to appear in person on 04.05.2015, vide letter dated 24.04.2015 of the Hearing Officers. Thereafter, the decision of the Syndicate dated 17.7.2014 was upheld videdetailed order of the Governor/Chancellor on 26.01.2016. Further, the Petitioner again requested the Chancellor on 07.03.2016 to reconsider the decision.

10. The Higher Education Commission Ordinance 2002 (the “HEC Ordinance”) has been promulgated to improve and promote higher education, research and development, and to establish Higher Education Commission (HEC), and for matters connected therewith and incidental thereto. Under Section 3 &4 of the HEC Ordinance, the HEC has been established, having the Prime Minister as the controlling authority. Under Section 10(1)(y) of the HEC Ordinance, the Commission has powers to perform such functions consistent with the provisions of the HEC Ordinance, as may be prescribed or as may be incidental or consequential to the discharging of its functions.

11. Similarly, the University of Veterinary and Animal Sciences, Lahore has been established under the University of Veterinary and Animal Sciences, Lahore Ordinance, 2002 (the “University Ordinance”), which has been promulgated to improve teaching, research, publication and administration thereof to establish the University and for matters ancillary and connected thereto. Under Section 4(t) of the University Ordinance, the University has power to ‘make provisions for research’ and under Section 4(x) of the University Ordinance, it has powers to do all such other acts and things, whether incidental to the powers aforesaid or not, as may be requisite in order to further the objects of the University as a place of education, learning and research.

12. It is to be noted that under Section 23(1) of the University Ordinance, the Syndicate is the executive body of the University and have powers to take effective measures to raise the standard of teaching, research and publication and other academic pursuits and exercise general supervision over the affairs and management of the property of the University. Specifically, under Section 23(2)(w) of the University Ordinance, the Syndicate has the power to “suspend, punish and remove from service in the prescribed manner such officers, teachers and other employees as are appointed by the Syndicate.”

13. It is essential to note that on 21.09.2007, the Chairman of HEC forwarded the HEC Policy to the Governor for issuing directive to strictly implement the HEC Policy. Therefore, on 29.09.2007, the Governor/Chancellor issued its directive to implement the HEC Policy strictly in letter and spirit. Similarly, the University also adopted the HEC Policy in letter and spiritvide notification dated 07.01.2008 in meeting of Syndicate held on 08.12.2007.

14. Importantly, the HEC Policy has been drafted to apprise student and teachers about Plagiarism and to impose penalties against those who were found guilty. Clause 2 of the HEC Policy defines plagiarism as ‘taking and using the thoughts, writing and inventions of another person as one’s own’, and similarly defines ‘selfplagiarism’ as “the verbatim or near verbatim re-use of significant portion of one’s own copyrighted work without citing the original source.”

15. It is unequivocal that under Clause 7(e) of the HEC Policy, the name, designation, organization, address, email address and telephone number of the Complainant is essential to be provided, however, under Clause 8 of the HEC Policy, the Vice Chancellor has been given discretion of not taking any action on anonymous complaints. Further, Clause 8 also obliges the Vice Chancellor to constitute a Plagiarism Standing Committee, and it is manifest to note that under Clause 8(e) of the HEC Policy, the Vice Chancellor is under obligation to provide opportunity to the author under investigation to justify original concepts and research work and a similar opportunity is also to be provided to the author whose paper is deemed to have been plagiarised and/or the complainant to justify the complaint. However, in the present case, no communication with the other co-author of the paper has been annexed, and no opportunity of personal hearing has been provided to the co-author, who has published paper, similar to Plagiarised paper of the Petitioner. Therefore, there has been a violation of Clause 8(e) of the HEC Policy.

16. Furthermore, the Committee is authorized to conduct investigation under the Clause 9 of HEC Policy, and under Clause 9(c) of the HEC Policy, the Committee may solicit comments to the claim from the Editor in Chief (of a journal) or Program Chair (of conference proceedings) and referees of either or both papers. It is to be noted that such comments have not been solicited by the Committee in present case, however, use of word ‘may’ in Clause 9 does not make it obligatory for the Committee to solicit the same. Under the Clause 10 of the HEC Policy, the Committee has to submit findings and recommendations to the Vice Chancellor, having discretion to implement the recommendations after approval and to take punitive action. Moreover, the Clause 11 of the HEC Policy outlines the penalties for plagiarism for teachers, researchers, staff and students, and further divides the categorise of penalties for teachers, researchers and staff, into ‘Major Penalty’ of dismissal, ‘Moderate Penalty’ of demotion to the next lower grade, and ‘Minor Penalty’ of (a) warning; (b) freezing of all research grants, (c) stopping the promotion/annual increment for specified period, and (d) debarring the offender from sponsorship of research funding, travel grant etc. It is pertinent to note here that the penalty of ‘ban on foreign travel relating to research’ has not been provided in the Clause 11.

17. Similarly, under the Clause 13 of the HEC Policy, the affected persons have right to appeal before the Chairman HEC/Vice Chancellor/Rector/Head of the Organization for review of findings or may submit a mercy petition within 30 days from the date of notification. It is manifest to note that under Section 11 of the University Ordinance, the Chancellor has power to call for and examine the record of any proceedings in which the Order has been passed by any authority to satisfy himself as to the correctness, legality or propriety of any finding or order and may pass such order as it deem fit, after providing an opportunity of being heard to the affected person.

18. In a recent case titled Shafique Ahmed Khan and others v. NESCOM through Chairman, Islamabad and others (PLD 2016 Supreme Court 377), the honourable Supreme Court has held that Rules framed under sections 7, 9 and 15 of the Act were statutory on all accounts and by every attribute. It has been held in following words that:

“Fact that certain Rules or Regulations were framed without the approval of the Federal Government was not the sole criteria to term them as non-statutory in nature. It was indeed their nature and area of efficacy which were determinative of their status. Rules dealing with instructions for internal control or management were treated as non-statutory while those whose area of efficacy was broader and were complementary to the parent statute in the matters of crucial importance were statutory. The Rules framed under sections 7, 9 and 15 of the Act fell in the latter category as they were not only broader in their area of efficacy but were also complementary to the parent statute in matters of crucial importance. It would rather be naïve and even myopic to equate the Rules of the Authority dealing with matters of crucial importance having so wide a scope and area of efficacy with the instructions meant for internal management and thereby depriving them of their statutory status. Although, said Rules had not been framed with the intervention and approval of the Federal Government, but that would not prevent them from being statutory. Firstly because, approval of the Federal Government was not required either under Section 9 or 15 of the Act; secondly because, all those who called the shots were already part of the Authority while framing the Rules, and thirdly because, the scope and area of their efficacy not only stretched beyond the employees of the Authority but overreached many other strategic Organizations including nuclear and space related technologies systems and matters, as mentioned in sections 8 and 9 of the Act.”

1. In the present case and in view of the above Shafique Ahmad Khan supra judgment, the HEC Policy regarding Plagiarism has been adopted by the Syndicate after due consideration and has also been approved by the Governor/Chancellor. Therefore, the HEC Policy, having broader area of efficacy and complementary to the HEC Ordinance and University Ordinance on matter of crucial importance, may be considered statutory in nature. Hence, the action taken under the HEC Policy may be challenged under the constitutional jurisdiction of the High Court.

2. Further, from the perusal of the record, it is worth mentioning that at any stage during the proceedings of the Syndicate, the Petitioner was not informed about the cogent reasons for the Notification imposing two penalties on the Petitioner. However, only the findings of the Committee have been provided in notice dated 09.04.2014, which was served to Petitioner for appearance before the Syndicate for personal hearing.

3. In the case cited by the Petitioner titled Government of Pakistan and others v. Farheen Rashid (2011 SCMR 1), the Honourable Supreme Court has established a principle that public functionaries are bound to decide cases of their subordinates after application of mind with cogent reasons within reasonable time. Further, every citizen has inalienable right to be treated in accordance with law as envisaged by Article 4 of the constitution, and public functionaries are obliged to act within four corners of mandate of Constitution and Law. The word “law” used in Constitution includes all such principles as having binding force on account of moral, customary or other sociological reasons. However, the Supreme Court was not inclined to set aside the minor penalty awarded to the respondent by the learned Federal Service Tribunal.

4. Similarly, in the case titled Faisal Sultan v. E.D.O. (Education) and others (2011 PLC (C.S.) 419 [Lahore]), it has been clearly held that:

“An integral, intrinsic and incidental part of “law” under Article 4 is the right to procedural due process, right to be treated fairly at all times, right to procedural fairness and right to procedural propriety. Right to a fair procedure is, therefore, constitutionally guaranteed in Pakistan and makes the Constitution standout proudly in the Constitutions of the world. Article 4 of the Constitution is a robust and dynamic amalgam of the cardinal principle of natural justice, procedural fairness and procedural propriety of the English jurisprudence and Procedural Due Process of the American jurisprudence. Constitution of Pakistan has boldly recognized this right to be an inalienable right of every citizen or of any person for the time being in Pakistan.”

1. It has been established in the case of Azizullah Memon v. Province of Sindh and another (2007 SCMR 229) that since impugned action was initiated and taken to its logical conclusion under a misconception of law and under a wrong law, it had vitiated entire proceedings including final order, which could not be sustained under the law. The Supreme Court converted petition into appeal and proceedings as well as impugned order of the Service Tribunal, were set aside accordingly. Furthermore, in the case of Muhammad Haleem and another v. General Manager (Operation) Pakistan Railways Headquarter, Lahore and others (2009 SCMR 339), it was clearly held that when initial order or act relating of initiation of proceedings was contrary to law and illegal, then all subsequent proceedings and actions taken thereon would have no basis and would fall.

2. In view of the above case law of Hon’ble Supreme Court of Pakistan, it is imperative to note that the Syndicate has not passed a well-reasoned order after application of its mind, thus has violated the famous principle of providing the Petitioner with procedural propriety. Therefore, the Impugned Order dated 17.07.2014 is liable to be set aside, along with the subsequent order of the Chancellor dated 26.01.2016 which has been passed in appeal of the Petitioner.

3. Even otherwise, the Petitioner has been imposed penalty of ‘ban on travel’ which otherwise has not been provided in relevant Clause 11 of the HEC Policy. Furthermore, the ban was only operative for one year, which has been passed since long and the Petitioner has already gone through the detention period, which has stigmatized the career prospects of the Petitioner.

4. Therefore, in view of the above discussion, law and case laws, this writ petition is accepted and the Impugned Orders dated 17.07.2014 & 26.01.2016 are set aside in the interest of justice.

(R.A.) Petition accepted

PLJ 2017 Lahore 438

Present: Ch. Mushtaq Ahmad, J.

ASMAT ULLAH KHAN--Petitioner

versus

ANSAR JAVED and 4 others--Respondents

W.P. No. 15227 of 2010, decided on 18.1.2017.

Constitution of Pakistan, 1973--

----Art. 199--Criminal Procedure Code, (V of 1898), S. 173--Constitutional petition--Administrative order--Revision was not competent--No legal effect as criminal revision against order passed by magistrate disagreeing with report of police for cancellation of case--Recommendation for discharge--Validity--Revision against order passed by magistrate refusing discharge of accused was not competent, hence, impugned order was passed by ASJ who had no jurisdiction--Order passed by magistrate on report submitted by investigating officer u/S. 173, Cr P.C., could not be challenged in petition. [P. 439] A & B

Mr. Akhtar Javed, Advocate for Petitioner.

Ch. Iftikhar Iqbal Ahmad, Asstt. A.G. for State.

Date of hearing: 18.1.2017.

Order

Through this petition vires of order dated 12.03.2010 passed by learned Addl. Sessions Judge, Sargodha have been challenged on the ground that the order impugned herein was without lawful authority and of no legal effect as criminal revision against order passed by the Illaqa Magistrate disagreeing with the report of police for cancellation of case, was not competent.

1. Briefly, the facts leading to present petition are that on complaint lodged by petitioner, a casevide FIR No. 297 dated 12.10.2007 u/S. 365, 148,149,109 PPC at Police Station Sahiwal District Sargodha was registered. After investigation, a report was submitted before Illaqa Magistrate recommending the case for discharge of the accused which was disagreed vide order dated 02.05.2009. Respondents/accused feeling aggrieved filed revision which came up for hearing before learned Addl. Sessions Judge, Sargodha on 12.03.2010 which was allowed and order passed by learned Illaqa Magistrate whereby he refused to discharge the accused, was set-aside, hence this petition.

2. Learned counsel contended that order passed by the Magistrate was an administrative order against which revision was not competent, hence, the impugned order passed without jurisdiction was liable to be set-aside. Learned counsel has placed reliance on cases titled “Asif Muhammad Sulehri v. ASJ Sialkot and 6 others” (2016 P Cr. LJ 1783), “Sakhawat Ali v. The State and another” (2003 YLR 245), “Hussain Ahmad v. Mst. Irshad Bibi and others” (1997 SCMR 1503) and “Bahadar and another V The State and another” (PLD 1985 SC 62).

3. Learned AAG has, however, supported the impugned judgment and opposed this petition.

4. Heard. Perused.

5. The main contention of learned counsel for petitioner was that revision petition against order passed by learned Illaqa Magistrate refusing discharge of the accused was not competent, hence, the impugned order was passed by learned Addl. Sessions Judge who had no jurisdiction in the matter. It is evident from the record that on the complaint lodged by present petitioner, case was registered. Statements of the witnesses were also recorded which were available on file. Learned Illaqa Magistrate did not agree with the report submitted by police/investigating agency and refused to discharge the accused and cancel the FIR. In the case laws cited by learned counsel for petitioner, it was held that the order passed by the Illaqa Magistrate on the report submitted by investigating officer u/S. 173 Cr.P.C, could not be challenged in revision petition. The contention advanced by learned counsel for petitioner is supported by the law laid down on the subject.

6. In the above backdrop, this petition is allowed; and impugned order passed by learned Addl. Sessions Judge is set-saide.

(R.A.) Petition allowed

PLJ 2017 Lahore 440 [Multan Bench Multan]

Present: Mirza Viqas Rauf, J.

FAHAD NOOR KHAN and another--Petitioners

versus

ELECTION COMMISSION OF PAKISTAN through Secretary and 2 others--Respondents

W.P. No. 12964 of 2015, decided on 7.9.2015.

Electoral Roll Act, 1974--

----S. 20--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Direction to look into grievance of petitioners as agitated in petition--Proper opportunity of hearing to petitioners as well as to all concerned and then decide pending application, if any, in terms of receipts by way of speaking order, strictly in accordance with law--Petitioners shall appear before election commission.

[P. 441] A

Rana Asif Saeed, Advocate for Petitioners.

Mr. Muhammad Naveed Rana, Standing Counsel on Court’s Call.

Date of hearing: 7.9.2015.

Order

The instant petition has been filed with the following prayer:--

“In view of the above, it is therefore respectfully prayed that instant writ petition may kindly be allowed and the Respondents may graciously be directed to incorporate the changes of votes into the voter list from Ward # 11 block code # 219050404 by adding the petitioner's and other names into the same.

Any other relief, which this Hon'ble Court deem fit and proper in the best interest of justice may also be awarded to the Petitioner.”

Learned counsel for the petitioners submits that though schedule for election has been announced by way of Notification No. F.4(1)/2015-LGE(P) dated 26th of August, 2015 by the Election Commission of Pakistan but the petitioners alongwith others filed their respective

applications for change of votes before the Respondent No. 2 prior to the issuance of said schedule. In this context, he draws the attention of this Court to the receipts which are available as Annexure-B at Pages No. 119 to 212 of the instant petition. Learned counsel adds that Petitioner No. 1 is a candidate in the upcoming election. He argues that in view of these circumstances, bar contained in Section 20 of The Electoral Roll Act, 1974 will not come into play. Learned counsel contends that if a direction be given to the Respondent No. 2 to decide the pending applications of the petitioners expeditiously, the grievance of the petitioners would be fructified. When confronted with this, learned Standing counsel appearing on Court's call, has no objection on issuance of such direction.

1. Be that as it may, let a copy of this petition alongwith its annexures be transmitted to the Respondent No. 2 with the direction to look into the grievance of the petitioners as agitated in the instant petition. Needless to observe that he shall afford proper opportunity of hearing to the petitioners as well as to all the concerned and then decide the pending application, if any, in terms of receipts Annexure-B by way of speaking order, strictly in accordance with law and keeping in view the contentions raised by the learned counsel for the petitioner noted hereinabove. The petitioners shall appear before the Respondent No. 2 on 08.09.2015 at 11:00 a.m. Learned Standing counsel shall convey the order of this Court to the Respondent No. 2 and ensure the compliance of the same. Disposed of.

(R.A.) Petition disposed of

PLJ 2017 Lahore 441

Present: Ch. Abdul Aziz, J.

AMIR HUSSAIN--Petitioner

versus

MAGISTRATE SECTION 30, MAILSI DISTRICT VEHARI and 2 others--Respondents

W.P. No. 11555 of 2013, decided on 24.1.2017.

Constitution of Pakistan, 1973--

----Art. 199--Pakistan Penal Code, (XLV of 1860), S. 457--Constitutional petition--Cancellation report was allowed--Challenge to--Case was fit for cancellation of FIR--Validity--Magistrate was required to pass a speaking order while mentioning reasons, whereby he was convinced that case was fit for cancellation of FIR--Impugned order was passed to prejudice of complainant, hence, magistrate should have at least issued a notice to complainant, so as to give him an opportunity to defend case--Such an order, by no stretch of interpretation can be termed as a legal order, hence is liable to be set-aside. [P. 442] A

Mr. Akhtar Javed, Advocate for Petitioner.

Ms. Shazia Ashraf Khan, AAG for Respondents.

Date of hearing: 24.1.2017.

Order

Through this petition, the order dated 02.03.2013, passed by learned Magistrate Section 30, Mailsi is called in question whereby he accepted cancellation report arising out of FIR No. 440/2012 dated 14.12.2012 offence u/S. 457 PPC P.S. Tibba Sultanpur, District Vehari.

1. The learned counsel for the petitioner mainly argued on the ground that the impugned order was passed by the learned Magistrate without taking into consideration the facts and circumstances of the case, that since no reasoning for agreeing with the cancellation report are mentioned in the impugned order, hence this is a non-speaking order and that while passing the impugned order, neither the petitioner was summoned nor was given an opportunity of hearing, hence the principle of natural justice 'audi altrum partum' is violated.

2. I have perused the record with the able assistance of the learned counsel for the petitioner and the learned Law Officer.

3. The perusal of the impugned order shows that no legally justifiable reason, whatsoever, is assigned by the learned Magistrate therein. Such an order is in sharp contrast with the mandate of Section 24-A of the General Clauses Act. The learned Magistrate was required to pass a speaking order while mentioning the reasons, whereby he was convinced that the case is fit for the cancellation of FIR. The impugned order was passed to the prejudice of the complainant, hence, the learned Magistrate should have at least issued a notice to the complainant, so as to give him an opportunity to defend the case. Such an order, by no stretch of interpretation can be termed as a legal order, hence is liable to be set-aside.

4. The learned Magistrate is directed to pass a fresh order within 15-days of the receipt of this order, after giving due opportunity of hearing to both the parties, While passing fresh order he will not be influenced by anything discussed above.

5. Disposed of.

(R.A.) Petition disposed of.

PLJ 2017 Lahore 443

Present:Shahid Jamil Khan, J.

Mrs. TASLEEM TAHIR--Petitioner

versus

PUNJAB HEALTH CARE COMMISSION through Secretary and another--Respondents

W.P. No. 7360 of 2017, decided on 13.3.2017.

Punjab Health Care Commission Act, 2010--

----S. 23(2)--General Clauses Act, 1897, S. 24-A--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Complaint regarding death--Delay--Widow after completion of iddat period filed complaint regarding death of her husband, dismissed of--Challenge to--Reason for delay appears to be convincing, which has not been considered in impugned order--Case was remanded.

[Pp. 443 & 444] A

Mr. Sami-ul-Hassan Rana, Advocate for Petitioner.

Ch.Sultan Mahmood, Assistant Advocate-General, Punjab, on Court’s Call.

Date of hearing: 13.3.2017.

Order

Petitioner is aggrieved of order dated 30.09.2016 passed by Respondent No. 2, whereby petitioner’s complaint is dismissed as time barred under Section 23(2) of the Punjab Healthcare Commission Act, 2010 (“Act of 2010”).

1. Learned counsel for the petitioner submits that impugned order is passed without providing opportunity of being heard to the petitioner. Further submits that petitioner is a widow and complaint is regarding death of her husband. Contends that complaint is filed after completion of Iddat period.

Learned AAG submits that complaint cannot be entertained after expiry of limitation period.

1. Heard at preliminary stage, record perused, 4. Needless to say that every order is to be passed with reasons as envisaged under Section 24-A of the General Clauses Act, 1897. The reason for delay appears to be convincing, which has not

been considered in the impugned order. Therefore, impugned order is set aside and matter is remanded to Respondent No. 2 who shall provide opportunity of being heard to the petitioner and attend to the cause of delay, in addition to determining whether limitation provided in Section 23(2) is directory or mandatory in nature after considering petitioner side’s arguments that Section 23(2) is directory because no consequence after expiry of the provided limitation is given.

1. The needful shall be done within fifteen days from receipt of this order.

Disposed of.

(R.A.) Case remanded

PLJ 2017 Lahore 444

Present: Abdul Rahman Aurangzeb, J.

Syed ABID ALI SHAH--Petitioner

versus

AFSHEEN ATHAR and 22 others--Respondents

W.P. No. 1292 of 2017, decided on 7.2.2017.

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

----O.VII R. 11 & O.XIV R. 2--Constitution of Pakistan, 1973, Art. 199--Framing of issue--Limitation--Question of--Whole evidence is required on any of issue which covers whole dispute or can be treated any issue as particular preliminary issue--Knowledge of 20 years back effect of case--Purpose of framing of issues is to concise dispute in a questionnaire form, so as to enable parties to converge upon real dispute and later on Court is also in a position to decide matter according to real controversy--It is also a requirement of law when Court deems that on basis of issue of limitation, a fact which is well within knowledge of petitioner, then it is in fitness of things to treat issue of limitation as issue of law, and can further assuming it as; preliminary issue--Knowledge of mutations since 20-years back is based upon judicial verdict, then there is no need to further proceed in matter, except by treating issue of limitation as preliminary issue--Petition was dismissed.

[Pp. 446 & 447] A, B, C & D

Mahar Muhammad Waris Bharwana, Advocate for Petitioner.

Mian Bilal Bashir, Advocate for Respondents No. 1 to 5.

Date of hearing: 7.2.2017.

Order

Through this writ petition, the petitioner has challenged impugned orders dated 23.06.2015 and 03.12.2016, respectively, passed by the learned Civil Judge, Pirmahal, as well as, learned Additional District Judge, Pirmahal, District Toba Tek Singh.

1. Brief facts, of the case are that the petitioner instituted a suit for declaration against the respondents to the effect that he is legal heir of deceased Saydi Ahmad Shah from the suit property. The other Respondents No. 1 to 19 are also co-sharer in the suit property, but depriving the petitioner, Mutations No. 2102, dated 12.10.1994, Mutation No. 2103, dated 21.10.1994, Mutation No. 2200, dated 27.08.1995 and Mutation No. 2204, dated 14.09.1995, were sanctioned in favour of the respondents in connivance with the revenue authorities, which are illegal, unlawful and without notice to the petitioner, only to usurp his legal share from the estate of Saydi Ahmad Shah (deceased). It is further mentioned in the petition that another suit titled “Syed Dur Hussain Shah vs. Afsheen Athar, etc.” was instituted, wherein mutations No. 5086, dated 09.10.2009, Mutation No. 5087, dated 09.10,2009 and Mutation No. 5228, dated 24.04.2010, have been challenged. Written statements in both the suits were filed, separately. The learned trial Court consolidated both the suits and consolidated issues were framed on30.11.2011.

2. On 27.11.2014, Respondents No. 1 to 5/Defendants No. 1 to 5 in the suit, moved an application under Order VII Rule 11 CPC, in the suit titled “Syed Abid Ali Shah vs. Afsheen Athar, etc.”, wherein the petitioner/plaintiff filed reply thereto. The learned trial Court, after having heard the arguments from both the sides on the above-mentioned application, proceeded to hold that since the matter in dispute between the parties pertained to limitation; therefore, treated Issue No. 4 (Whether suit of the plaintiff is barred by limitation? OPD/OPA” as preliminary issue, directing the parties to adduce their evidence, vide order dated 23.06.2015.

3. The order passed by the learned trial Court on 23.06.2015, was challenged by the present petitioner before the learned revisional Court, which was dismissed vide order dated 03.12.2016. Hence, this writ petition.

4. The crux of the arguments of the petitioner is that as already Issue No. 4 has been sketched out, which relates to limitation and the said issue is a mixed question of law and facts, which should not be decided as preliminary issue and the same causes delay in the trial of suit. He further stressed that if all these issues are decided conjointly then the litigation could be culminated once for all between the parties.

5. In rebuttal, learned counsel representing Respondents No. 1 to 5, states that in an earlier round of litigation between the parties, on the same subject matter, the then learned Additional District Judge, vide his order dated 12.08.2014, has already decided the matter, which attained finality. Now the second round of suit is based on mala fide intent, therefore, the same is not liable to be proceedable, hence, preliminary issue of limitation is sufficient to unearth the real dispute.

6. I have anxiously considered the arguments of the learned counsel for the parties and have perused the record annexed therewith.

7. The learned revisional Court has also endorsed the view of learned trial Court, through which while deciding application under Order VII Rule 11 CPC, a preliminary issue was framed on the ground of limitation. I have examined the law on the subject and found that Order XIV Rule 2 CPC relates to the controversy. The same is reproduced below:

“Issues of law and of fact. --Where issues both for law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on, the issues, of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined”.

The purpose of framing of issues is to concise the dispute in a questionnaire form, so as to enable the parties to converge upon the real dispute and later on the Court is also in a position to decide the matter according to the real controversy. The question of limitation, no doubt, in some instances is a mixed question of law and fact, but with peculiar facts and circumstances. In the instant case, when there is no denial that in the earlier round of litigation between the parties, it was adjudicated by the appellate Court vide his order dated 12.08.2014 that the petitioner and his brother got his due share of inheritance from the legacy of deceased predecessor. In this way, they have further enjoyed with their gift Mutation No. 1533 and 1534, according to their own whims. Now from the same legacy, they again started the litigation against other legal heirs of the predecessor, which is unwarranted and a futile exercise, as they did not file any appeal or revision against the judgment and decree of the learned Additional District Judge, dated 12.08.2014. In view of the above mentioned circumstances, the adjudication on the same subject excludes the question of limitation from the ambit of question of fact and falls within the purview of pure question of law, on the pretext of provisions of Order XIV Rule 2 CPC.

1. There is also no denial with the fact that the impugned gift mutations were sanctioned on 12.10.1994, 21.10.1994, 27.08.1995 and 14.09.1995 and through this suit, the petitioner seeks the correction of record and challenged the validity of mutations. The present suit was filed in the year, 2015, after more than 20-years of sanctioning of gift mutation. The Court is empowered for determination of litigation through any adopted course or by curtailing the process as required by law. It is also a requirement of law when the Court deems that on the basis of the issue of limitation, a fact which is well within the knowledge of the petitioner, then it is in the fitness of things to treat the issue of limitation as issue of law, and can further assuming it as preliminary issue. The provision of Rule 2 of Order XIV CPC is mandatory in nature and the Court has all prerogatives to treat any issue as a preliminary issue. In this regard, the Court has to convince that upon findings of this issue the whole case can be decided. As an issue of law which go to the root of whole case and capable of having decided without any other evidence, the Court should decide the same issue first.

2. Reverting again to the instant case, the Court is convinced that the allegations contained in the application regarding the knowledge of the petitioner since 20-years back, which is apparently directly affect the case, hence, the issue of limitation is not to be treated as a mixed question of law and fact, but purely can be treated as a question of law, which is so rightly determined and treated as preliminary issue. It is also the mandate of the trial Court to ascertain whether the whole evidence is required on any of the issue, which covers the whole dispute or can be treated any issue as a particular preliminary issue. In this way, the trial Court has rightly observed that in the prevailing circumstances of the case when the knowledge of the plaintiff regarding the impugned mutations is already adjudicated. The knowledge of the impugned mutations since 20-years back is based upon judicial verdict, then there is no need to further proceed in the matter, except by treating the issue of limitation as preliminary issue.

3. From the above discussion, I find no interference through constitutional jurisdiction of this Court to upset or disturb the findings advanced by the trial Court as well as revisional Court. Hence, this petition having no force and the same is dismissed.

There is no order as to costs.

(R.A.) Petition dismissed

PLJ 2017 Lahore 448 (DB)

Present: Muhammad Qasim Khan and Sardar Muhammad Sarfraz Dogar, JJ.

ALAMDAR HUSSAIN--Petitioner

versus

NAB through Chairman and 3 others--Respondents

W.P. No. 5948 of 2016, decided on 19.12.2016.

Constitution of Pakistan, 1973--

----Art. 199--National Accountability Ordinance, 1999, Ss. 9(a) & 10--Financial Institutions (Recovery of Finances) Ordinance, 2001, S. 20--Constitutional petition--Bail before arrest, confirmed--Customer of bank--Allegation of misappropriation of bank leased assets--Procured finance facility from bank--Offence of criminal breach of trust--Legality--Applicability of NAB Ordinance or FIO--Validity--Bank had already invoked criminal jurisdiction of banking Court of competent jurisdiction in terms of Section 20 of FIO and proceedings in suit for recovery of finance were already pending before a Banking Court of a competent jurisdiction--Finance facility, subject matter of NAB reference, was duly secured against adequate collateral in addition to other documents--Documents prepared for sanction of loan were bogus; property subject matter of mortgage was non-existent; that property was not in specific ownership of petitioner or that same as already under some encumbrance--Action of bank in filing a complaint before NAB and further proceedings by NAB authorities thereon under NAB Ordinance, including attempted arrest of petitioner per force of NAB Ordinance, is clear indicator or mala fide on part of complainant as well as NAB authorities thus, case is fit for grant of pre-arrest. [Pp. 455 & 457] A, B, C & D

M/s. Muhammad Amjad Pervaiz, Muhammad Nawaz Chaudhry, Sultan Mehmood Khan and Anwaar Hussain, Advocates alongwith Petitioner.

SyedFaisal Raza Bokhari, Special Prosecutor for NAB with Muhammad Ramzan Khan, Deputy Director/I.O.

Mr. Nadeem Siddiqui, Advocate/Legal Advisor for Bank of Punjab.

Date of hearing: 19.12.2016.

Order

By order dated 24th February 2016 this Court admitted the petitioner to ad interim pre-arrest bail as he anticipated his imminent arrest by the National Accountability Bureau (NAB) in connection with an inquiry (lateron upgraded into investigation and ultimately a Reference No. 68/2016 also submitted) under the National Accountability Ordinance, 1999 (hereinafter to be referred as “NAO, 1999”) against him with respect to the offence of corruption and corrupt practices by misuse of authority, illegal gains through corrupt/dishonest/illegal means, which is cognizable under Section 9(a), punishable under Section 10 of NAO, 1999 and schedule thereto.

1. Precisely, the facts necessary for adjudication of instant petition are that on receipt of complaint from the Bank of Punjab (hereinafter to be called as “the Bank”) against Alamdar Hussain (petitioner) and others on the allegation of misappropriation of Bank leased assets, an inquiry was authorized by the National Accountability Bureau which was later on up-graded into investigation. As per investigation, the petitioner Alamdar Hussain applied in 2006 for loan facility of Rs. 2.1 million for the construction of Shed and Rs. 7.00 Million for purchase of 175 buffaloes under Kissan Dost Livestock Development Scheme introduced by the Bank of Punjab. The loan facility was granted to the accused only for stated purposes of construction of shed for dairy farm and purchase of buffaloes, whereas, the accused Alamdar Hussain dishonestly and fraudulently disposed of the bank leased animals and misappropriated the proceeds thereof in connivance with other accused persons. The accused did not repay even a single penny to bank. Consequently, the accused misappropriated the funds of the bank and caused loss of Rs. 22,299,848/- to the bank.

2. Learned counsel for the petitioner argued that above proceedings under the NAO, 1999 were initiated against the petitioner on receipt of complaint from the Bank of Punjab against Alamdar Hussain (petitioner) and others on the allegation that he procured finance facility from the Bank of Punjab (BOP) under Kissan Dost Finance Scheme. The finance facility procured by the petitioner was duly secured against adequate collateral mortgage and security and due to the circumstances beyond his control, the petitioner could not earn the expected profit and suffered substantial loss and damage, therefore, he could not return the amount as per agreement and the bank filed a suit for recovery of loan before the Judge Banking Court, Lahore which is still pending. The bank also filed a private complaint u/S. 20 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (hereinafter to be called as the “Ordinance”) before Banking Court No. IV, which was dismissed at preliminary stage vide order dated 07.11.2014. The bank also approached Respondents No. 1 and 2 for initiation of proceedings under NAO. The learned counsel adds that matter in hand is between a customer and the Bank; the Financial Institutions (Recovery of Finances) Ordinance, 2001 being a special law has laid comprehensive mechanism for prosecution of offences relating to a customer and the Bank; the Ordinance, 2001 ibid is not only later in time, the same has also been given overriding effect over other laws, therefore, the NAB does not have the jurisdiction to intervene into the matter on this score alone. Further submits that offence of criminal breach of trust is not mentioned in the schedule of NAO, 1999, thus, the assumption of jurisdiction by the NAB in the peculiar circumstances of this case, is also an attempt to convert civil lis into criminal litigation with a mala fide intent, as such, the petitioner is entitled for confirmation of bail before arrest.

3. On the contrary, the learned Special Prosecutor for NAB assisted by learned counsel for the Bank, vehemently opposed this petition on the grounds that the bank leased assets, i.e. buffaloes were entrusted to the accused for his benefit but he dishonestly, fraudulently and with mala fide intention misappropriated the bank leased assets by committing the breach of trust. He also contends that the petitioner had claimed loss, but in this respect no evidence is available with him and even otherwise, the petitioner had no right to dispose-off bank leased animals without permission of the bank. Lastly adds that the NAO, 1999 is a special law, it has overriding effect on other laws and the provisions of Section 31-D of NAO, 1999 are not applicable in the instant case, hence, this petition is liable to be dismissed.

4. We have heard the learned counsel for the petitioner as also learned Special Prosecutor for NAB assisted by learned counsel for the Bank and have also perused the record with their able assistance.

5. As shall be seen from the above contentions of learned counsel for both the parties, pre-arrest bail has been sought primarily on legal grounds i.e. applicability of National Accountability Bureau Ordinance, 1999 or the Financial Institutions (Recovery of Finances) Ordinance, 2001, in the peculiar facts and circumstances of the instant case. This being the position, this Court has no other option but to deal with legal propositions involved herein, as any nominated accused cannot be left at the mercy of the Investigating Agency to establish the charge of a particular offence against him and to investigate the matter. This Court has ample jurisdiction while deciding bail application after examining the available record, whether any particular offence under which the Investigating Agency is trying to arrest the accused, prima facie, attracts in the circumstances of the case or not? Hence to resolve this controversy, the crucial point to be considered while deciding the writ petition for grant of pre-arrest bail is whether the Financial Institutions (Recovery of Finances) Ordinance, 2001 will hold the field having the overriding effect over the NAO, 1999 or not? However, before entering into legal questions, it may be reiterated that the allegation against the petitioner is quite simple, i.e., he managed to procure finance facility to the tune of Rs. 2.1-Million for construction of shed and Rs. 7.0-Million for purchase of the buffalos under Kissan Dost Live Stock Relevant Scheme introduced by the Bank of Punjab but he usurped the said amount for his own.

6. From the respective contentions of learned counsel for the parties, it has been observed that legal controversy can be summarized in the following manner:

i) Amongst the two Ordinances i.e. the Financial Institutions (Recovery of Finances) Ordinance, 2001 and the National Accountability Ordinance, 1999, which one is applicable to the case of the petitioner?

1. The National Accountability Ordinance, 1999 was promulgated on 16th November, 1999 and its preamble clause provides its purpose i.e. to provide for effective measures for the detection, investigation, prosecution and speedy disposal of cases involving corruption, corrupt practices, misuse or abuse of power or authority, misappropriation of property, taking of kickbacks, commissions and for matters connected and ancillary or incidental thereto; for the recovery of outstanding amounts from those persons who have committed default in the repayment of amounts to Banks, Financial Institutions, Governmental agencies and other agencies and for the recovery of state money and other assets from those persons who have misappropriated or removed such money or assets through corruption, corrupt practices and misuse of power or authority. Afterwards, the National Institutions (Recovery of Finances) Ordinance, 2001 was promulgated by repealing the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 with specific purpose to recover loans, advances, credits and finances.

2. Regarding the controversy as to which of the two i.e. Financial Institutions (Recovery of Finances) Ordinance, 2001 or the National Accountability Ordinance, 1999, would have overriding effect, it may be quoted here that Financial Institutions (Recovery of Finances) Ordinance, 2001 by means of Section 4 thereof, provides that:

“4. Ordinance to override other laws.--The provisions of this Ordinance shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.”

Similarly, Section 3 of the National Accountability Bureau Ordinance, 1999, provides that:

“3. Ordinance to override other laws.--The provisions of this Ordinance shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.”

As shall be seen from the above, both these legislations contain non obstante clause, providing that the provisions of each Ordinance would prevail notwithstanding anything to the contrary contained in any law for the time being enforce. Perhaps this is the cause of conflict in the provisions of the aforementioned legislative instruments i.e. Financial Institutions (Recovery of Finances) Ordinance, 2001 and the National Accountability Bureau Ordinance, 1999.

1. The learned Special Prosecutor NAB has laid much emphasis on Section 3 and 9(x) of the NAO, 1999, but it is a fact is that the Financial Institutions (Recovery of Finances) Ordinance, 2001 was promulgated on 30th of August, 2001, which is not only later in time, but its Section 4 also provides an overriding clause. Thus, this Court is of the clear view that if the legislators had an intention to bring the provisions of Financial Institutions (Recovery of Finances) Ordinance, 2001 under the pale of National Accountability Bureau Ordinance, 1999, then they could at the very beginning formulate or afterwards could amend the Financial Institutions (Recovery of Finances) Ordinance, 2001 accordingly. In this situation, when the Financial Institutions (Recovery of Finances) Ordinance, 2001 was neither originally drafted nor subsequently amended in the above terms, the legislators explicitly made their intention clear that with regard to the matters between financial institutions and their customers, this enactment shall hold the field and despite Section 3 of the NAB Ordinance, the provisions of Financial Institutions (Recovery of Finances) Ordinance, 2001 shall have the overriding effect and will be applicable to all other persons in general except those covered by the Financial Institutions (Recovery of Finances) Ordinance, 2001. The sole purpose for not drafting the Financial Institutions (Recovery of Finances) Ordinance, 2001 or subsequently amending the same, appears to be that as normally in a case of loan from financial institution, the loans are protected by mortgage, warranties and covenants made by or on behalf of the customer to a financial institution, including warranties and covenants with regard to the ownership, mortgage, pledge, hypothecation or assignment of, or other charge on assets or properties, thus the financial institution can recover the amount by adopting appropriate process before the appropriate forum by way of filing a suit for recovery or could proceed by way of filing a private complaint and the Court of competent jurisdiction under the Ordinance, ibid, could proceed under the mandate of powers provided in Section 7(1) and 7(1)(b) of the Ordinance. By holding so, we are guided by the cases reported in “Muhammad Asif Nawaz versus ASJ, etc” (PLJ 2013 Lahore 606), “Abid Mahmood Malik versus Station House Officer, Police Station Margalla and others” (2013 CLD 508) and “Muhammad Iqbal versus Station House Officer, Police Station Hajipura.Sialkot and 2 others” (PLD 2009 Lahore 541).

2. In furtherance to the above, we have no hesitation in holding that prima facie Financial Institutions (Recovery of Finances) Ordinance, 2001 is not only a special law but the same being also later in time would prevail over the provisions of the NAO, 1999, and as discussed above, the Ordinance, 2001 has its own comprehensive mechanism to deal with the disputes inter-se the bank and the customer. The august Supreme Court of Pakistan in the case “Apollo Textile Mills Ltd. and others versus Soneri Bank Ltd” (PLD 2012 SC 268) has held that:

“18. The Financial Institutions (Recovery of Finances) Ordinance, 2001 i.e. is a special law. It provides a special procedure for the banking suits. The provisions of the Ordinance, 2001 under Section 4 thereof override all other laws. The provisions contained in the said Sections require strict compliance.”

Furthermore, in the case “Mahmood Khan Achakzai and others versus Federation of Pakistan and others” (PLD 1997 SC 426), it has been held that whenever there is a special law, it will override the general law and further even if there are two parallel laws, even then law which is latter in time would prevail.

1. The Financial Institutions (Recovery of Finances) Ordinance, 2001 has comprehensively dealt with the liabilities of the customers by including the definition of word “obligation” in Section 2(e)(i)(ii) and definition of word “willful default” in Section 2(g), and as admittedly the bank has already filed a suit for recovery, hence, it has to pursue the said suit for recovery of loan, but after a long period of filing of the suit for recovery before the banking Court, they thought of moving the NAB authorities in order to use the said agency for the purposes of recovery of amount which has to be ultimately decided by the banking Court.

2. In addition to the above, Section 405 P.P.C. defines “criminal breach of trust” as under:

“Whoever, being in any manner entrusted with property, or with any dominion over properly, dishonestly misappropriates or converts to this own use that property, or dishonestly use or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharges, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits “criminal breach of trust.”

In the same context Section 20 of the Ordinance, ibid, provides as under:

“20. Provisions relating to certain offences:

(a) dishonestly commits a breach of the terms of a letter of hypothecation, trust receipt or any other instrument or document executed by him whereby possession of the assets or properties offered as security for the re-payment of finance or fulfillment of any obligation are not with the financial institution but are retained by or entrusted to him for the purposes of dealing with the same in the ordinary course of business subject to the terms of the letter of hypothecation or trust receipt or other instrument or document or for the purpose of effecting their sale and depositing the sale proceeds with the financial institution; or

(b) makes fraudulent mis-representation or commits a breach of an obligation or representation made to a financial institution on the basis of which the financial institution has granted a finance; or

(c) subsequent to the creation of a mortgage in favour of a financial institution, dishonestly alienates or parts with the possession of the mortgaged property whether by creation of a lease or otherwise contrary to the terms thereof, without the written permission of the financial institution.

(d) ………………………….”

After comparison of above two reproduced provisions, one from P.P.C. and the other from the Financial Institutions (Recovery of Finances) Ordinance, 2001, it is obvious that the Ordinance, ibid, has more effectively dealt with the defaulters of loan and offences with respect to criminal breach of trust. Furthermore, criminal proceedings can also be initiated under the said Ordinance. In the same sequel we are also cognizant of the fact that as discussed above, the definition of Section 405 P.P.C. is fully covered by the Ordinance, ibid, in its Section 20 and there is no other opinion that where an accused can be tried or punished under two different statutes, then “the rule of lenity (A rule of construction of statutes that criminal statute ambiguities are resolved in favor of the defendant or accused), would also attract in favour of the petitioner. For this reason also, we are of the view that since the Financial Institutions (Recovery of Finances) Ordinance, 2001 provides a complete mechanism and also caters all probabilities amongst the bank and its customer, therefore, considering the facts of the instant case proceedings the proceeding only under the above Ordinance, is the proper and legal course.

1. Admittedly, in this case the complainant Bank had already invoked criminal jurisdiction of the Banking Court of competent jurisdiction in terms of Section 20 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 and the proceedings in the suit for the recovery of the finance are already pending before a Banking Court of a competent jurisdiction. Here in this case there is no denial that the finance facility in question was duly secured against adequate collateral in addition to other documents. There is no allegation that the documents prepared for the sanction of loan were bogus; the property subject-matter of mortgage was non-existent or that the said property was not in the ownership of the petitioner.

2. Apart from all above, Section 31-D of NAO, 1999 in clear terms provides that:

31-D. Notwithstanding anything contained in this Ordinance or any other law for the time being in force, no inquiry, investigation or proceedings in respect of imprudent loans, defaulted loans or rescheduled loans shall be initiated or conducted by the National Accountability Bureau against any person, company or financial institution without reference from Governor, State Bank of Pakistan:

Provided that cases pending before any Accountability Court before coming into force of the National Accountability Bureau (Second Amendment) Ordinance, 2000, shall continue to be prosecuted and conducted without reference from the Governor, State Bank of Pakistan.”

The above question with regard to non-observance of requirement under Section 31-D of the of NAO, 1999, came under consideration before the Hon’ble Supreme Court of Pakistan in Suo Moto No. 10 of 2015 out of Civil Petitions Nos. 1377 & 1378 of 2015 and on 02.09.2015, the following order was passed by the Apex Court:

“We were constrained to issue notice to NAB because we observed that a reference was filed under the NAO, although it was apparent that the alleged activities against the respondent fell within the ambit of Section 20 of the Financial Institutions (Recovery of Finances), Ordinance, 2001 for which the exclusive jurisdiction vests with the Banking Courts. Moreover, Section 31(d) of the NAO stipulates that no inquiry, investigation or proceedings in respect of imprudent loans, defaulted loans or re-scheduled loans shall be initiated or concluded by the National Accountability Bureau against any person, company of financial institutions without reference from Governor, State Bank of Pakistan. This prior approval admittedly had not been taken.

1. Faced with this situation, the learned Prosecutor General stated that the inquiries in these matters were initiated in 2013, and according to his opinion, these should be withdrawn. The references will be withdrawn by NAB without delay.

2. We would, however, say to the learned Prosecutor General that very careful review of matters should be undertaken, before persons are put through the rigors of the prosecution by NAB.

3. The matter stands disposed of.”

As shall be seen from the above reproduced order of the Hon’ble Supreme Court of Pakistan, since the reference, subject matter of the said case, had not been routed through the Governor, State Bank of Pakistan, the Prosecutor General had to make a statement for withdrawal of such references. But, here in this case despite specific objection by learned counsel for the petitioner, neither it is stance of NAB authorities that said section does not attract to the case of the present petitioner nor any document could be referred by NAB authorities to say that the requirement of above section was complied with and the reference was forwarded by the Governor, State Bank of Pakistan.

1. One cannot lose sight of the fact that when the law requires a thing to be done in a specific manner, it must be done in that way or not at all. This Court in the case “Raheel Rashid versus National Accountability Bureau, Islamabad through Chairman and 2 others” (PLD 2005 Lahore 692) with reference to above Section 31-D, declared that the proceedings as against the accused being destitute of authorization of the Governor of State Bank of Pakistan, the reference did not vest jurisdiction in the National Accountability Bureau or the Accountability Courts. In this view of the matter, when the NAB authorities do not have the authority in the matter, their actions against the petitioner lead to an inference of mala fide on their part.

2. As discussed above, here in this case, there is no other view that the finance facility, subject matter of the NAB reference, was duly secured against adequate collateral in addition to other documents. In the same sequel it is not the claim of the Bank authorities that the documents prepared for the sanction of loan were bogus; the property subject matter of mortgage was non-existent; that the said property was not in the specific ownership of the petitioner or that the same was already under some encumbrance. In view of the above noted peculiar facts and circumstances of this case, despite this clear position, without touching the factual aspect of the allegations against the petitioner, the action of the complainant bank in filing a complaint before the NAB and further proceedings by the NAB authorities thereon under the NAB Ordinance, including the attempted arrest of the petitioner per force of NAB Ordinance, is clear indicator of mala fide on the part of the complainant as well as NAB authorities thus, we consider it to be a fit, case for grant of pre-arrest bail to the petitioner.

3. For what has been discussed above, the ad-interim pre-arres bail granted to the petitioner vide order dated 24th February, 2016 confirmed subject to furnishing his bail bonds in the sum of Rs. 5,00,000/- (five lac) with two sureties each in the like amount to the satisfaction of the learned trial Court.

4. Needless to observe that the observations made hereinabove are only tentative in nature and are strictly confined to the extent of grant of instant bail. However, petitioner is directed to co-operate with the NAB authorities during investigation, and if reference is filed against the petitioner, he may attend the trial Court regularly.

(R.A.) Bail confirmed.

PLJ 2017 Lahore 458

Present:Ibad-ur-Rehman Lodhi, J.

IFTIKHAR ALI MALIK and others--Petitioners

versus

GOVERNMENT OF PAKISTAN and others--Respondents

W.P. No. 1479 of 2012, heard on 9.1.2017.

CantonmentLandAdministration Rules, 1937--

----Schd. IX-C--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Conversion of lease--Possession of residential plot--Charged for purpose of property tax by cantonment authorities--Demand excessive to rates--Validity--Application of petitioner has not so far been disposed of in any manner by M.E.O.--Since requisite amount had already been deposited by petitioners in therefore, F.O.P. are directed to proceed accordingly and final order be passed within next 30-days positively for conversion of their properties held on old grant lease into regular lease in Schedule IX-C of Cantonment Land Administration Rules, 1937 for commercial purposes. [P. 462] A & B

Sh. Zamir Hussain, Advocate for Petitioners (in this Writ Petition and W.P. No. 1480/2012).

Mr. Mujeeb-ur-Rehman Kiani, Advocate for Petitioner (in W.P. No. 3320/2012).

Ch. Muhammad Masroof, Standing Counsel for Federation of Pakistan for Respondents.

Ch. Muhammad Yaqoob, Advocate for Cantonment Board.

Date of hearing: 09.01.2017.

Judgment

By means of this single order, I intend to dispose of this petition and Writ Petition No. 1480 of 2012 filed by the present petitioners and also W.P. No. 3320 of 2012 filed by Muhammad Sadiq, as the petitioners have challenged the impugned demand raised by the respondents’ authorities regarding conversion of lease vide letters dated 04.01.2012 and 25.10.2012.

1. With the consent of learned counsel for the parties, the hearing of this petition and all referred petitions is being treated as pacca one.

2. The present petitioners are in possession of Properties No. 230 and 231, Survey No. 162/848 and 223 and 233, Survey No. 162/849, whereas Muhammad Sadiq petitioner in W.P. No. 3320/2012 is in possession of residential Plot No. 2, Survey No. 431/2.

Iftikhar Ali Malik etc./present petitioners on the basis of revised policy of Government of Pakistan in the year 2007 vide letter No. 3/6/D-12(ML&C)/97-2007, dated 31.12.2007 have applied the Cantonment Board, Rawalpindi for conversion of their properties held on old grant lease into regular lease in Schedule IX-C of the Cantonment Land Administration Rules, 1937 (C.L.A.) for commercial purposes. On the other hand, Muhammad Sadiq petitioner in W.P. No. 3320/2012 with respect of his property has applied the Cantonment Board for conversion of lease from Schedule VIII to Schedule IX-C of The Cantonment Land Administration Rules, 1937 from residential to commercial purpose. The Cantonment Board, Rawalpindi has accorded sanction in all the applications of the petitioners vide impugned letters dated 04.01.2012 and 25.10.2012 with certain conditions including payment of premium, surcharge, development charges and annual ground rent, which were calculated in view of the policy revised in the year 2012.

1. The case of the present petitioners is that since they have applied to the respondent authorities for grant of commercial leases in the year 2007, therefore, they have to be charged for such premium and other charges in view of the policy, which was in vogue in the year 2007.

2. Learned counsel for respondents’ Board and learned Standing Counsel appearing for Military Estates Officer, Rawalpindi both have submitted that the petitioners have applied the Board for conversion of their properly use in the year 2007, whereas revised clauses in policy of 2007 for conversion of properties held on old grant/Cantt code leases into regular leases under the CLA Rules 1937 and conversion/change of purpose of regular leases into fresh leases was promulgated on 12.01.2011. After giving the date of promulgation of such revised policy, learned counsel representing the Board has submitted that since on the date, when originally the petitioners have applied the Board for conversion, no such policy was in existence, therefore, the provisions as were revised in year 2011 were to be applied in the cases of petitioners, but not at the rates, which were originally provided on 31.12.2007. It is also the version of the Cantt Board that in fact final sanction was granted to the petitioners in the year 2012 and the rates prevailed in the said year in view of the revised policy were to be charged from the petitioners.

3. In a case of similar background, the Hon’ble Supreme Court of Pakistan in case titled “City District Government, Karachi versus Muhammad Irfan and others” (2010 SCMR 1186), has found as under:

“5. As in instant case respondents have submitted application for conversion of land use much prior to issuance of the new policy, which now has been framed, therefore, the respondents shall be liable to pay the charges which were prevailing at the time when application for seeking permission was submitted by them and the learned High Court vide order dated 21st April, 2004 has rightly invoked above principle of law in instant case.”

Similarly, a Division Bench of Sindh High Court in case titled “Works Co-operative Housing Society, Karachi and another versus The Karachi Development Authority” (PLD 1978 Karachi 529), has observed in the following manner:

“Housing Scheme--Development charge--Supreme Court in previous proceedings relating to same case directing that respondent do honour commitments made by Central and Provincial Governments to petitioner-Society and allot them land as expressed in notification dated 9th June 1964--Order of Supreme Court, held, must be implemented in light of rates and charges prevalent on 9th June 1964 and respondents not entitled to higher rates determined subsequently.”

While dealing with the same question involved in this matter, this Court in case titled “Syed Ali Shah versus Government of Pakistan through Ministry of Defence and 2 others” (1994 CLC 369), has held that:

“----Sched. X (Modified)--Estoppel--Promissory estoppels--Applicability--Petitioner’s application for seeking division of property in question, into commercial plots was granted at the rate specified in the order conveyed to petitioner--Petitioner depositing amount in question--Subsequently Authority issuing official order conveying grant of permission of commercialization of such property at an enhanced rate--Validity--Petitioner had applied for division of property into commercial plot in 1984 and as per initial demand notice he had deposited required amount--Official order was delayed due to inter-departmental conflict and during such conflict, rate for commercialization of plot had considerably increased--Ultimately in 1991, sanction was granted and new enhanced rates were demanded--Petitioner having applied in 1984 and initial demand having been made before enhancement of such rate (in 1989), petitioner was entitled to the grant of division/commercialization of his property at the rate which was prevailing at the time he made such application and deposited the amount as per demand of Authority before enhanced rates were enforced in 1989--Charging of price at the enhanced rate merely for the reason that formal order had been passed/issued in 1991 due to the lapse on part of Authority would not entitle it to charge at the enhanced rate subsequently enforced--Petitioner having deposited amount of initial premium as per demand of Authority he could not be burdened with enhanced rates subsequently enforced, on the principle of promissory estoppels whereby respondent could not charge enhanced rates.”

It is interesting to note that the Cantonment Board, Rawalpindi has sanctioned site-plan for commercial building in favour of Muhammad Sadiq-petitioner of W.P. No. 3320/2012 vide Resolution No. 59(112/A), dated 23.06.2006 and subsequent thereto, the building has been erected and the same is being charged for the purpose of property tax by the Cantonment authorities.

Hence, in view of above precedents, the demand excessive to the rates, as were originally introduced on 31.12.2007 are held as unauthorized and excessive to the rates being claimed by the respondent authorities.

1. It is also evident from the record that on 29.06.2012, in this petition and in the connected W.P. No. 1480/2012, whereas on 21.12.2012, in W.P. No. 3320/2012, the operation of impugned orders dated 04.01.2012 and 25.10.2012 were suspended subject to deposit of lease money at the rate of the year 2007 with the respondent-Board. The record further reveals that the present petitioners have deposited the directed amount in this petition and W.P. No. 1480/2012 on 04.09.2012.

It also transpired from record that Muhammad Sadiq petitioner in W.P. No. 3320/2012 could not deposit the directed amount within stipulated period, whereupon he moved C.M. No. 163 of 2013 praying for a direction to the Military Estate Officer/Board to receive the amount in view of the order passed by this Court on 21.12.2012 alongwith an application moved by the petitioner before the office of Military Estates Officer, Rawalpindi Circle, Rawalpindi Cantt, which was received in the latter’s office against Diary No. 1827 on 31.12.2012. The respondents are under notice in the said C.M.

According to learned counsel for the petitioner, the said application of the petitioner has not so far been disposed of in any

manner by the Military Estates Officer. The non-disposal of such application of the petitioner is confirmed by the learned Standing Counsel. As such, the Military Estates Officer-respondent is directed to receive the due amount according to the rates prevailing in the year 2007 from the petitioner within next 30-days.

1. The demand of excessive amount by the respondent authorities is declared illegal and without lawful authority and the impugned orders dated 04.01.2012 and 25.10.2012 are set aside.

2. Since the requisite amount has already been deposited by the petitioners in this petition and in connected W.P. No. 1480/2012 with the respondent’s Board, therefore, the respondents are directed to proceed accordingly and final order be passed within next 30-days positively for conversion of their properties held on old grant lease into regular lease in Schedule IX-C of the Cantonment Land Administration Rules, 1937 for commercial purposes, whereas in W.P. No. 3320 of 2012, when the directed amount by the petitioner to the respondents is deposited within 30-days, the petitioner in that petition be extended same relief, as is granted in W.P. Nos. 1479 and 1480 of 2012 for conversion of lease of his property from Schedule VIII to Schedule IX-C of The Cantonment Land Administration Rules, 1937 from residential to commercial.

3. With these observations, all the Constitutional petitions are allowed.

(R.A.) Petitions allowed

PLJ 2017 Lahore 462

Present:Shahid Mubeen, J.

PACKAGES LIMITED--Petitioner

versus

PUNJAB LABOUR APPELLATE TRIBUNAL, etc.--Respondents

W.P. No. 34216 of 2016, decided on 9.2.2017.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Appointed as apprentice--Investigation--Show-cause notice--Dismissed from service--Registration of criminal case--Acquittal--Request to summon record as well chowkidar to verify fact--Production of chowkidar as witness to prove theft of motorcycle was necessary--Failed to do so inspite of request--Validity--Neither any question nor suggestion was put in cross-examination that motorcycle has been stolen by respondent--Inquiry was neither just nor fair and inquiry officer has performed duties of prosecutor as well as of a judge at same time which is against well established principle of law that no judge can be a judge in his own cause, or in a case in which he is personally interested, not because his decision must invariably be in his own favour but on principle that justice must not only be done but seen to be done and however right Judge deciding a cause in his own favour may be, neither public nor aggrieved party will be satisfied with adjudication and its result will be vacated by Court of appeal at instance of dissatisfied party. [Pp. 465 & 466] A & B

Honourable Acquittal--

----Scope of--It is a well settled principle of law that all acquittals are honourable acquittals. [P. 466] C

Industrial and Commercial Employment (Standing Orders) Ordinance, 1968--

----S.O. 15--Dismissal from service--Allegation regarding theft of motor-cycle--Workman could not have been dismissed when his act or omission does not fall within acts or omission listed in Standing Order 15 of Ordinance. [P. 467] D

Constitutional jurisdiction--

----High Court while exercising its constitutional jurisdiction is meant only for correction of jurisdictional error and material irregularities and in absence, thereof, concurrent findings of facts cannot be interfered. [P. 468] E

Appeal--

----High Court while exercising constitutional jurisdiction cannot sit over judgments of Labour Court as well as L.A.T. as a Court of appeal. [P. 469] F

Mr. Rafey Zeeshan Javed Altaf, Advocate for Petitioner.

Mr. M. A Hamid Awan, Advocate for Respondent No. 2.

Date of hearing: 9.2.2017.

Order

Through this constitutional petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner has challenged the vires of judgment dated 22.06.2016 passed by the learned Punjab Labour Appellate Tribunal, Lahore/ Respondent No. 1, whereby the judgment dated 14.04.2015 passed by the learned Punjab Labour Court No. 2, Lahore, was upheld.

1. Briefly stated the facts of this case are that Respondent No. 2 was appointed as Apprentice on 07.03.1991 and was engaged in shift work in the petitioner-Factory. A motorcycle of another employee was stolen from the premises of the factory and during investigation of a criminal case lodged against Respondent No. 2 by the owner of the motorcycle, motorcycle was recovered from him by the Police. A show- cause notice was issued to Respondent No. 2 and he submitted his reply thereto, which was found unsatisfactory. An inquiry was conducted against him as a result of which the Inquiry Officer of the petitioner-Factory, concluded that charge against Respondent No. 2 stood proved and consequently he was dismissed from servicevide letter dated 08.02.1996. Respondent No. 2 issued a grievance notice to petitioner and then filed a grievance petition before the learned Punjab Labour Court No. 2 which was accepted vide judgment dated 14.04.2015. Being aggrieved by the said judgment of learned Labour Court, the petitioner preferred an appeal before the learned Punjab Labour Appellate Tribunal which was dismissed vide impugned judgment dated 22.06.2016. Hence, this writ petition.

2. Learned counsel for petitioner contends that the impugned judgments passed by the learned Punjab Labour Court as well as learned Punjab Labour Appellate Tribunal suffer from misreading and non-reading of oral as well as documentary evidence available on record. Learned counsel further contends that Respondent No. 2 was dismissed from service vide order dated 08.02.1996 after completing all codal formalities prescribed under the law.

3. Conversely, learned counsel for Respondent No. 2 supports the impugned judgments.

4. I have heard the arguments of learned counsel for the parties and have gone through the record with their assistance.

5. In order to prove the charges, the petitioner-company produced Muhammad Yaqoob Senior Officer Security/Gates as P.W-1 in the inquiry who in his examination-in-chief has stated that he received an application from Muhammad Ajmal FP Department for missing of his motorcycle. In cross-examination he has admitted that in the application no body was nominated. He further admitted that in the application of Bahadar Khan no person has been nominated about stealing of motorcycle. He further admitted in his cross-examination that the application dated 03.05.95 submitted by Bahadar Khan does not bear his signatures. He further admitted that Bahadar Khan has died. He further admitted that neither the motorcycle was recovered from Respondent No. 2 in his presence nor he had seen Respondent No. 2 while taking away the motorcycle. The petitioner-factory also produced Muhammad Ajmal Khan, Card No. 7058-FP as P.W-2 whose motorcycle was stolen. He admitted in his cross-examination that he had not shown any suspicion on any person. He further admitted that he had not seen anybody while taking away the motorcycle. He further admitted that he has not filed any complaint against Contractor who was responsible for the safe custody of the motorcycle.

6. From bare perusal of statements of above two witnesses it is crystal clear that none of the P.Ws has seen Respondent No. 2 while stealing or taking away the motorcycle. Respondent No. 2 appeared as D.W-1 before the Inquiry Officer and denied the allegations of theft of motorcycle. His statement could not be shaken in the cross-examination. Respondent No. 2 also produced Muhammad Zafar Ullah employee No. 2416 Quality Control Department who in his evidence has stated that neither the motorcycle was recovered from Respondent No. 2 nor he committed theft of motorcycle. In cross-examination it has not been suggested to him that Respondent No. 2 has committed theft of motorcycle. Respondent No. 2 also produced Amjad Ali, employee No. 8702 Quality Control Department, who in his cross-examination has denied that motorcycle has been recovered from Respondent No. 2. From the bare perusal of evidence produced by the petitioner and Respondent No. 2 it is crystal clear that no body has seen Respondent No. 2 while committing theft of motorcycle.

7. Before the learned Labour Court, Respondent No. 2 appeared as P.W-1 and reiterated the contents of grievance petition. He deposed in his examination-in-chief that he requested the petitioner-factory to examine Chowkidar so as to explain the incident which happened on 30.04.1995 at 6:30 a.m. He further deposed that in his representation he requested the Inquiry Officer to summon the record as well as Chowkidar to verify the fact. This portion of statement of Respondent No. 2 has not been cross-examined by the petitioner’s counsel. In my humble view the production of Chowkidar as a witness to prove the theft of motorcycle was necessary which the petitioner-factory has failed to do so inspite of the request of Respondent No. 2. Had the Chowkidar been produced he might have deposed against the petitioner-factory. Neither any question nor suggestion was put in the cross-examination that motorcycle has been stolen by Respondent No. 2. In his statement Respondent No. 2 has stated that he requested the Inquiry Officer to summon Gateman and Watchman to determine his guilt. The inquiry officer did not summon the said persons and stated that they would be summoned if necessary. Had they be summoned, they might have deposed against the petitioner-factory.

8. The petitioner-factory also produced Nasir Hussain Bokhari, Senior Law Officer of the petitioner as R.W-1 who deposed that he was an Inquiry Officer in the Inquiry conducted against Respondent No. 2. He admitted in his cross-examination that no list of witnesses was provided to him by the Administration. He further admitted that Muhammad Yaqoob Security Officer pleaded the case against Respondent No. 2 before him. He further admitted that above-named Security Officer was not appointed as a Prosecutor in the inquiry. He further admitted that he has no authority to appoint any person as Prosecutor. He further admitted that cross-examination upon Respondent No. 2 was conducted by his representative but the signatures of representative are not available on the record. He further admitted that he did not remember that he himself conducted cross-examination upon Respondent No. 2. He further admitted that he did not remember that who conducted cross-examination upon Respondent No. 2 during the inquiry. It has rightly been observed by the learned Labour Court as well as learned Appellate Tribunal that from the cross-examination conducted upon R.W.1 it appears that the inquiry was neither just nor fair and the Inquiry Officer has performed the duties of Prosecutor as well as of a Judge at the same time which is against the well established principle of law that no judge can be a judge in his own cause, or in a case in which he is personally interested, not because his decision must invariably be in his own favour but on the principle that justice must not only be done but seen to be done and however right the Judge deciding a cause in his own favour may be, neither the public nor the aggrieved party will be satisfied with the adjudication and its result will be vacated by the Court of Appeal at the instance of the dissatisfied party. Reliance in this regard is placed on a case reported as Asif Ali Zardari and another v. The State (PLD 2001 Supreme Court 568).

9. It will not be out of place to mention here that alongwith Respondent No. 2 one Imtiaz Ahmad was also given show-cause notice dated 06.05.1995 with similar allegations which were leveled against Respondent No. 2 but said Imtiaz Ahmad was exonerated by the Inquiry Officer from the charges, therefore, it is a case of clear discrimination which is violative of Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973.

10. It is pertinent to mention here that in the criminal case of theft of motorcycle Respondent No. 2 has been acquitted by the learned Magistrate, therefore, the penalty of dismissal imposed against Respondent No. 2 is not justiciable. It is a well settled principle of law that all acquittals are honourable acquittals. Reliance in this regard is placed on cases reported as Chairman Agricultural Development Bank of Pakistan and another v. Mumtaz Khan (PLJ 2011 SC 280) and Director General Intelligence Bureau, Islamabad v. Muhammad Javed and others (2012 SCMR 165).

11. It will not be out of place to mention here that punishments have been provided in Section 15 of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. It will be advantageous to reproduce Standing Order 15(3) of the Ordinance ibid, which is as under:-

“15. Punishments.--(1) ……………..

(2) ………………..

(3) The following acts and omissions shall be treated as misconduct--

(a) ………………

(b) Theft, fraud, or dishonesty in connection with the employer’s business or property;

(c) ……….

(d) ……………

It is pertinent to mention here that the allegation against Respondent No. 2 is regarding theft of motorcycle of one Muhammad Ajmal Khan, however, the said act has no connection with the petitioner/employer’s business or property as stated in Clause-b of sub-section (3) of Section 15 of the Ordinance ibid, therefore, the dismissal of Respondent No. 2 is not justiciable. Reliance is placed on a case reported as DilawarKhan v. M/s. Feroz Sons Laboratories Ltd. (PLJ 2005 Peshawar 90) wherein it has been held that nothing contained in Standing Order 15 of the Ordinance ibid, would indicate that carrying arm by employee in premises of employer amounted to misconduct entailing dismissal from service. Workman thus could not have been dismissed when his act or omission does not fall within the acts or omission listed in Standing Order 15 of the Ordinance ibid.

1. In Paragraph No. 3 of the show-cause notice it is mentioned as under:

“This act on your part is an act subversive of discipline and a theft which constitutes misconduct under the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968”.

It will be advantageous to reproduce Clause-h of Section 15 of the Ordinance ibid which is reproduced herein below:

“Riotous or disorderly behaviour during working hours at the establishment or any act subversive of discipline”.

The word “subversive” has not been defined in the Ordinance ibid, therefore, I would like to take meaning of the same from Concise Oxford English Dictionary Eleventh Edition, Revised as under:

“subversive – seeking or intended to subvert an established system or institution”

The words “any acts subversive of discipline” contained in Clause “h” of sub-section (3) of Section 15 of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, must be construed ejusdem generis with the preceding words namely, “riotous or disorderly behavior”. These words, if read with word “subversive” as given in the Concise Oxford English Dictionary Eleventh Edition, Revised means “disturbance of peace and lawless behavior,” respectively, therefore, words “any acts subversive of discipline” must be construed in that context and word “subversive” cannot be read separately from the earlier words “riotous or disorderly behavior”. Reference may be made to case law titled as “Pakistan International Airlines Corporation Karachi v. Junior Labour Court No. IV, Karachi and others” (PLD 1978 Supreme Court 239).

1. In the show-cause notice dated 06.05.1995 issued to Respondent No. 2, it has been stated that “this act on your part is an act subversive of discipline and a theft which constitutes misconduct under the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, although without there being any reference of Clause “h” of sub-section (3) of Section 15 of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, however, it appears that above underlined words have been added with mala fide intention just to punish Respondent No. 2 otherwise the allegation of theft of motorcycle in any way cannot be said to be an act of subversive of discipline.

2. The learned Labour Court has full and complete powers to enter even into questions of fact and to arrive at its own conclusions. Reliance in this regard is placed on a case reported as Crescent Jute Products Limited, Jaranwala v. Muhammad Yaqub, etc. (NLR 1979 Labour 1).

3. The findings of learned Punjab Labour Court as well as learned Labour Appellate Tribunal are concurrent, therefore, do not require any interference by this Court. This Court while exercising its constitutional jurisdiction is meant only for correction of jurisdictional error and material irregularities and in absence thereof, the concurrent findings of facts cannot be interfered. In this case the impugned judgments have been passed by the learned Punjab Labour Court and the learned Labour Appellate Tribunal having jurisdiction

and they have exercised their jurisdiction in accordance with law. They have not acted illegally while exercising their jurisdiction. Constitutional jurisdiction cannot be exercised to re-appraise the evidence. It can also not be exercised even if a different conclusion is possible. This Court while exercising constitutional jurisdiction cannot sit over the judgments of learned Punjab Labour Court as well as learned Labour Appellate Tribunal as a Court of appeal. Reliance in this regard is placed on a case reported as Ghulam Muhammad and another v. Mst. Noor Bibi and 5 others (1980 SCMR 933). The relevant portion of the said judgment is reproduced as under:

“We agree with the view taken by the High Court that it could not in its limited constitutional jurisdiction interfere with the concurrent findings against the petitioners on what was essentially a question of fact”.

1. Learned counsel for petitioner-factory has failed to point out any illegality and jurisdictional defect in the judgments of learned Punjab Labour Court and the learned Labour Appellate Tribunal which can be interfered by this Court in its constitutional jurisdiction.

2. Sequel to the above, this petition being devoid of any merits is hereby dismissed by upholding the judgment dated 14.04.2015 passed by the learned Punjab Labour Court No. 2 and the judgment dated 22.06.2016 passed by the learned Punjab Labour Appellate Tribunal, Lahore/ Respondent No. 1. No order as to costs.

(R.A.) Petition dismissed

PLJ 2017 Lahore 469

Present: Ch. Muhammad Iqbal, J.

FARMERS ORGANIZATION OF PEER MAHAL DISTRIBUTARY through its VP--Petitioner

versus

GOVERNMENT OF PUNJAB through Secretary (Irrigation), etc.--Respondents

W.P. No. 3335 of 2014, heard on 13.2.2017.

Punjab Irrigation & Drainage Authority (Farmers Organization) Rules, 2010--

----R. 9--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Execution agreement with PIDA--Proposal for enhancement of tenure was turned down--Authority to implement strategy for streamlining irrigation and drainage system with object to replace existing administrative--Validity--Period was settled for three years and parties to agreements are bound to act upon terms and conditions of agreements--Period for FOs was mutually settled for three years only, however, proposed tenure of six years of FOs was subject to revision of PIDA (FOs) Rules, 2010 which was to be approved by Government of Punjab but there is no approval of Government available is on record--Any dispute between FO and authority matter shall be resolved through process of arbitration which has not been invoked by petitioners, as such, in presence of arbitration clause, petitioners are debarred to challenge impugned action through these constitutional petition--Lawfully elected members into administration/management of establishment and right of eligible voter to select his favourite and suitable candidate cannot be encompassed or perished on whim and caprice of those members who had already enjoyed full tenure of holding office for which period they were elected, as such, object of filing these petitions is tainted with mala fide to debar voters to exercise right of vote in favour of their choiced members.

[Pp. 472 & 473] A, B, C & D

Mr. M. Abdus Sattar Chughtai, Advocate for Petitioners (in W.P. Nos. 3335, 3996 and 6656 of 2014).

Mr. R. M. Razzaque, Advocate for Petitioners (in W.P. Nos. 2328, 3293, 3294, 3574, 3575, 3577 of 2014 and 24289 of 2016).

Ch. Muhammad Amin Javaid, Advocate for Petitioners (in W.P. No. 3932 of 2014).

MianShahid Rasool, Advocate for Petitioners (in W.P. No. 3995 of 2014).

MianKhalid Habib Elahi, Advocate for Petitioners (in W.P. No. 21028 of 2014).

Mr. M. A. Ghaffar-ul-Haq, Advocate for Petitioners (in W.P. Nos. 5343, 5655, 6334 and 6608 of 2015).

Mr. Muhammad Mushtaq Pasha, Advocate/vice counsel (in W.P. No. 6131 of 2015).

Mr. Asif Shahzada, Advocate for Petitioners.

Mr. Waqar Ahmad Chaudhary, A.A.G. alongwith Zulfiqar Ali, Manager, PIDA and Muhammad Arshad Kamboh, Assistant Manager, PIDA for Respondents No. 1 to 3.

Mr. Ghazanfar Haider Pasha, Advocate for Respondent No. 4.

Date of hearing: 13.2.2017.

Judgment

Through this single judgment, I intend to decide the titled writ petition as well as connected Writ Petition Nos. 2328, 3293, 3294, 3574, 3575, 3577, 3932, 3995, 3996, 6656, 21028 of 2014, 5343, 5655, 6131, 6334, 6608 of 2015, 24289 of 2016 as common questions of law and facts are involved in all these writ petitions.

1. Brief facts of the cases that the Government under Punjab Irrigation & Drainage Authority Act, 1997 (PIDA Act, 1997) framed Punjab Irrigation & Drainage Authority (Farmers Organizations) Rules, 2010 and constituted Farmers Organizations (FOs) and after holding election, its members were elected for an initial period of three years in 2011 and the separate Agreements dated 04.02.2001 for Transfer of Irrigation Management (IMT) were executed between the Punjab Irrigation & Drainage Authority (PIDA) with the FOs of the petitioners in which it was settled between the parties that the period of office bearers shall be three years as envisaged under Rule 9 of the PIDA (Farmers Organization) Rules, 2010. The Authority in its 42nd Meeting held on 25.05.2011 approved Agenda Nos. 2 & 3 of Agenda Nos. 1 to 15 containing proposal for making amendment in Rule 9 of the FOs Rules, 2010 for extension of tenure of office bearers of the FOs of Category A & B for a further period of 3 years (total tenure 6 years) under revised IMT Model which was turned down by the Government. Hence, these petitions.

2. Learned counsels for the petitioners submits that the impugned notifications to the extent of dissolution of petitioners’ Farmers Organizations (FOs) may kindly be suspended and the respondents may be restrained from interfering into the lawful functions of the petitioners' FOs till the completion of their tenure in view of the proposed minutes of the meeting and decisions of the Authority thereof, and the respondents' act for not extending the period of the petitioners' FOs till 2017 may kindly be declared illegal. It is also prayed that the respondents may be directed to upgrade the category of the petitioners' FOs from Category B to Category A.

3. Conversely, learned Law Officer appearing on behalf of Respondents No. 1 to 3 duly assisted by learned counsel for Respondent No. 4 submitted that the Farmers Organizations were established only for three years as envisaged under Rule 9 of the PIDA (FOs) Rules, 2010 and said period has been completed. The petitioners themselves executed agreements with the PIDA and under Clause 15 of the said Agreements, any disputes relating to the Agreements shall be resolved through Arbitration without having recourse to the Courts; further submits that in 45th meeting held on 17.10.2012 the proposal for enhancement of tenure was turned down by the Government of the Punjab and tenure has been maintained 3 years as already prescribed in the Rules, as such, the writ petitions may kindly be dismissed.

4. I have heard the arguments and gone through the record with the able assistance of learned counsels for the parties.

5. The Punjab Irrigation and Drainage Authority Act, 1997 (PIDA Act, 1997) was passed by the Provincial Assembly of the Punjab with the vision or on reason to establish an Authority to implement the strategy of the Government of Punjab for streamlining the irrigation and drainage system with the object to replace the existing administrative setup and procedures with more responsive, efficient and transparent arrangements, to achieve economical and effective operation and maintenance of the irrigation, drainage and flood control system in the Province, to make the irrigation and drainage network sustainable on a long-term basis by allowing the participation of beneficiaries in the operation and management. The Government under Section 16 of the PIDA Act, 1997 is competent to notify rules for smooth carrying out the purpose of the Act and by invoking powers under said provision the Government made rules i.e. PIDA (FOs) Rules, 2010 which are statutory one. According to Rule 9 of the PIDA (FO) Rules, 2010, the tenure of the Farmers Organization or Nehri Punchayat shall be three years commencing from the date notified by the Authority. Rule 9 of the PIDA (FO) Rules, 2010 is as under:-

“9. Tenure.–the tenure of the Farmers Organization or Nehri Punchayat shall be three years commencing from the date notified by the Authority, provided that the Authority may extend their respective tenures up to one year in the public interest.”

1. It is an admitted fact that the petitioners executed separate agreements with the PIDA and under Clause 3 of the said agreements, the period was settled for three years and the parties to the agreements are bound to act upon the terms and conditions of the said agreements. Clause 3 of the Agreements is reproduced as under:-

“3. This Agreement shall be valid for a period of three years with effect from the date of transfer of functions to Farmers Organization, provided that it may be terminated by the Authority earlier or extended beyond the said period. Initially, all FOs shall be placed in category “B” and their progression to category “A” shall be subject to satisfactory performance as determined by the Authority.”

Furthermore, in the said agreements, a note is written which is reproduced as under:

“Note: The evaluation of FOs as per assigned functions will be carried out by third party every year and for progression from category “B” to category “A” Farmers Organizations have to score at least 75% marks. All FOs will remain in Category “B” for 2 years and in Category “A” for 4 years. However, if FO scores upto 90% marks during first year, it will be promoted to Category “A”. their continuity in Category “A” will be subject to satisfactory performance and attaining at least 75% marks. In case of failure of above, the FO will be reverted back into Category “B”. However, the tenure of six years of FOs will be subject to the revision in PIDA FOs Rules, 2010 to be approved by the Government of Punjab.”

According to the minutes of 45th meeting of the Authority (PIDA) held on 17.10.2012 (in agenda item No. 3), the Authority decided that “The House endorsed the amendments in FOs and AWBs Rules-2010 and desired that same may be forwarded to Government for approval. From the perusal of the said agreements as well as the note reproduced above, it is proved on record that the period for FOs was mutually settled for three years only, however, the proposed tenure of six years of the FOs was subject to the revision of PIDA (FOs) Rules, 2010 which was to be approved by the Government of the Punjab but in this respect there is no approval of the Government available is on record, as such, tenure of FOs and AWBs remained 3 years as already given in the Rules”. Further as per Clause 15 of the Agreement, any dispute between FO and the Authority the matter shall be resolved through the process of Arbitration which has not been invoked by the petitioners, as such, in presence of Arbitration Clause, the petitioners are debarred to challenge the impugned action through these constitutional petition.

1. Undoubtedly, the members of the petitioners' organizations succeeded to the management in the year 2011 and their tenure of three years for lawfully retaining office elapsed on 01.04.2014 and since then they are enjoying the office without any justifiable cause. The glorified spirit of this entire newly emerged system revolved around the genuine representation/participation of the lawfully elected members into the administration/management of the establishment and right of eligible voter to select his favourite and suitable candidate cannot be encompassed or perished on the whim and caprice of those members who have already enjoyed the full tenure of holding the office for which period they were elected, as such, the object of filing these

petitions is tainted with mala fide to debar the voters to exercise the right of vote in favour of their choiced members.

1. In view of under Rule 9 of PIDA (FOs) Rules, 2010 as envisaged in Clause 3 of the said agreements, the period of FOs is three years. Furthermore, the PIDA (FOs) Rules, 2010 are statutory rules and according to the decision of the Authority (PIDA) in 45th meeting, the period of FOs is settled as three years which period has already been lapsed, as such, the authority has rightly passed the impugned order which are absolutely in consonance with the Rules as well as Agreement executed between the PIDA and the petitioners’ FOs.

2. Learned counsels for the petitioners have miserably failed to point out any illegality and material irregularity in the impugned order warranting interference by this Court in its constitutional jurisdiction, resultantly, these writ petitions have no force and the same are hereby dismissed.

(R.A.) Petitions dismissed

PLJ 2017 Lahore 474

Present: Ch. Muhammad Masood Jahangir, J.

WAPDA/FESCO through Chairman and 3 others--Petitioners

versus

AZMAT MIR--Respondent

C.R. No. 1014 of 2010, heard on 2.2.2017.

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

----S. 115--Civil revision--Employee of WAPDA consumer of energy--Audit note--Demand was advanced to consumer without issuance of show-cause notice--Liability for payment of amount--Validity--Demand based on audit note being violative but despite that petitioners/department is in consistent habit to demand same from consumers, which tendency, is not .only intolerable but also contemptuous and bulk of cases are pending in different Courts on basis of illegal demands of petitioners/department. [P. 475] A

Dr. Muhammad Irtaza, Advocate for Petitioners.

Nemo for Respondent.

Date of hearing: 2.2.2017

Judgment

Undeniably respondent/plaintiff was an ex-employee of petitioners-department, who was also consumer of energy supply and on the basis of an audit note No. 32 dated 29.07.2000 through disputed bill, he was directed to deposit an amount of Rs. 22,599/-qua consumption of 5956 units and the said demand was successfully assailed by him through institution of a declaratory suit. The petitioners-department remained fail to substantiate their claim and through impugned judgments and decrees the suit of respondent was concurrently decreed by the two Courts below, which are under attack of this civil revision.

1. Despite repeated calls no one has put in appearance on behalf of respondent in spite of his service, who is proceeded against ex parte.

2. Arguments of learned counsel for petitioners heard and record scanned.

3. Without going into deeper appreciation of available record, when it was confronted to learned counsel for petitioners that audit note is neither binding on the consumer nor he could be held responsible for the fault of department as pointed out in audit report and the demand was advanced to the consumer without issuance of any show-cause notice or affording him opportunity of hearing to adjudge the consumer's liability for payment of the questioned amount, he has remained handicapped to respond satisfactorily. The superior Courts of the State in the following chain of judgments reported as Water and Power Development Authority etc. vs. Umaid Khan (1988 CLC 501), Khalid Pervaiz vs. Water and Power Development Authority through Chairman, WAPDA and another (1999 CLC 1591) Islamic Republic of Pakistan through Secretary Defence, Defence Secretariat, Rawalpindi and another vs. Messrs Abdul Ghani Abdul Rehman Limited through Managing Director (2002 CLC 1039) and WAPDA through Chairman and 3 others vs. Fazal Karim and 5 others (2008 YLR 308) have already declared the demand based on audit note being violative but despite that petitioners/department is in consistent habit to demand the same from the consumers, which tendency is not only intolerable but also contemptuous and bulk of cases are pending in different Courts on the basis of illegal demands of the petitioners/ department. The instant case is a classic example of wrongful act of the petitioners/defendants, whereby its consumers are forced to agitate the same by over burdening the Courts.

4. This civil revision having no merit and merely a burden on this Court is dismissed with special cost of Rs. 25,000/-(Rupees twenty five thousand only).

(R.A.) Revision dismissed

PLJ 2017 Lahore 476

Present:Ali Baqar Najafi, J.

WASEEM YAQOOB--Petitioners

versus

GOVERNMENT OF THE PUNJAB, etc.--Respondents

W.P. No. 18420 of 2016, decided on 2.3.2017.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Civil servant--Appointment as security constable--Involved in criminal cases--Notification for recruitment--Honourable acquittal--Entitled benefit of acquittal--Validity--Any condition creating impediment on job in department on basis of acquittal in criminal case would not and shall not be read as disqualification under Constitution, therefore, petition was allowed. [P. 479] A

Mr. Muhammad Younas Bhullar, Advocate for Petitioner.

Mr. Muhammad Ejaz, Assistant Advocate General, on Court’s call for Respondents.

Date of hearing: 2.3.2017.

Order

Through this Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner calls in question order dated 20.04.2016 whereby appointment of the petitioner as security constable particularly meant for the security of foreigners specially Chinese was refused on the basis that the petitioner was involved in a criminal case.

1. Brief facts giving rise to the filing of this writ petition are that Notification for the recruitment of 131 posts of Security Constables for Special Protection Unit (SPU) District Kasur were advertised. The petitioner being eligible candidate applied for the post of Security Constable and after conducting physical test he was declared successful. He also appeared in the National Testing Service from where he got 73 marks and was declared as successful candidate and his name was figured in the final list of candidates. After conducting all the test, a character report of the petitioner was called from the local police who reported that the petitioner was involved in some criminal case vide FIR No. 435 dated 17.08.2011 under Sections 447/354/452/148/149, PPC at Police Station, Khudian District Kasur on the basis of which the petitioner was not permitted to join. The petitioner conveyed to the authority that in the year 2011 case was although registered against the petitioner on account of personal vendetta of the complainant yet after facing trial he was exonerated and acquitted by the learned Magistrate Section 30, Kasur on 24.07.2013. But on account of the letter dated 26.06.2014, any candidate found involved in criminal case (either under trial or acquitted on multiple grounds) would not be appointed in police department as constable, hence this writ petition.

2. Learned counsel for the petitioner contends that when the petitioner was of 15 years some criminal case was registered against him and after his honourable acquittal he has been and is enjoying good reputation in the vicinity and that such conditionality is against the dictum laid down by the apex Court in Muhammad Nadeem Arif and others vs. Inspector General of Police, Punjab, Lahore and others [2011 SCMR 408] where the basic memorandum relating to the policy/rule which was issued by the Inspector General of Police in favour of the petitioner was not valid itself having any legal backing. He also adds that the petitioner is entitled to the benefit of acquittal order. Reliance is placed upon Director-General, Intelligence Bureau, Islamabad vs. Muhammad Javed and others [2012 SCMR 165], Chairman Agricultural Development Bank of Pakistan and another vs. Mumtaz Khan [PLD 2010 Supreme Court 695], Superintending Engineer GEPCO, Sialkot vs. Muhammad Yousaf [2007 SCMR 537] and Asghar Ali and others vs. Mansoor Muzaffar Ali and others [2012 PLC (C.S)502].

3. Conversely, learned law officer on the basis of report and Parawise comments submitted by Respondent No. 2 submits that the committee minutely examined the case and is of the view that there is no need of any relaxation of rules/policy. In the report and Parawise comments submitted by Respondent No. 3 it was specifically mentioned that notwithstanding the acquittal of the petitioner in case FIR No. 435 dated 17.08.2011 under sections 447/354/452/148/149, PPC at Police Station, Khudian District Kasur it was decided principally on 26.06.2014 vide Letter No. SE-IV/7317-70/II that those candidates who were involved in criminal cases (either under trial or acquitted on multiple grounds) shall not be appointed in the police department as constable. The additional reasons given in the said order show that such involvement of the petitioner in criminal case will prohibit him to be recruited as security constable particularly for foreigner; specially Chinese. This specific observation seems to be directly in conflict with the basic principal of the criminal administration of justice under which a person is presumed to be innocent unless proven guilty and person though involved in criminal case, if acquitted shall also be considered as a person against whom no case was ever registered. It will be a great irony of our society that even an acquittal of a person did not restitute his previous position who would continue to live his entire life with an obsolete and baseless stigma that he once being involved in a criminal case that too relating to a personal vendetta. This is considered a serious threat to the criminal administration of justice and offensive to the judicial system as a whole which not only shows mistrust but also a clear disrespect to it. The said approach will also be in direct conflict with provision of Section 403, Cr.P.C and Article 13-A of the Constitution of Islamic Republic of Pakistan, 1973 under which double jeopardy has been prohibited. This Court seeks guidance from Chairman Agricultural Development Bank of Pakistan and another vs. Mumtaz Khan [PLD 2010 Supreme Court 695], the relevant extract of which is reproduced below:

“Be that as it may, un ultimate acquittal in a criminal case exonerates the accused person completely for all future purpose vis-à-vis the criminal charge against him as is evident from the concept of autrefois acquit embodied in Section 403, Cr.P.C and the protection guaranteed by Article 13(a) of the Constitution of Islamic Republic of Pakistan, 1973 and, according to our humble understanding of the Islamic jurisprudence, Afw(waiver) of Sulh (compounding) in respect of an offence has the effect of purging the offender of the crime.”

The Hon’ble Supreme Court of Pakistan in Superintending Engineer GEPCO, Sialkot vs. Muhammad Yousaf [2007 SCMR 537] it was held that if civil servant has been acquitted he is to be reinstated when his dismissal order was based on this very ground. Even in Director-General, Intelligence Bureau, Islamabad vs. Muhammad Javed and others [2012 SCMR 165] the apex Court went on to observe that the payment of Diyat money on the basis of compromise under Section 435, Cr.P.C. cannot be considered as his disqualification for his reinstatement. Here, I seek guidance from Muhammad Aslam vs. Sabir Hussain and others [2009 SCMR 985] and Dr. Muhammad Aslam vs. Government of N.W.F.P through Secretary, Food, Agriculture, Livestock and Cooperative Department, Peshawar and 2 others [1998 SCMR 1993] wherein it was held that accused civil servant in case of acquittal was to be considered to have committed no offence because the competent Criminal Court had freed/cleared him from an accusation or charge of crime. Relevant extract is re-produced below:

“The appellant was acquitted by the trial Judge as already pointed out above. It shall, therefore, be presumed that the allegations leveled against him are baseless. In consequence, he has not been declared guilty. In presence of above meaning of “acquittal” the appellant is held to have committed no offence because the competent Criminal Court has freed/cleared him from an acquisition or charge of crime. The appellant is, therefore, entitled to the grant of arrears of his pay and allowances in respect of the period he remained under suspension on the basis of registration of murder case against him. This appeal succeeds and is allowed with no order as to costs.”

1. Keeping in view the above discussion this Court is of the considered view to hold that any condition creating impediment on the job in the respondents/department on the basis of acquittal in criminal case would not and shall not be read as disqualification under the Constitution of Islamic Republic of Pakistan, 1973, therefore, this writ petition is allowed and the impugned order dated 20.04.2016 is hereby set aside and Respondent No. 2 is directed to decide the representation of the petitioner in accordance with law which shall be deemed to be pending before him.

2. Disposed of in the above terms.

(R.A.) Petition allowed

PLJ 2017 Lahore 479

Present: Malik Shahzad Ahmad Khan, J.

MalikSHAUKAT ALI--Petitioner

versus

SUPERINTENDENT OF POLICE MODEL TOWN, CIRCLE, LAHORE and 4 others--Respondents

W.P. No. 7489 of 2017, heard on 30.3.2017.

Constitution of Pakistan, 1973--

----Art. 199--Pakistan Penal Code, (XLV of 1860), S. 420--Quashing of FIR--Jurisdiction of police--Agreement to sell--Ingredients of--Alternate remedies--No criminal offence is made out--Civil nature--It was a case of civil nature for specific performance of agreement to sell but complainant instead of filling a civil suit against petitioner has lodged impugned order, in order to use state machinery so that petitioner may be pressurized to execute sale deed in his favour--No criminal offence is made out from contents of FIR, therefore, same is liable to be quashed. [P. 482] A

2014 PCr.LJ 1305, 2009 PCr.LJ 290.

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

----S. 249--Pakistan Penal Code, (XLV of 1860), S. 420--Constitution of Pakistan, 1973, Art. 199--Quashing of FIR--It is by now well settled that mere submission of challan before trial Court by itself is no ground to refuse quashment of FIR, when no criminal offence is made out from contents of same--No useful purpose shall be served by directing petitioner to first avail alternate remedy of filing a petition under Section 249-A, Cr.P.C. before trial Court.

[P. 482] B

2000 SCMR 122 & 1994 SCMR 798.

Sardar Muhammad Ashraf Khan Sargana, Advocate for Petitioner.

Mr. Adnan Shamim Bhatti, Advocate for Respondent No. 4.

Mr. Sittar Sahil,Assistant Advocate General for State.

Date of hearing: 30.3.2017.

Judgment

The instant constitutional petition has been filed by the petitioner for the quashment of FIR No. 642/2016 dated 14.05.2016, offence under Section 420, PPC registered at Police Station Nishtar Colony, Lahore.

1. As per brief allegations levelled in the FIR, Malik Shaukat Ali (petitioner) was owner of the land bearing Khasra No. 2041, 2046 and 2047, measuring 3½ marlas, situated within the jurisdiction of Police Station Nishtar Colony, Lahore. The complainant executed an agreement to sell with the petitioner in respect of the aforementioned land, in sale consideration of Rs.6,12,500/- and on 01.11.2011, paid an amount of Rs.5,20,000/-, whereas out of the remaining amount of Rs.92,500/-, the complainant paid to the petitioner an amount of Rs.60,000/- on 11.05.2012 and an amount of Rs.32,500/- on 14.03.2014. The petitioner handed over a photo copy of Fard Malkiyat to the complainant in June, 2013 but the original Fard Malkiyat was not handed over by the petitioner to the complainant. Later on the petitioner told the complainant that, the aforementioned photo copy of Fard Malkiyat had expired and demanded an amount of Rs.5000/- for issuance of fresh original Fard Malkiyat, which amount was paid to him by the complainant but inspite of that, the original Fard Malkiyat was not handed over by the petitioner to the complainant. In July 2014, the petitioner demanded Rs. 15000/- from the complainant, in respect of expense to be incurred on the execution of registered sale deed and the said amount was also paid by the petitioner to the complainant but inspite of that registered sale deed was not executed by the petitioner in favour of the complainant, hence the aforementioned FIR.

2. It is contended by learned counsel for the petitioner that it was a case of civil nature regarding the specific performance of agreement to sell and no criminal offence is made out from the contents of the impugned FIR, therefore, the same may be quashed.

3. On the other hand, this petition has been opposed by learned Assistant Advocate General assisted by learned counsel for the complainant on the grounds that the complainant had paid the entire sale consideration of the land in question to the petitioner and he has also paid an amount of Rs.20,000/- in respect of the expenses for obtaining a fresh attested photo copy of Fard Malkiyat and for registration of the sale deed but inspite of the payment of the abovementioned amounts, the petitioner has not executed the sale deed, in favour of the complainant, therefore, the ingredients of offence under Section 420, PPC are fully attracted in this case; that challan in this case has already been submitted before the learned trial Court, therefore, this petition is not maintainable before this Court because the petitioner may first avail the alternate remedies as provided under the law; that there is no substance in the present petition, therefore, the same may be dismissed. In support of his contentions, learned counsel for the complainant has placed reliance on the judgment reported as “Director General Anti-Corruption Establishment Lahore and others vs. Muhammad Akram Khan and others” (PLD 2013 Supreme Court 401).

4. Arguments heard. Record perused.

5. It is evident from the perusal of the contents of the impugned FIR that the same was lodged by the complainant on the ground that he has executed an agreement to sell with the petitioner in respect of land bearing Khasra Nos. 2041, 2046 and 2047, measuring 3½ marlas, situated within the jurisdiction of Police Station Nishtar Colony, Lahore and he (complainant) had paid the entire sale

consideration, as well as, expenses for obtaining a fresh attested copy of Fard Malkiyat and for registration of the sale deed but inspite of that the petitioner has not executed the sale deed in favour of the complainant. It is, therefore, clear that it was a case of civil nature for specific performance of agreement to sell but the complainant instead of filling a civil suit against the petitioner has lodged the impugned order, in order to use the State machinery so that the petitioner may be pressurized to execute the sale deed in his favour. No criminal offence is made out from the contents of the impugned FIR, therefore, the same is liable to be quashed. Reference in this context may be made to the judgments reported as “Umair Aslant vs. Station House Officer and 7 others” (2014 PCr.LJ 1305) & “Zahid Jameel vs. SHO. etc” (2009 Cr.LJ 290).

1. It is by now well settled that mere submission of challan before the learned trial Court by itself is no ground to refuse the quashment of the FIR, when no criminal offence is made out from the contents of the same. No useful purpose shall be served by directing the petitioner to first avail the alternate remedy of filing a petition under Section 249-A, Cr.P.C. before the learned trial Court. The proceedings in this case before the learned trial Court will amount to abuse of process of the law and the Court. Reliance in this respect may be placed on the judgments reported “Miraj Khan vs. Gul Ahmad and 03 others” (2000 SCMR 122) & “The State vs. Asif Ali Zardari and another” (1994 SCMR 798).

2. Keeping in view all the aforementioned facts, the instant petition is allowed and the impugned FIR No. 642/2016 dated 14.05.2016, offence under Section 420, PPC registered at Police Station Nishtar Colony, Lahore is hereby quashed.

(R.A.) Petition allowed

PLJ 2017 Lahore 482

Present: Shahid Bilal Hassan, J.

GHULAM HUSSAIN--Petitioner

versus

MUHAMMAD RASHEED, etc.--Respondents

C.R. No. 2301 of 2011, decided on 20.3.2017.

Punjab Pre-emption Act, 1991 (IX of 1991)--

----S. 13--Suit for pre-emption--Co-sharer--Original pre-emptor--Failed to substantiate stance by producing truthful witnesses--Essentials--It is, by now, a settled principle of law that in order to succeed in a suit for possession on basis of pre-emption, it is mandatory and imperative as well as essential to prove performance of talbs in accordance with law, as elaborated under Section 13 of Punjab Pre-emption Act, 1991 and when talbs are not proved as per dictates and requirement of law, same results fatal to pre-emptor’s.

[Pp. 485 & 486] A

Punjab Pre-emption Act, 1991 (IX of 1991)--

----S. 20--Civil Procedure Code, (V of 1908), O.VI, R. 14--Suit for pre-emption--Co-sharer--Statement is inadmissible in evidence--Neither his name is depicted in plaint nor in notice talb-e-ishhad--Essential of law--Missed--Substantive illegalities and irregularities--Notice of talb-i-ishhad--No special power of attorney--Right to acquire suit property by exercising right of pre-emption accrues on date of sale but when at that time respondents did not have such right, coupled with. non-presence of PW at time of making of talb-i-muwathibat, suit ought to have been dismissed on that single score, as making of talb-i-muwathibat has not been proved by respondents/plaintiffs in accordance with law--Plaintiffs had failed to prove performance of talb-e-muwathibat as per mandate of law, question of subsequent talb loses its value and no decree for possession through pre-emption can be passed in their favour. [Pp. 486 & 487] B & E

Right of Pre-emption--

----Scope of--Right, which can be exercised personally, which is missing in instant case. [P. 486] C

2007 CLC 819 Lah.

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

----Art. 129(8)--Independence witness--Original pre-emptor--Interested witness--Adverse presumption under Art. 129(g) of Q.S.O. arises against respondents/plaintiffs due to withholding of essential witness that had he been produced, he would not have supported their stance. [P. 486] D

Mr. Muhammad Anwar Chaudhry, Advocate for Petitioner.

Malik Abdul Wahid, Advocate for Respondents.

Date of hearing: 20.03.2017.

Order

By this single order, the instant civil revision and connected C.R.No. 2454 of 2011, being outcome of one and the same impugned judgment and decree, in order to avoid any conflicting order or judgment, are decided, conjointly.

1. A patch of land measuring 10 marlas situated in Revenue Estate of Dait, Tehsil & District Sialkot (disputed property) was owned by one Ghulam Rasool son of Noor Din, who sold the same to Ghulam Hussain, the petitioner, on 15.01.2008 through Mutation No. 454 for an ostensible consideration of Rs. 200,000/-. The deceased father of the Respondents No. 1 to 7 instituted a suit for pre-emption on 11.02.2008 on the ground that he was co-sharer in the Khata and after the death of Muhammad Ramzan, the original pre-emptor, the Respondents No. 1 to 7 were arrayed as plaintiffs through amended plaint.

The petitioner/defendant contested the suit by filing written statement and controverted the averments of the plaint. The learned trial Court framed issues; both the parties adduced their evidence, oral as well as documentary, in pro and contra. The learned trial Court after hearing arguments vide impugned judgment and decree dated 31.07.2010 decreed the suit in favour of the respondents/plaintiffs; against which the petitioner preferred an appeal. The learned appellate Court vide impugned judgment and decree dated 06.05.2011 set aside the judgment and decree passed by the learned trial Court with the observation that the petitioner/defendant and the respondents enjoy equal rights, so in view of Section 20 of the Punjab Pre-emption Act, 1991 the disputed land would be shared by them jointly and decreed the suit of the respondents/plaintiffs to the extent of 1/2 share; hence, this civil revision.

The respondents/plaintiffs being aggrieved of the judgment and decree dated 06.05.2011 passed by the learned Appellate Court have filed the separate Civil Revision Bearing No. 2454 of 2011.

1. Learned counsel for the petitioner/defendant has argued that impugned judgments and decrees are result of misreading and non-reading of evidence on record. The pre-emptors have failed to substantiate their stance by producing two truthful witnesses as per mandate of Section 13 of the Punjab Pre-emption Act, 1991 as Fazal Elahi, the other witness was not produced. Moreover, Muhammad Rasheed (P.W.7) deposed during his deposition that he alongwith his father made talb-e-muwathibat, but neither his name is depicted in the plaint nor in the notice talb-e-ishhad as such, meaning thereby he was not present at the time of making of talb-e-muwathibat, therefore, his statement is inadmissible in evidence but this aspect of the case has been ignored totally by the learned Courts below. Furthermore, there is no special power of attorney on behalf other legal heirs in favour of Muhammad Rasheed (P.W.7) as has been stated by him and the amended plaint has not been signed by all the legal heirs, so the requirements of provisions of Order VI, Rule 14 of the C.P.C. are missing, thus, the suit ought to have been dismissed instead of decreeing the same. There are material contradictions in the statements of the witnesses, but the same have been ignored and on the basis of surmises and conjectures, the impugned judgments and decrees have been passed, which resulted in miscarriage of justice. Both the learned Courts below while passing the impugned judgments and decrees have committed procedural and substantive illegalities and irregularities; hence, they have failed to exercise vested jurisdiction in accordance with law. Therefore, by allowing the Civil Revision (No. 2301 of 2011), the impugned judgments and decrees may be set aside and suit instituted by the respondents/plaintiffs may be dismissed. Relies on Humayun Naseer Cheema and 3 others v. Muhammad Saeed Akhtar and others (2007 CLC 819-Lahore), Muhammad Hussain and others v. Ehsan Ullah (2008 MLD 382-Lahore), Jamal Din and others v. Muhammad Ishaq (2010 MLD 743-Lahore), Ghafoor Khan (deceased) through LRs. v. Israr Ahmed (2011 SCMR 1545) and Muzaffar Hussain v. Mst. Bivi and 7 others (PLD 2012 Lahore 12).

2. Contrarily, it has been argued by learned counsel for the respondents/plaintiffs that the respondents have fulfilled the required Talbs in accordance with law. Maintains that while reversing findings on Issue No. 10, misreading and non-reading of evidence has been done by the learned Appellate Court and law on the subject has wrongly been interpreted. Further submits that while passing the impugned judgment and decree, material irregularities and illegalities have been committed by the learned Appellate Court. Without application of independent judicious mind, the impugned judgment and decree has been passed mere on the basis of surmises and conjectures. Vested jurisdiction has not been exercised in a proper way by the learned Appellate Court and a well-versed judgment and decree passed by the learned trial Court has been outdone without any cogent reasons. Therefore, by allowing the civil revision (No. 2454 of 2011), impugned judgment and decree dated 06.05.2011 to the extent of Issue No. 10 may be set aside, consequent whereof suit of the respondents/plaintiffs may be decreed by restoring the judgment and decree dated 31.07.2010 passed by the learned trial Court.

3. Heard.

4. It is, by now, a settled principle of law that in order to succeed in a suit for possession on the basis of pre-emption, it is mandatory and imperative as well as essential to prove the performance of Talbs in accordance with law, as elaborated under Section 13 of The Punjab Pre-emption Act, 1991 and when Talbs are not proved as per dictates and requirement of law, the same results fatal to the pre-emptor’s.

In the present case, Muhammad Rasheed (P.W.7) appeared as pre-emptor on his behalf and on behalf of the other legal heirs of original pre-emptor, but he failed to produce any power of attorney executed in his favour authorizing him to appear on their behalf and deposed that he was present at the time of making of talb-e-muwathibat by his deceased father Muhammad Ramzan, but the plaint as well as alleged notice talb-i-ishhad is silent in this regard as neither in the plaint nor in the alleged notice of talb-i-ishhad his name emerges, rather name of Muhammad Sarwar and Fazal Elahi besides Bashir Ahmad (informer) appear; meaning thereby the statement of P.W.7 is beyond the pleadings and the same is inadmissible. A further question arises here that right to acquire suit property by exercising right of pre-emption accrues on the date of sale but when at that time the present respondents did not have such right, coupled with above scenario i.e. non-presence of Muhammad Rasheed (P.W.7) at the time of making of talb-i-muwathibat, the suit ought to have been dismissed on this single score, as making of talb-i-muwathibat has not been proved by the respondents/plaintiffs in accordance with law; reliance is placed on Muzaffar Hussain v. Mst. Bivi and 7 others (PLD 2012 Lahore 12).

Apart from the above, even if it is presumed and admitted for the sake of arguments that the respondents/plaintiffs have right of pre-emption against the present petitioner, even then non-appearance of the other respondents/plaintiffs except Muhammad Rasheed turns fatal to the respondents/plaintiffs, as right of pre-emption is a personal right, which can be exercised personally, which is missing in this case. In this regard reliance is placed on Humayun Naseer Cheema and 3 others v. Muhammad Saeed Akhtar and others (2007 CLC 819-Lahore).

In addition to the above, the respondents/plaintiffs have failed to produce Fazal Elahi, before whom allegedly the original pre-emptor performed talb-i-muwathibat as his evidence can be termed as that of independent witness because the other witness namely Muhammad Sarwar is legal heir of Muhammad Ramzan, the original pre-emptor and is an interested witness; therefore, adverse presumption under Article 129(g) of the Qanun-e-Shahadat Order, 1984 arises against the respondents/plaintiffs due to withholding of essential witness that had he been produced, he would not have supported their stance. Reliance is placed on Muhammad Hussain and others v. Ehsan Ullah (2008 MLD 382-Lahore).

1. Pursuant to the above discussion, as the respondents/ plaintiffs have failed to prove performance of Talb-e-Muwathibat as per mandate of law, the question of subsequent talb loses its value and no decree for possession through pre-emption can be passed in their favour. Reliance is placed on Mst. Sahib Jamala v. Fazal Subhan and 11 others (PLD 2005 Supreme Court 977).

2. For the foregoing reasons and discussion, it is observed that the learned Courts below have failed to appreciate evidence on record and law on the subject in a true perspective; as such the impugned judgments and decrees being not sustainable in the eye of law while placing reliance on the judgments supra, the Civil Revision Bearing No. 2301 of 2011 is allowed and the impugned judgments and decrees passed by the learned Courts below are set aside, consequent whereof the suit instituted by the respondents/plaintiffs stands dismissed; whereas the connected civil revision bearing No. 2454 of 2011 will follow the result of the instant civil revision. No order as to the costs.

(R.A.) Order accordingly

PLJ 2017 Lahore 487

Present: Mamoon Rashid Sheikh, J.

M/s. SIXON PAKISTAN PRIVATE LIMITED--Applicant

versus

GHULAM FAREED ZAHID--Respondent

Transfer Application No. 232 of 2016, heard on 13.12.2016.

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

----S. 24--Rendition of accounts--Exclusive jurisdiction of Civil Court--Contract--Company was situated at Lahore--No regional office at Multan--Being an agent has sued petitioner as principal for rendition of accounts--Validity--Respondent’s suit, therefore, appears to be hit by rule of law that a principal cannot be ordered to render accounts to an agent unless liability to account as established--Question which requires determination is as to whether respondent’s suit should be transferred to Lahore purely on basis of ground that Civil Courts at Multan do not have jurisdiction in matter--Neither of parties have taken stance that Civil Courts at Multan and Lahore have concurrent jurisdiction in matter--On basis of settled principle of law that an application for transfer of a suit under Section 24 of CPC is only competent if trial Court before whom suit is instituted/filed is competent to try it--It is further settled law that, competency for such purpose includes not only pecuniary competency but also territorial competency--Territorial jurisdiction of trial Court before whom suit, sought to be transferred, is pending has to be determined before suit is transferred, as suit under Section 24 of CPC can only be transferred from a Court competent to try it.

[Pp. 490 & 491] A, C & D

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

----Ss. 9 & 20--Contract Act, 1872, S. 28--Suit for rendition of account--Territorial jurisdiction--Contract--It is a settled proposition of law that Civil Courts exercise their jurisdiction under provisions of CPC--If a Civil Court does not possess such jurisdiction under CPC then it cannot be conferred upon it through mutual agreement between parties to a dispute--Where two or more Courts have jurisdiction to try a suit under CPC then an agreement between parties to dispute to effect that only one of such Courts shall try such a dispute cannot be considered contrary to public policy as agreement would not violate provisions of Section 28 of Contract Act, 1872, nor provisions of Sections 9 and 20 of CPC. [P. 490] B

Mr. Muqtedir Akhtar Shabir, Advocate for Petitioner.

Ch. Saleem Akhtar Warraich, Advocate for Respondent.

Date of hearing: 13.12.2016.

Judgment

The instant petition has been moved by the petitioner under Section 24 of the CPC seeking transfer of the respondent’s suit, against the petitioner, for rendition of accounts entitled “Ghulam Farid Zahid v. M/s. Sixon Pakistan (Pvt.) Limited and three others” pending in the Court of Ms. Mehnaz Hayat, Civil Judge 1st Class, Multan, to the Court of Mr. Farooq-e-Azam Sohal, Civil Judge, Lahore, before whom the petitioner’s suit, against the respondent, for recovery of Rs. 6.276 Million is pending.

1. The learned counsel for the petitioner submits that the head office of the petitioner, a private limited company, is situated at Lahore. The contract between the parties, whereby the respondent was appointed as the petitioner’s Marketing Development Manager, was executed at Lahore on 21.12.2014. The petitioner does not have any. Regional Office at Multan. Moreover, Clause 1(vii) of the contract dated 21.12.2014 stipulates that the jurisdiction in the matter shall be before the Courts at Lahore. Further contends that Section 20 of the CPC is applicable to the instant case. The jurisdiction in the matter, therefore, lies exclusively with the Courts at Lahore. The respondent’s suit may, therefore, be withdrawn from the Civil Court at Multan and may be entrusted to the Civil Court at Lahore wherein the petitioner’s suit against the respondent is pending.

2. The learned counsel has relied on “State Life Insurance Corporation of Pakistan v. Rana Muhammad Saleem” (1987 SCMR 393) and “Standard Insurance Co. v. Pak Garments Ltd.” (1998 SCMR 1239) in support of his contentions.

3. The learned counsel for the respondent controverts the stance of the learned counsel for the petitioner. Submits that the respondent was appointed by the petitioner as its Marketing Manager in the Region Multan and Sahiwal through the appointment letter dated 25.11.2014. Further submits that the Regional Accountant of the petitioner operates from the petitioner’s office in the industrial Estate, Phase-I, Multan. Submits that the petitioner has taken on lease the premises in the Industrial Estate Multan for establishing a warehouse of its products. The learned counsel has submitted a photocopy of the lease deed. Be placed on the record.

4. Contends that the Civil Courts at Multan have exclusive jurisdiction in the matter.

5. Further submits that the question of jurisdiction of the Civil Courts at Multan has been raised before the trial Court at Multan. Indeed, the respondent’s suit is currently pending for determining the territorial jurisdiction in the suit.

6. The learned counsel for the petitioner submits that the respondent has filed his suit by concealment of facts and by giving a wrong description of the petitioner and the other defendants in the title of his plaint. Refers to the copy of the respondent’s plaint (Annexure-F) to contend that the petitioner has been arrayed as one of the defendants but the petitioner’s address has not been mentioned in the title of the plaint. Further submits that a director of the petitioner has been impleaded as Defendant No. 3. His address has also not been given in the plaint. Further contends that the respondent has deliberately mis-described the particulars of the petitioner in his plaint so as to establish that the jurisdiction in the matter lies with the Civil Courts at Multan.

7. I have considered the arguments of the learned counsel for the parties and have also gone through the record. Admittedly the petitioner employed the respondent as its Marketing Development Manager and/or Marketing Manager. As per the copy of the contract dated 21.12.2014 placed on the record by the petitioner (Annexure-B) the respondent was appointed to that post in the Head Office of the petitioner at Lahore. The contract also contains Clause 1(vii) wherein it has been agreed that, “... the place of jurisdiction shall be at Lahore”.

8. It is further established from the record that the petitioner in its capacity as principal has sued the respondent, its agent, for recovery of Rs. 6.276 Million. The respondent in turn in his capacity of being an agent of the petitioner has sued the petitioner as principal for rendition of accounts. The respondent’s suit, therefore, appears to be hit by the rule of law that a principal cannot be ordered to render accounts to an agent unless liability to account is established. However, this controversy is not before this Court. The question which requires determination is as to whether the respondent’s suit should be transferred to Lahore purely on the basis of the ground that the Civil Courts at Multan do not have jurisdiction in the matter.

9. As noted above lengthy arguments have been addressed by the learned counsel for the parties to establish that the Civil Courts at Multan do not or do have exclusive jurisdiction in the matter.

10. It may, however, be noted that it is a settled proposition of law that Civil Courts exercise their jurisdiction under the provisions of the CPC. If a Civil Court does not possess such jurisdiction under CPC then it cannot be conferred upon it through mutual agreement between the parties to a dispute. However, where two or more Courts have jurisdiction to try a suit under the CPC then an agreement between the parties to the dispute to the effect that only one of such Courts shall try such a dispute cannot be considered contrary to public policy as the said agreement would not violate the provisions of Section 28 of the Contract Act, 1872, nor the provisions of Sections 9 and 20 of the CPC. State Life Insurance Corporation of Pakistan’s case supra, refers. In other words if two or more Courts have concurrent jurisdiction in the matter then if the parties to a contract/dispute choose to confer jurisdiction upon one of such Courts then such an agreement is held to be not violative of the law. And resultantly the Court so chosen assumes jurisdiction in the matter.

11. In the instant case, however, neither of the parties have taken the stance that the Civil Courts at Multan and Lahore have concurrent jurisdiction in the matter. The learned counsel for the petitioner has vehemently argued that the exclusive jurisdiction in the matter lies with the Civil Courts at Lahore whereas on the other hand the learned counsel for the respondent has strongly argued that the exclusive jurisdiction in the matter lies with the Civil Courts at Multan.

12. There is another aspect of the case that is to say a perusal of the documents placed on the record shows that the question of territorial jurisdiction of the Civil Courts at Multan is a contentious one. Reference in this regard is firstly made to the copy of the contract dated 21.12.2014 (Annexure-B), which apparently has been executed by the parties at Lahore. The contract lays down that the respondent, has been appointed as the petitioner’s Marketing Development Manager to serve in the head office of the petitioner, which is admittedly at Lahore. The contract through Clause 1(vii) stipulates that the said appointment and the associated contracts shall be governed by the law of Pakistan. It is further stipulated that the place of jurisdiction shall be at Lahore. Reference may also be made to Annexures-C, D & E, which are photocopies of the show cause notice, suspension letter and termination letter of the respondent. All of these documents refer to the contract dated 21.12.2014. It may be further noted that the learned counsel for the petitioner has denied that the petitioner has any Regional Office at Multan.

13. The respondent on the other hand in his plaint has relied upon a contract dated 25.11.2014. A copy whereof has, however, not been placed on the record by either party. However, from the copy of the rent deed, submitted by the learned counsel for the respondent, it appears that the petitioner has a warehouse in the Industrial Estate at Multan. There is no denial in this respect from the petitioner’s side. Moreover, the learned counsel for the respondent has asserted that the petitioner has a Regional Office at Multan.

14. When the above facts are considered in juxtaposition then it is established that the question of the territorial jurisdiction of the trial Court at Multan is a contentious issue and cannot be determined summarily. Moreover, admittedly arguments for determination of the territorial jurisdiction of the learned trial Court at Multan are due to be heard by the said Court.

15. In the above scenario, therefore, on the basis of the settled principle of law that an application for transfer of a suit under Section 24 of the CPC is only competent if the trial Court before whom the suit in question is instituted/filed is competent to try it. It is further settled law that competency for this purpose includes not only pecuniary competency but also territorial competency. In other words the territorial jurisdiction of the trial Court before whom the suit, sought to be transferred, is pending has to be determined before the suit is transferred, as the suit under Section 24 of the CPC can only be transferred from a Court competent to try it. Reliance in this regard is placed on the judgment reported as “Mst. Razia Shafi vs. Major M.S. Malik” (PLD 1971 SC 247).

16. As observed above the territorial competency/jurisdiction of the trial Court at Multan is a contentious issue, which cannot be determined in these proceedings, therefore, following the law as laid down in Mst. Razia Shafi’s case, supra, the instant petition is disposed of with the direction that the trial Court at Multan shall first determine the question of its territorial jurisdiction before proceeding further in the matter. The petitioner may thereafter seek its remedy in accordance with the law.

17. Disposed of accordingly.

18. There is no order as to costs.

(R.A.) Order accordingly

PLJ 2017 Lahore 492

Present:Abid Aziz Sheikh, J.

MUHAMMAD ILYAS QURESHI--Petitioner

versus

FEDERAL BOARD OF REVENUE etc.--Respondents

W.P. No. 1283 of 2015, heard on 6.3.2017.

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

----Scope of--Auction Rules, 2003, R. 15-A--Finance Act, 2013, Scope of--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Auctions for collection rights of cattle market--Demand of advance sales tax--Challenge to--Increase in rate of advance tax--Cannot be applied retrospectively--Question of--Whether amendment of First Schedule will apply to auctions already took place prior to Finance Act, on 1st July 2013--Validity--Transaction created vested right in favour of auction purchasers and subsequent amendment made in Schedule through Finance Act, 2013, cannot be applied retrospectively to those auctions took place and confirmed before Finance Act, 2013--Though it is well-settled that headings prefixed to sections or entries cannot control plain word of provision and they cannot also be referred to for purpose of construing provisions when words used in provision are clear and unambiguous--Law is well settled that where provision of law affects an accrued right of a tax payer, said provision cannot be applied retrospectively unless legislature by express words or necessary implication intended to give it retrospective affect--Amendment in Schedule through Finance Act, cannot take away existing rights of auction purchasers and rate of 10% advance tax cannot be applied retrospectively to auctions already confirmed--If advance tax has to be computed on basis of sale price of auctioned property in particular tax year, then rate of advance tax applicable at time of sale through auction and happening of that taxable event will apply and any subsequent amendment cannot be applied retrospectively--No vested right accrued in favour of petitioners--Therefore, rate of 10% advance tax under Finance Act, will apply regardless of any stipulation to contrary in contracts between TMA and auction purchasers.

[Pp. 496 & 497] A, B, C, D, F, G & H

2009 PTD 1392, 2015 PTD 772, PTCL 2014 CL 608.

Interpretation of Statutes--

----Prospective effect--It is also settled principle of interpretation of statutes that in absence of a stipulation to contrary any change in law affecting substantive rights has to have prospective effect.

[P. 497] E

PLD 1975 SC 506, PLD 1966 SC 472, 1968 SCMR 574, PLD 1992 SC 637 ref.

M/s. Naveed Ahmad Khawaja and Sami Durrani, Advocates for Petitioners.

Malik Abdullah Raza, Advocate on behalf of Mr. Sarfraz Ahmad Cheema, Advocate for Respondent (Fed.B.R.).

Mian Ghulam Rasul, Advocate for Respondent (T.M.As).

Date of hearing: 6.3.2017.

Judgment

This consolidated judgment will also decide Writ Petitions No. 24672/2013, 26079/2013, 26087/2013, 3167/2014, 3168/2014, 3169/2014, 3170/2014, 3171/2014, 3172/2014, 5111/2014 and 6701/2014 as common questions of law and facts are raised in all these petitions.

1. Through these constitutional petitions, the petitioners have challenged the demand of advance sales tax @ 10% under Section 236-A of the Income Tax Ordinance, 2001 (“Ordinance”) and consequential impugned recovery notices.

2. Common facts in all these petitions are that petitioners are registered contractors under Rule 15-A of the Local Government Ordinance, 2001 read with Auction Rules, 2003, therefore, competent to secure collection rights of cattle markets. The auctions for the collection rights of cattle market by different Tehsil Municipal Administrations (“TMAs”) were held for year 2013-2014 and petitioners were declared successful bidders. After confirmation of auctions, the contracts for “collection rights of cattle market” for year 2013-2014 (“contracts”) were executed and petitioners were required to deposit auction amount alongwith 5% advance income tax u/s 236-A of the Ordinance. The grievance of the petitioners is that through Finance Act, 2013 dated 01.07.2013 (“Finance Act”), the rate of advance tax increased from 5% to 10% and accordingly petitioners were issued notices for deposit of remaining 5% advance income tax. For purpose of completion of facts, it is relevant to note that in W.Ps. No. 24672/2013, 26079/2013, 26087/2013, 3168/2014, 3172/2014, 6701/2014 and 1283/2015 (hereinafter referred to Category “A”), the auctions for collection rights were confirmed before Finance Act, 2013 dated 01.07.2013, whereas in W.Ps. No. 3167/2014, 3169/2014, 3170/2014, 3171/2014 and 5111/2014 (hereinafter referred to Category “B”), the date of confirmation of auction is after the Finance Act 2013 dated 01.07.2013.

3. Learned counsel for the petitioners in Category “A” petitions, argued that auctions for collection rights of cattle market took place prior to 1st of July 2013 and schedule of payment was also agreed before Finance Act. Submits that at the relevant time, the advance income tax u/s 236-A of the Ordinance was 5% of the auction price which was also paid by the petitioners, hence their case is of “past and closed transaction”. Submits that increase in rate of advance tax from 5% to 10% for purpose of Section 236-A of the Ordinance through Finance Act cannot be applied retrospectively to case of the petitioners. Reliance is placed on Government of KPK and others vs. Khalid Mehmood (2012 SCMR 619), Muhammad Tariq Badr and another vs. National Bank of Pakistan and others (2013 SCMR 314) and Anoud Power Generation Limited and others vs. Federation of Pakistan and others (PLD 2001 SC 340). Learned counsel for petitioners in Category “B” petitions argued that though auctions were confirmed after Finance Act promulgated, however, in contracts executed with TMAs rate of advance tax was determined at 5%, therefore, petitioners are not bound to pay advance tax @10% under the Finance Act.

4. Learned counsel for the respondents submits that under the Ordinance, liability to pay income tax on the tax payer accrued on the last day of the income/accounting year. Submits that as income year in respect of the petitioners was 2013-2014, therefore, the amendment made through Finance Act will apply retrospectively to advance income tax determined before Finance Act but payable by petitioners in tax year 2013 and 2014. The learned counsel submits that no vested rights have been accrued in favour of the petitioners. Reliance is placed on Commissioner of Income Tax, Peshawar vs. Messrs Islamic Investment Bank Ltd. (2016 PTD 1339).

5. I have heard learned counsel for the parties and perused the record. There is no dispute between the parties that before 01.07.2013, the rate of advance income tax computed on the basis of sale price of property including collection of fee and other levies u/s 236-A of the Ordinance was 5%. This rate was increased from 5% to 10% through Finance Act, 2013 by amending Division III Part IV of the First Schedule of the Ordinance (“Schedule”). The moot question is whether this amendment will apply to auctions already took place prior to Finance Act on 1st of July, 2013. To determine this question, it is expedient to reproduce Section 236-A of the Ordinance as under:

“236-A. Advance tax at the time of sale by auction.--(1) Any person making sale by public auction [or auction by a tender], of any property or goods [(including property or goods confiscated or attached)] either belonging to or not belonging to the Government, local Government, any authority, a company, a foreign association declared to be a company under sub-clause (vi) of clause (b) of sub-section (2) of Section 80, or a foreign contractor or a consultant or a consortium or Collector of Customs or Commissioner of [Inland Revenue] or any other authority, shall collect advance tax, computed on the basis of sale price of such property and at the rate specified in Division VIII of Part IV of the First Schedule, from the person to whom such property or goods are being sold.

(2) The credit for the tax collected under sub-section (1) in that tax year shall, subject to the provisions of Section 147, be given in computing the tax payable by the person purchasing such property in the relevant tax year or in the case of a taxpayer to whom Section 98B or Section 145 applies, the tax year, in which the “said date” as referred to in that section, falls or whichever is later.

Explanation.--For the purposes of this section, sale of any property includes the awarding of any lease to any person, including a lease of the right to collect tolls, fees or other levies, by whatever name called.]”

(underlining by me to add emphasis).

The rate of advance tax given in the schedule before Finance Act, 2013 is reproduced hereunder:

Division VIII Advance tax at the time of sale by auction.

The rate of collection of tax under Section 236A shall be [5] % of the gross sale price of any property or goods sold by auction.]

1. Plain reading of sub-section (1) of Section 236-A shows that any person making sale by public auction shall collect advance tax computed on the basis of sale price of such property at the rate specified in Division VIII Part IV of First Schedule of the Ordinance. Explanation in Section 236-A of the Ordinance, postulates that property includes award of any lease of right to collect tolls, fee or other levies. The words “shall collect advance tax, computed on the basis of sale price of such property” mentioned in sub-section (1) of Section 236-A of the Ordinance leave no doubt that advance tax shall be computed on the basis of sale price of property by auction. Under sub-clause (2) of Section 236-A of the Ordinance, the credit for the tax collected under sub-section (1) in that tax year shall be given in computing the tax payable by the person purchasing such property in the relevant tax year. The words “in that tax year” in sub-section (2) of Section 236-A makes it abundantly clear that advance tax has to be computed and collected with reference to tax year when sale through auction was finalized. In category “A” cases, admittedly, auction took place before 01.07.2017 and advance tax @5% was also computed on the basis of sale price and thereafter the contracts between auction purchasers and TMAs were executed and consequently advance tax @5% was also paid. This transaction created vested right in favour of said auction purchasers and subsequent amendment made in Schedule through Finance Act, 2013 w.e.f. 01.07.2013, cannot be applied retrospectively to those auctions took place and confirmed before Finance Act, 2013.

2. The heading and title of Section 236-A also specifically provides that advance tax is at the time of sale by auction. Though it is well-settled that the headings prefixed to sections or entries cannot control the plain word of the provision and they cannot also be referred to for the purpose of construing the provisions when the words used in the provision are clear and unambiguous. However in case of ambiguities or doubt, the heading or sub-heading may be referred to as an aid in construing the provision. Following the above principle of interpretation, when we look at heading and title of Section 236-A of the Ordinance, it resolves doubt if any that applicable rate of advance tax shall be the one at the time of sale by auction.

3. Law is well settled that where provision of law affects an accrued right of a tax payer, said provision cannot be applied retrospectively unless the Legislature by express words or necessary implication intended to give it retrospective affect. In this regard, reliance is placed on Commissioner of Income Tax vs. Messrs Eli Lilly Pakistan (Pvt.) Ltd. (2009 PTD 1392), Commissioner Inland Revenue vs. Messrs Ghausia Builders (Pvt.) Limited (2015 PTD 772) and CIR Vs. Major General Retd. Dr. C.M. Anwar etc. (PTCL 2014 CL 608). It is also settled principle of interpretation of statutes that in absence of a stipulation to the contrary any change in law affecting substantive rights has to have prospective effect. This doctrine of law appears to have been enunciated, for the first time, by the Privy Council in The Colonial Sugar Refining Co. Ltd. v. Irving LR (1905) AC 369). This was followed in F.B. Ali vs. Sate (PLD 1975 SC 506); Sutlej Cotton Mills Ltd. v. Industrial Court (PLD 1966 SC 472); Shohrat Bano v. Imsail (1968 SCMR 574); Garikapati v. Subbiah Chaudhry (AIR 1957 SC 540); P.I.A. Corporation v. Pak Saaf Dry Cleaners (PLD 1981 SC 553); Nazir Begum v. Qamarunnisa (1982 CLC 2271) and Muhammad Ibrahim v Surrayiaun Nisa (PLD 1992 SC 637).

4. The above view is in line with the law laid down by the august Supreme Court in Mian Rafiud Din v. Chief Settlement and Rehabilitation Commissioner (PLD 1971 SC 252) wherein it was observed as under:

“It is well settled that when the law is altered during the pendency of an action, the rights of the parties are decided according to the law as it existed when the action was begun and not the law that existed at the date of the judgment or order. This is, however, subject to the exception that the new law shall apply if it is a mere rule of procedure or if it has been applied retrospectively to pending proceedings. This rule, as stated in Craies on Statute Law, Sixth Edition, page 400 is as J follows:

“It is general rule that when the Legislature alters the rights of parties by taking away or conferring any right of action, its enactments, unless in express terms they apply to pending actions, do not affect them. But there is an exception to this rule, namely, where enactments merely affect procedure and do not extend to rights of action.”

Similar view was expressed by the august Supreme Court of Pakistan in Nagina Silk Mill, Lyallpur vs. The Income Tax Officer, A-Ward Lyallpur and one other (PLD 1963 SC 322), Adnan Afzan vs. Capt. Sher Afzal (PLD 1969 SC 187), Nabi Ahmed and another vs. Home Secretary, Government of West Pakistan, Lahore and 4 others (PLD 1969 SC 599), Province of East Pakistan vs. Sharafatullah and 87 others (PLD 1970 SC 514), Sona and another Vs. The State etc (PLD 1970 SC 264), Hassan and others vs. Fancy Foundation (PLD 1975 SC 1), The Collector, Customs and Central Excise, Peshawar and others vs. M/s. Rais Khan Limited through Muhammad Hashim (1996 SCMR 83), Malik Gul Hasan & Co. and 5 others vs. Allied Bank of Pakistan (1996 SCMR 237), Manzoor Ali and 39 others Vs. United Bank Limited through President (2005 SCMR 1785), Commissioner of Income Tax vs. Messrs Eli Lilly Pakistan (Pvt.) Ltd. (2009 PTD 1392), Muhammad Tariq Badr and another vs. National Bank of Pakistan and others (2013 SCMR 314) and Badshah Gul Wazir vs. Government of Khyber Pakhtunkhwa through Chief Secretary and others (2015 SCMR 43).

1. The above discussion leaves no manner of doubt that the amendment in Schedule through Finance Act cannot take away existing rights of the auction purchasers and rate of 10% advance tax cannot be applied retrospectively to auctions already confirmed before 01.07.2013. The argument of learned counsel for the respondents that liability to pay income tax accrues on the last day of income year is not applicable to advance tax in present case. No doubt that final liability to pay income tax will be on the last day of the relevant tax year, however, if the advance tax has to be computed on the basis of sale price of auctioned property in particular tax year, then the rate of advance tax applicable at time of sale through auction and happening of that taxable event will apply and any subsequent amendment cannot be applied retrospectively. The case law relied upon by the respondents is not applicable to the facts and circumstances of this case whereas the case law relied upon by the learned counsel for the petitioners are relevant and further support the above conclusion.

2. However, in cases of Category “B”, admittedly auctions were confirmed after the Finance Act, 2013, therefore, the rate of 10% advance tax is not being applied retrospectively. In these cases, no vested right accrued in favour of the petitioners. Therefore, rate of 10% advance tax under Finance Act, will apply regardless of any stipulation to the contrary in contracts between TMA and auction purchasers. In this regard law is well settled that even with consent of parties, the provision of law cannot be made redundant.

3. In view of above discussion, the writ petitions in Category “A” i.e. Nos. 24672/2013, 26079/2013, 26087/2013, 3168/2014, 3172/2014, 6701/2014 and 1283/2015 are allowed and consequently the impugned notices are set aside being without lawful authority and of no legal effect. However, writ petitions in Category “B” i.e. Nos.

3167/2014, 3169/2014, 3170/2014, 3171/2014 and 5111/2014 are dismissed with no order as to cost.

(R.A.) Order accordingly

PLJ 2017 Lahore 499

Present:Abdul Rahman Aurangzeb, J.

LESCO through Chief Executive, Lahore and 4 others--Petitioner

versus

MUHAMMAD IFTIKHAR--Respondent

C.R. No. 35 of 2017, decided on 11.1.2017.

Ex-parte Judgment--

----Limitation--Knowledge of judgment--No limitation runs against void order--Conduct of petitioners-Department is also very indolent and negligent--In trial Court, when an ex-parte judgment and decree was passed against them being aggrieved, they had filed an appeal--Against said ex-parte judgment, which is also a time-barred appeal; therefore, appellate Court has no option, except to dismiss time-barred appeal. [P. 500] A

Mr. Muhammad Abdul Quddus, Advocate for Petitioners.

Date of hearing: 11.1.2017.

Order

At the very outset, learned counsel for the petitioners stated that, admittedly this civil revision was filed beyond the period of limitation, but he stressed that the judgments and decrees passed by the Courts below are illegal, unlawful; hence no limitation runs against void order.

I am afraid with the contention of the petitioners, because a procedure of filing of civil revision envisaged under Section 115, CPC for which statutory period of 90-days, by Act VI of 1992, CPC (Amendment) Act, 1992, w.e.f. 24.05.1992 has been provided, and when the petitioners admitted that they were well within the knowledge of judgment and decree dated 20.09.2016, passed by the learned Additional District Judge, Lahore, due to which they applied for obtaining certified copies, and the same were also delivered to them on 07.10.2016. But even then they have filed this civil revision with such an inordinate delay for which no justification, reason has been given by the petitioners, except that no limitation runs against void order. The contention of the petitioners is not appealable to this Court. The Department has not given any preference over a layman, especially, when no plausible explanation was given by the petitioners for filing of time-barred case.

1. It is also observed by this Court that the conduct of the petitioners-Department is also very indolent and negligent. In the trial Court, when an ex-parte judgment and decree was passed against them on 03.04.2015. Being aggrieved, they have filed an appeal on 20.09.2016. against the said ex-parte judgment, which is also a time-barred appeal; therefore, the learned appellate Court has no option, except to dismiss the time-barred appeal. Same circumstances occurred before this Court.

2. In these circumstances, it seems that the Department, itself, does not want to pursue this case and deliberately filed a time-barred appeal and revision before two consecutive forums; therefore, I found no reason to interfere in the judgments and decrees, passed by the lower Courts.

3. Resultantly, C.M. No. 2-C of 2017, seeking condonation of delay is dismissed. As delay has not been condoned; therefore, main civil revision petition also stands dismissed.

(R.A.) Petition dismissed

PLJ 2017 Lahore 500

Present:Jawad Hassan, J.

DISTRICT EDUCATION OFFICER and 2 others--Petitioners

versus

ZAHID MEHMOOD and another--Respondents

W.P. No. 21973 of 2012, decided on 9.3.2017.

Constitution of Pakistan, 1973--

----Arts. 199(1)(a)(ii) & 212(2)--Service Tribunals Act, 1973, S. 3(2)--Judge in respect of deciding service-matter--Proceedings were taken within territorial jurisdiction of High Court by a District Judge--Chairman Human Rights Commission--Termination of civil servant--Petition before District Judge/Chairman H.R.C.--Reinstated in service--No jurisdiction to deal with service matter--Validity--Where civil servants cannot seek remedy from a services tribunal, they had to invoke jurisdiction of Labour Courts if otherwise were covered by definition of workman and were employed in any industry or commercial establishment--Similarly, it is an established principle of law that where procedure had been provided for doing a thing in a particular manner then same should be done in that manner alone and not in any other way or it should not be done at all; otherwise it would be considered non-compliance of legislative intent and would be deemed illegal--Constitutional Petition concerns unlawful jurisdiction of District Judge in respect of deciding service matter because petitioner has filed petition under Art. 199 (1)(a)(ii) of Constitution to declare proceedings taken within territorial jurisdiction of High Court by a District Judge; that have been taken without lawful authority and is of no legal effect--Entire exercise by District Judge while passing order was illegal and without jurisdiction--Petition was allowed.

[Pp. 509, 510 & 511] D, E, F & G

Constitution of Pakistan, 1973--

----Art. 212--Service matter--Jurisdiction to administrative Courts--Tribunal--Constitution has set an absolute bar and has given exclusive jurisdiction to administrative Courts and tribunals established under appropriate legislature to adjudicate matters relating to terms and conditions of persons, in service of Pakistan.

[Pp. 506 & 507] A

Service Tribunals Act, 1973 (LXX of 1973)--

----S. 3(2)--Constitution of Pakistan, 1973, Art. 212--Civil servant--Terms and conditions of service of civil servants--Jurisdiction--All Civil Courts, including a Judge (in Chambers) of High Court of Sindh, exercising jurisdiction on original side as a Civil Court under CPC, could not entertain a civil suit relating to terms and conditions of his service--Provisions of Art. 212 of Constitution did not confer a concurrent jurisdiction to Civil Courts, High Courts and Tribunals. [P. 507] B

Constitution of Pakistan, 1973--

----Art. 212(2)--Concurrent jurisdiction of Civil Courts and service tribunals--Terms and conditions of service--Jurisdiction conferred on service tribunals and jurisdiction vested in Civil Courts in respect of terms and conditions of service of civil servants was mutually exclusive, so that field covered by jurisdiction of service tribunal was totally ousted jurisdiction of Civil Courts including High Court. [P[. 508 & 509] C

Mr. Ashfaq Ahmad Kharral, Assistant Advocate-General for Petitioners.

Mr. Sultan Ahmad, Advocate for Respondent No. 1.

Ms. Sadia Malik, Assistant Attorney-General on Court’s call.

Date of hearing: 9.3.2017.

Judgment

Through this single order this Court intends to dispose of the instant petition as well as W.P. No. 6316/2014 filed by Zahid Mahmood, the Respondent No. 1 against the Petitioner arising out of the same order.

1. This petition has been instituted against the impugned order dated 02.04.2012 passed by the learned District Judge Sialkot/Chairman Human Rights Commission (the “Impugned Order”). The Petitioner has made the following prayer in this petition:

“It is respectfully prayed that the instant writ petition may kindly be accepted and the impugned order dated 02.04.2012 passed by the learned District & Sessions Judge, Sialkot/Chairman Human Rights Commission may please be set aside in the interest of justice, equity and fair play.”

1. Brief facts of the case are that the Respondent No. 1 was appointed as SESE (AT) by the District Education Officer (M-EE) Sialkot on 31.12.2009 who, later on was terminatedvide order dated 01.01.2011, on the ground that he got the job by concealment of facts, as he had not passed B.A. with Arabic, as an elective subject as per Recruitment Policy of Educators, 2008. The Respondent No. 1 feeling aggrieved filed an appeal before the DCO, Sialkot who forwarded the same to EDO (Education). The said appeal was rejected by EDO (Education) as next authority in the case against which the Respondent No. 1 filed a petition before the District Judge/Chairman Human Rights Commission Sialkot who passed the impugned order as follows:--

“In view of above, I have reason to believe that the impugned termination order dated 01.01.2011 cannot sustain in eye of law. It is a fundamental right of any citizen that his right of profession be protected from any capricious and arbitrary action and that he may not be condemned un-heard. Thus, the termination of the Petitioner does not appear in keeping with the principles of law and natural justice. Respondents are therefore directed to restore the Petitioner to its original position failing which the Petitioner may avail of any legal remedy against the Respondent. This petition is disposed of accordingly.”

1. Whereas the Respondent No. 1 in W.P. No. 6316/2014 has prayed that a direction be issued to the Respondent No. 4 (District Education Officer (M), Elementary Education, Sialkot) to dispose of the application filed by the Respondent No. 1, enabling him to join service and receive back benefits.

2. Report and parawise comments were filed by the Respondents-Department denying the claim of the Respondent No. 1 and prayed for dismissal of the W.P. No. 6316/2014.

3. Mr. Ashfaq Ahmad Kharral, Assistant Advocate-General, Punjab appearing on behalf of the Petitioner, submitted that the Respondent No. 2-District Judge/Chairman Human Rights Commission, Sialkot had no jurisdiction to deal with service matter, as such the impugned order is without any jurisdiction and therefore, liable to be set aside on this score alone; that while passing the Impugned Order, the Respondent No. 2 has not considered the fact that the Respondent No. 1 did not fulfill the criteria/qualification as per advertisement dated 01.10.2008. Learned Law Officer in support of his contention has placed reliance on the case titled Muhammad Afzal Warraich and others v. Muhammad Ramzan and others (PLD 2016 Lahore 85) and Dr. Farrah Atta v. District and Sessions Judge/Chairman, Human Rights, Bhakkar and 3 others (2007 PLC (C.S)1303). Learned Law Officer has also argued that as the impugned order passed by the Respondent No. 2 was without any jurisdiction which was expressly barred, therefore, cannot be implemented even by this Court and therefore, the W.P. No. 6316/2014 is liable to be dismissed.

4. Learned counsel for the Respondent No. 1 has vehemently controverted the arguments advanced by the learned Law Officer and prayed for acceptance of the W.P. No. 6316/2014 and dismissal of the instant petition on the ground that the impugned order has rightly been passed; that the impugned order is well within reasons, therefore, liable to be implemented forthwith.

5. This Court has heard the arguments of both the parties and examined the record. It is observed that this Constitutional petition concerns the unlawful jurisdiction of the District Judge in respect of deciding the service matter because the Petitioner has filed this petition under Article 199 (1)(a)(ii) of the Constitution to declare the proceedings taken (impugned order) within the territorial jurisdiction of this Court by a District Judge; that have been taken without lawful authority and is of no legal effect. From perusal of the record, it transpires that Respondent No. 1 was terminated by the Department against which he had remedies available under provision of laws applicable of service and/or labour regarding his dismissal. However, without availing such remedies, the Respondent No. 1 has filed a case before the District Court, which has wrongly reinstated the Respondent No. 1, while exercising its powers under the Civil Courts Ordinance, 1962 (the “Ordinance”) read with the Code of Civil Procedure 1908 (the “CPC”). The District Judges are appointed under Section 5 of the Ordinance. The said Section is reproduced below for ready reference and is as follows:

“5. District Judges.--Government shall, in consultation with the High Court, appoint as many persons as it thinks necessary to be District Judges and post a District Judge to each district:”

Whereas the District Judge has original jurisdiction of the civil suits under Section 7 of the Ordinance, which reads as follows:

“7. Original Jurisdiction of the Court of District Judge.--Subject to this Ordinance or any law for the time being in force, the original jurisdiction of the Court of the District Judge in civil suits and proceedings shall be without limit of the value thereof excepting in the Karachi District where the original jurisdiction in civil suits and proceedings of the value exceeding fifteen million rupees shall be exercised by the High Court.”

1. It is pertinent to note that the Honorable Supreme Court of Pakistan, High Court(s) for each Province and for the Islamabad Capital Territory and other Courts, have been established under Article 175(1) of the Constitution of Pakistan (the “Constitution”) to adjudicate the issues on which their respective jurisdiction applies, and Article 175(2) clearly states that “no Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law.”

2. It is evident from the record that the Respondent No. 1 filed an application before the Respondent No. 2-District Judge, Sialkot, who in his capacity as Chairman Human Rights Commission, Sialkot passed the impugned order restoring the Respondent No. 1 in his previous position. Admittedly, the said power was not transformed into law by the legislature, therefore, in the absence of any such legislation, the District Judge was not vested with any authority to pass any order in that capacity. Reliance is placed on the case titled Director City Circle GEPCO Ltd. and others v. Shahid Mir and others(PLD 2013 Supreme Court 406) wherein the Hon’ble Supreme Court of Pakistan has held as follows:

“...the impugned order passed by the learned Sessions Judge, Sialkot on 9-8-2011 had not been passed by him in any legal capacity as the said order had been passed by him in the so-called capacity of a Director Human Rights ostensibly deriving inspiration from the famous Quetta Declaration. The learned Judge-in-Chamber had not appreciated that by virtue of Article 175(2) of the Constitution of the Islamic Republic of Pakistan, 1973 "No Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law". The capacity of a Director Human' Rights assumed and exercised by the learned Sessions Judge, Sialkot in the matter was not conferred upon him by the Constitution or by or under any law and, thus, the petitioners were entirely justified in assailing his order before the Lahore High Court, Lahore through a Writ Petition and the issues of jurisdiction so brought by them before the Lahore High Court, Lahore were indeed justiciable.”

1. As observed by the Hon’ble Supreme Court of Pakistan in the above referred judgment that the District Judge/Chairman Human Rights, Sialkot was not conferred upon by constitution or any law to interfere in the matter in hand, as such cannot step into the shoes of competent authority. It is important to note that this case also pertains to the same District i.e. Sialkot and of about same period (2011-2012).

2. Moreover, in Muhammad Afzal Warraich case Supra this Court has held that bare reading of the aforesaid provisions of law makes it abundantly clear that none else except Cane Commissioner is competent to adjudicate upon the claim of the petitioners. Punjab Sugar Factories Control Act, 1950 is a Special enactment legislated for resolution of such disputes. It is settled principle of law that a special law has overriding' effect over general law. It is thus evident on the record that the respondents instead of following the procedure laid down in the special enactment chose a wrong forum for redressal of their grievance and unfortunately the learned Sessions Judge without taking into consideration ouster clause provided in Section 22(i) of the Act ibid passed the impugned order which cannot be allowed to remain intact.

3. It is further to be noted that Section 9 of CPC, it has been made clear that “the Courts shall … have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.”. The District Judge/Chairman Human Rights vide the impugned order has expressly assumed the jurisdiction regarding the service matter of an employee by clearly holding that he has reasons to believe that the impugned termination order dated 01.01.2011 cannot sustain in the eye of law and it is a fundamental right of any citizen that his right of profession be protected from any capricious and arbitrary action and that he may not be condemned un-heard. He, therefore, directed the Respondents to restore the Petitioner to its original position failing which the Petitioner may avail of any legal remedy against the Respondents.

4. Further, the Constitution has recognized civil servants in Article 240 of the Constitution, which clearly states that the conditions for appointment of service of persons in the service of Pakistan shall be determined under Act of Parliament in the case of the services of the Federation, and under Act of the Provincial Assembly in the case of the services of a Province.

5. It is also to be noted that the Constitution has itself segregated the disputes to be referred to any Court or forum of law under Article 212 of the Constitution, relevant portion of which is reproduced hereunder:

“212. (1) Notwithstanding anything hereinbefore contained the appropriate Legislature may by Act provide for the establishment of one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of--

(a) matters relating to the terms and conditions of persons who are or have been in the service of Pakistan, including disciplinary matters;…

(2) Notwithstanding anything hereinbefore contained where any Administrative Court or Tribunal is established under clause (1), no other Court shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends and all proceedings in respect of any such matter which may be pending before such other Court immediately before the establishment of the Administrative Court or Tribunal; other than an appeal pending before the Supreme Court, shall abate on such establishment …..”

1. Therefore, the Constitution has set an absolute bar and has given exclusive jurisdiction to administrative Courts and tribunals established under the appropriate legislature to adjudicate matters relating to terms and conditions of persons, in service of Pakistan. This principle has further been explained in various cases of the Appex Court including Ali Azhar Khan Baloch and others v. Province of Sindh and others, 2015 SCMR 456; National Assembly Secretariat v. Manzoor Ahmed and another, 2015 SCMR 253; Peer Muhammad v. Government of Balochistan through Chief Secretary an others, 2007 SCMR 54; and Khalid Mahmood Wattoo v. Government of Punjab and others, 1998 SCMR 2280 that the service Tribunals have been given “exclusive jurisdiction” under Article 212 of the Constitution, for redressal of grievance of the Petitioner, who admittedly is a civil servant, in respect of terms and conditions of civil service, including disciplinary action. The bar contained in Article 212 of the Constitution has also been sufficiently dilated upon by the Hon’ble Supreme Court of Pakistan in various pronouncements and has held in unequivocal and clear terms that the bar is absolute.

2. It has clearly been established by the Honorable Supreme Court in the case of Ali Azhar Khan Baloch v. Province of Sindh (2015 SCMR 456) that civil and constitutional jurisdictions would not lie in respect of the suits or petitions filed with regard to the terms and conditions of civil servants. Section 3(2) of the Service Tribunals Act, 1973 provided that the Tribunal shall have exclusive jurisdiction in respect of matters relating to the terms and conditions of service of civil servants, including the disciplinary matters. Jurisdiction of all other Courts was barred by the provisions of the Service Tribunals Act, 1973, read with Article 212 of the Constitution. Further, all civil Courts, including a Judge (in Chambers) of High Court of Sindh, exercising jurisdiction on the original side as a Civil Court under the Civil Procedure Code, 1908, could not entertain a civil suit of a civil servant relating to the terms and conditions of his service. Article 212 of the Constitution ousted the jurisdiction of High Courts and Civil Courts in respect of the matters pertaining to terms and conditions of civil servants. Provisions of Article 212 of the Constitution did not confer a concurrent jurisdiction to Civil Courts, High Courts and Tribunals. Ouster of jurisdiction contemplated under the Article 212 of the Constitution was a constitutional command, and, therefore, of necessity restricted the jurisdiction of civil Courts and High Courts on the subject, which squarely fell within the exclusive domain of service Tribunals. Therefore, it was held that exercise of jurisdiction by way of suit and constitutional petition filed by a civil servant with regard to his terms and conditions of service was violative of Arts. 175, 212 & 240 of the Constitution and the law.

3. Similarly, it has also been decided in the case titled Provincial Police Officer (I.G.P.), Peshawar v. Farid Ullah Khan (2013 PLC(CS) 1413 [Peshawar]) that according to Article 212 of the Constitution, administrative Courts and tribunals had been established having exclusive jurisdiction in respect of the matter relating to terms and conditions of persons who are in service of Pakistan. Article 212(2) of the Constitution commanded that no Court or tribunal shall grant an injunction, make any order or entertain any proceeding in respect of any matter to which the jurisdiction to such Court or tribunal extended. Khyber Pakhthunkhwa Service Tribunal Act, 1974 was enforced to deal with the matters relating to the terms and conditions of service of civil servants. Provincial Government had established service Tribunal to exercise exclusive jurisdiction in respect of matters relating to terms and conditions of civil servants. The Service Tribunal had the exclusive jurisdiction in respect of matters relating to terms and conditions of service of civil servants. Therefore, it was held that both the Courts below had fallen in error by assuming jurisdiction to entertain and adjudicate upon, in circumstances, and judgment and decree passed by both the Courts below were set aside.

4. In the case of Umar Khan v. Government of N.W.F.P. (1997 PLC(CS) 746 [Peshawar]), it was held that defendant having assumed charge as Chowkidar became Government servant for all practical purposes and, therefore, matter relating to terms and conditions of his service would exclusively fall within jurisdiction of service Tribunal. Plaintiff having impugned in his plaint terms and conditions of service of defendant, Courts below by decreeing such suit, in favour of plaintiff, had exceeded their jurisdiction. Civil Court, thus, had no jurisdiction in matter relating to terms and conditions of civil servant. Judgments and decrees of Court below being in excess of jurisdiction were set aside and plaintiff's suit was dismissed in circumstances.

5. Similarly, it was held in the case of Muhammad Javed v. Karachi Electric Supply Corporation Limited (1997 PLC(CS) 1220 [Karachi]) that jurisdiction of High Court and Civil Courts curtailed in matters of terms and conditions of service. Ouster contemplated under Article 212 of the Constitution was of Constitutional nature and, therefore, of necessity curtailed jurisdiction of High Court totally in respect of subject-matter committed to service Tribunals. Provision of Article 212(2) of the Constitution did not envisage concurrent jurisdiction of Civil Courts and service Tribunals in regard to any matter on any ground in respect of terms and conditions of service. Jurisdiction conferred on service Tribunals and jurisdiction vested in Civil Courts in respect of terms and conditions of service of civil servants was mutually exclusive, so that field covered by jurisdiction of service Tribunal was totally ousted the jurisdiction of Civil Courts including High Court.

6. It is a cardinal error to support that the District Judge functioning as Chairman Human Rights Commission can assume its jurisdiction on service/labour matters, for which established Courts are already functioning.

7. In view of the above, it is apparent that general jurisdiction of Civil Courts is barred where a special law had been promulgated and a forum had been created by it. In cases where civil servants cannot seek remedy from a Services Tribunal, they had to invoke jurisdiction of the Labour Courts if the otherwise were covered by definition of workman and were employed in any industry or commercial establishment. The enactment of the Service Tribunals Act, 1973 has created Tribunals and promulgation of Industrial Relations Act, 2012 has constituted Labour Courts, therefore being special laws, general jurisdiction of civil Courts was barred.

8. Under Article 4 of the Constitution of the Islamic Republic of Pakistan, 1973 (the “Constitution”) every individual, including the educational institution, has the right to be dealt with in accordance with law and no person is liable to do which the law does not require him to do. In the case titled Faisal Sultan v. E.D.O. (Education) and others (2011 PLC (C.S.) 419 [Lahore]), it has been clearly held as under:

“An integral, intrinsic and incidental part of "law" under Article 4 is the right to procedural due process, right to be treated fairly at all times, right to procedural fairness and right to procedural propriety. Right to a fair procedure is, therefore, constitutionally guaranteed in Pakistan and makes the Constitution standout proudly in the Constitutions of the world. Article 4 of the Constitution is a robust and dynamic amalgam of the cardinal principle of natural justice, procedural fairness and procedural propriety of the English jurisprudence and Procedural Due Process of the American jurisprudence. Constitution of Pakistan has boldly recognized this right to be an inalienable right of every citizen or of any person for the time being in Pakistan.”

1. It has been established in the case of Azizullah Memon v. Province of Sindh and another (2007 SCMR 229) that since impugned action was initiated and taken to its logical conclusion under a misconception of law and under a wrong law, it had vitiated entire proceedings including final order, which could not be sustained under the law. The Supreme Court converted petition into appeal and proceedings as well as impugned order of the Service Tribunal, were set aside accordingly. Furthermore, in the case of Muhammad Haleem and another v. General Manager (Operation) Pakistan Railways Headquarter, Lahore and others (2009 SCMR 339), it was clearly held that when initial order or act relating to initiation of proceedings was contrary to law and illegal, then all subsequent proceedings and actions taken thereon would have no basis and would fall.

2. Similarly, in the case of Sharafat v. Additional Sessions Judge/Justice of Peace (2015 PCrLJ 1758 [Lahore]), it was held that special law had provided special procedure for initiation of criminal proceedings against accused. When a thing was provided to be done in a particular manner, it was to be done in that manner and if it was not so done, it was illegal. High Court in exercise of powers under Article 199 of the Constitution, set aside order passed by Ex-officio Justice of Peace as the same was patently illegal and ultra vires. High Court advised that aggrieved persons could adopt remedy provided under the law. Petition was allowed under the circumstances. Furthermore, in the case of Abdul Fatah Bhutto v. Election Commission of Pakistan through Secretary (2014 CLC 639 [Karachi]), it was held that candidate neither adopted the specified procedure nor approached the proper forum in the given time. When a thing was to be done in a particular manner, same must be done in that manner and not otherwise. Legal remedy was available to candidate, but he did not adopt the prescribed course/remedy by not approaching the specially constituted Bench.

3. Similarly, it is an established principle of law that where procedure had been provided for doing a thing in a particular manner then same should be done in that manner alone and not in any other way or it should not be done at all; otherwise it would be considered non-compliance of the legislative intent and would be deemed illegal. (rel. Abdul Khaliq Mandokhel v. Chairman, Balochistan Public Service Commission (2016 PLC(CS) 1184 [Quetta]); Falak Niaz v. Amal Din (2016 YLR 2047 [Peshawar]); Sabz Ali Khan v. Inspector General of Police, KPK (2016 YLR 1279 [Peshawar]); Cantonment Board Clifton v. Sultan Ahmed Siddiqui (2016 CLC 919 [Karachi]); and Federation of Pakistan v. Asad Javed (2016 PLD 53 [Islamabad])

4. As discussed above and in view of the judgments of the Hon’ble Supreme Court of Pakistan, referred above, the Respondent No. 1 has not acted in accordance with law by assuming the jurisdiction of which he was not bestowed. Therefore, in this case, the District & Sessions Judge/ Chairman, Human Rights Commission is specifically not empowered to take cognizance of the service matter at

hand and the decision of the District Judge to reinstate the Respondent No. 1 is patently illegal and void, when it is expressly barred. It has also been observed that this Constitutional Petition concerns the unlawful jurisdiction of the District Judge in respect of deciding the service matter because the Petitioner has filed this petition under Article 199 (1)(a)(ii) of the Constitution to declare the proceedings taken (impugned order) within the territorial jurisdiction of this Court by a District Judge; that have been taken without lawful authority and is of no legal effect.

1. In view of above mentioned facts, circumstances, laws and case laws, this Court suffice it to hold that the entire exercise by the District Judge while passing the Impugned Order dated 02.04.2012 is illegal and without jurisdiction; consequently the instant petition is allowed and the Impugned Order dated 02.04.2012 is hereby set aside. However, the Respondent No. 1 is free to approach competent forum of law for redressal of his grievance in accordance with law. However, W.P. No. 6316/2014 filed by the Respondent No. 2 is hereby dismissed.

(R.A.) Petition allowed

PLJ 2017 Lahore 511

Present: Ch. Mhammad Iqbal, J.

M/s. AMERICAN SCHOOL OF INTERNATIONAL ACADEMICS--Petitioner

versus

Dr. FARRUKH MALIK RELIGIONS & CHARITABLE SOCIETY TRUST etc.--Respondents

W.P. No. 24222 of 2016, decided on 21.2.2017.

PunjabRented Premises Act, 2009--

----Ss. 15 & 19--Ejectment petition--Rent-deed--Tenure of tenancy was extended with mutual consent--Terms and conditions of rent agreement would remain unaltered--Bound to increase rent--Validity--It was settled between parties that terms of lease agreement will remain un-altered--On having admitted payment of rent, subsequently, petitioner is estopped to question authority in ejectment petition and cannot approbate and reprobate or say hot and cool in same breath--Concurrent findings were not called for any interference by High Court in absence of any illegality or any other error of jurisdiction. [Pp. 513 & 514] A, B & C

2007 MLD 1710 rel.

Ch. Waseem Ahmad Gujjar, Advocate for Petitioner.

M/s. A.D. Bhatti and Muhammad Ameen Sheikh, Advocates for Respondent No. 1.

Date of hearing: 21.2.2017.

Order

Through this writ petition, the petitioner challenges the order dated 13.01.2016 passed by the Special Judge, Rent Lahore whereby the ejectment petition filed under Section 19 of the Punjab Rented Premises Act, 2009 filed by Respondent No. 1 was allowed and the judgment dated 22.04.2016 passed by the learned Addl. District Judge, Lahore dismissing the appeal of the petitioner.

1. Brief facts of the case are that Respondent No. 1, a Charitable Society Trust, filed an ejectment petition against the petitioner contending that the petitioner/respondent obtained properly Bearing No. 55-C-III, Gulberg-III, Lahore on rent through a rent deed dated 11.06.2002 at monthly rent of Rs. 70.000/- per month for a period of five years i.e. till 10.06.2007. With the mutual consent of the parties, the tenure of tenancy was extended for a further period of five years through a written agreement with the stipulation that all other terms and conditions of rent agreement dated 11.06.2002 would remain intact/unaltered. According to clause 5 of the agreement the petitioner was bound to increase rent by 7.5% each year. In view of the agreement after 01.07.2009 the monthly rent became Rs. 116,133/- and after deduction of withholding tax the petitioner was bound to pay Rs. 108,031/- but the petitioner paid Rs. 106,811/- and thereafter till to date the rent has been paid at the same rate although it was to be increased @ 7.5% per annum in terms of the rent agreement. It was further contended that tenancy of rented premises expired on 11.06.2012 and in terms of clause 15(a) of Punjab Rented Premises Act, 2009 the petitioner was bound to hand over vacant possession of the rented premises. The petitioner/tenant filed petition for leave to contest and contended that the ejectment petition is filed by an unauthorized person. Under Section 92 of CPC it was mandatory for the respondent to seek permission from the office of the Advocate General Punjab before taking any legal step against the petitioner. The respondent resisted the petition for leave to contest. The learned Special Judge Rent, Lahore dismissed the petition for leave to contest on the ground of expiry of tenancy period vide order dated 13.01.2016 and directed the petitioner to vacate the demised premises within two months. To the extent of default, the learned Court framed issues and fixed the case for recording, evidence. The petitioner assailed the said order through filing an appeal, which was dismissed by the learned Addl. District Judge vide judgment dated 22.04.2016. Hence the present petition.

2. The learned counsel for the petitioner submits that the ejectment petition was filed by un-authorized person as such order/judgment passed by both the Courts below are illegal, unlawful and based on mis-reading and non-reading of documents. He further submits that the ejectment petition was filed in violation of Section 92, CPC, hence the same cannot be entertained.

On the other hand, the learned counsel for Respondent No. 1 submits that admittedly the period of tenancy has expired, as such under Section 15(a) of the Punjab Rented Premises Act, 2009, both the Courts below rightly dismissed the leave to contest filed by the petitioner and no illegality has been committed.

1. Heard. Record perused.

2. Admittedly, the respondent(landlord) filed ejectment petition on the ground of expiry of tenancy period on 11.06.2012. From the perusal of the petition for leave to contest the petition it is admitted that lease agreement was written between the parties on 11.06.2002 for a period of 5 years, which was later on extended for a further period of five years till 11.6.2012. It was settled between the parties that terms of the lease agreement will remain unaltered. When the question was confronted to the learned counsel for the petitioner that whether the tenancy period was renewed after 11.06.2012, he admitted that no such renewal was made. It has been asserted by the learned counsel for the petitioner that the ejectment petition was filed by unauthorized person, suffice it to say that perusal of the record shows that a resolution was passed by the Board of Trustees in its meeting held on 23.06.2014 that Mr. Ghufran Malik s/o Dr. Farrukh Hussain Malik is authorized to deal with all the matters relating to filing of ejectment petition/legal notice in respect of Property No. 55-C-III, Gulberg III, Lahore on behalf of the Trust Society in any Court of law. The said resolution was signed by the members of the Board of Trustees of the Trust. As such the ejectment petition was rightly filed by authorized person on behalf of the Trust, as such the argument of the learned counsel for the petitioner is mis-conceived and the same is repelled.

3. As regard the argument of the learned counsel that the ejectment petition was filed without prior permission of Advocate General, this plea is not sustainable as a Division Bench of this Court in a judgment reported as Amina Welfare Trust (Regd.) through Executor Trustee vs. Ashfhq Ahmad Qureshi and others (PLD 2016 Lahore 460) has held that there is no need for permission of the Advocate General under Section 92 CPC to file any suit in private capacity.

4. Furthermore, in Para 2 on merits of the petition for leave to contest, the petitioner himself admitted that “since the death of Mutwali, Mr. Farrukh Malik (Late), his wife and son namely Mrs. Nasreen and Mrs. Ghufran have been regularly receiving the rent from the applicant/respondent as per terms and conditions of said lease agreement”. Additionally, in clause-B of the grounds it was stated that:--

“The first payment of Rs. 100,000/- was made on 01.08.2002 which had been renewed per annum regularly and in May, 2014, the applicant paid Rs. 161,000/- to Mr. Farrukh Malik (late Mutwali) in his life and after his death to Mr. Ghufran Malik and Mrs.Nasreen Malik.”

On having admitted the payment of rent to Mr. Farrukh Malik, subsequently, the petitioner is estopped to question the authority of said person in the ejectment petition and cannot approbate and reprobate or say hot and cool in same breath.

1. According to Section 2(d) of the Act, 2009 the landlord means the owner of premises and includes a person for the time being entitled or authorized to receive rent in respect of the premises. From the above, it is clear that Respondent No. 1 is landlord of the petitioner and the petitioner is admittedly paying rent to Respondent No. 1. In view of the above, both the Courts below rightly dismissed the petition for leave to defend of the petitioner and accepted the ejectment petition filed by the respondent.

2. The learned counsel for the petitioner has not been able to point out any illegality or material irregularity in the impugned order/judgment passed by the learned Courts below and has also not identified any jurisdictional defect.

3. The concurrent findings of facts are against the petitioner which are not called for any interference by this Court in absence of any illegality or any other error of jurisdiction. Reliance is placed on the case of Zulfiqar Ali vs. Judse, Family Court & 7 Others (2007 MLD 1710).

4. In view of the above, I do not find any merit in this petition, the same is accordingly dismissed.

(R.A.) Petition dismissed

PLJ 2017 Lahore 515

Present: Abdul Sattar, J.

ASHFAQ AHMAD--Petitioner

versus

MUHAMMAD ASIF etc.--Respondents

C.R. No. 179 of 2010, decided on 22.3.2017.

Limitation Act, 1908 (IX of 1908)--

----Art. 113--Suit for specific performance of contract, written agreement--Failed to abide by terms and conditions of agreement to sell--Time was never essence of contract--Consented to new agreement to sell as well time frame--Appreciation of oral and documentary evidence--Validity--Petitioner was entitled to only partial relief of return of earnest amount while first appellate Court taking a contrary view unsupported by substantive as well as precedent law. [P. 520] A

Mr. Muhammad Tufail Alvi, Advocate on behalf of Petitioner.

Mr. Anwar Mubeen Ansari, Advocate on behalf of Respondent No. 1.

Malik Naseer Ahmad Thaheem, Advocate on behalf of Respondents No. 2 to 4.

Date of hearing: 22.3.2017.

Order

Through this civil revision, the petitioner seeks setting aside of impugned judgment and decree dated 4.11.2009 passed in appeal by the learned Additional District Judge, Kabirwala, by which, the judgment and decree of trial Court dated 2.12.2004, whereby a suit for specific performance of contract had been partially decreed, has been reversed/set aside.

1. Brief facts of the case are that petitioner/plaintiff Ashfaq Ahmad filed a suit for possession through specific performance of contract against the respondents before the learned Civil Judge, Kabirwala claiming that the respondent/Defendant No. 1 Muhammad Asif through a written agreement dated 25.9.1994 agreed to sell 24-Kanals land situate in Mouza Chah Peepal Wala, Tehsil Kabirwala, District Khanewal to the petitioner for Rs. 2,40,000/- after receiving Rs. 50,000/- as earnest money in the presence of witnesses. Subsequently another written agreement dated 2.11.1994 was executed between the parties, whereby time for final execution was extended. As per agreed terms of first agreement to sell, Respondent No. 1 was to finally execute the registered sale-deed within a month after receiving the remaining amount of consideration Rs. 1,90,000/- It was stated in the plaint that Respondent No. 1 subsequently received Rs. 1,22,000/- from the petitioner and promised to transfer the suit land through registered sale-deed or mutation till 1.2.1995 after receiving outstanding amount of Rs. 68,000/- It was also stated in the plaint that Respondent No. 1 further received Rs. 20,000/- from the petitioner on 27.11.1994 and in this way Rs. 48,000/- was only left to be paid. It was alleged in the plaint that instead of transferring the suit land to the petitioner the Respondent No. 1 secretly transferred 18-Kanals 17-Marlas out of 24-Kanals suit land to Respondents No. 2 to 4 through sale Mutation No. 619 dated 18.8.1996 without giving notice to the petitioner, which was required to be cancelled and declared inoperative against the rights of the petitioner. Since Respondent No. 1 failed to abide by terms and conditions of agreements to sell above said, therefore, the petitioner was constrained to file suit for specific performance of contract. The respondents contested the suit. Respondent No. 1 in his written statement took the stance that indeed two agreements to sell dated 25.9.1994 and 2.11.1994 were executed between the parties but the petitioner failed to pay the outstanding amount of Rs. 68,000/- within stipulated time, on account of which, his paid earnest amount stood forfeited. Respondents No. 2 to 4 in their written statement took the stance that they had purchased the part of suit land bona fidely for lawful consideration without notice, therefore, the suit of the petitioner was liable to be dismissed. Out of the divergent pleadings of the parties, issues were framed. Evidence of the parties was recorded. After finalization of the trial, the learned Civil Judge, Kabirwala, decreed the suit partially in favour of the petitioner vide judgment and decree dated 2.12.2004 in the following terms:

“In view of my findings on the foregoing Issue No. 7, the suit of the plaintiff for specific performance of agreement to sell against Defendants No. 2 to 4 is hereby dismissed. As an alternative, the plaintiff has also prayed for decree of recovery of earnest money paid to Defendant No. 1. In view of my findings on Issue No. 3, the payment of Rs. 1,92,000/- by plaintiff to Defendant No. 1 is since proved, therefore, the plaintiff is thus entitled to get decree for recovery of earnest money of Rs. 1,92,000/- against the Defendant No. 1. In view of above discussion, the suit of the plaintiff for recovery of earnest money Rs. 1,92,000/- is hereby decreed against the Defendant No. 1 with costs.”

Only Respondent No. 1 filed appeal, which was accepted by the learned Additional District Judge, Kabirwala vide judgment and decree dated 4.11.2009 thereby prompting the petitioner to file this civil revision against the judgments of two Courts at variance.

1. The learned counsel for the petitioner has argued that the impugned judgment and decree passed by the learned first appellate Court is against law and facts as the said Court totally ignored the established law enunciated by the superior Courts of the country that in the matters relating to immovable property, time has never been essence of the contract as the Court was required to see only reasonable time in which the contract was to be performed and intention of the parties was to be gathered from the attending circumstances of the case. Further argued that the learned first appellate Court also paid no heed to the fact that in the instant case the time for performance of the agreement to sell was extended with the express consent of Respondent No. 1 through second agreement to sell due to which the Article 113 of the Limitation Act, 1908 was fully attracted in this case. Similarly, Respondent No. 1 was not authorized to transfer the suit land to Respondents No. 2 to 4 till the time his obligation with the petitioner was discharged. Further argued that the learned appellate Court committed the mistake of misreading and non-reading of evidence and based his findings on surmises and conjectures, thus the impugned judgment is required to be set aside and the fair judgment of trial Court be restored. Reliance placed on Muhammad Yaqoob & others vs. Hakim Ali & others (2004 SCMR 584), Muhammad Taj vs. Arshad Mehmood & 3 others (2009 SCMR 114), Mst. Amina Bibi vs. Mudassar Aziz (PLD 2003 SC 430), Mst. Mehmooda Begum vs. Syed Hassan Sajjad and 2 others (2004 YLR Lahore 845), Bashir Ahmad and others vs. Akbar Ali and others (2005 MLD Lahore 283) and Muhammad Sharif vs. Mst. Faji and others (1996 CLC Lahore 883).

2. The learned counsel for the respondents have opposed the civil revision by supporting the impugned judgment and decree of the first appellate Court.

3. Arguments heard. Record perused.

4. Execution of two agreements to sell dated 25.9.1994 and 2.11.1994 on the basis of which the petitioner instituted suit for specific performance of contract were not disputed or denied by Respondent No. 1 during the trial of the suit. Still in support of his claim, the petitioner examined four witnesses including his own statement as PW-1. In documentary evidence, the agreements to sell dated 25.9.1994 and 2.11.1994 (Exh.P-2 and Exh.P-4), original receipt of payment of earnest amount (Exh.P-5), challenged Mutation No. 619 (Exh.P-6) and copies of record of rights and Khasra Girdawari (Exh.P-7 and Exh.P-8) were produced. In rebuttal, Respondent No. 1 examined himself as DW-1 and two other witnesses Nazar Hussain, DW-4 and Muhammad Ali, DW-5 and in documentary evidence produced copy of Mutation No. 619 (Exh.D-2), copy of record of rights (Exh.D-3), copy of Khasra Girdawari (Exh.D-4) and copy of Roznamcha Waqiati (Exh.D-5). As regards the part payment of Rs. 1,92,000/- from the petitioner to Respondent No. 1, there was no serious dispute between the said parties as the petitioner by examining the relevant witnesses in whose presence Respondent No. 1 received the above said amount established this fact and the learned trial Court correctly decided Issue No. 3 in favour of the petitioner.

5. The learned trial Court while deciding Issues No. 4 and 5 considered the different versions of the petitioner as well as Respondent No. 1 as the petitioner alleged that he had been ready to fulfill the remaining conditions of agreements to sell within stipulated period, while Respondent No. 1 disputing such assertion raised a plea that the petitioner miserably failed to pay the outstanding amount within agreed time to seek transfer of suit land through sale-deed. The learned trial Court after comparing the versions of the two parties in juxta position decided the above said two issues partially in favour of the petitioner and ordered Respondent No. 1 to return earnest money of Rs. 1,92,000/- to the petitioner vide its judgment. As mentioned earlier the petitioner did not assail the judgment of learned trial Court in appeal, which means that he was content upon the portion of relief earned by him.

6. The learned appellate Court while deciding the appeal relying upon the statement of the petitioner as PW-2 in which he had conceded before the trial Court that he had not gone to Kabirwala for the purpose of registry on 1.2.1995, considering time as the essence of the contract finally held the petitioner disentitled for the return of earnest amount and accepted the appeal. Whether such assessment of evidence of the petitioner in isolation of other documented facts available on record by the learned first appellate Court was fair and legal? To find the answer, the documentary evidence of the parties requires to be seen and analyzed in the light of substantive and precedent law. First agreement to sell dated 25.9.1994 (Exh.P-2) was executed between the petitioner and Respondent No. 1 admittedly in which it was clearly stated that the petitioner will seek transfer of suit land through registered sale-deed or mutation within a period of one month after paying the remaining consideration amount of Rs. 1,90,000/- and in the event of default the earnest amount already paid shall stand forfeited. It would mean that agreement to sell (Exh.P-2) was valid till 25.10.1994. After expiry of this time, the petitioner and Respondent No. 1 then entered into another agreement to sell dated 2.11.1994 (Exh.P-4) through which the time for final execution of agreement to sell was extended till 1.2.1995. Meaning thereby that Respondent No. 1 himself subverted earlier agreement to sell (Exh.P-2) and consented to a new agreement to sell as well as time frame. For such a situation as in this case, the august Supreme Court of Pakistan has laid down dictum in case titled Muhammad Taj vs. Arshad Mehmood and 3 others (2009 SCMR 114) reading as under:

“Contracts where time was of the essence of contract, as stipulated under Section 55 of Contract Act, 1872, was generally not attracted to transactions involving sale of immovable property. Merely mentioning of a specific date for performance of agreement would not make time the essence of contract but such intention was to be gathered from terms agreed amongst the parties contained in contract in the light of facts and circumstances of the case”.

In a Division Bench judgment of this Court in the case titled Mst. Mehmooda Begum vs. Syed Hassan Sajjad and 2 others (2004 YLR Lahore 845), it has been held:

“Now it is well settled that in the matter of immovable property time is never to be essence of a contract. Further reference be made to the cases of Abdul Hamid v. Abbas Bhai Abdul Hussain Sodawaterwala PLD 1962 SC 1 and Seth Essabhoy v. Saboor Ahmad PLD 1973 SC 39. Another settled point is that merely because date and time is fixed in the contract for performance would not make the time essence of the contract. Rule applicable is that contract has to be performed in a reasonable time and further intention of the parties had to be gathered from attending circumstances of the case as to whether they intended time to be of the essence of the contract. Muhammad Ramzan v. Assadullah 200 YLR 398”.

In another Division Bench judgment of this Court titled Bashir Ahmad vs. Akbar Ali and others (2005 MLD Lahore 283) it has been held:

“The fact that the original right for completion of the transaction was successively enlarged would disclose two fact:--(a) that the time was not regarded as the essence of the contract, and (b) that the completion of the sale transaction could only be made when the encumbrances on the property viz. the mortgage was redeemed. Construing the agreements to sell in this context, it leaves no manner of doubt that time, even though fixed in the first agreement, ceased to remain the essence of the contract. The period of limitation under the first

limb of Article 113 of the Limitation Act would thereof, not commence. The case of the respondent would thus, fall within the purview of the second limb of Article 113 of the Limitation Act. The limitation period of 3 years for filing the suit for specific performance would thus, run from the date when the plaintiff had knowledge that the performance was refused. Computed from the final refusal of the appellant, the suit brought by the respondent for specific performance was well within time.”

1. The learned trial Judge after correct appreciation of parties oral and documentary evidence and in line with established law enunciated by the superior Courts of the country through well reasoned findings held the petitioner entitled to only partial relief of return of earnest amount while the learned first appellate Court taking a contrary view unsupported by the substantive as well as precedent law on erroneous assumptions unduly reversed the correct findings of learned trial Judge, which is also found to be suffering from jurisdictional defect as well and thus not sustainable.

2. In view of the above, allowing the civil revision, the impugned judgment and decree dated 4.11.2009 passed by the learned Additional District Judge, Kabirwala is set aside, as a result of which, the judgment and decree passed by the learned Civil Judge, Kabirwala dated 2.12.2004 shall stand restored.

(R.A.) Revision allowed

PLJ 2017 Lahore 520

Present:Muhammad Ali, J.

WAPDA through Chairman and 3 others--Petitioners

versus

MUHAMMAD JAVED--Respondent

C.R. No. 1310 of 2013, heard on 27.1.2017.

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

----S. 115--Civil revision--Dispute of metering equipment--Jurisdiction of Civil Court to adjudicate controversy--Validity--Suit was filed by a consumer against petitioners seeking declaration--Civil Court had no jurisdiction in the matter and it is only electric inspector, who can adjudicate dispute between the parties. [Pp. 522 & 523] A & B

PLD 2012 SC 371, 2006 MLD 636 ref.

Mr. Umar Sharif, Advocate for Petitioners.

Nemo for Respondent.

Date of hearing: 27.1.2017.

Judgment

Through this civil revision the petitioners have called in question the judgments and decrees dated 29.09.2010 passed by trial Court and that of appellate Court whereby suit filed by the respondent was decreed and appeal of the petitioners against the decision of trial Court was dismissed.

1. Brief facts of the case are that a suit was filed by the respondent against the petitioners seeking a decree for declaration and permanent injunction. It was stated that father of the respondent-plaintiff had obtained electricity connection for installation of tubewell under Reference No. 05-1551-17585007-R. After death of father of the respondent the electric connection is being used by him. The bills were issued to the respondent with excessive amount, the respondent time and again requested the petitioners to rectify the fault and send bills according to actual consumption. In December, 2005, petitioners issued bill of Rs. 67,888/- , this was result of wrong reading of meter because this much electricity was never consumed. The detection bill so issued was against the factual position.

2. The petitioners in their written statement contended that respondent has no cause of action. The suit is not maintainable and was filed in a mala fide manner, that respondent was found to have tempered the meter, the meter was checked by M&T Teams seals of the meter were found tempered. Resultantly Notice No. 1327 dated 18.02.2006 was issued to the plaintiff, the detection bill was lawfully issued to the plaintiff.

3. The learned trial Court framed necessary issues, recorded evidence of the parties, after hearing the parties decreed the suit vide judgment and decree dated 29.09.2010. The verdict of trial Court was challenged in appeal, the appeal was dismissedvide judgment and decree dated 28-01-2013 by upholding the decision of trial Court.

4. Learned counsel for the petitioner submits that essentially the dispute before the learned trial Court pertains to dispute of metering equipment. It was beyond the jurisdiction of a Civil Court to adjudicate the controversy regarding metering equipment. Submits that question of jurisdiction could be raised at any stage of the proceedings. In support of his arguments he has placed reliance on the cases of Multan Electric Power Company Ltd, through Chief Executive and another v. Muhammad Ashiq and others (PLD 2006 Supreme Court 328), Munawar Hussain and 2 others v. Sultan Ahmad (2005 SCMR 1388), Messrs Narowal Flour Mills through Managing Director v. WAPDA through Chairman and 3 others (2006 MLD 636), Water and Power Development Authority and others v. Messrs Kamal Food (Pvt.) Ltd. Okara and others (PLD 2012 Supreme Court 371) and Water and Power Development Authority and others v. Mian Muhammad Riaz and another (PLD 1995 Lahore 56).

5. Respondent is duly represented by a counsel. No one has entered appearance on behalf of respondent despite repeated calls, therefore, respondent is proceeded against ex-parte.

6. Arguments heard. Record perused.

7. As is evident from bare perusal of pleadings, Para No. 4 of the plaint and reply to Para No. 2 of the written statement as well as evidence of the parties and discussion under Issues No. 1 and 2 by the trial Court that the dispute in this case relates to metering equipment. The suit was filed by a consumer against the petitioners seeking declaration in this behalf. In view of law laid down in case of Water and Power Development Authority and others v. Messrs Kamal Food (Pvt.) Ltd. Okara and others (PLD 2012 Supreme Court 371), the matter falls within the jurisdiction of Electric Inspector because the detection bill was issued after it was found that metering equipment of the respondent was tempered. The operative part of the judgment reads as under:

“In Appeals Nos.1514 and 1515 of 2006 arising out of the same metering equipment at the premises of the respondent, the allegation of theft by the appellant related to the metering equipment. The respondent/consumer had questioned the detection bill in a civil suit and interestingly the appellant (licensee) had raised objection to the jurisdiction of the civil Court before the High Court on the ground that since the matter related to the correctness or otherwise of the metering equipment, the matter fell within the exclusive jurisdiction of the Electric Inspector. In view of our above discussion, such objection is sustained and we hold that the civil Court had no jurisdiction in the matter.”

1. Similar view has been expressed by this Court in the case of Messers Narowal Flour Mills through Managing Director v. WAPDA through Chairman and three others (2006 MLD 636), the operative part of the judgment reads as under:

“2. At the very outset of the hearing of the matter it has been realized that the Courts below have failed to take notice of the

legal position as to the jurisdiction of the Court and the maintainability of the suit as stated in Water and Power Development Authority and another v. Mian Muhammad Riaz and another (PLD 1995 Lah. 56). In the precedent case the learned Full Bench of this Court had taken the view that the controversies and dispute concerning the slowness of meter or other faults with the equipments fall within the jurisdiction of the Electric Inspector under Section 26 of the Electricity Act, 1910. The matter thus fell within the exclusive domain of Electric Inspector. The perusal of judgment of the trial Court as also of the appellate Court, however, shows that they were rather oblivious of this aspect of the matter, Since the very jurisdiction of the Court did not extend to try such a lis, the assumption of jurisdiction, the trial of the suit and the judgments rendered by both the Courts stand on no better footing than without jurisdiction. The same are, thus, liable to be set aside.”

1. Without commenting on merits of the case it is held that the Civil Court had no jurisdiction in the matter and it is only the Electric Inspector, who can adjudicate the dispute between the parties. This Civil Revision is accordingly allowed. The judgments and decrees of Civil Court and Appellate Court dated 29.09.2010 and 28.01.2013 respectively are hereby set aside, with no order as to costs.

(R.A.) Revision allowed

PLJ 2017 Lahore 523 (DB)

Present:Mrs. Ayesha A. Malik and Jawad Hassan, JJ.

SyedKHURRAM ABBAS BUKHARI etc.--Petitioners

versus

ELECTION COMMISSION OF PAKISTAN etc.--Respondents

W.P. No. 39505 of 2016, heard on 22.2.2017.

Punjab Local Government (Conduct of Election) Rules, 2013--

----Rr. 36(5) & 78--Punjab Local Government Act, 2013, Ss. 38, 39 & 41--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Election of Local Government--Application before election commission for recalling election results in union council was accepted--Power to recount votes--Denotified--Question of--Whether election commission could set aside notified result of election after calling for recount of votes, based on application moved by losing candidate--Jurisdiction--Election tribunal can declare election to be void on grounds given in Section 42 to 44 of Act--Therefore, power of declaring any election of any returned candidate to be void and power of declaring any other contesting candidate to have been duly elected vests solely with election tribunal and not with ECP--Hence if name of returned candidate is published in official gazette, an election petition has to be filed under Section 38 of Act r/w Rule 62 of Rules, 2013 before election tribunal and ECP cannot denotify any candidate on account of fact that there is a dispute on counting of votes--Grounds for declaring election of returned candidate as void are provided for in Sections 41, 42, 43 and 44 of Act which grounds must be invoked by Election Tribunal and Section 44 of Act specifically deals with issues where provisions of Act or Rules have not been followed--ECP could not have interfered in matter as petitioners were declared winning candidate for U.C. [Pp. 531 & 532] B, C & D

Punjab Local Government Act, 2013--

----S. 46--Appeal--Local Government election--Recalling election results--Denotified--Power of--An appeal against order of election tribunal lies before High Court under Section 46 of Act [P. 529] A

Mr. Mahmood A. Sheikh, Advocate for Petitioners.

Mr. Nasir Javed Ghumman, Advocate for Respondent-Election Commission of Pakistan for Respondents.

Mr. Mubeen-ud-Din Qazi, Advocate for Respondents No. 5 & 6.

Date of hearing: 22.2.2017.

Judgment

Mrs. Ayesha Malik, J.--Through this writ petition, the petitioners have impugned order dated 13.12.2016 issued by Respondent No. 1, Election Commission of Pakistan, Islamabad (“ECP”) along with notification dated 17.3.2016 declaring Respondents No. 5 and 6 to be the returned candidates as Chairman and Vice Chairman in Union Council No. 74, Jhamra of District Council Faisalabad.

The facts:

1. The basic facts in this case are that the Petitioners contested the elections for the seat of Chairman and Vice-Chairman of Union Council No. 74, Jhamra of District Council Faisalabad in the Local Government elections held on 31.10.2015. On 2.11.2015 Respondents No. 5 and 6 moved an application for recount of votes. The said application was not accepted and the result was consolidated and notified on 21.12.2015 declaring the Petitioners as returned candidates. The Petitioners took oath of their office on 14.1.2016. In the meanwhile, Respondents No. 5 and 6 moved another application before the ECP for recalling the election results in Union Council No. 74 which petition was accepted by the ECP on 4.1.2016 by calling for a report on the recount of votes and directing the Returning Officer to recount the votes. On receipt of the report, the ECP passed its short order dated 14.3.2016 declaring Respondents No. 5 and 6 as the returned candidates without giving any reasons for this decision. The short order was challenged in WP No. 9148/2016 and the impugned order of 14.3.2016 was set aside by this Court. The matter was sent back to the ECP to decide upon the issues raised afresh through a speaking order after hearing all necessary parties. The case was heard by the ECP and order dated 13.12.2016 was passed by the ECP which has been impugned in the instant Petition. In terms of the impugned order, Respondents No. 5 and 6 have been declared as the returned candidate against the seat of Chairman and Vice Chairman, Union Council No. 74, Jhamra of District Council Faisalabad and the Petitioners were denotified.

The arguments:

1. The question before the Court is whether the ECP could set aside the notified result of the election held on 31.10.2015 after calling for recount of votes, based on an application moved by the losing candidate. Learned counsel for the Petitioners argued that the ECP was not authorized to set aside the notified result of the election nor does the ECP have jurisdiction in the matter hence it could not recall the notified election results. Learned counsel further argued that the power to recount votes is under Rule 36(5) of the Punjab Local Government (Conduct of Election) Rules, 2013 (“Rules”). This power can be exercised before the consolidation of results and not after the consolidation of results. In this case, Respondents No. 5 and 6 moved an application for recount of votes which could not be entertained as the result had already been consolidated and notified on 21.12.2015. Learned counsel argued that in terms of Rule 62 of the Rules read with Sections 38 and 39 of the Punjab Local Government Act, 2013 (“Act”) no election can be called into question except by way of an election petition made by a candidate for that election. He argued that the only remedy available to Respondents No. 5 and 6 was in the form of an election petition before the Election Tribunal and as such there is no remedy available before the ECP. Learned counsel argued that the ECP is not the Election Tribunal and it has no jurisdiction or authority to denotify an elected candidate. In this regard, he has placed reliance on Ch. Muhammad Abdullah v. Ch. Abdul Wakil and others (PLD 1986 SC 487), Election Commission of Pakistan through its Secretary v. Javaid Hashmi and others (PLD 1989 SC 396), Jam Madad Ali v. Asghar Ali Junejo and others (2016 SCMR 251) and Muhammad Mamoon Tarar v. Election Commission of Pakistan and others (2016 CLC 1708).

2. Learned counsel for Respondents No. 5 and 6 argued that the ECP has acted in accordance with law on the basis of the powers that have been specifically provided under the Rules. He has relied upon Rule 78(b) of the Rules wherein he argued that the power of review has been given to the ECP to pass any order including rejection of ballot papers. Learned counsel argued that on the basis of this power the ECP is fully authorized to review any order passed by an officer under the Act or under the Rules including an order rejecting a ballot paper. In such cases, the ECP can denotify a candidate and set aside the election results if it deems it appropriate. Learned counsel further argued that these powers have been given to the ECP to ensure that the elections are carried out justly, fairly and in accordance with law. In this case, the count of votes had not been carried out in accordance with law and on account of the illegalities carried out by the Petitioners a wrong notification was issued declaring them to be the winning candidates. It is their case that there was a thin margin between the votes of the Petitioners and that of Respondents No. 5 and 6 which necessitated recount of the ballot papers to verify the result. Learned counsel argued that the Returning Officer while consolidating the election results did not comply with the mandatory provisions of Rule 36(2) of the Rules which required him to examine the ballot papers excluded from the count by the Presiding Officer. The grievance of Respondents No. 5 and 6 was that the Returning Officer did not examine the ballot papers of the rejected votes in the presence of the contesting candidates or their agents at the time of consolidation of results, hence they challenged it. This act of the Returning Officer gave rise to the genuine apprehension that the rejected votes contained valid votes on the basis of which they would become the winning candidates. Learned counsel argued that this argument was accepted by the ECP which relied upon the reports submitted by the Returning Officer with respect to ballot papers of four polling stations. In terms of the report, out of 34 rejected votes only 27 votes were actually rejected votes in Polling Station No. 72 of Ward No. 2. In the same way in Ward No. 5 of Polling Station No. 74/7 one valid vote was rejected and in Polling Station No. 74/8 of Ward No. 5 three more votes were added in favour of Respondents No. 5 and 6. In this way Respondents No. 5 and 6 were declared the winning candidates on account of the wrong counting and rejection of valid votes by the Returning Officer. In terms of the impugned order, the ECP has exercised its powers under Rule 78(c) of the Rules which authorizes it to order for a recount where certain illegalities have been committed. Learned counsel argued that similar question was raised before the august Supreme Court of Pakistan in Civil Appeal No. 190 of 2016 titled Mubashir Khalil Ansari and another v. Election Commission of Pakistan, Islamabad and others vide order dated 15.2.2016 which was ultimately decided on 1.6.2016 where the august Supreme Court of Pakistan decided the issue in favour of the ECP with respect to the provisions of Rule 78 of the Rules and in WP No. 429/2016 titled Syed Khurram Abbas Bukhari and one other v. Election Commission of Pakistan etc. with reference to the same Petitioners before this Court where this matter was also decided in favour of the ECP vide order dated 11.11.2016.

3. Learned counsel for Respondent ECP argued that the ECP is empowered under the Constitution of Islamic Republic of Pakistan, 1973 (“Constitution") to organize and conduct elections and make all arrangements that are necessary to ensure that the elections are held honestly, justly, fairly and in accordance with law. In this regard, learned counsel argued that the ECP had extensive powers to regulate the process of elections which included the power to denotify a successful candidate if his success was consent to illegalities in the process of election. Learned counsel argued that the ECP was empowered to make all such orders as were necessary to ensure that the elections were carried out fairly and honestly and that these powers allowed the ECP to pass any order even after the notification of the election results. In this regard, he has relied upon the case titled Workers’ Party Pakistan through Akhtar Hussain, Advocate, General Secretary and 6 others v. Federation of Pakistan and 2 others (PLD 2012 SC 681). Learned counsel further argued that the bar of Article 225 of the Constitution does not oust the jurisdiction of the ECP which can take notice of any irregularities or illegalities committed during the process of election in appropriate cases. Learned counsel argued that even otherwise the elections to the Local Government are not covered under the bar of Article 225 of the Constitution. Learned counsel argued that Rule 78 of the Rules gives sufficient powers to the ECP to rectify an illegality or irregularity caused during the election process in order to ensure that proper and honest result is announced and that in order to ensure fair elections the ECP can interfere in matters before or after the issuance of a notification of the result of elections. In this regard, he has relied upon the case titled Aftab Shahban Mirani and others v. Muhammad Ibrahim and others (PLD 2008 SC 779).

4. Heard and record perused.

The law:

1. The ECP derives its power to carry out Local Government elections from Article 140-A of the Constitution which provides as follows:--

140-A. (1) Each Province shall, by law, establish a Local Government system and devolve political, administrative and financial responsibility and authority to the elected representatives of the local government.

(2) Elections to the local governments shall be held by the Election Commission of Pakistan.

Article 218 of the Constitution is also relevant as it lays down the duty of the ECP as under:

1. (1) For the purposes of election to both houses of Majlis-e-Shoora (Parliament), Provincial Assemblies and for election to such other public offices as may be specified by law, a permanent Election Commission shall be constituted in accordance with this Article.

(2) The Election Commission shall consist of,--

(a) the Commissioner who shall be the Chairman of the Commission; and

(b) four members, each of whom has been a Judge for a High Court from each Province, appointed by the President in the manner provided for appointment of the Commissioner in clauses (2A) and (2B) of Article 213.

(3) It shall be the duty of the Election Commission to organize and conduct the election and to make such arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against.

Therefore elections for the Local Government are organized and conducted by the ECP, having the primary responsibility to ensure that the elections are held honestly, justly and fairly as per law.

1. The Local Government elections are regulated by Chapter V of the Act. Section 19 of the Act provides that the Election Commission shall conduct Local Government elections and shall by notification in the official gazette declare the election schedule under the Act. The ECP shall also make provisions for the conduct of Local Government elections and in terms of Section 21 it shall prepare the election rolls. Section 37 of the Act provides that every election or removal of an elected body shall be notified by the ECP. Section 38 of the Act provides that an election to the office of Local Government shall not be called in question except by way of an election petition. Section 39 of the Act requires the ECP to appoint an Election Tribunal to hear all election disputes. An appeal against the order of the Election Tribunal lies before the High Court under Section 46 of the Act. In terms of Section 41 of the Act the Election Tribunal is vested with the power to declare the election of a returned candidate to be void and to declare any other contesting candidate as the duly elected candidate. It can also declare the entire election as void and the grounds for declaring election as void are given in Sections 42 to 44 of the Act. Therefore the Act contemplates that all election disputes shall be decided by an Election Tribunal on the basis of the grounds provided for under the Act.

2. In exercise of powers under Section 144 of the Act, the Punjab Local Government (Conduct of Election) Rules, 2013 were made. Rule 3 of the Rules provides for the powers and functions of the ECP to conduct the elections. In terms of Rule 38 of the Rules, the Returning Officer shall consolidate the result and submit it to the District Returning Officer who shall send the result to the ECP. The ECP shall publish the result in the official gazette. In the instant case, the elections were held on 31.10.2015. The result was consolidated on 2.11.2015 and notified on 21.12.2015. After the notification of the result, Respondents No. 5 and 6 moved an application before the ECP wherein they prayed for recalling of the election in Union Council No. 74, Jhumra of District Council, Faisalabad and re-polling in Polling Station Jungle Sarkar (74/5) and Polling Station G.G.P.S Saiky (74/4). Essentially they required recount of votes on account of the fact that the victory of the Petitioners was on the basis of a very small margin of only three votes. In this regard Rule 38 specifically provides that there shall be no recounting of votes after the consolidation of the results, hence the Returning Officer can recount valid ballot papers before the consolidation of results but not after consolidation. In this case, the Returning Officer rejected the application before consolidation of the result. However, the Respondents moved another application after consolidation of the result before the ECP, who set aside the notification of the Petitioners essentially on the ground that the mandatory provisions of the Act and the Rules were not followed.

3. The question before us is whether the ECP had powers under Rule 78 of the Rules to direct for a recount of votes after the notification of the returned candidate, thereafter, denotify the winning candidate and notify the other candidate as the winning candidates. In this regard, Rule 78 of the Rules is reproduced below for facility of reference:-

4. Powers of Election Commission.–Save as otherwise provided, the Commission may:

(a) stop the polls at any stage of the election if it is convinced that it shall not be able to ensure the conduct of the election justly, fairly and in accordance with law due to large scale malpractices, including coercion, intimidation and pressures, prevailing at the election:

(b) review an order passed by an officer under the Act or the rules, including rejection of a ballot paper; and

(c) issue such instructions and exercise such powers, and make such consequential orders, as may in its opinion, be necessary for ensuring that an election is conducted honestly, justly and fairly, and in accordance with the provisions of the Act and the rules.

Learned counsel for the ECP argued that on the basis of the powers under Rule 78 of the Rules, the ECP has an overarching power to interfere with election results even after the notification is issued under Section 37 of the Act. It was also argued that this power of the ECP is over and above the power and remedy available before the Election Tribunal. We have heard the learned counsel and find that this argument is totally misconceived and against the statute. Rule 78 of the Rules prescribes the executive functions of the ECP to ensure that elections are carried out justly, fairly and in accordance with law as per the mandate of Article 140-A read with Article 218 of the Constitution. The exercise of power under Rule 78 of the Rules is to be exercised in relation to the conduct of the elections and not to adjudicate on election disputes. As per the Act once the election result is notified under Section 37 of the Act, any election dispute that arises thereafter must be referred to the Election Tribunal. This includes any dispute with respect to the recount of votes. This is the specific mandate of the Act creating a specialized tribunal to decide election disputes. There is no provision in the Act which gives the ECP the power to adjudicate on the election disputes. In this regard, Sections 38 and 39 of the Act specifically provides that an election dispute shall only be called into question by an election petition which is to be filed before an Election Tribunal. Hence the authority to settle election disputes vests with the Election Tribunal and not with the ECP. In this regard, it is clarified that an election dispute is one which requires resolution after the result is declared and the returned candidates are notified. In this way, the ECP completed its function of conducting the election and any dispute related to the manner in which the election was carried out or votes were counted will be referred to the Election Tribunal and not the ECP.

1. Furthermore we find that Section 41 of the Act specifically authorizes the Election Tribunal to declare the election of any returned candidate to be void and to declare any other contesting candidate as duly elected. In the same way the Election Tribunal can declare the election to be void on the grounds given in Sections 42 to 44 of the Act. Section 44 of the Act gives the Election Tribunal the power to declare the election as a whole void if it is satisfied that the provisions of the Act or the Rules have not been complied with. Therefore the power of declaring any election of any returned candidate to be void and the power of declaring any other contesting candidate to have been duly elected vests solely with the Election Tribunal and not with the ECP. We also find that the power relied upon by the Election Tribunal emanates from the Rules which Rules are delegated authority in terms of Section 144 of the Act. The power given to the ECP under the Rules are to ensure that the substantive powers under the Act are given effect meaning that the elections are carried out in the prescribed manner fairly justly and in accordance with law. The Act does not envision any overarching power with the ECP nor does it create a parallel adjudicatory body to adjudicate on election disputes. The spirit of the law is that the entire election process should be concluded before any challenge to the election process begins. This ensures that the election process is completed, before disputes arise contesting the result. The ECP is empowered under Rule 78 of the Rules to issue all necessary instructions and pass necessary orders so that the election is conducted honestly, justly and in accordance with law as per the provisions of the Act. If there is any issue during the process the ECP can look into the matter to ensure that the elections are carried out smoothly. However, once the result of the election is notified, any dispute arising thereafter must be placed before the Election Tribunal who is authorized under the Act to decide upon election disputes. Hence if the name of the returned candidate is published in the official gazette, an election petition has to be filed

under Section 38 of the Act read with Rule 62 of the Rules before the Election Tribunal and the ECP cannot denotify any candidate on account of the fact that there is a dispute on the counting of the votes. The grounds for declaring the election of the returned candidate as void are provided for in Sections 41, 42, 43 and 44 of the Act which grounds must be invoked by the Election Tribunal and Section 44 of the Act specifically deals with the issues where the provisions of the Act or Rules have not been followed.

1. In this case the ECP interfered in the matter on account of the procedural flaws urged by Respondents No. 5 and 6. Furthermore, Respondents No. 5 and 6 were aggrieved due to the small margin of victory in favour of the Petitioners. The issue squarely falls within the domain of an election dispute which could be heard by the Election Tribunal. The ECP could not have interfered in the matter as the Petitioners were the declared winning candidate for Union Council No. 74, Jhamra of District Council Faisalabad and any dispute in relation to his victory had to be raised before the Election Tribunal as that is the remedy prescribed under the law. Therefore this act of the ECP was totally without jurisdiction, hence illegal.

2. Under the circumstances, this petition is accepted and impugned order dated 13.12.2016 passed by Respondent No. 1 as well as notification dated 17.03.2016 declaring Respondents No. 5 and 6 to be the returned candidates as Chairman and Vice Chairman are set-aside. Consequently the notification dated 21.12.2015 is revived along with the oath of office taken by the Petitioners on 14.1.2016.

(R.A.) Petition accepted

PLJ 2017 Lahore 532

Present:Ch. Muhammad Masood Jahangir, J.

Mst. SHAFQAT GULL--Petitioner

versus

MUHAMMAD KHALID and 2 others--Respondents

W.P. No. 32316 of 2104, heard on 10.11.2016.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Sought permission to file list of witnesses--Turned down--Challenge to--Rule 7 of Order XVI of CPC can be invoked by Court itself qua person present in Court to give evidence or to produce documents, but same provision does not apply where person present in Court was required by party to give evidence, Courts below were quite perfect in dismissing prayer of petitioner for examining witnesses brought by her as petitioner had failed to submit list of witnesses within stipulated period and application tabled by her for bringing on record list of witnesses beyond prescribed period was already dismissed upto level of high Court--Orders were neither coram non judice nor ultra vires and petitioner has remained unable to point out any illegality committed by Courts below while passing impugned orders to warrant interference by High Court in exercise of constitutional jurisdiction. [P. 534] A & B

PLJ 2016 SC 724 ref.

Mian Liaquat Ali, Advocate for Petitioner.

Ch.Muhammad Imran Bhatti, Advocate for Respondent.

Date of hearing: 10.11.2016.

Judgment

In brevity, facts of the case are that petitioner instituted a declaratory suit against Respondent No. 1 before the learned Trial Court on 13.8.2008, which after facing contest by the rival party, settled issues on 23.2.2010, but despite its direction, petitioner omitted to file list of witnesses, to be examined before the Court within the specified period. Then after elapse of considerable period on 09.01.2012, petitioner tabled an application seeking permission to file list of witnesses, but the same was turned down by learned Trial Court vide order dated 4.7.2012, which was congealed by the learned Lower Revisional Court as well as this Court when civil revision and Writ Petition No. 32315/2014 were also dismissed. Thereafter, petitioner brought some witnesses for getting their statements recorded before the learned Trial Court, which through order dated 10.7.2013 refused to examine them and only allowed the petitioner to get her statement recorded. Being dejected, a civil revision was preferred by petitioner, which was dismissed by learned Addl. District Judge through impugned order dated 11.11.2014. Now the petitioner is before this Court for seeking permission to produce her witnesses while setting aside of orders passed by learned two Courts below.

1. The main contention raised by learned counsel for petitioner that as per Order XVI Rule 7 and Order XVIII Rule 4 of the Code of Civil Procedure, 1908 petitioner required examination of the witnesses produced by her in the Court and the Courts below erred in law while refusing to examine the said witnesses is not tenable. The identical preposition after referring afore referred provision has already been addressed by the august Supreme Court of Pakistan in the recent judgment reported as “Haji Zawar Khan through L.Rs vs. Haji Rehman Bangash and others” (PLJ 2016 SC 724) to the following effect:

“The rule quoted above provides that any person present in Court may be required by the Court to give evidence or to produce documents then and there in his possession or power. This provision does not apply, where the persons present in Court are required by a party to give evidence. Therefore, we don’t think this provision in any way would help the petitioner.”

1. In view of the above dicta, there left nothing to further dilate upon the matter when it has already been concluded by the apex Court that Rule 7 of Order XVI of the Code ibid can be invoked by the Court itself qua the person present in the Court to give evidence or to produce documents, but the same provision does not apply where the person present in the Court was required by the party to give evidence. In this view of the matter, I am satisfied that both the learned Courts below were quite perfect in dismissing the prayer of the petitioner for examining the witnesses brought by her as she failed to submit list of witnesses within the stipulated period and the application tabled by her for bringing on record the said list of witnesses beyond the prescribed period was already dismissed upto the level of this Court. The impugned orders are neither coram non judice nor ultra vires and the learned counsel for the petitioner has remained unable to point out any illegality committed by learned Courts below while passing the impugned orders to warrant interference by this Court in the exercise of constitutional jurisdiction.

2. Sequel of the above discussion is that the instant constitutional petition being devoid of any merit and force is dismissed.

(R.A.) Petition dismissed

PLJ 2017 Lahore 535 (DB) [Bahawalpur Bench Bahawalpur]

Present:Muhammad Sajid Mehmood Sheti and Tariq Iftikhar Ahmed, JJ.

NIB BANK LIMITED--Appellant

versus

M/s. PASBAN AGRO CHEMICALS COMPANY and others--Respondents

R.F.A. No. 157 of 2015/BWP, heard on 27.3.2017.

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

----O.XVII Rr. 2 & 3--Financial Institutions (Recovery of Finances) Ordinance, 2001, S. 22--Suit for recovery before banking Court--Dismissed due to non-production of evidence--Contentions--Absence of counsel was not willful but due to sheer miscommunication of date of hearing--Question of--Whether Banking Court rightly applied provisions of Order XVII Rule 3, CPC--Determination--Where a party to whom time was granted to do any of act mentioned in Rule 3, is absent and has also not done that particular act--Where there is no material on record and parties to suit or any other them fail to appear then, instead of Order XVII Rule 3, CPC Court would proceed under Order XVII Rule 2 i.e. either dispose of suit in one of modes directed in that behalf by Order IX, C.P.C or make such other order as it thinks fit--Provisions of law, regarding closing right of evidence, require greater care on part of Court, as it would shut out one party to defend itself and virtually it would be at mercy of other party to do justice between parties.

[Pp. 538, 539 & 540] A & E

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

----O.XVII R. 3--Right of evidence was closed--Time must be granted by Court at request of defaulting party--Attendance of witnesses--Time must be granted by Court at request of defaulting party--If time was not granted by Banking Court for production of evidence at instance of party against whom order was required to be made, then penal provision of Order XVII Rule 3, C.P.C. would not be applied against such a party, though in default on next date.

[P. 538] B

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

----O.XVII, R. 3--Suit for recovery before banking Court--Failed to produce despite availing absolute last opportunity for purpose--Even if Banking Court wished to proceed under Order XVII Rule 3, C.P.C., it was its duty to decide lis on merit after going through plaint and written statement and other material available on record, and after hearing arguments--Provisions of Order XVII Rule 3, C.P.C. have wrongly been invoked. [P. 539] C

Constitution of Pakistan, 1973--

----Art. 10-A--Substantial justice--Rights and obligations be adjudicated through due process of law--Law favours adjudication of cases on merits and technicalities would not be allowed to stand in way of substantial justice. [P. 539] D

Mr. Muhammad Basit Babar Chughtai, Advocate for Appellant.

Mr. Gulzar Ahmad Khan Durrani, Advocate for Respondents.

Date of hearing: 27.03.2017.

Judgment

Muhammad Sajid Mehmood Sethi, J.--Through instant Regular First Appeal, filed under Section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, order/judgment dated 23.07.2015, passed by learned Judge Banking Court, Bahawalpur, has been assailed, whereby suit filed by appellant was dismissed.

1. Precisely stating, facts of the case are that appellant-bank filed a suit for recovery of Rs. 1,095,531.39 before learned Banking Court, Bahawalpur, which was contested by respondents by filing application for leave to defend the suit. Initially, learned Banking Court dismissed leave application and decreed the suit in favour of appellant bank vide order dated 22.08.2006. Being aggrieved, Respondents No. 4 to 6 filed two appeals before learned Division Bench of this Court, which were allowed vide single judgment dated 09.04.2012, thereby remanding the case to learned Banking Court, with a direction to decide leave application afresh, after taking into consideration all the material available. After remand, learned Banking Court allowed leave application, framed issues and called for appellant’s evidence, which was not produced. Consequently, penal provisions of Order XVII Rule 3 of the Code of Civil Procedure, 1908 were invoked and, as a result, suit filed by appellant-bank was dismissed due to non-production of evidence, vide order/judgment dated 23.07.2015, which has been assailed through instant appeal.

2. Learned counsel for appellant submits that appellant and its counsel could not appear before learned Banking Court on the fixed date due to noting of wrong date of hearing in his diary by mistake. He further submits that absence of the counsel before learned Banking Court was not willful but due to sheer miscommunication of date of hearing. He adds that impugned order/judgment is not sustainable in the eye of law.

3. On the other hand, learned counsel for Respondents No. 4 to 6 defends the impugned order/judgment and submits that appellant-bank has failed to point out any illegality or legal infirmity in the impugned order/judgment, thus, the same is liable to be upheld under the law.

4. Arguments heard. Available record perused.

5. The impugned order/judgment is reproduced hereunder:-

“The Counsel for the defendant is present whereas no body is present on behalf of the plaintiff. The Suit was fixed for evidence of the plaintiff with absolute last opportunity but neither the plaintiff, the counsel for the plaintiff nor witnesses of the plaintiff are present. Perusal of the record reveals that many opportunities have already been given to the plaintiff for production of his evidence but the plaintiff has not produced his evidence. The case in hand falls in the category of old cases which are to be disposed off till 31.07.2015. In the given circumstances when the plaintiff the counsel for the plaintiff and the witnesses of the plaintiff are not present today in the Court, the evidence of the plaintiff is closed and the suit is hereby dismissed due to non production of evidence. The parties are left to bear their own cost. File be consigned to record room.”

1. Perusal of impugned order/judgment shows that despite grant of absolute last opportunity, neither appellant nor its counsel appeared on 23.07.2015, as a result whereof, appellant’s evidence was closed and suit was dismissed due to non-production of evidence. Plea of appellant-bank is that due to noting of wrong date of hearing in its counsel’s diary by mistake, evidence could not be produced on the fixed date. In support thereof, learned counsel’s diary has also been produced. However, learned counsel for respondents has not seriously controverted the assertion of his counterpart.

2. The question for determination before this Court is whether learned Banking Court rightly applied the provisions of Order XVII Rule 3, C.P.C. The said provisions of law are reproduced hereunder for ready reference:--

“Court may proceed notwithstanding either party fails to produce evidence, etc.--Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, proceed to decide the suit forthwith.”

The above provisions of law, being penal in nature, are to be strictly construed and action has to be taken only if the party acts contumaciously and despite repeated opportunities, commits any of the defaults enumerated in the said Rule. It is pertinent to point out here that the words “proceed to decide the suit forthwith” do not mean “to decide the suit forthwith” or “dismiss the suit forthwith”. Court may proceed with the suit notwithstanding either party failed to produce evidence, meaning thereby that in case of default to do a specific act by any party to the suit, next step required to be taken in the suit should be taken. Word “forthwith” means without any further adjournment yet it cannot be equated with the words “at once pronounce the judgment” as used in Order XV Rule 4, CPC. Reference in this regard can be made to Muhammad Aslam v. Nazir Ahmed (2008 SCMR 942) and Israr Ahmed Afzal v. Haji Muhammad Azam and another (2016 MLD 1490).

1. Where the party has failed to produce evidence, the Court may close its evidence and proceed to record the evidence of the other party or decide the case on the basis of material available on record. Needless to observe here that there may be cases to which both Rules 2 and 3 of Order XVII of CPC are applicable, as for instance, where a party to whom time was granted to do any of the act mentioned in Rule 3, is absent and has also not done that particular act. In such cases, if there is material on record, the Court should proceed under Rule 3 and decide on merits, otherwise it should proceed under Rule 2. Where there is no material on record and parties to the suit or any other them fail to appear then, instead of Order XVII Rule 3, Court should proceed under Order XVII Rule 2 i.e. either dispose of the suit in one of the modes directed in that behalf by Order IX, C.P.C or make such other order as it thinks fit. Where there is material on the record, it should proceed to decide the suit under Order XVII Rule 3.

2. In order to attract the penal provisions of Order XVII Rule 3, C.P.C., time must be granted by the Court to party for doing certain acts, which were to produce evidence, to cause attendance of their witnesses, or to perform any other act necessary to the further progress of the suit. Time must be granted by the Court at the request of the defaulting party. If time was not granted by learned Banking Court for production of evidence at the instance of the party against whom order was required to be made, then penal provision of Order XVII Rule 3, C.P.C. would not be applied against such a party, though in default on next date.

3. Learned Banking Court was of the view that appellant-bank failed to produce evidence despite availing absolute last opportunity for the purpose. Even if learned Banking Court wished to proceed under Order XVII Rule 3, C.P.C., it was its duty to decide the lis on merit after going through the plaint and written statement and other material available on record, and after hearing arguments of learned counsel for the parties. Since the case has not been decided on merit, therefore, provisions of Order XVII Rule 3, C.P.C. have wrongly been invoked. Even otherwise, contention of learned counsel for appellant-bank that due to noting of wrong date of hearing by mistake, he could not appear and produce evidence, is supported from his affidavit as well as diary, which have not been seriously opposed by learned counsel for respondents.

4. Article 10-A of the Constitution of the Islamic Republic of Pakistan, 1973 mandates that rights and obligations be adjudicated through due process of law. Law favours adjudication of the cases on merits and technicalities should not be allowed to stand in the way of substantial justice. Appellant-bank cannot be non-suited simply on technical ground. Instant appeal also discloses sufficient cause for non-production of evidence i.e. “misunderstanding as to the date of hearing in the order passed by this Court” in the light of Ghulam Qasim v. Ghulam Hussain (PLD 1992 Supreme Court 577), the operative part of which is reproduced hereunder:

“In presence of all these possibilities, the learned Judge when assuming another possibility about the ulterior motives of the learned counsel, with respect, perhaps ignored the aforenoted possibilities. This Court in an identical situation confronted by a lawyer in making honest assessment about the timings regarding hearing of cases had allowed the benefits of honest miscalculation, misunderstanding, mistiming or even misinformation. These human innocent failings if are permitted to be relied upon as explanations by ordinary individuals and litigants, the lawyers are also entitled to due consideration in this behalf. See Jan Muhammad v. Muhammad Asghar (PLD 1981 SC 513); Jamal Din v. Ramzan 1982 SCMR 471 and Mst. Baigan v. Abdul Hakeem 1982 SCMR 672.”

1. Even otherwise, learned Banking Court could have adjourned the matter subject to deposit of cost before taking extreme measure of closing right of evidence. The provisions of law, regarding closing the right of evidence, require greater care on part of the Court, as it would shut out one party to defend itself and virtually it would be at the mercy of other party to do justice between the parties.

2. In view of above discussion, instant appeal is allowed and impugned order/judgment dated 23.07.2015 is set aside. The appellant-bank is granted one more opportunity of leading evidence, subject to payment of cost of Rs. 10,000/- to be paid to Respondents No. 4 to 6, failing which this appeal shall be deemed to have been dismissed. Parties are directed to appear before learned Banking Court on 17.04.2017.

(R.A.) Appeal allowed

PLJ 2017 Lahore 540 [Multan Bench Multan]

Present:Asjad Javaid Ghural, J.

MUHAMMAD SHAHID--Petitioner

versus

STATE and another--Respondents

W.P. No. 2353 of 2017, decided on 14.3.2017.

Punjab Pure Food (Amendment) Act, 2016 (VI of 2016)--

----Ss. 23-A, 23-B, 23-C, 23-D & 23-E 7 6--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Manufacturing oil from fat and residuary of animal as well as heirs--No time of raid was mentioned--Nominated in crime report yet was not arrested at spot--Validity--Investigator could not even brought on record even a single piece of evidence showing with certainty that petitioner was owner of alleged business--Petitioner has joined investigation and nothing is required to be recovered from him--Petition was allowed.

[P. 541] A

Mr. Nadeem Ahmad Tarar, Advocate along with Petitioner.

Mr. Sarfraz Khan Khichi, DDPP for State.

Complainant in person.

Date of hearing: 14.3.2017.

Order

Through this constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 petitioner Muhammad Shahid has sought pre-arrest bail in case FIR No. 597 dated 29.09.2016, in respect of offences under Sections 23-A, 23-B, 23-C, 23-D, 23-E & 6 of The Punjab Pure Food (Amendment) Act, 2016 (VI of 2016), registered at Police Station, Muzaffarabad, Multan.

1. Allegation against the petitioner, as contained in the crime report is that Muhammad Iqbal Khan, TMO along with other officials conducted a raid on receiving an infomiation in the area of Fatool Pura where the petitioner alongwith his co-accused was found indulged in manufacturing oil from the fat and residuary of the animal as well as the hens. It was alleged that they were providing melted residuary of the animal to different hotels for preparing Samos Pakora.

2. I have heard learned counsel for the petitioner, learned Deputy District Public Prosecutor appearing for the State and have perused the record.

3. Bare perusal of the crime report shows that no time of the alleged raid has been mentioned. The petitioner was though nominated in the crime report yet he was not arrested at the spot. It is the case of the petitioner that he had nothing to do with the alleged business of melting residuary of the animal, which was actually owned by one Liaqat Ali Khan, who was not an accused in this case and that as per partnership deed available on the police file, one Liaqat Ali Khan was owner of the business for manufacturing poultry protein. The perusal of record goes to evince that the investigator could not even brought on record even a single piece of evidence showing with certainty that the petitioner was owner of the alleged business. Moreover, nothing is available on record to show that as to which shop the alleged melted residuary was provided by the petitioner. The petitioner has joined the investigation and nothing is required to be recovered from him. In the commending circumstances of the case, insistence of the investigating agency upon arrest of the petitioner at this stage appears to be unnecessary and thus, smacking of bad faith.

In view of what has been discussed above, the petition in hand is allowed and the concession of ad interim pre arrest bail already granted to the petitioner stands confirmed subject to his furnishing fresh bail bonds in the sum of Rs. 100,000/- (one lac) with one surety in the like amount to the satisfaction of the trial Court.

(R.A.) Petition allowed

PLJ 2017 Lahore 542

Present:Ali Baqar Najafi, J.

AMEER HAIDER and another--Petitioners

versus

GENERAL MANAGER (PUNJAB-NORTH), NATIONAL HIGHWAY AUTHORITY, SHAHPUR INTERCHANGE, THOKAR NIAZBEG, MULTAN ROAD, LAHORE and 9 others--Respondents

W.P. No. 5242 of 2013, decided on 30.1.2017.

National Highway Authority (Appointment and Promotion) Service Rules, 1995--

----Rr. 2 & 3--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Employment and recruitment of officials--Relaxation of rules--Domain of board--Power to control--Validity--N.H.A. (Appointment fie Promotion) Service Rules, 1995 competent authority means “Executive Board” and under Rule 3 it is the Executive Board which creates posts and their designation, and under Rule 6, the appointment to various post are made by designated authorities. [P. 543] A

MianBilal Bashir, Advocate for Petitioners.

RaiM. Javed Iqbal Kharral, Advocate for Respondents No. 1, 2, 4 and 5.

Mr. Abdul Rehman Khan, Advocate for Respondents No. 7 to 10.

Date of hearing: 30.1.2017.

Order

Through this constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 petitioners seek a declaration from this Court that the Executive Board’s decision made in the 224th meeting dated 07.01.2013 regarding creation of 1976 posts in different cadres was illegal on the grounds that Board is neither competent nor authorized to create such posts of BS-16, and, that, in this way, the right of promotion of the officials will be seriously prejudiced. Places reliance upon Massrs Mehraj Flour Mills and others versus Provincial Government and others (2001 SCMR 1806).

1. Brief facts giving rise to the filing of this writ petition are that in the year 2008, the National Highway Authority advertised recruitment of the posts in pay scales (BS-1 to BS-20) in different temporary projects. According to rules of business of Federal Government, BS-20 post could only be filled through Central Selection Board and not by any other authority but the executive board/Respondent No. 2 decided to relax the rules of appointment through written test. Since the National Highway Council, did not approve the relaxation of rules, therefore, its selection by the executive board and regularization of the employees were challenged.

2. In the report and parawise comments submitted, by Respondents No. 1, 3, 4,5 and 6, it was stated that regularization of the employees will not affect the seniority of the regular employees who will be promoted against their respective quotas. It was added that powers to control, manage and formulate the policy decision were within the domain of Board which include the provision of employment and recruitment of the officials. Further adds that respective High Courts of Peshawar, Karachi and Islamabad have dismissed such petitions, therefore, the same view be observed by this Court.

3. Arguments heard. File perused.

4. After hearing the learned counsel for the parties and perusing the available file, it is straightway observes that under Rule 2 of the National Highway Authority (Appointment & Promotion) Service Rules, 1995 competent authority means “Executive Board” and under Rule 3 it is the Executive Board which creates posts and their designation, and under Rule 6, the appointment to various post are made by designated authorities. Rules 2, 3 and 6 are reproduced as under:--

5. DEFINITIONS

(1) Unless there is any thing repugnant in the subject or context the terms used in the rules are defined hereunder:--

| | | | --- | --- | | (a) “Authority” | Means National Highway Authority established under National Highway Authority Act 1991. | | (b) “Competent Authority” | Means the Executive Board of National Highway Authority or any officer to whom powers under these rules are designated. | | (c) “Employee” | Means a person regularly appointed by the competent authority for service of the Authority. |

1. CREATION OF POSTS AND THEIR DESIGNATIONS.

The competent authority may create such permanent and or temporary posts and designate and or abolish the same as it may deem expedient for the efficient performance of function of the Authority within the orbit of powers originally held or delegated, subject to observance of instructions issued by Federal Government from time to time.

1. The authorities competent to make appointments to the various posts shall be as follows: -

| | | | --- | --- | | S. No. Post | Appointing Authority | | 1. Posts in basic pay scales 20 and above | President National Highway Council. | | 2. Posts in basic pay scales 18 & 19 | Executive Board of NHA | | 3. Posts in basic pay Scales 16 & 17 | Chairman, NHA | | 4. Posts in basic pay scales 11 to 15 | Member (Admn) | | 5. Posts in basic pay scales 1 to 10 | (1) Regional GMs (2) Director (Admn) or nominee of of chairman NHA at head office. |

1. In view of what has been stated above, this writ petition has been found merit less and is therefore dismissed.

(R.A.) Petition dismissed

PLJ 2017 Lahore 545 [Multan Bench Multan]

Present: Habib Ullah Amir, J.

TMA, etc.--Petitioners

versus

M/s. AKRAM & CO., etc.--Respondents

W.P. No. 3471 of 2007, decided on 30.1.2017.

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

----O.VII R. 10--Right to file written statement, struck of--Suit for rendition of account--Irreparable loss--Requirement of law--No specific order in respect to supply of copy of plaint was passed--Validity--It is now settled principle of law that Rule 10 of Order 8 CPC applies only to a specific requirement by Court for written statement--Summons were not duly annexed with copy of plaint and same was received by petitioners subsequently and there is no specific order in respect to supply of copy of plaint and in circumstances/when petitioners had not received copy of plaint, still they had time to file written statement and written reply within specified period under provisions of CPC but such fact was neither considered by Civil Judge nor Addl. District Judge. [P. 547] A & B

Ch. Saleem Akhtar Warraich, Advocate for Petitioners.

Nemo for Respondent No. 2.

Date of hearing: 30.1.2017.

Order

The petitioners have assailed order dated 31.05.2006 passed by the learned Civil Judge, Multan, whereby right of the petitioners to file written statement was struck of and judgment dated 26.05.2007 passed by learned Addl. District Judge, Multan whereby order passed by learned Civil Judge was upheld.

1. Briefly the facts of the case are that Respondent No. 1, M/s. Akram & Company instituted a suit for rendition of accounts before the learned Civil Judge, Multan. On 06.05.2006 learned counsel for the petitioners appeared and submitted memo. of appearance, whereafter he was directed to submit written reply and written statement within two days i.e. till 13.05.2006 and afterwards case was adjourned to 17.05.2006, 24.05.2006, 29.05.2006 and 31.05.2006. However, the petitioners failed to file written reply and written statement and the learned Civil Judge struck of the defence and feeling aggrieved the petitioners filed revision petition which remained pending in the Court of learned Addl. District Judge, Multan, who dismissed the same, hence, this writ petition.

2. Learned counsel for the petitioners contends that under the law, the defendants/petitioners had right to submit written statement within three months, whereas the defence was struck of within 20 days in a hasty manner without affording the opportunity to hear the petitioners; that it has failed to appreciate that huge interest of the petitioners is involved in the suit and in case an opportunity to file written statement is not granted they will suffer irreparable loss and even otherwise the requirements of law is that the matters should be disposed of on merits, however, the petitioners have been knocked out on account of technicalities; that the impugned order passed by the learned Civil Judge and judgment passed by the learned Addl. District Judge, Multan are illegal, against law and facts of the case and the same are not sustainable in the eye of law.

3. Arguments heard. Record perused.

4. Respondent No. 1, M/s. Muhammad Akram through his suit has claimed that the plaintiffs were awarded contract of recovery of license fee, permit fee and sanitation fee for the year 2005-06 by the defendants. However, it transpired subsequently that various officials of TMA had already been collecting fee and the matter was agitated. Defendants kept the agreement with them without providing copy of same to the plaintiffs and they time and again asked the defendants that various traders were adamant and refused to pay the said fee. However, a notice was served to him on 29.04.2006 which made the plaintiff to institute suit on 06.05.2006 in sequence to which a notice was issued to the defendants and on 09.05.2016 none appeared from the side of the petitioners and it was directed that respondents shall be restrained from cancelling the contract or using any coercive measures for the recovery of outstanding amount without disposing of the application filed by the plaintiffs with them and thereafter on 17.05.2006 learned counsel for the defendants appeared before Court and case was adjourned to 24.05.2006, 29.05.2006 and 31.05.2006. On 31.05.2006 written statement was not filed and thus right to submit written statement was closed.

5. The order sheet annexed with this petition has been perused which reflects that routine orders were made by the learned Civil Judge directing for submission of written statement and even it has failed to appreciate by the learned Addl. District Judge that the case was adjourned on each date on the request of the petitioners to file written statement rather no specific order was passed and the order of trial Court has not been found in accordance with law laid down by the superior Courts. It is now settled principle of law that Rule 10 of Order VIII, CPC applies only to a specific requirement by the Court to the filing of written statement and not a general direction in the summons that such a written statement may be filed as per principle laid down by the superior Courts. Learned counsel for the petitioners has also taken a stance that the summons were not duly annexed with the copy of the plaint and the same was received by the petitioners subsequently and there is no specific order in respect to the supply of copy of plaint and in the circumstances when the petitioners had not received copy of the plaint, still they had time to file written statement and written reply within specified period under the provisions of CPC but this fact was neither considered by the learned Civil Judge nor the learned Addl. District Judge. It has been held by the superior Courts that mere technicalities should not be allowed to defeat the ends of justice and the Hon’ble Supreme Court has also held that after the addition of Article 2-A in the Constitution that the cases must be decided on merits instead of technicalities. Reliance is placed on ‘Metropolitan Corporation of Lahore through Administrator and another versus Lease Pak Limited’ (2001 CLC 200). The impugned order has been passed by the learned Civil Judge in a hasty manner without applying independent judicial mind and also ignoring that valuable rights of the petitioners are involved in suit and thus the impugned order dated 31.05.2006 passed by learned Civil Judge and the judgment dated 26.05.2007 passed by learned Addl. District Judge are not sustainable in the eye of law, therefore, this petition is accepted, impugned order dated 31.05.2006 passed by learned Civil Judge, Multan and judgment dated 26.05.2007 passed by learned Addl. District Judge, Multan are set aside. Petitioners are afforded with one opportunity to submit written statement after appearance before the learned Civil Judge and in case despite availing of one opportunity to submit written statement the same is not filed, the learned Civil Judge

would be at liberty to proceed in accordance with law. Parties are directed to appear before the learned District Judge, Multan on 08.02.2017, who is directed to entrust the matter to a Court of competent jurisdiction for disposal of the same in accordance with law.

(R.A.) Petition accepted

PLJ 2017 Lahore 548

Present: Syed Mansoor Ali Shah, C.J.

MUHAMMAD SHAFIQ-UR-REHMAN--Petitioner

versus

FEDERATION OF PAKISTAN, etc.--Respondents

W.P. No. 7122 of 2017, decided on 15.3.2017.

General Statistics (Reorganization) Act, 2011--

----S. 2(c)--United National Convention on Rights of Person with Disabilities, Art. 31--Constitution of Pakistan, 1973, Arts. 9, 14, 25 & 199--Constitutional petition--National population census--Disabilities person--Persons with disabilities shall not be discriminated and given full participation and inclusion in society persons with disabilities through census data can be utilized for general planning programmes and services--Fundamental rights--Category of transgender under column of sex in Form-2--Mechanism--Validity--Depriving persons with disabilities from being included and counted in national census will offend their welfare and future prospects as state has no credible information regarding their population, hence, exclusion of persons with disabilities from Census (head count) is in violation of right to life and human dignity under Arts. 9 and 14 of Constitution besides being discriminatory under Art. 25 of Constitution--On same analogy and in order to safeguard fundamental rights of persons with disabilities, information regarding disability can easily be included in Column No. 3 pertaining to “Sex” by assigning Codes--Such mechanism is workable and does not upset calendar of upcoming national census and also advances fundamental rights of persons with disabilities--Therefore, Bureau is directed to immediately issue instructions to field staff to insert codes or numbers, where required in Column No. 3 of Form at time of collection of data starting. [Pp. 550, 551 & 552] A, B & C

M/s. Mohammad Nabeel Khan Dahir and HamzaKhalid Randhawa, Advocates for Petitioner.

Mr. Nasar Ahmad, Deputy Attorney General for Pakistan.

Ms. Hina Hafeezullah Ishaq, Assistant Attorney General for Pakistan.

Mr. Akbar Ali Dogar, Joint Census Commissioner, Pakistan Bureau Statistic, Lahore.

Mr. Khalil-ur-Rehman Rana, Deputy Census Commissioner/Admn, Pakistan Bureau Statistic, Lahore.

Mr. Mohsin Mumtaz, Civil Judge/Research Officer, Lahore High Court Research Centre (LHCRC).

Date of hearing: 15.3.2017.

Order

(Inclusion of persons with disabilities in Census Form-2)

This is a public interest petition praying that the persons with disabilities or persons with special abilities (commonly and wrongly referred to as “disabled persons”) are not being included and counted in the upcoming National Population Census conducted by the Federal Government. It is submitted that Census under Section 2(c) of the General Statistics (Re-organization) Act, 2011 means housing and population census. It is submitted that population includes all classes of population and by not enumerating persons with disabilities, the upcoming National Census is incomplete and defective besides being violative of the fundamental rights of persons with disabilities.

1. Learned DAG and Assistant Attorney General alongwith Joint Census Commissioner, Pakistan Bureau Statistic, Lahore relying on parawise comments filed by the concerned Bureau submit that as per decision of the Council of Common Interest, Form-2 pertains to core questions which will be used in the census operation while Form-2-A containing questions on fertility, migration, unemployment and disability is to be canvassed on a sample basis after the census operation is over in September, 2017. It is submitted that even in the last census in 1998 information regarding disability was collected on sample basis.

2. According to Article 31 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) which has been ratified by Pakistan in 2011 it is an international obligation on Pakistan to collect appropriate information regarding persons with disabilities in order to formulate and implement policies to give effect to the purposes of the Convention. Convention mandates that persons with disabilities have inherent dignity, individual autonomy including freedom to make one’s own choices and independence of persons. It also mandates that persons with disabilities shall not be discriminated and given full participation and inclusion in the society and be accepted as a part of human diversity and humanity.[1] The lack of data and information on disability and the situation of persons with disabilities at the national level contributes to the invisibility of persons with disabilities in official statistics, presenting an obstacle to achieving development planning and implementation that is inclusive of persons with disabilities.”[2]

3. International material placed before the Court by the Research Centre of Lahore High Court, Lahore shows that it now is a global practice to include persons with disabilities in the population census and this practice is being followed in USA, UK, Australia, India, Indonesia, Italy, South Africa, Sri Lanka, Viet Nam, Brazil, Korea, Mauritius amongst other countries.

4. According to United Nation Principles and Recommendations for Population and Housing Census (Revision 2) the importance of collecting information regarding the persons with disabilities through census data can be utilized for general planning programmes and services (prevention and rehabilitation), monitoring selected aspects of disability trends in the country, evaluation of national programmes and services concerning the equalization of opportunities, and for international comparison of selected aspects of disability prevalent in countries. The above shows that depriving the persons with disabilities from being included and counted in the National Census will offend their welfare and future prospects as the State has no credible information regarding their population, hence, exclusion of persons with disabilities from Census (head count) is in violation of right to life and human dignity under Articles 9 and 14 of the Constitution besides being discriminatory under Article 25 of the Constitution.

5. I have examined Form-2 in detail with the assistance of the Joint Census Commissioner which is as follows:

It is pointed out that information to be collected in the said Form is in the shape of Codes/Numbers because the Form is machine readable. He submits that at this stage new forms cannot be printed and there is no possibility in the existing Form to include the Codes or Numbers which would identify persons with disabilities.

1. Recently through an order of this Court dated 09.01.2017 passed in Writ Petition No. 37499/2016 the Bureau agreed before this Court to include the category of “Transgender” under the column of “Sex” in Form-2 (above). Perusal of Form-2 reveals that there is no specific mention of “Transgender” in column 3. Explaining the position, the Joint Census Commissioner submits that in order to comply with the undertaking given before the Court, the field staff has been instructed to assign Code/Number-3 to “Transgender” in the said column. On the same analogy and in order to safeguard the fundamental rights of the persons with disabilities, information regarding disability can easily be included in Column No. 3 pertaining to “Sex” by assigning the following Codesor numbers:

| | | | --- | --- | | Category | Code/Numbers | | Male | 1 | | Female | 2 | | Transgender | 3 | | Male (with disability) | 4 | | Female (with disability) | 5 | | Transgender (with disability) | 6 |

These codes can easily be inserted in the machine readable form with the slight modification in the software and the column pertaining to “Sex” would now include “Sex/Disability” This mechanism would help to collect information regarding the persons with disabilities, as well as, their gender. I am aware of the fact that disabilities have a variety of categories, however, the same cannot be gone into at this stage. Having a general head count of persons with disabilities is far more important than not having any information at all. I am of the view that this mechanism is workable and does not upset the Calendar of the upcoming National Census and also advances the fundamental rights of the persons with disabilities. Therefore, Bureau is directed to immediately issue instructions to the field staff to insert the above Codes or Numbers, where required in Column No. 3 of the Form at the time of collection of data starting from 18.03.2017.

1. PEMRA is directed to disseminate this order nationwide at the earliest for the convenience of the people in general and for the field staff of the Bureau in particular. Office is directed to fax a copy of this order to PEMRA.

2. Office will also dispatch a copy of this order to the Media Cell of the Lahore High Court for onward delivery of the said order to Court Reporters for its wide dissemination.

3. Bureau is also directed to ensure that the next population census includes a special column relating to persons with disabilities alongwith their categories.

4. For the above reasons, this petition is allowed.

(R.A.) Petition allowed

[1]. Article 3 of the CRPD.

[2]. Monitoring and Evaluation of Disability-Inclusive Development, United Nations.

PLJ 2017 Lahore 553

Present: Ch. Muhammad Iqbal, J.

SUI NORTHERN OFFICERS COOPERATIVE HOUSING SOCIETY LTD.--Petitioner

versus

MEMBER (JUDICIAL-V) BOARD OF REVENUE PUNJAB etc.--Respondents

W.P. No. 2411-R of 2017, decided on 13.2.2017.

Constitution of Pakistan, 1973--

----Art. 199--W.P. Rehabilitation Settlement Scheme--Scope of--Evacuee Property and Displaced Persons Laws (Repealed) Act, 1975, Ss. 2 & 3--So called allotment order is not sustainable in eyes of law--Principle of lis-pendens--Allotment was obtained on basis of forged power of attorney and agreement to sell--Notification--Board of revenue--Error in measurement of land--Clerical mistake--Refused to make allotment on ground of repeal of settlement laws--Non-availability of evacuee agricultural land--Issuance of entitlement certificate--Commissioner was competent to convert agricultural land into building site--Validity--Undoubtedly allotment order was procured on basis of fraud which had rightly been declared to be without lawful authority by notified officer, as land allocated in urban area having been declared as building sites which was not available for transfer against unsatisfied produce units (PIU)--Hence status of evacuee property as existing on such date could not be changed or converted subsequent to promulgation of said enactment--Authority for disposal of property or residual work was merely to be restricted to finalize rehabilitation process--Notified officer had no jurisdiction to allot, or transfer land or grant alternate land against unadjusted verified units--It is settled principle of law that fraud vitiates most solemn proceedings, acts, instrument, deed, judgment or decrees obtained through fraud and any superstructure so built shall automatically crumble down and same can be questioned at any time before Court of law and no party should be allowed to take advantage of his own fraud--Mere possession over any evacuee land would not bring case as pending proceedings within contemplation of provisions of Sections 2 and 3 of Repealed Act 1975--Undoubtedly, allotment order was obtained on basis of forged document got prepared by unauthorized attorney in favour of original allottees within urban limits of against agricultural claim in year 1996 after repeal of Act, whereas allotted land had already been declared as a building site and jurisdiction of notified officer was/is explicitly barred to deal with affairs of such land/property in any manner whatsoever and even if, any order passed in violation of notification, that would be treated as void and coram non judice, unjustifiable as urban properties cannot be allotted against rural agricultural unit--It is well established by now that where any gain has been obtained by exercising fraud, same forum is vested power to undo same--Land was got allotted by exercising fraudulent means and it is settled law that fraud vitiates most solemn proceedings, and no party should be allowed to take advantage of its fraud and any edifice built on fraud must be crumbled down automatically--Petitioner was under mandatory obligation to be vigilant about title of vendors under principle, but he failed to fulfill its obligation toward bona fide investigation of ownership or title of original so called allottee which was under shadow of serious danger of unpredictable outcome of pending proceedings--Moreover, subsequent purchaser/title holder has to swim and sink with original allottee and is debarred to claim better rightsqua person from whom he derived title--Original allottee has not challenged impugned order till to date, whereas petitioner, who is subsequent purchaser filed instant petition calling in question vires of order after lapse of 2 years 6 days from date of passing of same, as such, principle of laches is fully attracted in instant case, so, instant writ petition is also not maintainable.

[Pp. 559, 560, 561, 568, 569, 570, 572 & 573] A, B, C, D, E, G, H, I, J & K

Displaced Persons (Land Settlement) Act, 1958--

----Ss. 10 & 11--So called allotment order--Claimants may seek remedy in competent forum for compensation against verified claim--Produce index units possessed by them had not been adjusted and mere pendency of any application would not be treated as pending proceedings and confer any jurisdiction to notified officer to make allotment of land already declared as building site against residual or unadjusted agricultural claim. [P. 569] F

M/s. Tauqeer A. Munir, Mian Muhammad Mohsin and Ghazanfar Ali Syed, Advocates for Petitioner.

Mr. Muhammad Sohail Dar, Advocate for Respondents.

Date of hearing: 13.02.2017.

Judgment

Through this constitutional petition, the petitioner challenges order dated 19.01.2015 passed by the Member (Judicial-V) Board of Revenue/Administrator (Residual Properties)/Notified Officer, Punjab whereby the allotment order dated 22.08.1996 in favour of Mst. Riaz Fatima and Mst. Mukhtar Fatima was recalled.

1. Brief facts of the case are that Mst. Riaz Fatima and her sister Mst. Mukhtar Fatima migrated to Pakistan in the year 1947. They filed their rural claim in the year 1957 but due to some error in the measurement of land the claim of the said ladies was verified by the claim officer after correcting the clerical mistake vide order dated 01.08.1958 and verified the claim of allottees to 80 Bhigas instead of 18 Bhigas. After getting the certified copies of verification order, the said ladies filed application on 25.04.1961 to the Central Record Office for issuance of their entitlement certificate. They also filed a constitutional petition bearing W.P.No. 275-R of 1970 before this Court, in which vide order dated 30.09.1975 (announced on 01.10.1975) a direction was issued to the Chief Settlement Commissioner to entertain the application of the respondents for entitlement certificate and deal with it on merits in accordance with law. The entitlement certificate for 2592 units was issued by the Central Record Office and it was sent to the then Deputy Commission, Bhakkar vide order dated 18.01.1994 for allotment. The Deputy Commissioner, Bhakkar refused to make allotment on the ground of repeal of Settlement Laws. This Court on a constitutional petition (W.P.No. 123-R 1994) filed by Mst. Riaz Fatimavide order dated 23.10.1995 set aside order dated 18.01.1994 passed by the then Deputy Commissioner, Bhakkar and remanded the case to the Chief Settlement Commissioner/Member Board of Revenue to consider the case of the Mst. Riaz Fatima for allotment of land subject to eligibility and genuineness of the claim within two months. The case was then referred to A.C/Deputy Settlement Commissioner (Land), Gujrat but due to non-availability of the evacuee agricultural land, no allotment was made in the District Gujrat. Then the case was entrusted to Secretary Revenue/ Settlement Commissioner (Lands)/Notified Officer, Punjab for allotment of agricultural land, who vide order dated 22.08.1996 allotted and confirmed 1184 PIUs in favour of Mst. Riaz Fatima etc. A copy of the order was sent to Additional Deputy Commissioner (General), Lahore City, Lahore for implementation and incorporating the names of Mst. Riaz Fatima and Mst.Mukhtar Fatima (allottees) in the revenue record. On the basis of order dated 22.08.1996, Mst. Riaz Fatima and Mst. Mukhtar Fatima succeeded to get allotted land measuring 200 Kanals 2 Marlas in village Bhaman and 171 Kanals 7 Marlas in village Asal Lakhowal Tehsil City District Lahore on the basis of allegedly a forged general attorney. Mst. Riaz Fatima filed W.P.No. 7-R of 2005 before this Court praying that the objections raised by the revenue authorities of Lahore district on Mutation No. 1757 entered by Patwari on 24.04.2003 may be rejected and the allotment of land measuring 200 Kanals 2 Marlas made by Notified Officer vide order dated 22.08.1996 may kindly be got implemented in the revenue record. The said writ petition was disposed of by this Court vide order dated 11.04.2007 with the direction to the Chief Settlement Commissioner to personally look into the matter as to validity of the aforesaid order by affording full opportunity of hearing to the petitioner either himself or by any subordinate officer and decide the matter expeditiously in accordance with law. Mrs. Rehan Safdar wife of S.M. Safdar Ziadi daughter of Mst. Riaz Fatima filed W.P.No. 37-R of 2013 for implementation of order dated 11.04.2007 passed in W.P.No. 07-R of 2005. The said petition was disposed of vide order dated 21.02.2014 with the direction to the respondent to implement the order dated 11.04.2007 within a period of one month after hearing all the concerned. In compliance of the directions passed in W.P.No. 7-R of 2005 and W.P.No. 37-R of 2013, the Member (Judicial-V) Board of Revenue/Chief Settlement Commissioner/Administrator (Residual Properties/Notified Officer, Punjab after hearing all the parties recalled order of allotment dated 22.08.1996 passed by the Settlement Commissioner/Notified Officer being void ab-initio, passed without jurisdiction vide its order dated 19.01.2015, hence this writ petition.

2. The learned counsel for the petitioner submits that in the year 2005 the petitioner purchased two chunks of land from two different vendors (Respondents No. 2 and 3), details whereof is as under:

i) Land measuring 36 Kanals 17 Marlas falling under old Khewat No. 147/357, new Khewat No. 148/365, Khatoni No. 357, Khasra Numbers 199/(6-0-0), 200/3-0-0), 201/(8-0-0), 202/(8-0-0), 203/(8-0-0), 204/(8-0-0), 205/(8-0-0), 206/(8-0-0), 207/(8-0-0), 208/(8-0-0), 219/(4-0-0) 11-Qitas, 1/2 of the toal area of land measuring 73 Kanals and 14 Marlas, equal to 36 Kanals and 17 Marlas vide Register Haq Daran of 1997-98, situated in Had- Bast Mouza “Asal Lakho-wal” tehsil and district Lahore, vide sale Mutation No. 1400, register Dakhil Kharij, sanctioned under the seal and signature of Respondent No. 5 dated 21.09.2005, registered vide sale-deed /Dastawaiz No. 24424, Bahi No. 1, Jild No. 1545, registered with the office of sub-registrar Nishtar Town Lahore, on 15.09.2005, against a consideration of Rs. 2,75,38,125/-. The sale mutation in the name of the vendor exists as Mutation No. 1272, vide Halqa Patwari Rapat No. 148 dated 04.08.2005.

ii) The second area of land measuring 36 Kanals and 17 Marlas falling under Khewat No. 147, Khatoni No. 357 Khasra Numbers 199/(6-0-0), 200/(3-0-0), 201/(8-0-0), 202/(8-0-0), 203/(8-0-0), 204/(8-0-0), 205/(8-0-0), 206/(8-0-0), 207/(8-0-0), 208/(7-14-0), 219/(4-0-0) 11-Qitas, 1/2 of the total area of land measuring 73 Kanals and 14 Marlas equal to 36 Kanals and 17 Marlas vide Register Haq Daran of 1997-98, situated in Had-Bast Mouza “Asal Lahko-wal” tehsil and district Lahorevide sale Mutation No. 1272, register Dakhil Kharij sanctioned under the seal and signature of Respondent No. 5 dated 22.06.2004 registered vide sale-deed/ Dastawaiz No. 26063, Bahi No. 1 Jild No. 1578, registered with the office of sub-registrar Nishtar Town Lahore on 13.10.2005 against a consideration of Rs. 2,75,38,125/-.

And the possession of 73-Kanals 14-Marlas land was handed over to the petitioner. Tabulated Revenue Data of subject property as given in Para 1 of the petition is as under:

TABULATED REVENUE DATA OF SUBJECT PROPERTY.

Acquired by petitioner from Dr. Muhammad Arshad and Shahid

Hameed Khawaja.

| | | | | | | | --- | --- | --- | --- | --- | --- | | S.No. | Old Khewat No. | New Khewat No. | Old Khasra No. | New Khasra No. | Mutation No. | | 1 | 147 357 | 148 365 | 6-0-199 | 6-0-203 | 1400 1416 | | 2 | Do | Do | 3-0-200 | 3-0-204 | Do | | 3 | Do | Do | 8-0-201 | 8-0-205 | Do | | 4 | Do | Do | 8-0-202 | 8-0-206 | Do | | 5 | Do | Do | 8-0-203 | 8-0-207 | Do | | 6 | Do | Do | 8-0-204 | 8-0-208 | Do | | 7 | Do | Do | 8-0-205 | 8-0-209 | Do | | 8 | Do | Do | 8-0-206 | 8-0-210 | Do | | 9 | Do | Do | 5-0-207 | 5-0-211 | Do | | 10 | Do | Do | 7-14-208 | 7-14-212 | Do | | 11 | Do | Do | 4-0-219 | 4-0-223 | Do | | Total area of land: 73 Kanals and 14 Marlas | | | | | |

The learned counsel submits that after purchasing the same, the petitioner society got approved a housing scheme from LDA and sold out/transferred different plot to its members. Land measuring 73 Kanals 14 Marlas purchased by the petitioner is a part of total land measuring 171 Kanals 14 Marlas allotted to Mst. Riaz Fatima daughter of Syed Zaigham Hussain in Mouza Asal Lakhowal Tehsil and District Lahore. He submits that the Chief Settlement Commissioner without lawful authority cancelled the allotment in favour of Mst. Riaz Fatima and Mst.Mukhtar Fatima including the land purchased by the petitioner. He submits that the allotment of land was made to the original allottees on 22.08.1996 and the Member Board of Revenue was not authorized to cancel the same after the lapse of 18 years 4 months 28 days through the impugned order dated 19.01.2015, as such, the impugned order is not sustainable in the eye of law, therefore, the same may be set aside.

1. The learned counsel appearing on behalf of the respondents submits that the original order of allotment order dated 22.08.1996 was fake, fictitious, fraudulent and got prepared with mala fide intention just to usurp the state property; that the claim of the original allottees was for rural land as such urban land could not have been allotted to them and that too in Lahore City which was declared as building site, as such so-called allotment order is not sustainable in the eye of law. He further submits that the petitioner purchased the suit land during the pendency of writ petitions and principle of lis pendens is fully applicable upon the case of the petitioner. Further submits that the impugned order was passed on 19.01.2015 whereas the instant writ petition is filed by the petitioner on 25.01.2017 i.e. after the lapse of 2 years and 6 days, as such principle of laches is also attracted; that the original allottee did not challenge aforementioned cancellation order till to date; that the allottees Mst. Riaz Fatima and Mukhtar Fatima themselves admitted that the alleged allotment was obtained on the basis of forged general power of attorney and agreement to sell, as such the Notified Officer/Administrator (Residual Properties)/Member (Judicial-V) Board of Revenue Punjab rightly recalled fictitious and fraudulent allotment order dated 22.08.1996, which was never passed by a competent authority and has committed no illegality.

2. Heard. Record perused.

3. From the perusal of the record, it reveals that Mst. Mukhtar Fatima and Mst. Riaz Fatima filed Writ Petition No. 275-R of 1970 praying for issuance of entitlement certificate qua their QPR form of claim for rural land. In Para 4 of the said writ petition, it has been stated that they filed application for “entitlement certificate” with the O.S.D. Central Record Room, Lahore under the provisions of Para 4-A Chapter I Part II of the Supplementary Rural Scheme to the West Pakistan Rehabilitation Settlement Scheme. In Para No. 4 of W.P.No. 123-R of 1994 filed by Mst. Riaz Fatima, it was admitted that the claim was verified against agricultural land. As such it is proved on record that the claim of the original allottees was against only the agricultural/rural land. But, as against the claim of rural land, the urban land of city Lahore was got allotted by Mst. Riaz Fatima and Mst. Mukhtar Fatima beyond the eligibility and entitlement whereas the properties in the District Lahore have been declared as building site in 1973 which are immuned/ excluded from allotment against any kind of claims. The Hon’ble Supreme Court of Pakistan in cases reported as Muhammad Ramzan and others vs. Member (Rev.) /CSS and others (1997 SCMR 1635) and Ali Muhammad through Legal Heirs and others vs. Chief Settlement Commissioner and others (2001 SCMR 1822) has observed that under notification dated 16.05.1973, the competent authority declared the evacuee properties as “building sites” and it cannot be allotted against rural claims and it can only be disposed of under the Scheme for Management and Disposal of Available Urban Land, 1977.

Undoubtedly the impugned allotment order was procured in the year 1996 on the basis of fraud which has rightly been declared to be without lawful authority by the notified officer vide order dated 19.01.2015, as the land allocated in urban area having been declared as building sites which was not available for transfer against unsatisfied Produce Units (PIU). Reliance is placed on Ali Muhammad’s case ibid (2001 SCMR 1822), Syed Ansar Raza Zaidi and others vs. Chief Settlement Commissioner and others (2007 SCMR 910) and American International School System vs. Mian Muhammad Ramzan and others (2015 SCMR 1449).

The Hon’ble Supreme Court of Pakistan in Muhammad Ramzan’s case ibid also held that the Chief Settlement Commissioner was competent to convert agricultural land into “building site” and consequently notification dated 16.05.1973 was valid. Therefore, on the issuance of the said notification every agricultural land, which had not been adjusted, allotted or utilized till then against verified claims ceased to be available for transfer. Additionally, Evacuee Property and Displaced Persons Laws (Repealed) Act, 1975, became effective from the first day of July, 1974. Hence the status of evacuee property as existing on such date could not be changed or converted subsequent to promulgation of said enactment. The authority for disposal of the property or residual work was merely to be restricted to finalize rehabilitation process. The claimants with unsatisfied entitlement could resort to any other remedy if available under the law, but were not entitled to obtain allotment of urban land in satisfaction of pending units as alternate land/measure or otherwise. Notified officer had no jurisdiction to allot, or transfer the land or grant alternate land against unadjusted verified units.

1. Petitioner’s claim for allotment or adjustment of PIU remained under consideration of the Deputy Commissioner, Bhakkar who vide letter dated 18.01.1994 stated that since Settlement Laws have been repealed in 1975 and the claimants filed applications for receiving cash compensation in accordance with the policy of the government dated 30.04.1977, the office of D.C.Bhakkar cannot proceed further in the matter and observed that the claimants may seeks remedy in the competent forum for compensation etc. against their verified claim. The said letter is reproduced as under:--

“From

The Deputy Commissioner, Bhakkar, Bhakkar .

To

The Deputy Secretary (S&R) Board of Revenue Punjab, Farid Kot House, Lahore.

No. 34/NT(O). Dated 18.01.94

Subject:-- ALLOTMENT OF LAND CLAIM FORM NO. 68124 FILED BY M/S. RIAZ FATIMA, MUKHTAR FATIMA IN LIEU OF THEIR LAND ABANDONED IN INDIA.

Memorandum.

Kindly refer to Senior Member (Colonies) DO No. 102/92/PS/SMBR© dated 7th December, 1992, on the above subject (copy enclosed).

1. The matter has been enquired into. Claim Form No. 68124 for 2592 P.I. Units was verified by the Central Record Office in favour of M/s. Riaz Fatima and Mukhtar Fatima in equal shares. The petitioners filed Writ Petition No. 275-R-1970 and on the direction of the High Court, a duplicate was also issued by the Officer Incharge, Central Record Room on 21.7.77 (copy enclosed). The Settlement Laws were repealed in 1973 and the claimants filed their application for cash compensation in accordance with the Policy of the Government on 30.4.77 (copy of receipt enclosed). As such their case was forwarded to the Board of Revenue alongwith others vide No. ____________ dated ________________.

2. Since the Settlement Laws have been repealed and their case does not fall in the category of pending case, as such this office is unable to proceed further in the matter.

3. However, the petitioners may seek remedy in the competent Court of Law for having allotment or compensation against their claim. As they deem fit.

Deputy COMMISSIONER (R) BHAKKAR”

1. From the perusal of letter dated 20.08.2002 addressed to Mr. Safdar Zaidi, husband of Respondent No. 4 annexed at page 76 with W.P.No. 7-R of 2005, it reveals that upon an application of Mst. Riaz Fatima, the Chief Settlement Commission Punjab allowed the withdrawal of application filed 29.12.1996 for allotment of land on the basis of fraud, forgery and fake documents. A portion of the said letter is reproduced as under:

“The Chief Settlement Commissioner, Punjab vide order dated 07.08.2002 has been pleased to allow the withdrawal of your application dated 29.12.1996 regarding allotment of land through forgery and fake documents by Ch. Ejaz Ahmad & others R/O Gujrat.”

Upon initiation of inquiry by the Secretary Revenue, Halqa Patwari and Tehsildar reported on 30.04.2003 that the area of Mouza Bhaman is urban area. The Secretary after obtaining report from the field staff, recommended cancellation of allotment in favour of Mst. Mukhtar Fatima and Riaz Fatima on the ground that their claim is relating to agricultural land whereas they were allegedly allotted urban land. The said report and order is as under:

1. It has been stated in letter dated 24.02.2004 issued by EDO (R) City District Government Lahore that the Member (Colonies) Board of Revenue/Chairman Enquiry Commission has imposed restrictions on making allotment of Evacuee land by any authority in Board of Revenue or by other Officers of Lahore District. The relevant portion of the said letter is reproduced below:

“Under orders of the Government of Punjab, an Enquiry Commission has been constituted to probe into the mala fide allotments of Evacuee Land. The learned Member (Colonies) Board of Revenue/Chairman Enquiry Commission vide his letter dated 21.02.2004, has desired that till further orders no order of allotment of Evacuee land may be made by any authority in B.O.R. or other Officers of Lahore District An intimation to this effect has also been received on telephone. A copy of the letter received from the Member Colonies/BOR Chairman Enquiry Commission is enclosed. Strict compliance of the letter in question is ordered to be made.”

1. The Deputy Secretary (S&R) inquired into the genuineness of allotment and during inquiry proceedings on 16.07.2005, he reported that signature of the designated Notified Officer appearing on different interim orders are at variance with signature on order of allotment. It was further stated that the order dated 22.08.1996 appears to be forged. The Deputy Secretary (S&R) vide his report dated 09.03.2006 in concluding paras has reported as under:

“I have considered the statements recorded above and have also examined the relevant record. It is evident that the alleged order dated 22.08.1996 was passed without checking the claim record and without consulting the relevant record. In his last days, the said Notified Officer remained seriously ill for quite a considerable period. It is, therefore, not possible that he would have processed the case regularly on so many dates.

Moreover, all the interim orders have been written in the same handwriting and in the same ink, which leads to the conclusion that all these interim orders have been written on a single day, probably after the death of said Notified Officer. The signatures of the Notified Officer appearing on different interms orders and other main order differ from each other. The said order dated 22.08.1996 passed by Ch. Abdul Latif, the then Secretary (Revenue)/Notified Officer appears to be forged. However, final report in this regard can be given after getting report of the hand writing expert and through a regular enquiry after hearing the concerned parties.”

After perusing the report of Deputy Secretary (S&R) regarding genuineness of allotment order dated 22.8.1996, the Member Board of Revenue (J-II)/Chief Settlement Commissioner on 09.03.2006 referred signatures of Ch. Abdul Latif, Former Secretary (Revenue)/Notified Officer on order dated 22.08.1996 to handwriting experts alongwith his genuine specimen signatures available in the Administration Branch as well as in the Revenue Branches of the Board of Revenue Punjab for expert opinion. The report of the hand writing expert (Forensic Science Laboratory Punjab, Lahore) is as under:

“Detailed examination reveals that the disputed signatures bear different line quality, alignment, connections, directions of movement, fluency, hooks, and curves, structure, formation etc. compared with the admitted signatures thus indicating the two sets having different authorship.”

After going through the report of the handwriting expert, the Deputy Secretary (S&R)/Inquiry Officer submitted his final report stating that the allotment letter dated 22.08.1996 is a fake, forged or fictitious order and recommended that a criminal case may be registered against its beneficiaries on the charges of grabbing the government property. The said report is reproduced below:-

“As per report of handwriting experts it is clear that the signatures on the allotment order dated 22.08.1996 purportedly passed by Ch. Abdul Latif, former Secretary (Revenue)/Notified Officer are forged/bogus. Thus the allotment of land made in favour of Mst. Mukhtar Fatima and Mst. Riaz Fatima land measuring 202 Kanals in Mauza Bhema and land measuring 171 Kanals in Mauza Asal Lakhowal is illegegal, fabricated and made with the forged signatures of Ch. Abdul Latif former Secretary (Revenue)/Notified Officer (deceased). The said allotment order being forged is non-existence and has no legal value. The allotment orders dated 22.08.1996 may be declared as forged document, ante-dated, non-existence and prepared under the forged signatures of the Notified Officer.

The Hon’ble Court may be informed accordingly through Mr. Sameer Ijaz, Advocate. The District Officer (Revenue), Lahore may also be requested to review the mutation of land if any passed on the basis of the said forged allotment order and the case may also be registered against the beneficiaries on the charges of grabbing government property.”

Against the aforesaid reports Mst. Riaz Fatima and Mst. Mukhtar Fatima neither filed any objections nor they challenged the same before any forum till today, thus, the said report attained the status of finality.

Mst. Riaz Fatima filed W.P.No. 7-R of 2005 through her attorney (Safdar Zaidi) seeking implementation of order dated 28.08.1996. This Court vide order dated 11.04.2007 disposed of the same with direction to the Chief Settlement Commissioner to personally look into the matter as to validity of the order dated 22.08.1996 by affording full opportunity of hearing to the petitioner either himself or by any subordinate officer expeditiously and in accordance with law. Order dated 11.04.2007 is as under:

“Petitioner seeks implementation of the order dated 22.08.1996. Learned counsel for the settlement department says that said order was obtained fraudulently. And the matter is under inquiry. Learned counsel for the petitioner says that he would be satisfied if direction is given to the Chief Settlement Commissioner to personally look into the matter as to the validity of the aforesaid order by affording full opportunity of hearing to the petitioner either himself or by any subordinate officer expeditiously and in accordance with law. Disposed of with the above directions.”

1. The original allottee Mst. Riaz Fatima through her attorney furnished written arguments before the Member Board of Revenue wherein it is clearly admitted that all the proceedings culminated in to passing of the basic order of the allotment dated 22.08.1996 are based upon a fraudulent general power of attorney which admission is reproduced as under:

“That Chaudhry Ijaz Ahmad Khatana & Khan Ikram Khan both residents of Gujrat on the strength of collusive decree and the forged power of attorney dated 06.05.1996 approached the Settlement & Rehabilitation Department for allotment of land in pursuance thereof, the allotment of land was made on 22.08.1996 by the Notified Officer to the extent of 315 PIUs in village Bhamman equivalent to 200 Kanals 2 Marlas and to the extent of 869 PIUs in village Aasal Lakhowal equivalent to 171 Kanals 7 Marlas in Tehsil City District Lahore vide CSC case No. 16/1996. Copies of allotment order and power of attorney dated 06.05.1996 are attached herewith as Annex-G and G-1 at page 36-40 & 41-43 of the paper book.

That in the end of December 1996, it came to the knowledge of the petitioner about the evil deeds of cheaters, some moved an application through her General Attorney Mr. S.M. Safdar Zaidi by TCS on 29th of December, 1996 before the concerned authority and apprised them of the real state of affairs of the matter/fraud. On the basis of aforesaid application, the stay order was granted by the learned Chief Settlement Commissioner vide order No. 06-97/Reader/MBR/ CSC dated 04.01.1997. Attached as Annex-H & H/1 at pages 44-46 & 47 of the paper book.”

And when such an admitted fraud unearthed before the competent authority (Notified Officer) he is fully competent to determine the entitlement of a party as well as the legality of proceedings and the order on the strength of his suo motu jurisdiction as well as through Section 24 of General Clauses Act and also by the strength of the case law laid down by the superior Courts of the country. The Hon’ble Supreme Court of Pakistan in a recent judgment reported as Messrs Beach Luxury Hotels, Karachi vs. Messrs Anas Muneer Ltd. and others (2016 SCMR 222) observed that when a matter was re-opened the Additional Settlement Commissioner empowered to re-examine all the facts pertaining to the title of the parties from the very inception and to decide the matter according to available record as per law and similarly in the instant case the matter was referred back to the Notified Officer by this Court to afford hearing to the parties and decide the same on merits, as such, he was fully competent to investigate the whole case as an adjudicating forum. Reliance in this regard is placed on the following judgments of the Hon’ble Supreme Court of Pakistan as well as of this Court:

i) In Custodian of Evacuee Property, Lahore vs. Syed Saifuddin Shah (represented by his heirs) (PLD 1981 SC 565) it has been held that the custodian of evacuee property could also act suo motu in matter even though allottees possessed no locus standi and that review rightly granted on ground of suppression of material facts and misrepresentation amounting to fraud.

ii) In Shamrooz Khan vs. Muhabbat Khan and another (1989 SCMR 819) it has been held by the August Court that settlement authorities have the jurisdiction to examine the question of fraud, forgery and fabrication in its own record. Custodian of the record is the best judge in the first place to determine about the veracity, correctness and genuineness of its own record.

iii) In another judgment reported as Syed Wajihul Hassan Zaidi vs. Government of the Punjab and others (PLD 2004 SC 801) the Hon’ble Apex Court held that jurisdiction to reopen allotment made under repealed settlement law or question of genuineness thereof if the transfer is obtained by a person by practicing fraud, manoeuvering and manipulating facts in connivance with the functionaries of the settlement department, the order of transfer being void would remain open to scrutiny by forum concerned.

iv) A Division Bench of this Court in a case reported as Muhammad Baqir vs. Haji Shokat Ali and 3 others (2005 CLC 1106) has held that if such order upon due inquiry was found that the same was forged and had not been issued at all, then same would be a non-existent order.

1. According to the available record and the writ petitions mentioned above, it is proved that a fraud has been played in obtaining the order dated 22.08.1996 which was never passed by the competent authority. Even if it is presumed for the sake of argument that said order has been passed, yet the same was patently illegal and void ab initio because the land allotted through the said order was situated within the urban limits, which have been declared building sitesvide notification dated 16.05.1973 and was not part of the available pool properties meant for allotment rather the same can only be disposed of through unrestricted public auction under the Scheme for Management and Disposal Of Available Urban Land, 1977. Reliance can be placed on Member Board of Revenue/Chief Settlement Commissioner, Punjab, Lahore vs. Abdul Majeed & another (PLD 2015 SC 166) and American International School System vs. Mian Muhammad Ramzan and others (2015 SCMR 1449).

2. As held above, it is settled principle of law that fraud vitiates most solemn proceedings, acts, instrument, deed, judgment or decrees obtained through fraud and any superstructure so built shall automatically crumble down and the same can be questioned at any time before the Court of law and no party should be allowed to take advantage of his own fraud. Reliance is placed on the cases of Lahore Development Authority vs. Firdous Steel Mills (Pvt.) Limited (2010 SCMR 1097), Khadim Hussain vs. Abid Hussain & Others (PLD 2009 SC 419), Talib Hussain & Others vs. Member, Board of Revenue & Others (2003 SCMR 549), Khair Din vs. Mst. Salaman & Others (PLD 2002 SC 677), Muhammad Younus Khan & 12 Others vs. Government of N.W.F.P. through Secretary, Forest and Agriculture, Peshawar & Others (1993 SCMR 618), Lal Din & Another vs. Muhammad Ibrahim (1993 SCMR 710) and Nawab Syed Raunaq Ali etc. vs. Chief Settlement Commissioner & Others (PLD 1973 SC 236).

3. Admittedly the Settlement Laws were repealed in 1975 but the Settlement Authorities by stretching its jurisdiction making allotment to the different persons under the tainted garb of “pending proceedings.” The Hon’ble Apex Court in a case reported as Government of Punjab, Colonies Department Lahore and others vs. Muhammad Yaqoob (PLD 2002 SC 5) defined the word “pending proceedings” and held that, “Pending proceedings” would mean an initial step taken as contemplated under the settlement laws for allotment of land against verified claim of the claimants but the same did not finalize before the repeal of the evacuee laws”. It has further been held that mere possession over any evacuee land would not bring the case as pending proceedings within the contemplation of provisions of Sections 2 and 3 of the Repealed Act 1975. It has been held by the August Court that the claim remained unsatisfied till the repeal of the Evacuee Laws would not constitute pending proceedings within the purview of Section 2(2) of the Repeal Act, 1975. Reference can be made to Member (S&R)/Chief Settlement Commissioner, Board of Revenue, Punjab, Lahore vs. Syed Ashfaque Ali and others (PLD 2003 SC 132) and Chief Settlement Commissioner/Member, Board of Revenue (S&R Wing) Punjab Lahore vs. Akhtar Munir and 6 others (PLD 2003 SC 603).

Even for those claimants who failed in getting their claim confirmed/satisfied against their respective entitlement in terms of Sections 10 and 11 of the Displaced Persons (Land Settlement)Act, 1958 till 1st July, 1974 when evacuee laws/regulations were repealed, their cases could not be deemed to be pending for the reason that Produce Index Units possessed by them had not been adjusted and mere pendency of any application would not be treated as pending proceedings and confer any jurisdiction to Notified Officer to make allotment of the land already declared as building site against the residual or unadjusted agricultural claim. Reliance can be placed on Ali Muhammad through Legal Heirs and others vs. Chief Settlement Commissioner and others (2001 SCMR 1822).

Furthermore after promulgation of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, all the properties having status of urban agricultural land gone out of the available pool land and the same were declared as building sites which stood vested in the Provincial Government and same was not available for any adjustment against any unsatisfied agricultural claim and disposal of all such land gone out of the jurisdiction of Notified Officer. Reliance is placed on Muhammad Ramzan and others vs. Member (Rev.)/CSS and others (1997 SCMR 1635), Member, Board of Revenue, Punjab (Settlement and Rehabilitation Wing)/Chief Settlement Commissioner, Punjab, Lahore vs. Muhammad Mustafa and 74 others (1993 SCMR 732), and Ali Muhammad through Legal Heirs and others vs. Chief Settlement Commissioner and others (2001 SCMR 1822).

Undoubtedly, the allotment order was obtained on the basis of forged document got prepared by the unauthorized general power of attorney in favour of the original allottees within the urban limits of Lahore against the agricultural claim in the year 1996 after repeal of the Act, whereas the allotted land has already been declared as a building site in 1973 and the jurisdiction of Notified Officer was/is explicitly barred to deal with the affairs of such land/property in any manner whatsoever and even if, any order passed in violation of above notification, that would be treated as void and coram non judice, unjustifiable as the urban properties cannot be allotted against rural agricultural unit. Reliance is placed on (2001 SCMR 1832) and (2007 SCMR 910) supra. Further after the repeal of evacuee laws under Section 2(2) of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 the Chief Settlement Commissioner who is not competent to dispose of the evacuee property in any manner except the procedure provided under the Scheme for Management and Disposal Of Available Urban Land, 1977. The Hon’ble Supreme Court of Pakistan in the case of Member Board of Revenue/Chief Settlement Commissioner, Punjab, Lahore vs. Abdul Majeed & another (PLD 2015 SC 166) has held that the Chief Settlement Commissioner/Notified Officer is not competent to make any fresh or alternate allotment of land.

1. The Member (Judicial-V) Board of Revenue/Administrator (Residual Properties)/Notified Officer, Punjab under the directions of this Court passed in W.P.No. 37-R of 2013 resumed the jurisdiction and passed the impugned order dated 19.01.2015 deciding the matter against the petitioner as the fraud was floating on surface of the record and it is well established by now that where any gain has been obtained by exercising fraud, same forum is vested the power to undo the same and the Hon’ble Supreme Court of Pakistan in a case reported as Muhammad Baran and others vs. Member (Settlement and Rehabilitation) Board of Revenue Punjab and others (PLD 1991 SC 691) held that where the allotment order made by the authorities was illegal, without jurisdiction, based on fraud and forgery, in that eventuality Notified Officer/Member Board of Revenue can interfere with illegal transfer of properties by its own motion against the exposed fraud and forgery and in such like matter the superior Courts should avoid to exercise their discretionary writ jurisdiction to annul the order of the Board of Revenue, even though it was clearly without jurisdiction. A portion of the said judgment is reproduced as under:

“Putting this observation in juxtaposition to the present case; if the allotments relied upon by the appellants made by the Settlement functionaries were illegal and without jurisdiction and indeed if they were also based on fraud and forgery, in that eventuality even if the Board of Revenue which exposed fraud and forgery and set aside illegal transfer of properties worth millions by its own order, the High Court would not in exercise of its discretionary (Writ ) jurisdiction annul the order of the Board of Revenue, even though, to borrow the language used in the case of Raunaq Ali the latter “was clearly without jurisdiction.”

In the case of American International School System, ibid the Hon’ble Supreme Court of Pakistan held that the Member Board of Revenue (Residual Properties) appointed by the Provincial Government is the competent authority to deal with the evacuee properties and disposal of the same in terms of the Scheme for Management and Disposal of Available Urban Land, 1977. Further in another judgment reported as Shamrooz Khan vs. Muhabbat Khan and another (1989 SCMR 819), the Hon’ble Apex Court held that the Settlement Authorities have jurisdiction to issue notices on the complaint wherein it reveals that the order of transfer was procured on the basis of fraud and non-existent documents. The relevant portion of the aforesaid judgment is read as under:

“The jurisdiction of the Tribunal or the Deputy Settlement Commissioner in this case to examine the question of forgery and fabrication in his own record has been upheld by the learned Judge in the High Court and it follows from our decision in the Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others (PLD 1975 SC 331). On no principle, known to the Constitutional jurisdiction, the power of the Tribunal to adjudicate a matter within its jurisdiction could be pre-empted by the High Court in the words in which it has been done. The Custodian of the record is the best judge in the first place to determine the veracity, the correctness and the genuineness of its own record. It should have been given an opportunity to discharge its duty in that respect. It is only then that a review of the adjudication could have taken place in the High Court.

We accept the appeal, set aside the judgment of High Court, recall the writ and allow the Deputy Settlement Commissioner to proceed with the determination of the allegations made in the Application in accordance with the law applicable. No order as to costs.”

Furthermore, the land was got allotted by exercising fraudulent means and it is settled law that fraud vitiates the most solemn proceedings, and no party should be allowed to take advantage of its fraud and any edifice built on fraud must be crumbled down automatically. Reference can be made to The Chief Settlement Commissioner, Lahore vs. Raja Muhammad Fazil Khan and others (PLD 1975 SC 331) and Khair Din vs. Mst. Salaman and others (PLD 2002 SC 677).

In view of cited case law, notification and the provisions of Repealed Act, Notified Officer (CSC) has the jurisdiction to re-open the entire case to investigate element of fraud and decide the same as per law.

1. So far as the arguments of the learned counsel for the petitioner that the petitioner is a bona fide purchaser from the original allottee. Suffice it to say that the petitioner purchased the land in the year 2004 and 2005 whereas the inquiry proceedings as mentioned above in Para No. 10 of this judgment, were initiated at the report of Patwari/Tehsildar concerned on 03.04.2003 which were pending before the competent forum. The litigation of original allottees was also still pending in shape of W.P.No. 7-R of 2005 which was filed on 07.01.2005 and ultimately disposed of on 11.04.2007, when the matter was sent back to Notified Officer for decision afresh as the same was not yet conclusively determined by the competent forum as such petitioner is debarred to claim the right of bona fide purchaser because the petitioner purchased the property during pendency of inquiry proceedings as well as W.P.No. 7-R of 2005. Petitioner was under mandatory obligation to be vigilant about the title of the vendors under the principle of Caveat Emptor, but he failed to fulfill its obligation toward the bona fide investigation of ownership or title of the original so called allottee which was under the shadow of serious danger of unpredictable outcome of the above mentioned pending proceedings.

In a recent judgment reported as Province of the Punjab through Collector Sheikhupura and others vs. Syed Ghazanfar Ali Shah and others (2017 SCMR 172), it has been held that where original allotment order in favour of the ostensible/purported allottee could not hold the field, any claimant of subsequent bona fide purchase of the same could not be impleaded as party in the suit. The relevant portion of the said judgment is reproduced below:

“The argument that applicants be impleaded as party on account of being bona fide purchases is devoid of force, where the original allotment made in favour of the vendors cannot hold the filed.”

Moreover, the subsequent purchaser/title holder has to swim and sink with original allottee and is debarred to claim better rights qua the person from whom he derived the title. It is interesting to note that the original allottee has not challenged the impugned order dated 19.01.2015 till to date, whereas the petitioner, who is subsequent purchaser filed the instant petition calling in question the vires of aforesaid order after the lapse of 2 years 6 days from the date of passing of the same, as such, the principle of laches is fully attracted in the instant case, so, the instant writ petition is also not maintainable on this score. Reliance is placed on the cases of S.A. Jameel vs. Secretary to the Government of the Punjab, Cooperative Department & Others (2005 SCMR 126), State Bank of Pakistan through Governor & Another vs. Imtiaz Ali Khan & Others (2012 SCMR 280), Civil Aviation Authority through Director General & 3 Others vs. Mir Zulfiqar Ali & Another (2016 SCMR 183), Nan Fung vs. H. Pir Muhammad Shamsdin (PLD 1995 Karachi 421) and Messrs Mian Muhammad Awais Muhammad Shabbir, Commission Agents through Muhammad Awais vs. Secretary to the Government of the Punjab & 8 Others (2009 CLC 963).

1. Further as the original transaction was found unlawful, illegal and void ab initio then every subsequent transaction based thereupon was bound to sink alongwith the fate of original. Reliance can be placed on Maqbool Ahmad and others vs. Ghulam Hussain and others (2007 SCMR 1223) and Nazir Ahmad vs. Commissioner, Gujranwala Division, Gujranwala and 2 others (1993 CLC 1943).

Learned counsel have failed to point out any illegality, perversity, irregularity in the impugned order of the Member Board of Revenue, which does not call for any interference in the constitutional jurisdiction of this Court.

1. In view of what has been discussed above, I do not find any merits in this petition, therefore, the same is accordingly dismissed.

(R.A.) Petition dismissed

PLJ 2017 Lahore 574

Present: Mrs. Ayesha A. Malik, J.

LUNG FUNG CHINESE RESTAURANT etc.--Petitioners

versus

PUNJAB FOOD AUTHORITY etc.--Respondents

W.P. No. 25124 of 2015, decided on 27.1.2017.

PunjabFood Authority Act, 2011--

----S. 13(1), 40(3)(4) & 50--Constitution of Pakistan, 1973, Art. 199--De-sealed of restaurant--Unconstitutional being against principle of natural justice and due process--Challenged constitutionality and legality of Sections 40 and 52 of Act--Doctrine of trichotomy of power--Safe and healthy food to public-at-large--Objections raised against cleanliness and maintenance of food at restaurant--Power of seizure and power of imposition of fine--Question of--Whether authorities were required to issue notice to restaurant and provide an[opportunity of hearing before exercising powers--Determination--Its powers and functions include appointment of food safety officers to regulate and monitor food business in order to ensure provision of safe food which is fit for human consumption--Expansion of precautionary principle in food safety laws has reaffirmed public interest and objectives of precautionary principle to empower regulators to act in anticipation of any harm that can be detrimental to health of people--Public is protected from unsafe foods by enabling regulator to keep a check on food operator and food business in order to achieve mandate of Act and protect public interest--Issue of protecting public-at-large versus rights of individual must be addressed as well--Sealing of a food operator providing harmful, impure or unhygienic food becomes necessary to protect public from potential harm--While protecting interest of public is necessary, a question arises as to whether use of precautionary principle or other self-executing powers would violate individual’s right to due process--Right to fair trial and due process are enshrined within Art. 10-A of Constitution--While exercising its power and functions under Act, FSO can inspect restaurants at any time deemed necessary especially since they are checking on cleanliness standards, food safety and hygiene matters--In fact it would defeat purpose of Act if FSO could only perform his duties during a stipulated time of day--It does not cater for reward to only public officers meaning FSO but includes food operator as well.

[Pp. 580, 583, 584 & 585] A, B, C, D, E, F & G

Mr. M. Irfan Khan Ghaznavi, Advocate for Petitioners.

Mrs. Samia Khalid, AAG along with Muhammad Khurshid, Assistant Director (Legal), Punjab Food Authority, Lahore for Respondents.

Date of hearing: 27.1.2017.

Judgment

Through this petition, the petitioners have challenged the vires of Clause (c) and (ca) of Section 13(1), sub-sections (3), (4) of Sections 40 and 52 of the Punjab Food Authority Act, 2011 (“Act”) being ultra vires of the Constitution of Islamic Republic of Pakistan, 1973 (“Constitution”).

The Case

1. The basic facts of the case are that Petitioner No. 1 is a restaurant by the name of Lung Fung Chinese Restaurant located at 8-B, Kashmir Block, Lahore. On 8.8.2015 the Food Safety Officer (“FSO”), Respondent No. 4 along with other officials entered into the premises of the petitioner Restaurant and sealed it. The Restaurant was de-sealed on 17.8.2015 after the petitioners removed the objections noted by Respondent No. 4 at the time of sealing of the premises. The petitioners are aggrieved by the act of sealing as carried out by the Respondents on the ground that it was done in contravention of the principles of natural justice and due process and that Section 13 of the Act is unconstitutional being against the principle of natural justice and due process. The petitioners have also challenged the constitutionality and legality of Sections 40 and 52 of the Act on the ground that Section 40 is against the doctrine of trichotomy of powers under the Constitution as it gives the executive the power to recommend the names of judges who will be working under the Act, which encroaches upon the independence of the judiciary. So far as Section 52 of the Act is concerned, the grievance of the petitioners is that the stated section is unconstitutional because it encourages efficiency on the basis of monetary benefits meaning thereby that it will encourage greed and wrong doing under the garb of receiving a reward from Punjab Food Authority (“PFA”). Section 52 of the Act is also challenged on the ground that it is discriminatory because it can be used in a discriminatory manner to oppress people in the business of food services.

The Arguments

1. Learned counsel for the petitioners argued that the act of sealing was carried out without any notice to the Petitioners; without affording opportunity of hearing; and most importantly without any warning of the inspection or the consequence of sealing. Learned counsel argued that Section 13 of the Act violates Article 10-A of the Constitution whereby it is the fundamental right of every citizen to be heard, to be treated in accordance with law and due process. Learned counsel further submitted that at the time of sealing, the petitioners should have been informed of the defects, if any, and in terms of Section 16 of the Act be served with an improvement notice. Thereafter they should have been given time to correct the wrong if any, before the oppressive act of sealing could materialize. In this case, he argued that the respondents acted prematurely, in haste with mala fide intent, infringing upon the fundamental right of due process thereby causing embarrassment and humiliation for the petitioner Restaurant. Learned counsel argued that as soon as the act of sealing took place, information to this effect is placed on the social media and an entire campaign commenced against the Restaurant and its owners. He further argued that this brings a bad name to the reputation of the petitioners and the people involved in the industry, without giving them an opportunity to refute any of the allegations raised against them. Learned counsel further argued that regulations for sealing and de-sealing issued in 2016 are in excess of the power authorized under Section 13 of the Act and therefore is a case of excessive delegation of power to the respondents. He clarified that at the time when the petitioner Restaurant was sealed, there were no regulations in the field.

2. With respect to the challenge to Section 40 of the Act, learned counsel submitted that similar matters challenging the right of the Executive under the Constitution to nominate and appoint Judges to Tribunals is pending before a learned Full Bench of this Court. Therefore, the petitioners may, if desire raise this issue before the learned Full Bench through a fresh petition and do not press the issue in the instant petition. As to the reward offered under Section 52 of the Act, learned counsel argued that the section propagates greed and foul play because on the basis of the reward offered by the PFA, Food Inspectors are encouraged to seal the restaurants and businesses in order to collect reward money. Learned counsel further argued that the provision will encourage colourful exercise of powers by the respondents which will render the acts under the Section not only as discriminatory but also as oppressive. In support of his arguments, learned counsel has relied upon the cases titled Khawaja Ahmad Hassaan v. Government of Punjab and others (2005 SCMR 186), Messrs Pearl Continental Hotel, through Executive Manager, Khyber, Peshawar v. Government of N.W.F.P through Secretary Excise and Taxation of N.W.F.P, Peshawar and 3 others (PLD 2005 Peshawar 25), Mst. Afsana v. District Police Officer (Operation), Khairpur and 5 others (2007 YLR 1618) and Government of KPK and others v. Khalid Mehmood (2012 SCMR 619).

The respondents’ Case

1. Report and parawise comments have been filed by the PFA being respondents No. 1 to 4 as well as on behalf of Secretary Food Department, Government of Punjab being Respondent No. 7. In terms of the report and parawise comments filed, a visit was made to the petitioners’ premises on 8.8.2015 and during the visit it transpired that the Restaurant’s workers were not wearing caps; the washing area was dirty; stagnant water was present on kitchen floor; raw and cooked food was placed together in the freezer; and expired bread was found at the premises. Flies were also seen on the uncooked food. Consequently, Respondent No. 4 sealed the premises under the provisions of Section 13 of the Act and issued sealing form (Form 18) wherein all the issues and reasons for sealing the Restaurant were informed to the petitioners. The petitioners removed all the objections, corrected the defects and thereby on another visit after checking the premises, the Restaurant was de-sealed on 17.8.2015.

The Arguments

1. Learned Law Officer argued that the PFA was established to protect public health and provide safe and healthy food to the public-at-large. Section 13(1)(c) of the Act empowers the FSO to enter or seal any premises if he believes that any food which is prepared, preserved or stored, is operating and maintaining itself in contravention to the requirements of the Act. Learned Law Officer further argued that the petitioners do not deny any of the objections raised against the cleanliness and maintenance of food at the Restaurant but are aggrieved by the manner in which the act of sealing took place. She argued that as an emergent measure, in order to prevent imminent danger or injury to the public, the PFA can seal the premises without any notice at the time. She argued that the power of seizure and the power of imposition of fine falls within the ambit of strict liability for which hearing and mens rea are not required. She further argued that the right to fair trial has not been denied or deprived to the Petitioners. This right is available to the petitioners, however, the law empowers the FSO to take immediate action which power is not in derogation of Article 10-A of the Constitution.

2. So far as the argument that an improvement notice must be given before taking any action, she argued that the objective of the Act and the powers under Section 13 of the Act are to ensure that certain standards of cleanliness and health are maintained by persons providing services in the food sector to protect public health and safety. Therefore, she argued that there is no requirement of informing the petitioner of the visit or to give the petitioners an opportunity to explain why food was not being maintained in a proper and hygienic manner. She argued that there is no bar in the law preventing the FSO from carrying out such visits and in fact it is in furtherance of the mandate of the law that these actions are taken. So far as the grievance of the petitioners that the matter is placed on Face Book and other social media, she explained that this has stopped and now the matter is totally regulated under the Sealing and De-sealing of Food Business Premises Regulations, 2016 (“Regulations”). So far as the objections to the reward given under Section 52 of the Act, she argued that it was lawful and in accordance with international best practices. Hence requests for dismissal of the petition.

3. Heard and record perused.

The Law

1. The relevant law on the subject being the sections impugned before this Court are Sections 13, 40 and 52 of the Act. And for ease of reference Section 16 of the Act regarding improvement notice is also relevant. These sections are reproduced below:-

2. Powers of Food Safety Officer.--(1) A Food Safety Officer may--

(a) take sample of any food or any substance, which appears to him to be intended for sale, or has been sold as food;

(b) seize any food, apparatus or utensil which appears to the Food Safety Officer to be in contravention of this Act, the rules or the regulations;

(c) enter or seal any premises where he believes any food is prepared, preserved, packaged, stored, conveyed, distributed or sold, examine any such food and examine anything that he believes is used, or capable of being used for such preparation, preservation, packaging, storing, conveying, distribution or sale;

[(ca) impose fine on a food operator if the Authority has delegated such power to him;]

(d) open and examine any package which, he believes, to contain any food;

(e) examine any book or documents with respect to any food and make copies of or take extracts from the book or document;

(f) demand the production of the identity card, the business registration certificate, licence or any other relevant document from a food operator;

(g) mark, seal or otherwise secure, weigh, count or measure any food or appliance; and

(h) search and seize any vehicle carrying food.

(2) A Food Safety Officer shall prepare a statement describing the food, apparatus, utensil or vehicle seized and shall deliver a copy of the statement to the person from whom it is seized or, if such person is not present, send such copy to him by mail.

(3) A person claiming back anything seized under sub-section (1) may, within seven days of the seizure, apply to the Court and the Court may confirm such seizure, wholly or in part, or may order that it be restored to the claimant.

(4) If the Court confirms the seizure of the food, apparatus or utensil, it shall be forfeited to the Food Authority or the Court may direct that such food, apparatus, utensil may be destroyed at the cost of the owner or person in whose possession it was found.

(5) If an application is not made within seven days under sub- section (3), the food, apparatus or utensil seized, shall be forfeited to the Food Authority.

(6) Any person may make an application in writing to the Food Safety Officer asking him to purchase a sample of any food from a food operator and get it analyzed from the public analyst.

1. Improvement notice.--(1) If a Food Safety Officer has reasons to believe that any food operator has failed to comply with any provisions of this Act, the rules or the regulations, he may serve an improvement notice upon the food operator–

(a) stating the grounds for believing that the food operator has failed to comply with any provisions of the Act or the rules or the regulations;

(b) specifying the matters which constitute the food operator's failure so to comply; and

(c) intimating the measures which the food operator should take in order to secure compliance with the relevant provisions of the law.

(2) If the food operator fails to comply with the improvement notice within the prescribed time, the Food Authority may cancel or suspended his licence or take such other action as it deems appropriate.

1. Reward by the Food Authority.-- The Food Authority may, in the manner prescribed by the rules, make payment of reward from the Food Authority Fund to any person who has made an exceptional effort towards accomplishing the objective of this Act.

Decision

1. The basic question before the Court is whether the respondents were required to issue notice to the petitioners and provide an opportunity of hearing before exercising powers under Section 13(1)(c) of the Act. The PFA was established under Section 3 of the Act to provide for the safety and standards of food under the Act. Its powers and functions include the appointment of food safety officers to regulate and monitor the food business in order to ensure the provision of safe food which is fit for human consumption. Section 2(f) of the Act defines “food” to mean anything used as food or drink for human consumption other than drugs, and includes–

(i) any substance which is intended for use in the preparation of food;

(ii) any flavouring agent or condiment;

(iii) any colouring matter intended for use in food;

(iv) chewing gum, confectionary and other products of like nature;

(v) water in any form including ice, intended for human consumption or for use in the composition or preparation of food; and

(vi) any other thing prescribed as food

Section 2(i) of the Act defines food business to mean any undertaking, whether or not for profit, carrying out any of the activities related to any stage of manufacturing, processing, packaging, storage, transportation, distribution of food, import, export and includes food services, catering services, sale of food or food ingredients. Section 2(k) defines food operator to mean a person who manufactures for sale, transports, stores, sells, distributes, imports or exports food. Section 2(w) defines safe food to mean an article of food which is not unsafe. Hence the Act governs food operators in the food business to ensure that the food is safe for human consumption.

1. Section 12 of the Act empowers the PFA to appoint and notify the FSO in such areas as the Authority deems necessary. The function and powers of the FSO are laid out under Section 13 of the Act which enables the FSO to take immediate action to ensure that the food consumed or used by the public-at-large is safe and fit for human consumption. The section authorizes the FSO to enter or seal any premises, collect samples of food or any substance which is intended for sale or has been sold as food, mark or seize any food, apparatus or utensils which is in contravention to the Act or any of the rules and regulations made thereunder. Specifically, the challenged Section 13(1)(c) of the Act empowers the FSO to enter and seal premises which are involved in preparation, preservation, distribution, packaging or sale of food. On 6.12.2016 the Regulations were notified in the official gazette. These Regulations provide for the procedure to be followed for sealing and desealing any premises in the food business and further provide that a sealing order can be challenged before the Director General, PFA. It is relevant to note that these Regulations were not in field when the petitioner’s Restaurant was sealed.

2. Section 16 of the Act provides for an enforcement mechanism to be adopted by the FSO where he believes that a food operator has failed to comply with any of the provisions of the Act, rules or regulations. Therefore Section 16 of the Act requires the FSO to issue an improvement notice to the food operator before taking any action. If the food operator fails to comply with the improvement notice, the PFA can cancel or suspend the license of the food operator. Learned counsel for the petitioners argument that in order to invoke the powers under Section 13(1)(c) of the Act, the FSO has to issue an improvement notice under Section 16 of the Act before sealing the premises is totally misconceived as the power under Section 13 of the Act is totally independent of the power under Section 16, which is an enforcement power. This power is invoked when the food operator has failed to comply with the provisions of the Act, the rules and the regulations despite notice from the FSO. Section 13 of the Act on the other hand authorizes the FSO to carry out the functions of regulating and monitoring the food business. Therefore the fundamental difference between both the sections is that one is an enforcement mechanism while the other is a regulatory tool allowing the FSO to ensure that the food provider provides safe food. Hence the FSO can exercise powers under Section 13 as well as under Section 16 of the Act in different situations as neither section is dependent upon the other. The significance of Section 13 of the Act is that it enables the FSO to take necessary and immediate action where he finds that the food operator is providing unsafe food in an unhygienic manner in contravention to the standards, procedures, processes and guidelines provided by the PFA. The FSO can immediately enter, seal, seize or examine the premises or any apparatus or utensils from the premises where it is considered to be harmful and unsafe for human consumption. Clearly the intent of the legislature was to give the FSO the ability to take action not only to stop the harm but also to prevent further harm in cases where imminent danger to public health is involved.

3. The spirit of Section 13 of the Act is based on the precautionary principle which enables public authorities to legitimately impose precautionary measures in response to situations that may lead to imminent harm or damage. The Rio Declaration and Agenda 21 in 1992 adopted the precautionary principle as an instrument of self-executing powers that allows immediate action where there is some hazard or harm, in the form of a current or proposed activity that could lead to environmental degradation. Jurisprudence developed by our Superior Courts has incorporated the precautionary principle and affirmed its commitment to sustainable development and the protection of the environment. The Court in Ms. Shehla Zia and others v. WAPDA (PLD 1994 SC 693) first recognized this principle in the following terms:

The rule of precautionary policy is to first consider the welfare and safety of the human beings and the environment and then to pick up a policy and execute the plan which is more suited to obviate the possible dangers or make such alternate precautionary measures which may ensure safety. To stick to a particular plan on the basis of old studies or inconclusive research cannot be said to be a policy of prudence and precaution.

Subsequently, this principle has been cited and considered by the august Supreme Court of Pakistan in the cases cited at “Imrana Tiwana v. Province of Punjab, etc. (2015 CLD 983) and “Adeel-ur-Rehman v Federation of Pakistan, etc” (2005 PTD 172). Over the years, jurisprudence from around the world has expanded the use of the precautionary principle to the function and authority of food regulators and matters of public health. The World Trade Organization Agreement on the Application of Sanitary and Phytosanitary Measures (adopted in 1995) and Regulation (EC) No. 178/ 2002 both employ the precautionary principle as a necessary tool for the application of food safety and protection of the public health. Article 7 of the Regulation (EC) No. 178/2002 elaborates on the use of the Precautionary Principle for food safety as follows:

1. In specific circumstances where, following an assessment of available information, the possibility of harmful effects on health is identified but scientific uncertainty persists, provisional risk management measures necessary to ensure the high level of health protection chosen in the Community may be adopted, pending further scientific information for a more comprehensive risk assessment.

2. Measures adopted on the basis of Paragraph 1 shall be proportionate and no more restrictive of trade than is required to achieve the high level of health protection chosen in the Community, regard being had to technical and economic feasibility and other factors regarded as legitimate in the matter under consideration. The measures shall be reviewed within a reasonable period of time, depending on the nature of the risk to life or health identified and the type of scientific information needed to clarify the scientific uncertainty.

The expansion of the precautionary principle in food safety laws has re-affirmed the public interest and the objectives of the precautionary principle to empower regulators to act in anticipation of any harm that can be detrimental to the health of the people. In this regard the august Supreme Court of Pakistan has considered the right to life in the case cited at 2005 PTD 172 (supra) holding that:

It is the duty of the State to see that the life of a person is protected to enable him to enjoy it within the prescribed limits of law. Pollution, environmental degradation and impure food items also fall in the category of deprivation of life.

Essentially the august Supreme Court of Pakistan has cast a duty on the state to protect the public from unsafe food under the fundamental right to life. This being so the power under Section 13(1)(c) of the Act ensures that the public is protected from unsafe foods by enabling the regulator to keep a check on the food operator and the food business in order to achieve the mandate of the Act and protect the public interest.

1. The issue of protecting the public-at-large versus the rights of the individual must be addressed as well. The august Supreme Court of Pakistan in the case Regarding Pensionary Benefits of the Judges of the Superior Courts (PLD 2013 Supreme Court 829) held that:

The interest of the public-at-large is to be given priority and preference over the interest of individuals, therefore, interest of public-at-large cannot be sacrificed to extend profane benefits to some individuals.

In light of this, the sealing of a food operator providing harmful, impure or unhygienic food becomes necessary to protect the public from potential harm. While protecting the interest of the public is necessary, a question arises as to whether the use of the precautionary principle or other self-executing powers would violate the individual’s right to due process. The right to fair trial and due process are enshrined within Article 10-A of the Constitution. Superior Courts have accepted that certain deviations are necessary even with respect to the rights guaranteed under Article 10-A of the Constitution. In this regard, the august Supreme Court of Pakistan in the case cited at Justice Khurshid Anwar Bhinder v. Federation of Pakistan (PLD 2010 SC 483) affirmed that where a right to prior notice and an opportunity of hearing before an order is passed will obstruct the taking of a prior action such a right of notice and hearing can be excluded. The august Supreme Court of Pakistan also held that the rule of audi alteram partem can be excluded if importing a right to hearing has the effect of paralyzing an administrative process or the need for a prompt or urgent action as the situation demands. Thus, deviation from the right to be heard is necessary in cases where there is an imminent threat or possibility of imminent threat to the public-at-large. It was held in the case cited at Warid Telecom (PVT.) Limited v Pakistan Telecommunication Authority (2015 SCMR 338) that it is necessary to take precautionary measures, as such measures ensure that no harm will occur during the time spent in due process so the need for such measures does not violate the right to fair trial and due process. So far as the individuals rights are concerned, being the food operator in this case, the Regulations governing the process of sealing and dealing ensure that the FSO does not act arbitrarily. Hence in terms of the Regulations any grievance of the food operator against the FSO can be raised before the Director General PFA giving an opportunity to appeal against any wrongful act of the FSO.

1. It is pertinent to note that FSO or other officers must have self-executing powers that allow them to act immediately. This is necessary to protect the overriding objective of public health and food safety. The temporary nature of the FSO’s action and the ability to review any action taken by theFSO, satisfies the due process requirement. Hence no violation of Article 10-A of the Constitution exists, nor is there a need to hinder the good administration by limiting the powers of the FSO.

2. It was also argued that the FSO visits food operators at night, after closing the premises which is intended to harass the food operator. The counsel argued that there is no reason to visit premises after closing hours. While exercising its power and functions under the Act, the FSO can inspect restaurants at any time deemed necessary especially since they are checking on the cleanliness standards, food safety and hygiene matters. In fact it would defeat the purpose of the Act if the FSO could only perform his duties during a stipulated time of the day. The Act is concerned with the safety and standards of food and to fulfill this objective it does not matter what time the FSO performs his function as the standard of the food should be consistent across the board at all times. Further if there is an apprehension that the food operators will conceal facts during working hours, the FSOs late night inspections may be necessary to ensure that the food operators are in compliance with safety and hygienic requirements. Hence inspections do not offend any right of the Petitioners. At the same time needless to say the FSO must remain mindful of their functions and not overstep by publishing posts or pictures of food operators that have been inspected on the social media. The Law Officer stated that this practice has been abandoned and is no longer used by the FSO. However since people have a right to information, the PFA may develop a monthly reporting process which informs the public of the actions of the food operators and the consequences of such actions. The objective being to establish good practices and not to create unnecessary publicity in such cases.

3. With respect to the vires of Section 52 of the Act, the learned Law Officer explained that the procedure for giving rewards is under consideration and rules in relation there to are being proposed, hence this provision has not been executed to date. A plain reading of the Section makes it clear that it does not cater for reward to only public officers meaning the FSO but includes the food operator as well. The word ‘any person’ in this section has been used to mean persons other than the FSO and can include the food operator, hence it will not give rise to incentives to unnecessarily seal premises as argued by the counsel. To the contrary it will encourage food operators to apply under the reward scheme for recognition and acknowledgement of the clean and healthy standards maintained by them. Moreover the petitioners have not placed on record any document to show that any

such action has been taken adverse to their interest. Therefore, there is no merit in this objection.

1. In view of the aforesaid, no case for interference is made out. The instant Petition is dismissed.

(R.A.) Petition dismissed

PLJ 2017 Lahore 586

Present:Shahid Bilal Hassan, J.

MUHAMMAD KHAN--Petitioner

versus

MUHAMMAD ABBAS and others--Respondents

C.R. No. 1386 of 2011, decided on 24.3.2017.

W.P. Land Revenue, 1967 (XVII of 1967)--

----S. 172(2)--Civil Procedure Code, (V of 1908), S. 12(2)--Legal share registered hibba-nama--Correction of long standing entries in revenue record did not come in domain revenue hierarchy but to recourse Civil Court, being Court of ultimate jurisdiction--Supervisory jurisdiction--Wherein only correction with regard to rectifying any mistake in implementing Courts’ decrees or any other clerical mistake in record of rights, periodical entry or register of mutation, especially when there appears no controversy regarding title of any of party, jurisdiction lies with Revenue Courts and Section 172(2) of Act, 1967 bars jurisdiction of Civil Court in that regard, as only entries of mutation were challenged and were sought to be incorporated in accordance with judgment and decree, which was still intact and had attained finality--When judgment and decree has not been challenged or said to be incorrect while moving application for correction before revenue hierarchy, that application under Section 12(2) of C.P.C. ought to have been filed instead of said application for correction, have no force, because no allegation of fraud or misrepresentation has been leveled; therefore, same is discarded--Courts below had not committed any illegality or irregularity while passing judgments and decrees, rather have exercised vested jurisdiction by appreciating and construing law on subject in an apt way--Findings recorded by Courts below, being upto dexterity and based on proper appraisal of evidence on record, do not call for any interference by High Court in exercise of revisional jurisdiction. [Pp. 589 & 590] A, B & C

Mr. Taki Ahmad Khan, Advocate for Petitioner.

Mr. Sabir Hussain, Advocate for Respondents No. 1 to 5.

Date of hearing: 14.2.2017.

Order

Muhammad Khan, the present petitioner instituted a suit for declaration with permanent injunction wherein it was averred that the land in dispute, detailed under Paragraph No. 1 of the plaint, was situated at Village Khan Jajja, Tehsil Pasrur, District Sialkot and he was lawful owner of the land measuring 27 kanals 01 marla according to his legal share from the said land. On 26.09.2000, the plaintiff purchased 20 kanals 04 marlas land from his father through registered Hibba-Nama and had become owner of the total land measuring 47 kanals 05 marlas. It was further narrated that on 13.02.1965, the said land i.e. 27 kanals 01 marla was purchased from Mst.Begum Bibi widow of Ali Gohar from his (Ali Gohar’s) share of total land measuring 180 kanals 18 marlas, her legal share as 1/6th became as 30 kanals 03 marlas, on the basis of decree dated 16.06.1956 passed by the Civil Court and the said share was got mutated in her favour through Mutation No. 1403 Dated 26.02.1960. It was further maintained that on 28.06.1995, Defendants No. 1 to 6 moved an application to the District Officer (Revenue), Sialkot for correction of the said mutation; the said application was accepted on 15.10.2003 by the said officer. Feeling aggrieved of the said order, the present petitioner assailed the same before the Collector/Executive District Officer, Sialkot by filing appeal, but the same was dismissed vide order dated 04.08.2004. In suit, it was prayed that in the light of the judgment and decree dated 16.06.1956, the orders dated 15.10.2003 and 04.08.2004 were void ab initio and had no legal effect on the rights of the petitioner and the same being nullity in the eye of law were liable to be declared as null and void.

The Respondents No. 1 to 5 instituted a separate suit for permanent injunction praying that petitioner be restrained from mortgaging the suit land with the bank. Both the suits were consolidated after submission of their respective written statements.

Out of the divergent pleadings of the parties, the learned trial Court framed consolidated issues and evidence of the parties was invited, which needful was done in pro and contra. The learned trial Courtvide impugned consolidated judgment and decree dated 23.02.2010 dismissed both the suits. Both the parties preferred separate three appeals against the said judgment and decree; the learned appellate Court vide impugned consolidated judgment and decree dated 08.03.2011 dismissed all the appeals; hence, the instant civil revision.

1. During course of arguments, the main thrust of the learned counsel for the petitioner was on the score that the learned Courts below failed to apply correct law on the subject, rather failed to adjudicate the matter with independent judicious mind, as correction of long standing entries in the revenue record did not come in the domain of the revenue hierarchy but to recourse the Civil Court, being Court of ultimate jurisdiction. Moreover, if at all the respondents were aggrieved of the judgment of learned trial Court dated 16.06.1956, they would have filed an application under Section 12(2) of the C.P.C. instead of moving an application for correction of entries incorporated in the Mutation No. 1403 Dated 26.02.1960 but this aspect has totally been ignored by the learned Courts below while delivering the impugned judgments and decrees. Both the learned Courts below have neither read the evidence on record nor perused the documents with the suit and have rendered the impugned judgments and decrees mere on the basis of surmises and conjectures, which has resulted in miscarriage of justice; hence, by allowing the civil revision in hand, the impugned judgments and decrees may be set aside, consequent whereof the suit instituted by the petitioner may be decreed, as prayed for. Relies on Sameen Khan and 4 others v. Haji Mir Zad and others (2002 CLC 754-Peshawar), Kala Khan and others v. Rab Nawaz and others (2004 SCMR 517) and Mst. Mumtaz Begum through Legal Heirs and others v. Muhammad Shafique and others (PLD 2009 Lahore 418).

2. Avowing the findings recorded by the learned Courts below in the impugned judgments, the learned counsel for the Respondents No. 1 to 5 has argued that the revenue authorities have not changed the verdict of the Civil Court dated 16.06.1956, rather have made correction with regard to implementation of the same in its true spirit and the revenue Courts enjoy ample jurisdiction under Section 172(2)(vi) of the West Pakistan Land Revenue Act, 1967 in this respect; therefore, the learned Courts below have rightly reached to the conclusion and have rightly non-suited the petitioner. The impugned judgments and decrees being well-versed and well-balanced do not call for any interference in exercise of supervisory jurisdiction as both the learned Court below have exercised vested jurisdiction in an apt way. Dismissal of the instant revision petition has been prayed for. Relies on Dilmir and others v. Member, Board of Revenue, Punjab, Lahore and 9 others (PLD 1991 Lahore 314), Malik Muhammad Nawaz and others v. Malik Hameedullah etc. (PLJ 2001 Revnue 5) and Dildar Ahmad and others v. Member (Judicial-III) BOR, Punjab, Lahore and another (2013 SCMR 906).

3. Heard.

4. In the present case, the matter is only with regard to correct implementation of the judgment and decree dated 16.06.1956 in the revenue record. For ready reference, the operative paragraph of the said judgment is reproduced as under:

‘Issue No. 2

From the parties evidence it is amply clear that the said Hukam Din left only two heirs i.e. the plaintiff and Defendant No. 1. The parties’ counsel agree that the parties are governed by Hanfi Law of inheritance. The plaintiff and Defendant No. 1 are, therefore, entitled to share 1/3 and 2/3 of the land belonging to their father. As their father owned half of the suit land the plaintiff and Defendant No. 1 will get 1/6th and 1/3rd of it respectively. The issue is answered in these terms.

In view of my above findings the plaintiff’s suit for joint possession of 1/6th share of the suit land is decreed with costs ……….’ (Underline mine)

It is evident from the above lines of the judgment dated 16.06.1956 that father of Mst.Begum Bibi and Rehmat Ali, predecessor-in-interest of the Respondents No. 1 to 5 and a specific share i.e. 1/6th share in the half of the disputed property was decreed in favour of the plaintiff of that suit i.e. Mst. Begum Bibi, but while entering Mutation No. 1403 Dated 26.02.1960 excess land, involving total land instead of half of the land was decreed; therefore, matters wherein only correction with regard to rectifying any mistake in implementing the Courts’ decrees or any other clerical mistake in the record of rights, periodical entry or register of mutation, especially when there appears no controversy regarding title of any of the party, the jurisdiction lies with the Revenue Courts and Section 172(2) of the West Pakistan Land Revenue Act, 1967 bars jurisdiction of the Civil Court in this regard, as only entries of the Mutation No. 1403 were challenged and were sought to be incorporated in accordance with the judgment and decree dated 16.06.1956, which was still intact and had attained finality. In this regard enlightenment is sought from judgment of the Apex Court of Country reported asDildar Ahmad and others v. Member (Judicial-III) BOR, Punjab, Lahore and another (2013 SCMR 906) and Dilmir and others v. Member, Board of Revenue, Punjab, Lahore and 9 others (PLD 1991 Lahore 314).

In addition to the above, when the judgment and decree dated 16.06.1956 has not been challenged or said to be incorrect while moving application for correction before the revenue hierarchy, the

arguments that application under Section 12(2) of the C.P.C. ought to have been filed instead of the said application for correction, have no force, because no allegation of fraud or misrepresentation has been leveled; therefore, the same is discarded.

1. Pursuant to the above, the learned Courts below have not committed any illegality or irregularity while passing the impugned judgments and decrees, rather have exercised vested jurisdiction by appreciating and construing law on the subject in an apt way. The findings recorded by the learned Courts below, being upto the dexterity and based on proper appraisal of evidence on record, do not call for any interference by this Court in exercise of revisional jurisdiction.

2. So far as the case law relied upon by the learned counsel for the petitioner is concerned, with utmost respect, the same has different facts and circumstances and does not render any assistance or help to the petitioner’s case being on different footing.

3. Nutshell of the discussion above is that the instant civil revision being devoid of any force and substance stands dismissed. No order as to the costs.

(R.A.) Petition dismissed

PLJ 2017 Lahore 590 [Multan Bench Multan]

Present:Muzamil Akhtar Shabir, J.

NASIR IFTIKHAR--Petitioner

versus

NASEER AHMAD--Respondent

C.R. No. 683 of 2016, decided on 7.2.2017.

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

----O.VII R. 11, O.XXIII R. 1(3), S. 151--Rejection of plaint--Permission to file fresh suit, was not allowed--Suit was withdrawn on basis of compromise outside Court without making request for permission to file suit--Question of withdrawal of suit on basis of oral compromise--Validity--Where plaintiff as against all or any of defendants withdraws a suit or abandons of part of claim without permission, he shall be liable for such costs as Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of claim--Having withdrawn earlier suit un-conditionally on basis of some compromise that had been affected outside Court and was not made part of record, respondent is now precluded from re-agitating same cause of action in High Court on basis of same cheque--Subsequent suit filed by him is barred under Order XXIII Rule 1(3) of C.P.C.--Suit was not maintainable as being barred by Order XXIII Rule 1 of C.P.C. and plaint was liable to be rejected under Order VII Rule 11 of C.P.C.--Suit filed by petitioner could not be allowed to proceed further and application under Order VII Rule 11 of C.P.C. is liable to be allowed. [Pp. 594, 595 & 596] A, B, D & E

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

----O.XXIII, R. 1(3)--Suit was not withdrawn on ground of formal defect or likelihood of failure of suit--Validity--Subsequent suit is not barred is not in accordance with law and, therefore, order not being in accordance with order XXIII Rule 1(3) of C.P.C. was set-aside. [P. 596] C

Ch. Imran Khalid Amratsari, Advocate for Petitioner.

Nemo for respondent as he has already been proceeded against ex-parte on 07.12.2016.

Date of hearing: 07.02.2017.

Order

Through this civil revision, the petitioner has challenged the order dated 28.04.2016 passed by Addl. District Judge, Chichawatni, whereby his application under Order VII Rule 11 read with Section 151 of the C.P.C. was dismissed.

1. Brief facts of the case are that the respondent filed a suit for recovery of rupees two crore under Order 37 Rules 1 & 2 of the C.P.C. on the basis of cheque dated 06.01.2014 Bearing No. BBA-11306274 drawn on Soneri Bank Shah Rukne-e-Alam Branch Multan. The respondent claimed that the petitioner approached him with a proposal that a commercial plot valuing rupees four crore was available and if the petitioner and respondent purchased the same in partnership, they could earn profit out of the transaction. The respondent claims that he paid rupees two crores to the petitioner and when plot was not purchased, the petitioner on respondent’s demand had issued the afore-referred cheque. Subsequently, the cheque was dishonoured on presentation on 05.03.2014. On refusal of the petitioner to pay the amount of cheque, the suit for recovery was filed by the respondent on 16.09.2014. The petitioner filed an application for leave to defend and also application under Section 5 of the Limitation Act, 1908 for condonation of delay. The petitioner on 12.10.2015 filed an application under Order VII Rule 11 of the C.P.C. for rejection of the plaint filed by respondent on the ground that earlier on the basis of the same cause of action, the respondent had filed a suit for recovery of rupees two crores which had been withdrawn unconditionally on 18.08.2014. The said application was contested by the respondent on the ground that the previous suit had been withdrawn on the ground that the petitioner had assured the respondent that he would make the payment of rupees two crore to him and, therefore, the subsequent suit was not barred and the Court should not dismiss the suit on the basis of technicality. The appellate Court on 28.04.2016 allowed leave to defend to the petitioner subject to furnishing of surety bond equal to the suit amount and dismissed the application under Order VII Rule 11 of the C.P.C. filed by the petitioner. The petitioner has now challenged the order dated 28.04.2016 to the extent of dismissal of his application for rejection of his plaint.

2. I have noticed that the notices were issued to the respondent on 25.05.2016 for 28.09.2016 and the proceeding before the trial Court were suspended. Process Server’s report shows that respondent was served personally through the agency of Civil Judge 1st Class, Chichawatni, but neither he appeared nor any counsel appeared on his behalf in the Court and he was proceeded against ex-parte on 07.12.2016.

3. Learned counsel for the petitioner has argued that as the previous suit has been withdrawn without seeking permission to file fresh suit, therefore, the respondent was barred from re-filing of the suit on the basis of the same cause of action.

4. From the perusal of the record it is seen that both the suits have been filed on the basis of Cheque Bearing No. BBA-11306274 dated 06.01.2014 drawn on Soneri Bank Shah Rukn-e-Alam Branch, Multan for an amount of rupees two crore which bounced on 05.03.2014. The earlier suit was withdrawn by the respondent on 18.08.2014, the order dated 18.08.2014 is reproduced below:

“The learned counsel for the plaintiff stated that he wants to withdraw instant civil suit on the ground of compromise with the defendant and also requested for refund of the Court Fee. In this regard the signatures of learned counsel for the plaintiff have been obtained on the margin of order sheet. In view of the statement of learned counsel for the plaintiff, this civil suit for recovery of amount is hereby dismissed as having been withdrawn. Record reveals that the suit of the plaintiff was at the stage of summoning the defendant. Moreover, the compromise between the parties was also effected. Therefore, the request of the counsel for the plaintiff is allowed in accordance with law. File be consigned to the record room.”

From the perusal of the order it is clear that permission to file a fresh suit had not been asked for or allowed. Even in reply to the application under Order VII Rule 11 of the C.P.C, the respondent has not claimed that he had asked for permission to file fresh suit and which was not allowed. Simply the respondent has stated that he had withdrawn the suit on the basis of assertions of the petitioner that he would make the payment to the respondent and requested to proceed on merit instead of rejecting the plaint.

1. The learned Addl. District Judge while dismissing the application of the petitioner under Order VII Rule 11 of the C.P.C. has observed as under:

“Perusal of record reveals that plaintiff previously instituted suit for recovery of Rs. two crore under Order 37 CPC on 12.3.2014 and during the proceedings of said suit the plaintiff get it withdrawn on 18.8.2014 on the ground that compromise with the defendant has been effected. Later on, the plaintiff instituted instant suit on 20.9.2014 while mentioning in the head note that defendant has refused to pay amount and instant suit has been filed. Record further reveals that previous suit was not withdrawn by the plaintiff on the ground that due to some formal defect, there is likelihood of failure of suit. The pre condition mentioned in Order XXIII Rule 1(3) CPC which barred the institution of fresh suit are missing in this case. The cases relied upon by the learned counsel for the petitioner/defendant are distinguishable from the case in hand. Application having no merits is hereby dismissed.”

Record reveals that previous suit was not withdrawn by the plaintiff on the ground of formal defect or likelihood of failure of suit. From the order whereby first suit was withdrawn it is clear that suit was withdrawn on the basis of alleged compromise of matter outside the Court without making request for permission to file suit again. The terms of the alleged compromise were not placed before the Court.

1. The controversy revolves around Order XXIII Rule 1 of the C.P.C, which is reproduced as under:-

“ORDER XXIII- WITHDRAWAL AND ADJUSTMENT OF SUITS

1. Withdrawal of suit or abandonment of part of claim.--(1) At any time after the institution of a suit the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of his claim.

(2) Where the Court is satisfied,--

(a) that a suit must fail by reason of some formal defect, or

(b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of a claim.

(3) Where the plaintiff withdraws from a suit, or abandons part of a claim, without the permission referred to in sub-rule (2), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.”

Order XXIII Rule 1(3) provides that where the plaintiff as against all or any of the defendants withdraws a suit or abandons of part of claim without permission referred to in sub-rule (2), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. The Hon’ble Supreme Court of Pakistan in case titled as Muhammad Yar (deceased) through L.Rs and others versus Muhammad Amin (deceased) through L.Rs. and others (2013 SCMR 464) after referring to Order XXIII Rule 1(3), C.P.C. has been pleased to observe as under:

“From the clear language of the above, it is vivid and manifest that the noted rule mainly comprises of two parts; sub-rule (1) entitles the plaintiff of a case to withdraw his suit and/or abandon his claim or a part thereof, against all or any one of the defendants, at any stage of the proceeding and this is his absolute privilege and prerogative (Note: except in certain cases where a decree has been passed by the Court such as in the cases pertaining to the partition of the immovable property etc.). And where the plaintiff has exercised his noted privilege he shall be precluded from instituting a fresh suit on the basis of the same cause of action qua the same subject matter and against the same defendant (s) and this bar is absolute and conclusive, which is so visible from the mandate of sub-rule (3)”

1. The same principle has also been reiterated in the judgment reported as Azhar Hayat versus Karachi Port Trust through Chairman and others (2016 SCMR 1916) in the following terms:

“6. We shall first deal with the legal objections taken by the learned counsel for the respondents. The petitioner had filed C.P.No. D-2602/2014 which was “not pressed” on 19th August 2014 and then filed the suit on 26th August 2014 (which was converted into a petition wherein the earlier petition filed by the petitioner was mentioned in Paragraph 13 by stating that, “the same has been withdrawn by the Plaintiff as fresh cause of action has accrued to the Plaintiff.” The respondents had objected to the subsequent filing of the suit-petition as the requisite permission had not been obtained from the Court when it was not pressed and dismissed. The impugned order took notice of this fact, but the learned judges did not non-suit the petitioner on this ground evident through he could have been because sub-rule (3) of Rule 1 of Order XXIII of the Code stipulates that where the plaintiff withdraws from a suit without being given permission to institute a fresh suit in respect of the same subject-matter or such part of claim he would be precluded from doing so.”

1. The question of withdrawal of suit on the basis of oral compromise came into consideration before the Hon’ble Supreme Court of Pakistan in case titled as Ghulam Abbas and others versus Mohammad Shafi through LRs and others (2016 SCMR 1403), wherein the Hon’ble Court has held that withdrawal of suit on the basis of oral compromise either constitutes satisfaction of claim or abandonment of his grievance or cause of action.

2. By following dictum laid down by the Hon’ble Supreme Court of Pakistan in the afore-referred judgments, I am of the view that having withdrawn the earlier suit un-conditionally on the basis of some compromise that had been affected outside the Court and was not made part of the record, the respondent is now precluded from re-agitating the same cause of action in this Court on the basis of same cheque. The subsequent suit filed by him is barred under Order XXIII Rule 1(3) of the C.P.C.

3. The findings of the Addl. District Judge that the suit was not withdrawn by the plaintiff on the ground of some formal defect or likelihood of failure of the suit, therefore, subsequent suit is not barred is not in accordance with law and principle laid down by Order XXIII Rule 1(3) and, therefore, the order dated 28.04.2016 not being in accordance with order XXIII Rule 1(3) of the C.P.C. is set-aside.

4. The maintainability of the application under Order VII Rule 11 of the C.P.C. for rejection of plaint under Order XXIII Rule 1(3), C.P.C. has been considered in the case law titled as Messrs Sindh Engineering (Pvt.) Ltd. versus Otis Elevator Company and others (2004 YLR 59) before the Division Bench of the Karachi High Court, wherein the Hon’ble High Court on the basis of withdrawal of earlier suit reached the conclusion that the suit was not maintainable as being barred by Order XXIII Rule 1 of the C.P.C. and the plaint was liable to be rejected under Order VII Rule 11 of the C.P.C. The same principle was also considered in the judgment titled as Shah Walayat and 3 others versus Muhammad Akram and another (2003 MLD 961) and Rozi Khan Gojar and another versus Mst. Rehmat Bibi (2004 CLC 466). In all the afore-referred judgments suits were barred by law under Order XXIII Rule 1(3) of the C.P.C. and the plaints were rejected under Order VII Rule 11 of the C.P.C. It is in the interest of justice that still-born suit should be laid to rest at the earliest. Reliance is placed on Ghulam Abbas and others versus Mohammad Shafi through LRs and others (2016 SCMR 1403) wherein the Hon’ble Supreme Court of Pakistan in a similar situation held that where earlier suit had unconditionally been withdrawn the subsequent suit on the basis of the same cause of action is barred by law and upheld the decision of the High Court to nip the appellant’s still-born claim in the bud. Relying upon the afore-mentioned judgments, I have also reached the same conclusion that suit filed by the petitioner could not be allowed to proceed further and application under Order VII Rule 11 of the C.P.C. is liable to be allowed.

5. Resultantly, the order dated 28.04.2016 passed by Addl. District Judge, Chichawatni is set-aside and application under Order VII Rule 11 of the C.P.C. filed by the petitioner is allowed with the result that the subsequent plaint filed by the respondent is rejected under Order VII Rule 11 of the C.P.C.

6. For what has been discussed above, this civil revision is allowed.

(R.A.) Revision allowed

PLJ 2017 Lahore 597

Present:Faisal Zaman Khan, J.

MALIK MASOOD IQBAL--Petitioner

versus

OSAMA MEHMOOD, etc.--Respondents

C.R. No. 4664 of 2016, heard on 21.3.2017.

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

----O.XXXVII, R. 3--Suit for recovery--Pronote--Permission to cross-examine witnesses was allowed--Challenge to--Without issuing notice or giving opportunity to defend order was passed--Validity--In a banking suit/ejectment petition wherein a defendant/ respondent is served and even if he is not allowed leave to defend/contest suit/petition, he is not debarred from appearing in suit/petition--Respondent filed an application for leave to appear and defend suit however said application was declined by trial Court--Since no leave/permission was granted to respondent either to “appear” or “defend” suit, therefore, respondent had no right either to appear in suit and to participate in proceedings or to file any application inclusive of one for seeking permission to cross-examine witnesses of petitioner. [P. 599] A & B

Mr. Ibadat Ali Naqeebi, Advocate for Petitioner.

Nemo for Respondents.

Date of hearing: 21.03.2017.

Judgment

Through this civil revision, order dated 19.10.2016 passed by the learned Additional District Judge, Chunian has been assailed, by virtue of which an application filed by Respondent No. 1 for cross-examination of the petitioner’s witnesses has been accepted.

1. The facts giving rise to the present civil revision are that a suit under Order XXXVII Civil Procedure Code, 1908 (CPC) for recovery of Rs. 38,000/- on the strength of a pronote dated 10.07.2015 was filed by the petitioner against Respondent No. 1, in which an application for seeking leave to appear and defend the suit was filed by Respondent No. 1 which was rejected vide order dated 29.08.2016. Thereafter, petitioner produced his witnesses however on 19.10.2016 an application was moved by Respondent No. 1 seeking permission to cross-examine the witnesses of the petitioner which was allowed through the impugned order, therefore, this petition.

2. Learned counsel for the petitioner submits that without issuing a notice or giving an opportunity to the petitioner to defend, impugned order has been passed therefore the same is not sustainable.

3. Notice was sent to Respondent No. 1 for his service however he refused to accept the same, therefore, he is proceeded against ex parte.

4. Arguments heard. Record perused.

5. Order XXXVII CPC is a special dispensation. Under this Order, procedure has been provided to file and proceed with the suits filed on the basis of negotiable instruments, as contemplated in the Negotiable Instruments Act 1881; unlike the regular civil suits where general procedure provided under the CPC is followed. In a suit filed under this Order, which is summary in nature, under Rule 3 of the said Order, a defendant who has been served has to seek leave to appear and defend the suit and once the same is allowed, the suit shall be controverted into a regular suit and will be decided in accordance with the general procedure prescribed in CPC. For convenience, Rule 3 of Order XXXVII CPC is reproduced hereunder:

“3. Defendant showing defence on merits to have leave to appear.--(1) The Court shall, upon application by the defendant, give leave to appear and to defend the suit, upon affidavits which disclose such facts as would make it incumbent on the holder to prove consideration, or such other facts as the Court may deem sufficient to support the application.

(2) Leave to defend may be given unconditionally or subject to such terms as to payment into Court, giving security, framing and recording issues or otherwise as the Court thinks fit.

(3) The provisions of Section 5 of the Limitation Act, 1908 (IX of 1908), shall apply to applications under sub-rule (1)”.

1. The important words which have been used in the afore-referred rule are “appear” and “defend”. The afore-noted words would show that in order to contest a suit filed under Order XXXVII CPC, a defendant has to file an application under Rule 3 of the Order for seeking leave to appear and defend the suit and if this application is accepted, may be subject to some condition, a defendant will be allowed to contest the suit however if his application is rejected, he shall have no right to “appear” in further proceedings of the suit and to “defend” his case, unlike the regular civil suits, wherein even if a defendant is proceeded against ex parte or during the course of the suit any adverse order is passed against him, he as of right can participate in further proceedings of the suit. Reliance can be placed on judgments reported as Ghulam Muhammad and others v. Mst. Irshad Begum and others [PLD 1964 Lahore 782], Habib Ismail Bajwa v. Khawaja Ghulam Mohy-ud-Din [PLD 1970 Lahore 428], Azizullah Khan and 4 others v. Arshad Hussain and 2 others [PLD 1975 Lahore 879] and Police Department through Deputy Inspector-General of Police and another v. Javid Israr and 7 others [1992 SCMR 1009].

2. The view expressed in the previous paragraph is further fortified upon perusal of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (Ordinance), in which the procedure which has been provided is pari materia to what has been given in Order XXXVII CPC. Under Section 10 of the Ordinance, a defendant once served has to seek leave of the Court for defending the suit. In the said provision, the word “appear” has consciously been deleted by the legislature and only the word “defend” has been used. Similarly, under the Punjab Rented Premises Act, 2009, wherein an ejectment petition under Section 19 of the Act is filed, a respondent under Section 22 has to seek leave to contest the said petition. In this provision also, the legislature has used the words “defendant” and “contest” and has deliberately omitted the word “appear”.

3. In these circumstances since there is an express ouster of word “appear” in the said provisions therefore, in a banking suit/ejectment petition wherein a defendant/respondent is served and even if he is not allowed leave to defend/contest the suit/petition, he is not debarred from appearing in the suit/petition.

4. Placing the afore-noted law and interpretation in juxtaposition with the case in hand, the record would show that Respondent No. 1 filed an application for leave to appear and defend the suit howeverthe said application was declined by the learned trial Court vide order dated 29.08.2016. In these circumstances, since no leave/permission was granted to Respondent No. 1 either to “appear” or “defend” the suit therefore Respondent No. 1 had no right either to appear in the suit and to participate in the proceedings or to file any application inclusive of one for seeking permission to cross-examine the witnesses of the petitioner.

5. The upshot of the above discussion is that this petition is accepted, as a sequel to which impugned order is set aside. Since the final arguments have been heard by the learned trial Court, therefore, he is directed to decide the suit expeditiously.

(R.A.) Petition accepted

PLJ 2017 Lahore 600 (DB)

Present:Abid Aziz Sheikh and Jawad Hassan, JJ.

MARAHABA PAKISTAN INTERNATIONAL BASHIR DESIGNS FURNITURE and another--Appellants

versus

HABIB BANK LIMITED and another--Respondents

R.F.A. No. 221 of 2013, decided on 8.3.2017.

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

----S. 2(c)--Customer--Definition of--Merely being account-holders of bank, appellants cannot be considered as customers. [P. 603] A

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

----Scope of--Amount was deposited with bank but not credited in account--Validity--Claim of recovery of amount and damage do not come within jurisdiction of banking Court--Having regard to facts and considering law, High Court found no illegality or irregularity in impugned orders. [P. 604] B

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

----S. 2(c) & (d)--Customer and finance--No finance facility was granted by H.B.L. to appellant, and facility of letters of credit was granted.

[P. 607] C

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

----Ss. 7(4), 9 & 9(1)--Suit for recovery--Payment to foreign bank--Authenticity of cheque--Cheque was found to be fictitious by foreign bank--Banking Court had no jurisdiction to try suit between an account holder and banking company when there was no dispute with banking company in fulfilling any obligation with regard to any loan or finance--Any dispute with regard to fulfilment of conditions of loan and liability arising out of contract executed by bank and customer can be agitated in Banking Court but appellants availed no financial facility from bank and was merely an account holder--Judgment and decree passed by Banking Court was without jurisdiction and as such, is liable to be set aside--Appeal was accepted. [Pp. 607 & 608] D, E & F

Mr. Saleem Akram Chaudhry, Advocate for Appellants.

Mr. Hassan Iqbal Warraich, Advocate for Respondents.

Date of hearing: 8.3.2017.

Judgment

Jawad Hassan, J.--Through the instant appeal the appellants have called in question the legality of impugned judgment and decree dated 16.01.2003 passed by the Respondent No. 2-Banking Court No. 1, Gujranwala whereby suit filed by the Respondents was decreed against the appellants to the tune of Rs. 13,34,828.74/- with costs of the suits and costs of the funds from the date of default till the full and final satisfaction of the decree.

1. The succinct facts of the case are that the Respondent-Bank instituted a suit for the recovery of Rs. 13,34,828.74/- against the appellants alleging therein that the appellant No. 2 deposited a cheque Bearing No. 1267 dated 05.06.2010 with the Respondent-Bank for encashment and the same was credited in favour of the appellant No. 2 after its clearance from the Bank of New York, USA (the “Foreign Bank”). Subsequently, the said-cheque was allegedly found to be altered/fictitious by the Foreign Bank and the amount of said cheque (Rs. 15,500), on demand was paid by the Respondent-Bank to the Foreign Bank. The appellants filed an application for leave to appear and defend the suit but the Respondent No. 2 dismissed the said application of the appellants and decreed the suit vide the impugned judgment and decree. Hence, the instant appeal.

2. Learned counsel for the appellants submitted that the impugned judgment and decree is against the law and facts, as such liable to be set aside on the grounds that the Respondent No. 2, while dismissing the application for leave to appear and defend the suit filed by the appellants, has not taken into consideration the contents of the same; that factual dispute is involved in the matter and the same cannot be resolved without recording of evidence; that the Respondent No. 2 while passing the impugned judgment and decree has ignored this fact that the Respondent-Bank has not appended anything with the plaint to show that it has made payment to the foreign Bank; that the Respondent No. 2 has not appreciated the fact that the foreign Bank was responsible for giving clearance without properly verifying the authenticity of the cheque deposited by the appellant; that the Respondent No. 2 passed the impugned judgment and decree without any jurisdiction as such all the proceedings before it were coram-non-judice; that the impugned judgment is result of non-application of judicial mind by the Respondent No. 2.

3. On the other hand learned counsel for the Respondent No. 1-Bank vehemently contested the arguments advanced by the learned counsel for the appellants and submitted that the impugned judgment and decree has rightly been passed by taking into consideration all the facts and circumstances of the case and therefore, does not call for any interference by this Court.

4. We have heard the arguments of the learned counsels for the parties and perused the record.

5. From the perusal of record it reveals that the crux of the matter is that the appellant No. 2 deposited a cheque with the Respondent No. 1 for encashment which after due clearance from the Foreign Bank was credited in his favour but subsequently, the said cheque was allegedly found to be fictitious by the Foreign Bank and the amount (USD.15,500) was allegedly paid to the Foreign Bank by the Respondent No. 1. For the recovery of the said-amount, Respondent No. 1 filed a suit under Section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (the “Ordinance”) against the appellants.

6. The term ‘customer’ is defined in Section 2(c) of the Ordinance, which is reproduced herein below:

(c) “customer” means a person to whom finance has been extended by a financial institution and includes a person on whose behalf a guarantee or letter of credit has been issued by a financial institution as well as a surety or an indemnifier;

Whereas, the word ‘finance’ has been defined in Section 2(d) of the Ordinance, which is reproduced herein below for ease of reference:

“(d) “finance” includes--

(i) an accommodation or facility provided on the basis of participation in profit and loss, mark-up or mark-down in price, hire-purchase, equity support, lease, rent-sharing, licensing charge of fee of any kind, purchase and sale of any property including commodities patents, designs trade marks and copy-rights, bills of exchange, promissory notes or other instruments with, or without buyback arrangement by a seller, participation term certificate, musharika, morabaha, musawama, istisnah or modaraba certificate, term finance certificate;

(ii) facility of credit or charge cards;

(iii) facility of guarantees, indemnities, letters of credit or any other financial engagement which a financial institution may give, issue or undertake on behalf of a customer with a corresponding obligation by the customer to the financial institution;

(iv) a loan, advance, cash credit, overdraft, packing credit, a bill discounted and purchased or any other financial accommodation provided by a financial institution to a customer;

(v) a benami loan or facility that is, a loan or facility the real beneficiary or recipient whereof is a person other than the person in whose name the loan or facility is advanced or granted;

(vi) any amount due from a customer to a financial institution under a decree passed by a Civil Court or an award given by an arbitrator; any amount due from a customer to a financial institution which is the subject matter of any pending suit, appeal or revision before any Court; any other facility availed by a customer from a financial institution.”

1. In the above definitions, the word “customer” is limited to a person to whom finance has been extended and includes a person on whose behalf a guarantee or letter of assurance has been issued by a financial institution. It means, any persons, other than defined in Section 2(c) of the Ordinance, do not come within the definition of a “customer”. Merely being account-holders of the Respondent-Bank, the appellants cannot be considered as customers. And the amount allegedly credited in the account of the appellants on deposit of a cheque also does not come within the purview of “finance”. Similarly, any facility defined in the definition provided by a financial institution covers within the ambit of “finance”. Hence, opening of an account and deposition of amount by an account holder would not be considered as finance.

2. The Hon’ble Supreme Court of Pakistan in Summitt Bank vs Qasim and Co. (2015 SCMR 1341) held as under:

“as regards the appellant’s contention that only the Banking Court, established under the Act had jurisdiction in the matter, it may be noted that, as is now clear from the above discussion, neither there was any question pertaining to “finance” as defined by Section 9 of the Act, nor the question as to whether the respondents were “customers” in the context of the Act involved in the matter, and no documents were executed by the respondent securing re-payment of the alleged liability. The suit for recovery was filed by the respondents for the amount that was deducted out of their monies lying in their account, illegally and unauthorizedly and thus the Banking Court had no jurisdiction in the matter as the same was constituted to adjudicate upon the matter pertaining to “finance” between bank and its customer, we therefore, did not find any jurisdictional error in the matter.”

1. Similarly, in case titled Haji Dad vs. MCB (2011 CLD 785) the division Bench has held that in the present, case, the appellants have claimed that they had deposited their amount with the respondent-Bank, but has not been credited in their account. Their claim of recovery of amount and damage do not come within the jurisdiction of theBanking Court in the light of above discussion. Having regard to the facts and considering the law, we find no illegality or irregularity in the impugned orders.

Moreover, recently this Court in Amitex vs. Bank Islami Pakistan (2016 CLD 2007) held that any alleged default in fulfillment of any obligation regarding any representation, warranties and covenants by a financial institution is not enforceable in the special jurisdiction under the Ordinance. This construction also lends credence to the scheme and policy of the Ordinance which has been enacted primarily to act as an engine of recovery of defaulted finance by the financial institutions and not vice versa. The customers may have a cause of action but that is limited to and enforceable in the Courts of general jurisdiction only. The definition of the term 'obligation' in fact restricts the meaning of the term within a certain periphery. Rather than expanding it, the meaning is exhausted and limited. It is limited to only two facets of obligation. A contextualist approach will be employed here. It is equally true that rules of interpretation are merely tools employed by Courts to ascertain the true meaning of a provision in a statute in case of ambiguity. These rules are not immutable and are subject to exception. Every rule, in a given situation, is capable of being administered differently and according to context, with necessary variations.

In the case of Avari Hotel vs. ICP (2000 YLR 2407) the Court held as under:

“that again from a bare reading of the above section it is clear that the jurisdiction of a Banking Court is only attracted where a' borrower/customer or a Bank commits a default in fulfilling any obligation with regard to any loan or finance. Only then could they institute a suit in the Banking Company by presenting a plaint duly supported by statement of account etc. So also it would be seen that the definition of the word “borrower” as per Section 2(c) means a person who has obtained a loan under a system based on interest from a Banking Company and “customer” as per Section 2(d) means a person who has obtained finance under a system which is not based on interest from a Banking Company. Of course, the definitions of the terms “Finance” and “loan” as given in Section 2(e) and (f) of the Act are very wide and include not only an outright loan of money but involve numerous financial instruments as well including bills of exchange, promissory notes etc., the purpose of which is to cover all possible forms of banking and financial transactions. In view of all the above provisions of the Act, in my opinion, in order that a Banking Court may assume jurisdiction in any particular matter it first must be established that there is a present relationship of borrower/customer and banker between the C parties and further that some default has been committed by either party with regard to any loan or finance, obtained by the borrower/customer from the Bank as a consequence of such relationship. In the present matter it is admitted by all concerned that although it may be that in the past there was a relationship of borrower/customer and banker between the parties but at present there is none as all the amounts owed by the plaintiff to the defendants have been fully paid back. In fact, the suit has not been filed by the plaintiff against the defendants for any alleged default in fulfilling any obligation by the defendant with regard to any loan or finance. On the other hand, the suit has been filed by the plaintiff for the purpose of redeeming securities deposited with the defendants as consideration for the loans extended by the defendants to the plaintiff. An ancillary prayer of the plaintiff is that the propriety audit proposed to be conducted by the defendants into the financial affairs of the plaintiff be injucted against. Such propriety audit is referred to in Clause 21 of the Restructuring Agreement dated 30-12-1989 the purpose of which is to give some financial control over the affairs of the plaintiff Company to the defendants. Such purpose is manifest in the letter addressed to the plaintiff by ICP (Defendant No. 1) a copy of which has been filed as Annexure J1-1. to the plaint, which is critical of the financial affairs of the plaintiff-Company as regards its indebtedness to various banks/financial institutions, its debt servicing, failure to pay dividents, huge accumulated losses and unpaid tax demands etc. However, again the fact is that the said letter does not refer to any overdue loans at all as far as the defendants are concerned. In my view, therefore, the letter under reference addresses the defendants rights as shareholders in the plaintiff Company and not as their Bankers and does not at all concern the rights and obligations between the parties as to any financial engagement in their capacity as banker and customer respectively.”

Furthermore, in Muhammad Khalid vs. Prime Bank (2001 YLR 905) this Court held that:

“the Banking Court has no jurisdiction to try a suit between an account holder and the Banking Company by holding that the customer could only file a suit under the provisions of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 if there was some dispute with the banking company in fulfilling any obligation with regard to any loan or finance. Sections 7(4) and 9(1) of aforesaid Act provide that any dispute with regard to fulfilment of conditions of loan and liability arising out of the contract executed by the bank and the customer can be agitated in Banking Court but in the instant case the defendants availed no financial facility from the plaintiff-bank and was merely an account holder”.

In addition, in Atlantic Carpets through Partner v. Messrs Emirates Bank International (2000 MLD 1850), the Court held that the customer can only file a suit under the applicable Act if there is some dispute with the banking company in fulfilling any obligation with regard to any loan or finance. Plaintiff in his entire suit has not stated a single word that the defendant-bank has committed default of this nature.

1. Recently the Sindh High Court in Pakistan General Insurance vs. MCB (2015 CLD 600) held that the question that has to be decided in these appeals is whether or not the appellant, which is an insurance company and which may have provided an insurance coverage to the goods imported against letters of credit opened by Respondent No. 1 on behalf of Respondent No. 2, falls within the definition of “customer” as given in Section 2(c) of the Ordinance of 2001 in relation to any “finance” as defined in Section 2(d) of the Ordinance. It is, therefore, necessary to appreciate, examine and decide this elementary and important question first, which goes to the root of these cases in our opinion. In order to do so, the definitions of “customer” and “finance” envisaged in clauses (c) and (d), respectively, of Section 2 ibid will have to be understood. It is an admitted position that no finance facility was granted by Respondent No. 1 to the appellant, and the facility of letters of credit was granted by Respondent No. 1 to Respondent No. 2/importer. It was the case of Respondent No. 1 before the Banking Court that the appellant was their customer in view of the insurance coverage provided by the appellant against letters of credit opened by them on behalf of Respondent No. 2. The impugned judgments are completely silent whether the appellant was held to be a customer of Respondent No. 1 or not as no issue to this effect was framed, although Issue No. 1 was specifically framed as to whether Respondents 3 and 4 fall within the definition of ‘customers’ under the Ordinance. It appears that the suits were decreed against the appellant because of the words “as well as a surety or an indemnifier” included in the definition of customer given in Section 2(c) ibid. We have already established that the appellant is not a customer of Respondent No. 1 within the meaning of Section 2(c) ibid in relation to any finance as defined in Section 2(d) ibid. After giving due consideration to all the aspects of these cases, we have no hesitation in holding further that there is no relationship of financial institution and customer between Respondent No. 1 and the appellant; the Banking Court had no jurisdiction to entertain or adjudicate upon the Suits against the appellant; and, all the impugned judgments and decrees against the appellant are coram non judice. As such, the same cannot be allowed to remain in the field and are liable to be set aside.

2. In view of what has been discussed above, the Banking Court had no jurisdiction to try the suit between an account holder and the Banking Company when there was no dispute with the banking company in fulfilling any obligation with regard to any loan or finance. Sections 7(4) and 9(1) of aforesaid Ordinance provides that any dispute with regard to fulfilment of conditions of loan and liability arising out of the contract executed by the bank and the customer can be agitated in Banking Court but in the instant case the appellants availed no financial facility from the Respondent No. 1-Bank and was merely an account holder.

3. We, therefore, suffice to hold that the impugned judgment and decree passed by the Respondent No. 2-Banking Court is without jurisdiction and as such, is liable to be set aside. Consequently, the instant appeal is hereby accepted and the impugned judgment decree dated 16.01.2013 is hereby set aside.

(R.A.) Appeal accepted

PLJ 2017 Lahore 608

Present:Ch. Muhammad Masood Jahangir, J.

Mst. RESHAM BIBI etc.--Petitioners

versus

ALI MUHAMMAD etc.--Respondents

C.R. No. 3025 of 2004, heard on 9.2.2017.

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

----O.XLI, R. 27--Additional evidence--Gift-deed to extent of excess property of his entitlement--Plaintiff had failed to prove his alleged gift and in absence of one of original three allottees, it could not be concluded that property had been allotted in three equal shares be allowed to implead his brother or his successors in suit, who could not be impleaded in litigation so far, he while showing courtesy and seeking instructions has raised no objection that after setting aside judgments and decrees passed by Courts below suit be remanded to trial Court for allowing him to implead his brother or his successors as defendants in his suit and parties be also permitted to lead their further evidence. [P. 610] A & B

Mr. Tariq Masood, Advocate for Petitioners.

M/s. Ahmed Waheed Khan and Shahzad Bashir, Advocates for Respondents.

Date of hearing: 9.2.2017.

Judgment

The precise facts of the case are that subject property measuring 141 Kanals 14 Marlas being evacuee was transferred to Noor Din, Ali Muhammad sons of Dheeru and Hashim Din. Ali Muhammad Respondent No. 1 without impleading his brother instituted a declaratory suit before the learned Trial Court while claiming that entire property had been allotted to aforenoted three persons in equal shares, but it was wrongly implemented in the revenue record to the extent of 1/2 share in favour of Hashim Din and its remaining 1/2 to Respondent No. 1 along with his brother. When the said situation was agitated before Hashim Din petitioner, he executed gift-deed to the extent of excess property of his entitlement in favour of Respondent No. 1/plaintiff and through the suit he prayed for declaring him owner thereof on the basis of said gift-deed (Exh.P2). Both the Courts below while considering gift-deed (Exh.P2) being valid document, decreed the suit of Respondent No. 1 and dismissed the appeal of present petitioners through impugned judgments and decrees, which were assailed through civil revision in hand, it was also accompanied by an application (C.M. No. 1-C of 2004) filed under Order XLI Rule 27 of the Code of Civil Procedure, 1908 for production of copy of order dated 17.02.1959 passed by Deputy Claim Commissioner, Sialkot in additional evidence. At prior point of time, without attending to said application, this Court vide order dated 30.04.2013 dismissed the instant civil revision while concluding in Para-6 the relevant portion of which is reproduced hereunder:

“... Although the offer and acceptance of Hibba is not duly proved but it is established on the record that the land was allotted to three persons in equal shares and they have been in possession of their respective shares. The subsequent change in RL-II was unauthorized and has no value in the eyes of law. The case law cited at the bar by the learned counsel for the petitioners is not applicable on the facts of the instant petition. Both the Courts of competent jurisdiction after appraisal of the evidence have arrived at the same conclusion and their concurrent findings do not call for any interference in exercise of the revisional jurisdiction. For the reasons supra, the civil revision is without merits and the same is hereby dismissed.”

(emphasis provided by this Court)

This judgment was only assailed by the petitioners through preferring C.P.No. 1349 of 2013 before the apex Court, which was allowed and instant civil revision was remanded to this Court for decision afresh vide order dated 17.10.2014. For ready reference concluding Para-6 thereof being relevant is reproduced herein below:-

“6. We have heard the arguments and perused the record. There is no denial of the fact that the application under order XLI Rule 27, CP.C was filed by the petitioner to which Reply was also filed by the respondents, which was not attended to while deciding revision application. Indeed production of additional evidence is normally not encouraged at Revisional stage. However, when any official record sought to be relied upon has direct bearing on the merits of the case, the Court may examine the implication of such official record to arrive at a just and proper conclusion, more so, when the learned counsel for the respondents has not shown any serious reservation in case order dated 17.02.1959 passed by the Deputy Commissioner (Claims), for whatever worth it may be and subject to proof of its authenticity is considered by the learned Revisional Court after the remand.”

1. Today during the course of arguments Mr. Tariq Masood, Advocate, learned counsel for petitioners has pointed out that this Court vide order dated 30.04.2013 has already observed that Respondent No. 1/plaintiff failed to prove his alleged gift and in absence of Noor Din, one of the original three allottees, it could not be concluded that property in dispute had been allotted in three equal shares to Ali Muhammad, Noor Din and Hashim Din. On having been faced with the said situation, Mr. Ahmad Waheed Khan, Advocate, learned counsel for respondents, while conceding it has submitted that Respondent No. 1/plaintiff be allowed to implead his brother Noor Din or his successors in the suit, who could not be impleaded in the litigation so far, he while showing Courtesy and seeking instructions has raised no objection that after setting aside the judgments and decrees passed by the Courts below suit of Respondent No. 1/plaintiff be remanded to the learned Trial Court for allowing him to implead his brother or his successors as defendants in his suit and the parties be also permitted to lead their further evidence, if so desired. The offer of Mr. Ahmad Waheed Khan, Advocate, learned counsel for respondents has readily been accepted by Mr. Tariq Masood, Advocate, learned counsel for the petitioners with the further prayer that the documents referred in aforenoted miscellaneous application (C.M.No. 1-C of 2012) may also be allowed to be brought on the record.

2. In view of above unanimity, the instant civil revision is accepted, impugned judgments and decrees passed by the Courts below are hereby set aside and the suit filed by Respondent No. 1/plaintiff will be deemed to be pending before the learned Trial Court, who will decide the same afresh after allowing Respondent No. 1/plaintiff to implead his brother Noor Din or his successors in the suit by filing amended, plaint, which will, of course, be followed by filing of written statement by the newly impleaded party as well as amended written statement by the other defendants as the situation may be and thereafter the parties will also be at liberty to lead their further evidence, which drill work should be completed within next six months without any fail.

3. The parties are directed to appear before learned District Judge, Sialkot on 27.02.2017, who will entrust the main suit file to a Court of competent jurisdiction for further proceedings.

(R.A.) Revision accepted

PLJ 2017 Lahore 611 (DB) [Multan Bench, Multan]

Present:Abdul Sattar and Shams Mehmood Mirza, JJ.

MUHAMMAD ARIF--Applicant

versus

DISTRICT COLLECTOR SAHIWAL etc.--Respondents

I.C.A. No. 374 of 2013 in W.P. No. D-5174 of 2012, decided on 13.3.2017.

Law Reforms Ordinance, 1972 (XII of 1972)--

----S. 3--Constitution of Pakistan, 1973, Art. 199--Lease of land was granted order for delivery of possession--D.C. was competent authority for passing orders for dispossession--No formal order for resumption of land--Determination--Prima facie, the case involves disputed questions of facts which cannot be resolved by High Court in exercise of its constitutional jurisdiction--Since order for resumption of land from appellant was not available on record and it is not clear whether notices sent to appellant were in fact received by him, it is a fit case for remanding. [P. 612] A

Mr. Muhammad Asad Khakwani, Advocate for Applicant.

M/s. Muhammad Asad Manzoor Bhuttand Ch.Imtiaz Ahmad Goraya, Advocate for Respondents No. 2 and 3.

Mr. Nadeem Ahmad Tarrar, Advocate for Respondent No. 5.

Mr. M. Javed Saeed Pirzada, Assistant Advocate-General for Respondent No. 1 to 3.

Date of hearing: 13.3.2017.

Order

This intra Court appeal filed under Section 3 of the Law Reforms Ordinance, 1972 seeks to challenge order dated 02.12.2013 passed by the learned Single Judge in Chambers whereby the writ petition filed by the appellant was dismissed.

1. Facts of the case are that the appellant's forefathers were granted lease of land measuring 172 Kanal and 15 Marla by the District Remount Officer, Sahiwal for cultivation purposes. The appellant and his family have been in occupation of the said land and have regularly been paying the lease money. On 09.12.2011 the District Officer Remount passed order for delivery of the possession of the said land in favour of Respondent No. 5 who was granted the leasehold rights of the said land, which prompted the appellant to file the writ petition. The said writ petition was dismissed by learned Single Judge in Chambers in view of the disputed questions of facts involved therein, hence this appeal.

2. Learned counsel for the appellant submitted that the District Collector, Sahiwal was the competent authority for passing orders for appellant's dispossession. It was further submitted that no formal order was passed for resumption of land in question and that the appellant was not even granted an opportunity of hearing by the District Remount Officer.

3. The learned counsel appearing on behalf of Respondents No. 1 and 2 submitted that the petitioner was in occupation of stable land, the lease whereof was renewable on yearly basis. It was accordingly submitted that the District Collector had no role in resumption of the land. It was further submitted that the appellant had violated the terms of the lease and as such the land was ordered to be resumed after issuance of notice to the appellant.

4. The lease deed executed by the appellant shows that the lease in question was granted by the District Remount Officer and that the said officer was competent to extend the lease. Furthermore, the documents appended by Respondents No. 1 and 2 with their parawise comments show that the In-charge Stable Kassowal filed a report before District Remount Officer against the appellant alleging violation of the terms and condition of the lease whereby notice dated 25.07.2010 was issued to the appellant. A similar report was again filed on 15.10.2011. It was also the case of Respondent Nos. 1 and 2 that the appellant despite receipt of notices failed to appear before the District Remount Officer and as such the said land was ordered to be resumed.

5. On a query from the Court, the learned counsel for the appellant could not divulge the details regarding the last renewal of the lease in question or the handing over the share of the produce to the District Remount Officer. Prima facie, the case involves disputed questions of facts which cannot be resolved by this Court in the exercise of its constitutional jurisdiction. Be that as it may, since the order for resumption of land from the appellant is not available on record and it is not clear whether notices sent to the appellant were in fact received by him, it is a fit case for remand of the matter to District Remount Officer.

6. This intra Court appeal is accordingly allowed and order dated 02.12.2013 passed by the learned Single Judge in Chambers is set aside. A copy of the writ petition along with its annexures is ordered to be transmitted to District Remount Officer who shall after affording an opportunity of hearing to the appellant and all the concerned parties pass a decision thereon within a period of three weeks from the date of receipt of certified copy of this order. In order to streamline the process, the parties are directed to appear before the District Remount Officer on 29.03.2016 at 10.30 A.M.

(R.A.) I.C.A. allowed

PLJ 2017 Lahore 613

Present:Jawad Hassan, J.

Mst. SADAF and another--Petitioners

versus

ADDITIONAL DISTRICT JUDGE, FAISALABAD and 2 others--Respondents

W.P. No. 25770 of 2014, decided on 9.2.2017.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Dowry articles--Financial status of her father--Dowry articles were handed over about ¾ days before marriage--Receipts of purchasing dowry article--Factum of handing over and receiving of dowry article--Validity--Normally, the dowry articles were handed over along with list to parents of male spouse at the time of Rukhsati--No doubt Courts are supposed to decide the cases in accordance with law but in family cases, particularly normal traditions of society cannot be ignored--It has now become imperative for all parents irrespective of poor or rich to give dowry articles to their daughters at the time of marriage--Petitioners had succeeded to prove her claim for recovery of dowry articles by adducing confidence inspiring evidence and appellate Court without referring anything from record, has set aside judgment, Family Court. [P. 615] A & B

Mr. A.D. Bhatti, Advocate for Petitioners.

Ustad Muhammad Iqbal, Advocate for Respondents.

Date of hearing: 9.2.2017.

Order

Through this petition, the petitioners have called in question judgment and decree dated 05.07.2014 passed by learned Additional District Judge, Faisalabad and that judgment and decree dated 15.03.2014, passed by learned Judge, Family Court, Faisalabad.

1. Seemingly, the petitioners are aggrieved of judgment and decree dated 5.07.2014, whereby the learned Additional District Judge, Faisalabad through the above said consolidated judgment dismissed the appeal of the petitioners to the extent of dowry articles and upheld the same to the extent of recovery of Rs. 5000/- per month as maintenance allowance of Petitioner No. 1 of her Iddat Period while that of Petitioner No. 2 to the tune of Rs. 5000/- per month with 10% annual increase and partially allowed the appeal of Khalid Javed/Respondent No. 3, as both appeals were emanated out of judgment and decree dated 15.03.2014. The claim of the Respondent No. 3, for custody of minor was declined with the direction to the Petitioner No. 1 to arrange meeting of the minor with the Respondent No. 3 once in a month.

2. Arguments heard and record perused.

3. From the perusal of record it reveals that after recording issue wise findings the learned Judge Family, Faisalabad has passed judgment and decree dated 15.03.2014, whereby maintenance allowance was fixed in favour of Petitioners No. 1 and 2 after recording issue wise findings as mentioned above, wrhereas he after giving detailed issue wise findings on Issue No. 1 and Issue No. 2-A, held entitled Petitioner No. 1. to recover Rs. 2-lacs as alternate price of dowry articles, but the learned Appellate Court while upholding the decision of Family Court to the extent of maintenance allowance set aside the findings of Family Court to the extent of recovery of dowry articles.

4. After appraisal of whole evidence it reveals that findings recorded by learned Judge Family Court, Faisalabad on Issue No. 1 and 2 are corroborative through convincing evidence of PW-1, PW-2 and PW-3. The PW-1 stated in his evidence that dowry articles were handed over to the Defendant side about ¾ days before the marriage, whereas PW-3 corroborated the contents of the plaint while stating that at the time of marriage dowry articles were given to the Petitioner No. 1/Plaintiff. The PW-1 and PW-2 both stated that receipts of purchasing dowry article were in the custody of their counsel. The PW-2 also corroborated the version of the plaintiff regarding financial status of her father while deposing that the father of the petitioner has been running a shop of electronics in Kachehri Bazar for last thirty years. The factum of handing over and receiving of dowry articles is also admitted from the side of Defendant/Respondent No. 3, therefore, in such circumstances, the findings of learned Judge Family Court in presence of such tangible and corroborative piece of evidence, could not be brushed aside. It has also come on record through cogent and convincing evidence of PWs, that father of petitioner was running a sop for the last thirty years, therefore, it cannot be presumed that dowry articles were not given to her at the time of marriage and it was sufficient to prove that family of the petitioner was in a position to give dowry articles. The Respondent No. 3 could not controvert/rebut the evidence and contention of the petitioners and findings recorded by learned Judge Family Court. Normally, the dowry articles are handed over along with the list to the parents of the male spouse at the time of Rukhsati. No doubt the Courts are supposed to decide the cases in accordance with law but in family cases, particularly the normal traditions of the society cannot be ignored. In our society, it has now become imperative for all the parents irrespective of poor or rich to give dowry articles to their daughters at the time of marriage. Reliance in this respect is placed upon Mst. Kishwar Sultana and another vs. Muhammad Saddique and another (2009 CLC 61), wherein it has been held as under:

“In this regard, it is observed that in our society, normally it is very difficult to save or keep the receipts of dowry articles by the parents. The evidence produced by the petitioner and the findings recorded by the learned trial Court while deciding Issue No. 5 it was proved on record that the father of the petitioner is running a medical store one brother of petitioner is agency holder of a medicine company and other brother is medical surgeon so this is sufficient to prove that the family of the petitioner was well to do and it is not difficult for such like family to give the dowry articles worth Rs. 2 lac.”

1. In view of the above, the petitioners have succeeded to prove her claim for the recovery of dowry articles by adducing confidence inspiring evidence and the learned Appellate Court without referring anything from the record, has set aside the judgment of the learned Judge, Family Court.

Resultantly, this writ petition is allowed and the impugned judgment and decree dated 15.03.2014 passed by Appellate Court is set aside.

(R.A.) Petition allowed

PLJ 2017 Lahore 616

Present: Muhammad Ali, J.

Malik ZAFAR-UL-ISLAM and 3 others--Petitioners

versus

ABDUL AZEEM LATEEF and 2 others--Respondents

W.P. No. 15855 of 2016, decided of 16.2.2017.

PunjabRented Premises Act, 2009--

----S. 22(4)(b)--Constitution of Pakistan, 1973, Art. 199--Order special judge--Rent controller--Challenge to--Rent agreement--Factual variance regarding rate of rent as well as period of default--Issuance and receiving legal notice--Required evidence in order to settle dispute between parties--Leave to contest--Validity--Special Judge (Rent) shall not allow leave to contest to a respondent, unless, application discloses sufficient grounds for production of oral evidence and sub-rule (6) clearly contemplates that in case leave to contest is refused special judge (rent) shall pass the final order--Final order was not passed and Special Judge (Rent) felt a need to record evidence of the parties, therefore, for all intents and purposes application for leave to contest was allowed.

[Pp. 617 & 618] A

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

----O.XXXVIII Rr. 1 & 2--Leave to contest--Special procedure unlike ordinary civil litigation--Entitled to defend by filing written statement--In certain classes of cases in ordinary civil jurisdiction or special jurisdiction a summary procedure can be prescribed and adopted; such as, suits under Order XXXVII of CPC. [P. 618] B

Mirza Imtiaz Ali Shahid, Advocate for Petitioner.

Mr. Tariq Masood and Saad Tariq, Advocate for Respondents.

Date of hearing: 16.2.2017.

Judgment

Through this constitutional petition, the petitioner has challenged the order of Special Judge (Rent), Lahore, whereby the Special Judge (Rent) ordered recording of evidence without granting leave to contest in specific terms.

1. Brief facts of the case are that the rented shop was given to the father of respondent Muhammad Latif on rent through written rent agreement dated 24.1.1983 which was later on got registered with Special Judge (Rent) on 12.1.2010. The shop was initially given on rent by Mrs. Roshan Qamar (deceased) who was owner of the shop and is now succeeded by the petitioners. After the death of original owner the petitioners were declared as the only legal heirs vide judgment and decree of Civil Judge Lahore dated 08.9.2006. On expiry of original tenant Muhammad Latif who died on 15.12:2013, his legal heirs sons stepped into his shoes and are tenants in the rented premises. The petitioners filed ejectment petition for vacation of rented premises on ground of default in payment of rent. The respondents entered appearance and filed application for leave to contest under Section 22 of the Punjab Rented Premises Act, 2009 (“Act”).

2. The application for leave to contest was decided by Special Judge (Rent) vide order dated 20.04.2016. On the basis of pleadings of the parties, Special Judge (Rent) framed an issue to the effect whether respondents are wilful defaulters in payment of enhanced rent as well as entire rent from the year 2009. The onus to prove this issue was on the petitioners. The instant petition has been filed on a short question that the learned Special Judge (Rent) without allowing application for leave to contest has framed the issue.

3. Learned counsel for the petitioners contends that there is no provision in the rent law to record evidence before granting leave to contest, in this way, the learned Special Judge (Rent) has travelled beyond the parameter of his jurisdiction as laid down in the Act. Submits that the order was passed without application or judicial mind and is against the basic spirit of the Act.

4. On the other hand, learned counsel for the respondents submits that in fact through order dated 20.4.2016 the application was allowed and in no specific terms it was written. Since the issue has been framed it hardly makes any difference.

5. I have heard respective arguments of learned counsels for the parties and have carefully gone through the record.

6. The learned Special Judge (Rent) keeping in view divergent pleas of the parties came to the conclusion that parties are at factual variance regarding rate of rent as well as period of default, it was specifically held that issuance and receiving of legal notice is a question of facts which requires evidence in order to settle dispute between the parties. It was for this reason that issue was framed from divergent contentions of the parties. The learned Special Judge (Rent) concluded that there were triable issues in the case which requires recording of evidence. This exercise was carried out strictly in accordance with Section 22 of the Act which says that a Special Judge (Rent) shall not allow the respondent in an ejectment petition to

defend the application unless he obtains leave to contest, sub-rule (4) of Section 22 of the Act says that Special Judge (Rent) shall not allow leave to contest to a respondent, unless, the application discloses sufficient grounds for production of oral evidence and sub-rule (6) clearly contemplates that in case leave to contest is refused the Special Judge (Rent) shall pass the final order. Here in this case the final order was not passed and Special Judge (Rent) felt a need to record evidence of the parties, therefore, for all intents and purposes the application for leave to contest was allowed, otherwise the result would have been passing of final order against tenant which is not the case. The rent cases under the Act are governed by a special procedure unlike ordinary civil litigation where the defendant of the case in the-ordinary course, without being required by the Court is entitled to defend himself by filing a written statement. In certain classes of cases in ordinary civil jurisdiction or special jurisdiction a summary procedure can be prescribed and adopted; such as, the suits under Order XXXVII of Civil Procedure Code, 1908. In these category of cases the defendant is not entitled to defend the suit or the lis as a matter of course or a right but is required first to seek the leave of the Court to defend the case which is imperative. Thus if the Tribunal on the basis of the grounds set out in the leave application and a document, finds that respondent has raised triable issues it must proceed in an ordinary way by recording evidence. If the conclusion is not happily worded or no specific word for grant of leave is mentioned but issue has been framed it means that leave has been granted.

1. For what has been discussed above, there is no merit in this petition which is hereby dismissed with no order as to costs.

(R.A.) Petition dismissed

PLJ 2017 Lahore 618 [Multan Bench Multan]

Present: Shams Mehmood Mirza, J.

ISHFAQ AHMED and 5 others--Plaintiff

versus

HABIB BANK LIMITED and another--Defendants

C.O.S. No. 8 of 2012, decided on 21.2.2017.

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

----S. 9--Suit for recovery on account of damages--Nature of damages claimed--Default of obligation takes place--Damages claimed by plaintiffs are tortious in nature and do not arise from finances availed from bank--From the very nature of damages claimed by plaintiff bank it is clear that suit filed by plaintiff is not maintainable for recovery of damages. [Pp. 619 & 621] A & B

Nemo for Plaintiff.

Ch.Saleem Akhtar Warraich, Advocate for Defendant.

Date of hearing: 21.2.2017.

Judgment

This is a suit filed under Section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (the Ordinance) seeking recovery of Rs. 280 Million from the defendant bank on account of damages the details whereof are mentioned in Paragraph No. 15 of the plaint. The suit is contested by the defendant bank by filing its application for leave to defend. The application for leave to defend was allowed on 01.02.2017 and following preliminary issue was framed:

Whether the suit in its present form is maintainable against the defendant bank under the provisions of Financial Institutions (Recovery of Finances) Ordinance, 2001? OP-Parties

1. Today the learned counsel for the plaintiffs has not entered appearance despite repeated calls. Be that as it may, this Court has itself gone through the record particularly the contents of the plaint to ascertain the nature of the damages claimed by the plaintiffs. The suit claim arises out of following heads of damages:

Damages due to defamation: Rs. 200 Million

Plaintiff in general:

Damages for mental stress and humiliation Rs. 35 Million

Damages for opportunity lost: Rs. 35 Million

Damages to the suit property: Rs. 10 Million

Total: Rs:280 Million

It is clear that the damages claimed by the plaintiffs are tortious in nature and do not arise from the finances availed from the defendant bank. Section 2(e) defines obligations reads as under:

“obligation” includes

(i) any agreement for the repayment or extension of time in repayment of a finance or for its restructuring or renewal or for payment or extension of time in payment of any other amounts relating to a finance or liquidated damages; and

(ii) any and all representations, warranties and covenants made by or on behalf of the customer to a financial institution at any stage, including representations, warranties and covenants with regard to the ownership, mortgage, pledge, hypothecation or assignment of, or other charge on assets or properties or repayment of a finance or payment of any other amounts relating to a finance or performance of an undertaking or fulfillment of a promise; and

(iii) all duties imposed on the customer under this Ordinance;

Section 9 of the Ordinance states that the Financial Institution or the customer, as the case may be, can institute a suit under the Ordinance in case default of obligation takes place by either of the parties. In a judgment reported as Mian Mehmood Ahmad v. Hong Kong & Shanghai Banking Corporation Limited etc. 2010 CLD 293 a learned Division Bench of this Court held as under:

However for the exercise of such jurisdiction, it is fundamental, imperative, essential and since qua non that two conditions must be met, co-exist and fulfilled, firstly, the special Court should have jurisdiction over the subject-matter, which be for redressal of the grievance qua the enforcement of the right or the complaint about the breach of obligation on part of the defendant, but relatable to the “finance”, this can be termed to the subject-matter jurisdiction. If the dispute inter se the “financial institution” and the “customer” or vice versa is not based upon “finance” and/or failure of an obligation in relation thereto, the special Court shall have no jurisdiction in the matter. The second facet of the jurisdiction is over the parties to the list, which may be termed as jurisdiction over the parties, and connotes that the banking Court shall only have the jurisdiction in the cases, where the relationship of the “financial institutions” and that of the “customer” exists between the parties; considering both these aspects of jurisdiction, the broad question of jurisdiction shall be that the dispute should be between the “customer” and the “financial institutions” as defined in law, in respect of the failure of the defendant to fulfill its/his obligations in relation to the “finance”, which is so specifically, lucidly and clearly mentioned in Section 9 of the Ordinance, 2001, which is the key provision of the special law and can be termed as the jurisdictional clause of the enactment; if the relationship between the parties to the suit is not that of the “customer” and the “financial institution” and is not about the “finance”, the special Court shall have no jurisdiction.

1. From the very nature of the damages claimed by the plaintiff bank it is clear that the suit filed by the plaintiff is not maintainable for the recovery of damages. In a judgment reported as Messrs Asmar Textile Mills (Pvt.) Limited v. Askari Commercial Bank Limited 2007 CLD 457, it was hold that a claim on account of defamation does not come within the jurisdiction of the banking Court. The plaint is accordingly returned in terms of Order VII Rule 10 of CPC. Office is directed to do the needful.

(R.A.) Order accordingly

PLJ 2017 Lahore 621

Present:Jawad Hassan, J.

HAQ BAHU SUGAR MILLS (PVT.) LIMITED--Petitioner

versus

PUNJAB LABOUR COURT NO. 4, FAISALABAD etc.--Respondents

W.P. No. 24561 of 2015, decided on 6.3.2017.

Constitution of Pakistan, 1973--

----Art. 199--Punjab Industrial Relations Act, 2010, Ss. 33(8) & 47(8)--Constitutional petition--Case cannot be adjourned sine die--Ex-parte--Neither produced any proof of review nor shown any petition--Failed to show any stay order in review petition--Validity--It is a well-established principle of law that mere filing of a review petition before Supreme Court does not amount to stay any proceedings or adjourned the same sine the which is pending adjudication before any Court of law. [P. 623] A

Mr. Abdul Rauf, Advocate for Petitioner.

Date of hearing: 6.3.2017.

Order

From the record, it transpired that after filing of the writ petition and after proper notice to Respondent No. 2, he only appeared on 26.02.2016 and sought time to prepare his case. After that, on 05.12.2016, the petitioner filed an application seeking early fixation of the case and the case was fixed for 16.01.2017. On the said date, the Court clearly stated that in case Respondent No. 2 did not appear, the matter shall be decided after hearing the petitioner and perusal of the record; however, notices were again issued to Respondent No. 2 for today but he has failed to tender his appearance hence he is proceeded against ex-parte.

1. Through this petition, the petitioner has prayed for setting aside the order dated 24.06.2015, passed by Respondent No. 1/Punjab Labour Court No. 4, Faisalabad (Camp at Jhang).

2. Learned counsel for the petitioner has staled that the order impugned dated 24.06.2015 be set aside on the ground that mire statement of Respondent No. 2 that he has moved a review petition before the august Supreme Court of Pakistan the case cannot be adjourned sine die; that even Respondent No. 2 did not mention the number of the review petition and the date when the review petition was filed; that the Hon’ble Supreme Court of Pakistan has allowed the Civil Petition No. 2187-L of 2014 vide order dated 05.05.2015 and converted the same into appeal and set aside the orders of the Courts below; that the order for adjourning the case sine the is against the due process of Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973 because the application has to be decided after hearing the parties; that nevertheless, the petition filed by Respondent No. 2 before the learned Labour Court is not maintainable because the Appellate Tribunal has the power under Section 47(8) of the Punjab Industrial Relations Act, 2010 and not the Labour Court under Section 33(8) of the said Act, 2010, therefore, the order impugned passed by the learned Labour Court may be set aside. Learned counsel has placed reliance on the case titled Pakistan Telecommunication Employees Trust (PTET) through M.D. Islamabad and others v. Muhammad Arif and others (2015 PLC (C.S.) 1417).

3. The record reveals that vide the impugned order dated 24.06.2015 the Respondent No. 1 adjourned sine the the contempt petition filed by the Respondent No. 2. The contention of the learned counsel for the petitioner is that neither the Respondent No. 2 has produced any proof of review petition before the Respondent No. 1 nor has shown any stay order in the review petition allegedly filed before the Hon’ble Supreme Court of Pakistan, therefore, the proceedings cannot be adjourned sine die. There is nothing on record to rebut the contention of the learned counsel for the petitioner.

4. The impugned order reveals that mere on the statement of the Respondent No. 2 the petition has been adjourned sine the vide the impugned order. Even if it is presumed to be filed, even then the Respondent No. 2 has failed to show any stay order in the allegedly filed review petition, therefore, for an indefinite period the proceedings of any lis cannot be adjourned. It is a well-established principle of law that mere filing of a Review Petition before the Hon’ble Supreme Court of Pakistan does not amount to stay any proceedings or adjourned the same sine the which is pending adjudication before any Court of law.

5. In view of above, the instant petition is accepted and the impugned order dated 24.06.2015 passed by the Respondent No. 1 is set aside. The Respondent No. 1 is directed to decide the pending petition of the Respondent No. 2 within a period of three months positively.

(R.A.) Petition accepted

PLJ 2017 Lahore 623 (DB)

Present:Mrs. Ayesha A. Malik and Jawad Hassan, JJ.

GOVERNMENT OF PUNJAB etc.--Appellants

versus

ISHTIAQ AHMAD BUTT and others--Respondents

I.C.A. No. 184 of 2013, decided on 1.2.2017.

Law Reforms Ordinance, 1972--

----S. 3--Limitation Act, 1908, Ss. 3 & Art. 151--Intra Court Appeal--Condonation of delay--Delay in filing of I.C.A.--Maintainability--Only ground/reason for condonation of delay mentioned in the applications is “misreading and misinterpreting” which is neither cogent nor confidence inspiring to extend favour for condonation of delay--Limitation provided for filing an appeal from a decree or order of a High Court in the exercise of its original jurisdiction is twenty days from date of decree or order as provided under Art. 151 of the First Schedule provided under Section 3 of Limitation Act, 1908--Delay in filing of ICAs would become liable to be condoned, as appellants had failed to show sufficient reasons for condonation of such delay. [Pp. 625 & 626] A, B & D

Intra-Court Appeal--

----Scope of--Remedy by way of CPLA was availed--Delay of--Explanation--It is a settled position of law that in case of time barred proceedings, defaulting party must, explain the delay of each day caused in preferring a valid proceeding in accordance with law.

[P. 626] C

Mr. Sultan Mehmood, Assistant Advocate-General and Mr. Javed Hussain Sial, Law Officer for Appellant.

Malik Muhammad Awais Khalid, Advocate and MianBilal Bashir, Advocate for Respondents.

Date of hearing: 1.2.2017.

Judgment

Jawad Hassan, J.--Through this single judgment we intend to decide the instant Intra Court Appeal as well as I.C.A. No. 185/2013 and I.C.A. No. 186/2013 alongwith applications for condonation of delay (C.Ms. No. 1/2013) in all the appeals, as all the same are outcome of impugned judgment dated 23.10.2012 passed by the learned Single Judge passed in W.P. No. 28854/2011, W.P. No. 27160/2011 and W.P. No. 25019/2011 whereby the writ Petitions of the Respondents were allowed.

1. The C.Ms. No. 1/2013 are the applications for the condonation of delay of abovementioned appeals, The learned Law Officer stated that the delay in filing these appeals be condoned because due to misreading and misinterpreting, instead of Intra Court Appeals, the Appellants filed the appeals in the Hon’ble Supreme Court of Pakistan. He further argued that the present Appellants feeling aggrieved of the said findings preferred Civil Petitions No. 2443-L to 2445-L of 2012 titled “Government of the Punjab etc, v. Zahoor Ahmad etc.” (the CPLAs) before the Hon’ble Supreme Court of Pakistan, which came up for hearing before the apex Court on 01.03.2013, and the same were disposed of as having been withdrawn.

2. The learned counsel for the respondents by means of a preliminary objection, questioned the maintainability of the present Intra-Court Appeals on the ground of limitation and placed reliance upon the case titled Dr. Syed Sibtain Raza Naqvi. v. Hydrocarbon Development and others (2012 SCMR 377), Gen. (R) Parvez Musharraf v. Nadeem Ahmed (Advocate) and another (PLD 2014 Supreme Court 585), Ghulam Hussain Ramzan Ali v. Vollector of Customs (Preventive), Karachi (2014 SCMR 1594), Government of Baluchistan vs. Abdul Nabi and another (1988 SCMR 1906), Province of Punjab through District Officer Revenue, Rawalpindi and others v. Muhammad Sarwar (2014 SCMR 1358), Province of Punjab and others v. Aftab Ahmed and others (2012 PLC (C.S) 1402) and Ministry of Defence and 3 others v. Muhammad Athar (2013 MLD1284).

3. When the learned AAG and Law Officer were asked to first cross the hurdle of limitation, they informed that the C.Ms. No. 1 of 2013 have been moved by the appellants under the provisions of Section 5 of the Limitation Act, 1908, with a request to condone the delay caused in filing of Intra-Court Appeals with the prayer that the delay caused in filing the appeals is neither deliberate nor intentional rather due to misreading and misinterpreting, the CPLAs were filed against the impugned judgment and time taken into the disposal of the said CPLAs may very kindly be excluded and the appeals be deemed in time.

4. We have heard the arguments of both the sides and perused the record.

5. We examined the record which reflects that in the said applications no reason or justification has been extended by the appellants justifying such delay in filing the Intra-Court Appeals which are the sole basis of the prayer made in the Civil Miscellaneous Petitions for condonation of delay. The only ground/reason for condonation of delay mentioned in the applications is “misreading and misinterpreting” which is neither cogent nor confidence inspiring to extend favour for condonation of delay.

6-A. The limitation provided for filing an appeal from a decree or order of a High Court in the exercise of its original jurisdiction is twenty days from the date of decree or order as provided under Article 151 of the First Schedule provided under Section 3 of the Limitation Act, 1908.

1. The judgment passed by the learned Single Judge was delivered on 23.10.2012. On behalf of the Appellants, CPLAs were filed before the Hon’ble Supreme Court of Pakistan in December, 2011 which was after a considerable delay after passing of the judgment by the learned Single Judge.

2. The Hon’ble Supreme Court of Pakistan when disposed of the said CPLAs, made no observations, which are of significance for the purposes of disposal of the present Civil Miscellaneous seeking condonation of delay in filing of Intra Court Appeal rather simply disposed of as having been withdrawn. The order was passed by the Hon’ble Supreme Court of Pakistan on 01.03.2013 in presence of both the parties and it is clearly noted that it was never disputed before the apex Court that the judgment passed by the learned Single Judge was amenable to Intra-Court Appeal. When the CPLAs were disposed of being withdrawn and filing of ICAs before us, the date of filing CPLAs must be taken as a date of filing of ICAs. Keeping in view the period of limitation provided under Article 151 of the Limitation Act, 1908 the ICAs were thus barred by limitation.

3. The Hon’ble Supreme Court of Pakistan while disposing of the CPLAs have not given any findings regarding the issue of condonation of delay in filing the ICAs, rather disposed of having been withdrawn; meaning thereby, left it open for this Court to decide the appeal in accordance with law subject to all just and valid objections, thus, we can examine the objections raised by the respondents with regard to the limitation.

4. Reliance in this regard can be placed on the case titled Mst.Khadija Begum and 2 others v. Mst, Yasmeen and 4 others (PLD 2001 Supreme Court 355) in which, while dealing with the question of limitation it has been categorically held that sufficient cause must be shown by the person seeking condonation of delay, which means “circumstances beyond control of party concerned” and that, nothing shall be deemed to be done in good faith which is not done with due care and attention. Furthermore, the Hon’ble Supreme Court of Pakistan in case of Federation of Pakistan and 2 others v. Khurshid Ahmed and another (1999 SCMR 664) has dealt with the question of availability of ICA or otherwise and interesting factor is that in the reported matter, the General Headquarters (GHQ) was a party to the litigation and after such authoritative findings by the Hon’ble Supreme Court of Pakistan, the General Headquarters must become wiser and aware of the remedy available under the law but notwithstanding such position a remedy by way of CPLA was availed, while ICA was undeniably available to the aggrieved party. It is a settled position of law that in case of time barred proceedings, defaulting party must explain the delay of each day caused in preferring a valid proceeding in accordance with law.

5. The learned Law Officer has attempted to argue that they became aware of the position that ICAs were the proper remedy only on 01.03.2013, when the Hon’ble Supreme Court of Pakistan disposed of their CPLAs. We do not agree with this argument of learned Law Officer.

6. We, therefore, adjudge, the delay in filing of ICAs would not become liable to be condoned, as the appellants have failed to show any sufficient reasons for condonation of such delay.

7. For all what has been discussed above, we see no reason to condone the delay in filing of I.C.As; resultantly, the C.Ms. No. 1/2013 are dismissed.

8. Since the C.Ms. No. 1/2013 have been dismissed and the delay caused in filing of ICAs has not been condoned; therefore, the ICAs mentioned above are also dismissed as being barred by time.

9. Apart from this we observe that the impugned judgment is personam for the respondents and not rem, hence only the condition of the Departmental examination did not extend to the Respondents, which were PMS Officers in Grade-17.

(R.A.) ICAs dismissed

PLJ 2017 Lahore 627

Present:Abid Aziz Sheikh, J.

SHEHNAZ MAIRAJ--Petitioner

versus

THE LESCO through Chief Executive and 5 others--Respondents

W.P. No. 8501 of 2014, heard on 31.1.2017.

Regulation of Generation Transmission and Distribution of Electric Power Act, 1997--

----S. 38(3)--Electricity Act, 1910, S. 26(6)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Consumer of LESCO--Sanctioned load was differed with connected load--Determine difference of charges of previous period of misuse to be recovered from consumer--Validity--No disconnection or penal action was taken against petitioner rather only difference of charges between sanctioned load and load actually used by petitioner was charged, hence Clause 7.5 of Consumer Service Manual has not been violated--Issuance of detection bill itself amounts to notice and petitioner had also availed remedy before POI against determination--Order passed by POI was beyond 90 days--Order was not passed by respondent under Section 26(6) of the Act as Electric Inspector rather the order was passed by him in the capacity of POI under Section 38(3) of Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 (NEPRA Act), therefore, argument has no substance.

[P. 630] A & B

Mr. A.D. Bhatti, Advocate for Petitioner.

Mr. Saeed Ahmad Bhatti, Advocate/Legal Advisor of respondent department for Respondents.

Date of hearing: 31.1.2017.

Order

Through this constitution petition petitioner has challenged the order dated 20.1.2014 passed by National Electric Power Regulatory Authority (NEPRA) whereby order of The Provincial Office of Inspection/EI, Lahore (POI) dated 16.7.2013 was set aside.

1. Relevant facts are that petitioner is consumer of Respondent No. 1 (LESCO) with sanctioned load of 13 KW under B-1 tariff. The petitioner was charged with bill of Rs. 104544/- for the month of February, 2013 on account of her connected load of 32 KW beyond the sanctioned load. The petitioner being aggrieved filed application dated 20.3.2013 with Respondent No. 5 which was allowed on 16.7.2013. The Respondent No. 1 being aggrieved filed appeal before Respondent No. 6 which was allowed vide impugned order dated 20.1.2014. The petitioner being aggrieved has filed this constitutional petition to set aside the order passed by NEPRA (Respondent No. 6) and to restore the order of POI (Respondent No. 5).

2. Learned counsel for the petitioner argued that no notice under clause 7.5 of the Consumer Service Manual (Consumer Manual) was given to the petitioner before determining the amount on the basis of connected load being beyond sanctioned load. Further submits that entire proceedings are based on audit report and no spot inquiry was conducted by the department. To support above submission, reliance is placed on Water and Power Development Authority and others vs. Umaid Khan (1988 CLC 501). Adds that order passed by POI was well reasoned which could not be set aside by NEPRA.

3. Learned counsel for the respondent submits that order passed by respondent POI was without jurisdiction as application was filed on 20.3.2013 whereas decision was made on 16.7.2013 beyond period of 90 days as prescribed under Section 26(6) of the Electricity Act, 1910 (Act). Learned counsel further submits that sanctioned load of the petitioner was 13 KW in B-1 tariff, however, as per spot inspection report, petitioner was using load of 32 KW which falls under tariff B-2, therefore, petitioner was lawfully charged for the load beyond sanctioned load. Further submits that notice under clause 7.5 of Consumer Manual was only required before disconnection of electricity whereas in the instant case, no such action was taken rather only demand was raised from petitioner through bill which itself amounts to due notice.

4. I have heard the learned counsel for the parties and perused the record.

5. It is admitted position on record that sanctioned load of the petitioner was 13 KW in B-I tariff where on 21.12.2012, the site was verified by the local audit party and it was found that connected load was 45 HP (32 KW). It was on the basis of said site report, that fixed charges of 32 KW in B-2 tariff amounting to Rs. 104545/- for the month of July, 2012 to December, 2012 was charged to the petitioner in the bill for the month of February, 2013. No doubt that illegal extension of load by the petitioner from 13 KW to 32 KW was not regularized by LESCO, however, this does not absolve the petitioner to pay difference of charges between the approved sanctioned tariff and tariff used by petitioner beyond sanctioned load. The plea of the petitioner that no fact finding inquiry was conducted by respondent department is not supported by record. Bare perusal of audit note dated 21.12.2012 shows that site verification was conducted before determining that petitioner connected load was 32 KW while her sanctioned load was only 13 KW.

6. The next argument of learned counsel for the petitioner that before determining the difference of charges, 07 days prior notice under clause 7.5 of consumer manual was mandatory is also mis-conceived. Clause 7.5 of the consumer manual is reproduced hereunder:--

7.5 MIS-USE OF TARIFF

(a) The consumer shall, in no case use the connection for the purpose other than for which it was originally sanctioned. In case of violation, the consumer is liable for disconnection and/or penal action.

(b) DISCO shall serve seven (7) days clear notice to the consumer who is found mis-using his approved/sanctioned tariff However, DISCO shall immediately change the tariff and shall determine the difference of charges of the previous period of mis-use to be recovered from consumer. However, in the absence of any documentary proof the maximum period of such charges shall not be more than TWO billing cycles.”

Plain reading of clause 7.5 of the Consumer Manual shows that Consumer who used connection for the purpose other than original sanctioned load shall be liable for disconnection and penal action. Sub-clause (b) of clause 7.5 provide that before taking said action, seven

days prior notice is required. However, the said sub-clause provide exception that Distribution Company shall immediately change the tariff and determine the difference of charges of the previous period of misuse to be recovered from consumer. In the present case, no disconnection or penal action was taken against the petitioner rather only difference of charges between sanctioned load and load actually used by the petitioner wascharged, hence Clause 7.5 of Consumer Service Manual has not been violated. Further I also found substance in argument of respondent that issuance of detection bill itself amounts to notice and petitioner had also availed remedy before POI against said determination. Therefore, it cannot be said that petitioner was condemned unheard. The case law relied upon by learned counsel for the petitioner is not applicable to the facts and circumstances of this case.

1. So far as argument of learned counsel for the respondents that order passed by POI was beyond 90 days. I have noted that order was not passed by Respondent No. 5 under Section 26(6) of the Act as Electric Inspector rather the order was passed by him in the capacity of POI under Section 38(3) of Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 (NEPRA Act), therefore, this argument has no substance.

2. In view of above, no illegality or infirmity is found in the impugned order passed by NEPRA. Accordingly, this petition is dismissed with no order as to cost.

(R.A.) Petition dismissed

PLJ 2017 Lahore 630

Present:Shujaat Ali Khan, J.

MUHAMMAD IQBAL--Petitioner

versus

CHIEF SECRETARY GOVERNMENT OF THE PUNJAB and 3 others--Respondents

W.P. No. 5449 of 2012, decided on 7.11.2016.

Punjab Employees Efficiency, Discipline and Accountability Act, 2006--

----S. 1(4)(iii)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Civil servant--Retirement--Penalty of withholding of pension--Constitution of departmental proceedings after expiry of time stipulated by PST is nullity in eye of law--Deficiency--Inquiry--Assessment of exact loss caused to public exchequer due to conduct--Challenged maintainability of proceeding after expiry of period stipulated by PST--Proceedings can be initiated against a government servant within one year of his retirement--Proceedings against the petitioner were not quashed rather matter was remitted back to competent authority for re-assessment of loss caused to National Exchequer due to acts of the petitioner--No clear cut direction was issued by PST regarding conclusion of proceedings within a specified time frame rather expected that matter would be decided within 90 days, therefore, no exception can be taken against proceedings pending against petitioner.

[Pp. 633 & 634] A & B

Punjab Employees Efficiency, Discipline and Accountability Act, 2006--

----S. 21--Constitution of Pakistan, 1973, Arts. 199 & 212--Civil servant--Penalty of withholding of pension--Inquiry proceeding--Validity--Continuation of departmental proceeding after expiry of time proceedings initiated against civil servant were to be completed within two years--Upon recommendations of I.O. penalty was imposed against petitioner within two years of his retirement, thus, the case of the petitioner does not fall within mischief of provision--If petitioner is aggrieved of pendency of proceedings pursuant to judgment passed by PST he could approach the said forum afresh but could not invoke the jurisdiction of High Court in view of the bar contained under Article 212 of the Constitution--Penalty was imposed against petitioner consequent upon completion of inquiry proceedings well within time prescribed under Section 21 of PEEDA Act, 2006 which, however, was subsequently set aside by PST. [P. 634] C & D

Mian Bilal Bashir and Raja Tasawar Iqbal, Advocates for Petitioner.

Rana Shamshad Khan, Additional Advocate General for Respondents.

Date of hearing: 7.11.2016.

Order

Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioner has called in question validity of inquiry proceedings pending against him before Mr. Farhan Aziz Khawaja, he Managing Director, Punjab Small Industries Corporation, Lahore (Respondent No. 4).

1. Succinct facts, relevant for the disposal of instant petition, are that the petitioner retired from government service on 19.05.2009 when he was working as Deputy District Education Officer (Elementary Male). By virtue of order, dated 07.07.2010 passed by the Chief Minister/competent authority penalty of withholding of 50% pension was imposed against him. Aggrieved by the said order the petitioner filed an Appeal (No. 3391-2010) before the Punjab Service Tribunal Lahore which was accepted, vide judgment dated 26.07.2011 and the matter was remitted back to the competent authority for assessment of exact loss caused to the public exchequer due to conduct of the petitioner. As the proceedings against the petitioner have not been concluded despite expiry of 90 days, as stipulated by PST, he has filed the instant petition.

2. Learned counsel for the petitioner submits that no inquiry can be initiated against a government servant after one year of his retirement; that if the departmental authorities were not satisfied with the period stipulated by PST they could move for extension of time; that the petitioner was exonerated in three consecutive inquiries conducted by the Anti-Corruption Authorities, therefore, continuation of departmental proceedings after expiry of time stipulated by PST is a nullity in the eye of law. In support of his contentions, learned counsel has relied upon the case reported as Mst. Badshah Begum and others v. The Additional Commissioner (R) Lahore Division and others (2003 SCMR 629) and Syd Raza Mehdi Baqari v. Province of Punjab through Secretary. LG & CD Department and 2 others (2016 PLC (C,S.) 1046).

3. Conversely, learned Law Officer, while controverting the assertions made by learned counsel for the petitioner, submits that as final order has not been passed against the petitioner, instant petition is pre-mature; that the findings of PST regarding stipulation of period shows that the same was only observation and not a direction; that according to Section 23 of the Punjab Employees Efficiency, Discipline and Accountability (PEEDA) Act, 2006 proceedings initiated against a government servant cannot be called in question before any forum and that instant petition is barred by Article 212 of the Constitution of Islamic Republic of Pakistan, 1973. Relies on Ali Azhar Khan Baloch and others v. Province of Sindh and others (2015 SCMR 456).

4. Learned counsel for the petitioner, while exercising his right of rebuttal, submits that the petitioner has not claimed anything on the basis of his acquittal in criminal case rather he has challenged maintainability of proceedings pending against him after the expiry of period stipulated by PST; that in Section 1(4)(iii) of PEEDA Act, 2006 the word “shall” has been used meaning thereby the same is mandatory in nature.

5. I have heard learned counsel for the parties at considerable length and have also gone through the documents annexed with this petition as well as the case-law cited at the bar.

6. To resolve the controversy involved in this petition a perusal of Section 1(4)(iii) of PEEDA Act, 2006 is of paramount consideration which for facility of reference is reproduced herein below:

“1. Short title, extent, commencement and application.--

(4) It shall apply to,--

(i) ………………

(ii) ……………….

(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 after their retirement.”

A perusal of the afore-quoted provision of law renders it crystal clear that proceedings can be initiated against a government servant within one year of his retirement. Insofar as case in hand is concerned, on the basis of deficiencies pointed out by the Audit Department the competent authority ordered for Inquiry against the petitioner on 01.01.2009 whereas the petitioner retired from government service on 19.05.2009 meaning thereby that the proceedings were initiated against him prior to his retirement, thus, the provisions of Section 1(4)(iii) of PEEDA Act, 2006 are of no help to the petitioner.

1. Insofar as the plea of the learned counsel that the petitioner has come to this Court for implementation of judgment passed by PST is concerned, suffice it to note that though the order passed by competent authority was set aside by PST, however, proceedings against the petitioner were not quashed rather the matter was remitted back to the competent authority for re-assessment of the loss caused to the National Exchequer due to acts of the petitioner. No clear cut direction was issued by PST regarding conclusion of proceedings within a specified time frame rather expected that the matter would be decided within 90 days, therefore, no exception can be taken against the proceedings pending against the petitioner on the said ground.

2. Now coming to the contention of learned counsel for the petitioner that as per Section 21 of PEEDA Act, 2006, proceedings initiated against the petitioner were to be completed within two years I am of the view that upon recommendations of the Inquiry Officer penalty was imposed against the petitioner within two years of his retirement, thus, the case of the petitioner does not fall within the mischief of said provision. If the petitioner is aggrieved of pendency of proceedings pursuant to judgment passed by PST he could approach the said forum afresh but could not invoke the jurisdiction of this Court in view of the bar contained under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973. Had the matter not been decided by the competent authority within two years from the retirement of the petitioner the position would have been entirely different.

3. As far as assertion of the learned counsel for the petitioner that proceedings against the petitioner cannot be allowed to inure for an indefinite period, is concerned, this Court agrees with the learned counsel for the petitioner as the persons at the helm of affairs cannot be allowed to tinker with the fate of retired employees by prolonging fate of proceedings pending against him.

4. 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 instant case inasmuch as in the case of Mst. Badshah Begum and others (Supra) the apex Court of the country inter-alia decided that period stipulated by a statute cannot be extended/relaxed by a Court of law but when the petitioner himself acquiesced with the findings of PST regarding re-assessment of loss caused to the National Exchequer he has no cheeks to challenge pendency of proceedings against him on the ground that the same are either hit by Section 1(4)(iii) or 21 of PEEDA Act, 2006. So far as case of Syed Raza Mehdi Baqari (Supra) is concerned, in the said matter the order of the competent authority was set aside by this Court on the ground that proceedings could not be concluded within two years from the retirement of the petitioner but in the instant case, at the cost of repetition, it is observed that penalty was imposed against the petitioner consequent upon completion of Inquiry proceedings well within the time prescribed under Section 21 of PEEDA Act, 2006 which, however, was subsequently set aside by PST.

5. For what has been discussed above, instant petition has no force and the same is hereby dismissed with a direction to Respondent No. 1 to ensure finalization of proceedings pending against the petitioner within two months positively from the receipt of certified copy of this order. Office is directed to immediately transmit a copy of this order to Respondent No. 1 for further necessary action and compliance.

(R.A.) Petition dismissed

PLJ 2017 Lahore 635 [Multan Bench Multan]

Present: Habib Ullah Amir, J.

MUHAMMAD RAMZAN deceased through his Legal Heirs--Petitioners

versus

ATTA MUHAMMAD etc.--Respondents

C.R. No. 159-D of 2006, heard on 8.3.2017.

Punjab Pre-emption Act, 1991 (IX of 1991)--

----Ss. 2(c) & 13--Right of pre-emption--Right of pre-emption means a right to acquire by purchase of immoveable property in preference to other persons by reason of such right and Section 13 of the Act has provided that right of pre-emption of a person shall be extinguished unless such person makes demands of pre-emption.

[P. 638] A

Punjab Pre-emption Act, 1991 (IX of 1991)--

----S. 13--Talb-i-muwathibat--Intention to exercise right of pre-emption--Demand by pre-emptor in sitting or meeting--No name of witness was mentioned in plaint in whose presence made jumping demand--When fact of sale comes within knowledge of pre-emptor through any source he should make talb-i-muwathibat and it is bounden duty of plaintiff to give proper detail in respect to time, date, place and names of witnesses in whose presence he comes into knowledge the transaction of sale and averments of suit of plaintiffs have minutely been perused--Talb-i-muwathibat is first demand through which a pre-emptor on coming to know about sale immediately declares his intention to exercise right of pre-emption and talb-i-muwathibat being jumping talb would be made right at that moment when plaintiffs comes to know of sale transaction which he intends to pre-empt. [Pp. 638 & 639] B & C

Punjab Pre-emption Act, 1991 (IX of 1991)--

----S. 13--Talb-i-ishhad--Scope of--Notice of talb-i-ishhad--Acknowledgement due or receipt--Scribe of notice--Scribe of notice has not been produced in witness-box and PW has himself conceded that notice was dispatched to defendant, by clerk of Advocate meaning thereby, plaintiffs had not seen clerk of counsel while dispatching notice, in such a situation scribe of notice was necessary to be produced in witness-box but he has not been produced in trial--Neither plaintiffs nor their witnesses deposed to effect that at time of making talb-i-ishhad they referred talb-e- muwathibat and such omission at the time of performing talb-i- ishhad is fatal to the claim of pre-emptors--Pre-emptors are not only required to prove requirements of talb-i-muwathibat but also that they are bound to establish requirement of talb-i-ishhad by sending a notice in writing attested by two truthful witnesses under registered cover acknowledgment due to vendee confirming their intention to exercise right of pre-emption but the evidence produced by plaintiffs has been found with material contradictions and plaintiffs despite burdened to prove the requirements of talb-i-muwathibat and talb-i-ishhad had failed to prove the same and once plaintiffs fail to prove performance of talbs in accordance with law no decree for possession through pre-emption can be passed in their favour, however, Appellate Court erred in law by decreeing suit in favour of respondents and the instant civil revision is accepted.

[Pp. 642 & 643] D, E & F

Mr. Ghias-ul-Haque, Advocate for Petitioner.

Malik Muhammad Naeem Iqbal, Advocate for Respondents.

Date of hearing: 8.3.2017.

Judgment

Feeling aggrieved, Muhammad Ramzan, the predecessor-in-interest of petitioners has assailed judgment and decree dated 26.01.2006, of learned Additional District Judge, D.G. Khan, whereby appeal of respondents Atta Muhammad etc. was accepted and by setting aside judgment and decree of learned Civil Judge, D.G. Khan dated 29.09.2005 suit for possession through pre-emption of respondents has been decreed.

1. Succinctly, facts giving rise to instant civil revision are that respondents instituted suit for possession through pre-emption in respect to property vividly described in caption of suit in the Court of learned Civil Judge, D.G. Khan which was controverted by Muhammad Ramzan predecessor-in-interest of petitioners and the learned Civil Judge after framing issues directed parties to lead evidence and after hearing parties dismissed the suit. Feeling aggrieved, respondents preferred appeal which was heard by learned Additional District Judge, D.G. Khan who accepted the same while setting aside judgment and decree of learned Civil Judge and decreed suit for possession through pre-emption. Hence, this civil revision.

2. Learned counsel for petitioners has vehemently argued that judgment and decree of the learned Additional District Judge is against law and facts of case and he did not apply sagacious independent judicious mind towards actual and factual aspects of case and it has failed to appreciate that plaintiffs had failed to produce evidence to prove requirements of requisite Talbs including registry clerk, scribe of notice of Talb-e-Ishhad as well as postman who were not produced in trial before the learned Civil Judge, hence finding of learned Additional District Judge are outcome of misreading and non-reading of evidence which has caused grave injustice and prayed for acceptance of this civil revision.

3. On the other hand, this civil revision is controverted by learned counsel for respondents.

4. Arguments of learned counsel for parties have been heard at length and available record has minutely been scanned.

5. The plaintiffs Atta Muhammad and Yar Muhammad have averred in suit that property in dispute was purchased by Muhammad Ramzan, defendant from Jan Muhammad etc. without knowledge of plaintiffs in consideration Rs. 1,00,000/- but fictitious price i.e. Rs. 2,00,000/- was mentioned in Mutation No. 1561 attested on 21.06.2002, however, no notice in respect to sale was given to plaintiffs despite the fact that they are Shafi-e-Shareek, and Shafi-e-Jar having preferential right of pre-emption while on 25.06.2002 at 07:00 a.m. they came into knowledge of sale at their house situated at Mauza Kot Daud from Muhammad Asghar and on coming into knowledge of sale they exercised their right of pre-emption, whereafter notice of Talb-e-Ishhad, duly attested by witnesses, was dispatched to defendant on 27.06.2002; that defendant was time and again requested to receive Rs. 1,00,000/- and to transfer property in their favour but he refused and thus, they were constrained to institute suit. The suit was controverted by defendant on different grounds including that property in dispute was purchased by him for Rs. 2,00,000/- and in addition he had to bear Rs. 18,000/-, moreover, he did not receive any notice from the side of plaintiffs while plaintiffs were well in knowledge of transaction being close relatives of sellers. Whereafter, out of divergent pleadings of the parties, following issues were framed by the learned Civil Judge, D.G. Khan:--

ISSUES.

1. Whether the plaintiff has no cause of action to file this suit and the estopped by word and conduct? OPD

2. Whether the suit is insufficiently stamped for the purpose of Court fees and jurisdiction? OPD

3. Whether the plaintiff has fulfilled the requirement of Talabs according to Section 13 of Punjab Pre-emption Act, 1991? OPP

4. Whether the plaintiff has superior right of pre-emption qua the defendant? OPP

5. Whether the actual sale price of the suit property is one lac instead of two lacs? OPP

6. Whether the plaintiff is entitled to get the decree of possession through pre-emption as prayed for ? OPP

7. Relief.

8. According to Section 2(c) of Punjab Pre-emption Act, 1991 right of pre-emption means a right to acquire by purchase of immoveable property in preference to other persons by reason of such right and Section 13 of the Act Ibid has provided that the right of pre-emption of a person shall be extinguished unless such person makes demands of pre-emption in following orders, namely:--

(a) Talb-i-Muwathibat;

(b) Talb-i-Ishhad; and

(c) Talb-i-Khasumat;

1. Section 13 of Punjab Pre-emption Act, 1991 provides that Talb-i-Muwathibat means immediate demand by a pre- emptor in the sitting or meeting (Majlis) in which he has come to know of the sale, declaring his intention to exercise the right of pre-emption. When fact of sale comes within knowledge of pre-emptor through any source he should make Talb-i- Muwathibat and it is bounden duty of plaintiff to give proper detail in respect to the time, date, place and the names of witnesses in whose presence he comes into knowledge the transaction of sale and the averments of suit of plaintiffs have minutely been perused wherein it has been averred that on 25.06.2002 at 07:00 a.m. when the plaintiffs were at their house situated at Mouza Kot Daud they received information about sale through Muhammad Asghar, however, no name of any witness has been mentioned in the plaint in whose presence plaintiffs made jumping demand and once members of same Majlis appears in witness-box and depose that in their presence, the plaintiffs made jumping demand, their names would have been mentioned by plaintiffs in suit.

2. Talb-i-Muwathibat is first demand through which a pre-emptor on coming to know about sale immediately declares his intention to exercise right of pre-emption and Talb-i- Muwathibat being jumping talab should be made right at that moment when plaintiffs comes to know of sale transaction which he intends to pre-empt. In this case, in support of the version of plaintiffs that on 25.06.2002 at about 07:00 a.m. plaintiffs received information about sale of land in dispute and that they performed requirements of Talabs as PW-1 Atta Muhammad has deposed that on 25.06.2002 at about 07:00 a.m. he was sitting at his Bethak alongwith Haji Yar Muhammad and Wahid Bakhsh, where Muhammad Asghar came and informed that the property in dispute was sold for consideration of Rs. 1,00,000/- and on hearing this, in presence of witnesses, he made jumping demand and alongwith him Haji Yar Muhammad also made jumping demand and in his support PW-2 Muhammad Asghar has deposed that on 25.06.2002 he received information about sale transaction from a person at Fajar time at workshop whereafter, he went to plaintiffs where Atta Muhammad and Yar Muhammad were present alongwith Wahid Bakhsh and he informed them about sale transaction and on hearing this both the plaintiffs stood up and they made jumping demand while PW-3 has deposed that on 25.06.2002 they were sitting at the place of Haji Atta Muhammad and Yar Muhammad at 07:00 a.m. where Muhammad Asghar came and informed about the sale of property in dispute and on hearing this, plaintiffs made jumping demand. PW-1 Atta Muhammad has thoroughly been cross-examined by the learned counsel for defendant and he has stated that he alongwith Yar Muhammad made jumping demand together at one time, whereas in examination-in-chief, he has deposed that firstly he made jumping demand whereafter both the plaintiffs made jumping demand collectively. Informer Muhammad Asghar has not given the detail of place where he informed the plaintiffs about the sale transaction, however, generally he has stated that he went to Atta Muhammad and the plaintiffs were sitting on cots and they were in the compound outside Bethak while in contradiction to this Atta Muhammad PW-1 has stated that he was sitting in his Bethak alongwith witnesses.

3. It has been laid down in judgment reported as “Allah Ditta through L.Rs and others vs. Muhammad Anar” (2013 SCMR 866) that discrepancy in respect to place where plaintiffs received information about sale transaction is fatal to the plaintiffs and the relevant paragraph of judgment is reproduced as under:

“----S. 13--Suit for pre-emption--Talb-i-Muwathibat, witnesses of--”Material discrepancy” in statements of witnesses regarding place where pre-emptor got knowledge of sale of suit land--Effect--Witnesses appearing on behalf of pre-emptor stated that disclosure of sale of suit land was made when pre-emptor was sitting inside a shop, whereas the informer (son of pre-emptor) stated in his evidence that they were sitting outside the shop--Such discrepancy was a “material discrepancy”--Appeal was allowed and suit for pre-emption stood dismissed in circumstances.”

1. In this case there is discrepancy in the evidence of plaintiffs in respect to the place where the plaintiffs received information as the informer has not mentioned the place where he gave information to the plaintiffs in respect to sale transaction and similarly, PW-1 has deposed that he was sitting in Bethak alongwith witnesses when he received information and at the same time it is deposed by PW-3 that plaintiffs were sitting in Bethak of his house. Muhammad Asghar is informer of this case who has appeared in the witness-box as PW-2 and he has deposed that he was in workshop where one Ghulam Farid brought into his knowledge sale transaction, whereafter he went to Atta Muhammad and gave him information about sale transaction. In this regard, reliance has been placed in case law reported as “Subhanuddin and others vs. Pir Ghulam” (PLD 2015 Supreme Court 69) wherein it has been held as under:

“Burden of proof--Person conveying information of sale and price not produced as witness--Effect--Initial burden of proof with regard to conveying of the information of sale and price lay upon the pre-emptor, who failed to discharge the same--Person who had conveyed information of sale and price to brother of pre-emptor, who in turn passed it onto the pre-emptor, was not produced as a witness--Elements of Talb-i-Muwathibat were thus no proved--Appeal was allowed accordingly and suit for pre-emption was dismissed.”

1. The plaintiffs could not produce Ghulam Farid as witness, who conveyed the information about sale and price of land in dispute to the informer. In regard to this point, evidence of Wahid Bakhsh, PW-3 is also of much importance, who, in cross-examination has not denied that he alongwith Yar Muhammad and Atta Muhammad, plaintiffs was sitting in Bethak and that in one or two minutes, the plaintiffs made jumping demand and this piece of evidence is in contradiction to the stance of plaintiffs that they made jumping demand soon after coming into knowledge of sale transaction.

2. It has been provided in Section 13(3) of Punjab Pre- emption Act, 1991 that where a pre-emptor has made Talb-i- Muwathibat under sub-section (2) of Section 13 of the Act Ibid he shall as soon thereafter as possible but not later than two weeks from the date of knowledge make Talb-i-Ishhad by sending a notice in writing, attested by two truthful witnesses, under registered cover acknowledgement due, to the vendee, confirming his intention to exercise the right of pre-emption. The plaintiffs in suit have averred that on 27.06.2002 they dispatched notice of Talb-i-Ishhad to the defendant which was duly attested by truthful witnesses, however under the law mere sending of notice of Talb-i-Ishhad by pre-emptor is not sufficient and acknowledgment due slip must be signed by the vendee and not any other person and it is now the settled principle of law laid down through case law reported as “ Allah Ditta through L.Rs and others vs. Muhammad Anar “ (2013 SCMR 866) that:

“Affirmative onus to prove the receipt of notice of Talb-i-Ishhad was on the pre-emptor, therefore, notwithstanding any admission of the attorney of the vendee, it was obligatory on the pre-emptor to have proved the sending of notice by leading affirmative evidence, which undoubtedly required the production and examination of the postman”

1. The law undoubtedly requires production and examination of postman, however, in this case postman has not been produced by the plaintiffs to prove the factum of sending of notice to defendant and its receipt, moreover, the defendant in this case has seriously controverted that he had received notice of Talb-i-Ishahd and non-production of postman alongwith record is fatal for plaintiffs. Reliance is placed on case law reported as “Khan Muhammad and another vs. Muhammad Aam through L.Rs. and others” (2014 CLC 438), “Muhammad Bashir and others vs. Abbas Ali Shah” (2007 SCMR 1105), “Muhammad Yousaf Khan vs. Khan Sardar and others” (PLD 2001 Peshawar 40) and “Muhammad Ramzan vs. Muhammad Tariq” (2016 CLC 1236).

2. In this case no affirmative evidence has been produced by the plaintiffs to establish that notice of Talb-i-Ishhad was dispatched to the defendant or received by him. Moreover, no acknowledgment due or receipt with such envelope is available on record. This all depicts that no notice of Talb-i-Ishhad was given by the plaintiffs to the defendant.

3. The PW-1 has deposed that on 26.06.2002 he went to office of Sardar Yousaf Khan, Advocate alongwith Yar Muhammad, Muhammad Asghar and Wahid Bakhsh and notice Exh.P-1 was signed by him and PW-1 has also deposed that notice was written by Advocate and again said that he did not remember that notices were got signed or thumb marked by the Advocate or his clerk whereas in contradiction to this, PW-2 Muhammad Asghar has deposed that notice was written by clerk of Advocate and it has also been noted that scribe of notice has not been produced in witness-box and PW-1 has himself conceded that the notice was dispatched to the defendant, by clerk of Advocate meaning thereby, plaintiffs had not seen the clerk of counsel while dispatching notice, in such a situation the scribe of notice was necessary to be produced in witness-box but he has not been produced in trial. It has been laid down in case law reported as “Muhammad Rafique vs. Muhammad Shafique and others” (2013 YLR 145) wherein it has been held as under:

“The clerk who had written notice of Talb-i-Ishhad was not produced as witness in case, therefore, pre-emptor had not successfully proved Talabs in accordance with law”.

1. Neither the plaintiffs nor their witnesses deposed to the effect that at time of making Talb-i-Ishhad they referred Talb-e- Muwathibat and such omission at the time of performing Talb-i- Ishhad is fatal to the claim of pre-emptors. In respect to this, reliance is placed on judgment reported as “Gohar Rasheed and 2 others vs. Abdul Ghanni “ (2013 MLD 1252), wherein it has been held as under:

“Pre-emptor had neither referred to his first demand at the time of sending notices for Talb-e-Ishhad to the defendants nor his witnesses to the said notices deposed before the Court that the pre-emptor did refer to his Talb-e-Muwathibat at the time when said notices were scribed in their presence---Pre-emptor thus had not confirmed his Talb-e-Ishhad in accordance with law.”

1. In this case none of witnesses by appearing in the witness-box has deposed that at time when notice of Talb-i-Ishhad was being reduced into writing the plaintiff referred to his Talb-i-Muwathibat and similarly none of them deposed before the Court that pre-emptors had referred to their Talb-i-Muwathibat at the time when notice was scribed in their presence by the Advocate or clerk and such omission on the part of plaintiffs is fatal for them. The notice Exh.P-1 has been produced on record which is admittedly a photocopy and though Atta Muhammad has appeared in the witness-box but he has simply stated that the plaintiffs were not present at time of sale and they had no knowledge about sale transaction which was done in consideration of Rs. 1,00,000/-. Copy of notice has been brought on record as Exh.P-1 and same was produced under objection, however, in this regard, no application of production of secondary evidence was made by plaintiffs.

2. It has been observed in case law reported as “Razia Begum vs. Abdul Aziz” (2006 CLC 772) which is as under:

“Photostat copy was tendered in evidence--Such a private document had to be proved by producing its original and photostat copy was not admissible in evidence--Without bringing on record, original documents and without seeking permission for secondary evidence, notice of Talb-i-Ishhad would not be considered to have been proved, in accordance with law--Defendant having denied the receipt of notice, it was the duty of plaintiff/pre-emptor to prove performance of Talbs which, in absence of proof, could not be presumed true on account of non-raising of objection by defendant to admissibility of photostat copy of notice of Talb-i-Ishhad.”

1. Reliance is placed on case law reported as “Munawar Hussain vs. Sultan Ahmad and another” (2008 SCMR 34).

2. As discussed above, pre-emptors are not only required to prove the requirements of Talb-i-Muwathibat but also that they are bound to establish requirement of Talb-i-Ishhad by sending a notice in writing attested by two truthful witnesses under registered cover acknowledgment due to the vendee confirming their intention to exercise the right of pre-emption but the evidence produced by plaintiffs has been found with material contradictions and the plaintiffs despite burdened to prove the requirements of Talb-i-Muwathibat and Talb-i-Ishhad have failed to prove the same and once the plaintiffs fail to prove performance of Talbs in accordance with law no decree for possession through pre-emption can be passed in their favour, however, learned Appellate Court erred in law by decreeing suit in favour of respondents and in view of discussion made above, the instant civil revision is accepted, impugned judgment and decree dated 26.01.2006 passed by learned Additional District Judge is hereby set aside and the judgment and decree dated 29.09.2005 passed by learned Civil Judge by virtue of which suit for possession through pre-emption instituted by respondents was dismissed is restored by leaving parties to bear their own costs.

(R.A.) Revision accepted

PLJ 2017 Lahore 644 [Rawalpindi Bench Rawalpindi]

Present: Ibad-ur-Rehman Lodhi, J.

MUBASHAR IFTIKHAR--Petitioner

versus

GOVERNMENT OF PUNJAB and others--Respondents

W.P. No. 672 of 2016, decided on 21.2.2017.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Posts of lecturer--Written test--Merit list--Additional marks were not awarded--Entitled of--Validity period of merit list--After expiry of period, provision of substitutes was refused--If he was awarded five addl marks on completion of duty as CTI and as result of wrong tabulation by depriving from marks--Process of written test and interview for getting job of lecturer--Validity--Entitled to get additional five marks for his experience as CTI, then benefit of such marks must have been presumed with effect from very initial date, when process for appointment to posts of lecturer (male) started and also for another reason that benefit of additional five marks was directed not to be extended in favour of petitioner for future job opportunity--Appointment to would be given effect as a result of process started and thus, grant of five additional marks to the petitioner would be having the effect on already started process, but it would not be treated as having some consequential effect for future job opportunity. [Pp. 647] A, B & C

Ch. Zubair Sarfraz, Advocate for Petitioner.

Mr. Shahid Mehmood Abbasi, Additional Advocate-General Punjab for Respondents.

Date of hearing: 21.2.2017.

Order

Punjab Public Service Commission invited the applications from suitable candidates inter alia for 19 posts of Lecturer Geography (male) and the petitioner was one of the candidates, who applied for the said job. The written test was held for the said job on 24.09.2011 and the petitioner was included in those 96 candidates, who were provisionally cleared for the next step i.e. interview. After interview, on the basis of merit list prepared, the candidates fall from Serial No. 1 to 19 in the said list, were offered jobs of Lecturers in Geography. The petitioner, however, was shown at Serial No. 30 of the said merit list.

The petitioner feeling deprived on account of the reason that he was not awarded five additional marks for which, he was entitled after having been served as College Teaching Intern (CTI) in Government College, Jhelum and in case, such five marks are added in his obtained marks, he would have been accelerated in his merit position and would be succeeded in getting merit position at Serial No. 20 and for another reason that candidates shown at Serial No. 3 and 11 of the merit list never joined the duties, therefore, in order to fill 19 vacancies, the candidates obtained the positions at Serial No. 20 and 21 of the merit list were to be offered the jobs being next seniors, the petitioner had earlier filed Writ Petition No. 2560 of 2012 on 03.05.2012, which was taken up by a learned Single Judge of this Court on 15.04.2015 and was disposed of by means of the following order:--

“After arguing the case at certain length, learned counsel for the petitioner states that petitioner is satisfied if a direction is issued to Respondent No. 1 (Secretary Education) to redress the grievance of the petitioner.

1. The request of the learned counsel for the petitioner is justifiable. I am inclined to transmit a copy of this petition alongwith its all annexures to Respondent No. 1, who shall treat it as a part of pending application of the petitioner and will decide the same strictly in accordance with law as per prescribed procedure through a well reasoned order after hearing all necessary parties within a period of one-month after receipt of this order.

2. With the above direction, this petition is disposed of.

3. Compliance report shall be submitted to the Deputy Registrar (Judicial) of this Court.”

The Secretary in Higher Education Department, Government of Punjab in compliance of above direction has decided the issue vide order dated 27.10.2015 and rejected the representation of the petitioner.

The petitioner still feeling aggrieved sought a review of the said rejection of his representation and the Secretary, Higher Education Department in Government of Punjab vide order dated 20.01.2016 accepted such review petition and granted five additional marks to the petitioner for having experience of CTI. However, some handwritten portion was added in the said review order to the effect that acceptance of the review petition would not create any liability vis-à-vis the Higher Education Department Punjab in terms of a future job opportunity.

After acceptance of his review application, which was never further challenged by either of the respondents, the petitioner approached the respondent department in order to get a job of Lecturer in Geography, but such request has not been acceded to mainly for the reason that earlier when the Administrative Department requested Punjab Public Service Commission for providing the substitutes of two posts of Lecturer Geography (male), the same was turned down by the Commission for the simple reason that the validity period of merit list i.e. one year from the date of issuance of recommendations stood expired on 11.12.2012, therefore, after expiry of such period, the provision of substitutes was refused and such earlier refusal by the Commission was made basis of the subsequent refusal on the part of the Department notwithstanding the fact that after obtaining five additional marks as a result of the acceptance of review petition of the petitioner by the Secretary, Higher Education Department, the petitioner improved his position in the merit list and he was placed at Serial No. 20 thereof.

1. The petitioner was entitled to be placed at Serial No. 20 of the originally prepared merit list, if he was awarded five additional marks on completion of his duty as CTI and as a result of wrong tabulation on the part of respondents by depriving the petitioner from such marks, he was placed at Serial No. 30 of the merit list. If in the originally prepared merit list, the petitioner would have been given his due place i.e. Serial No. 20 in the merit list, he would have been conveniently accommodated against one of two vacant posts of Lecturer Geography (male), against which the candidates shown at Serial Nos. 3 and 11 in the merit list did not join, whereas subsequently the petitioner has been made victim of a wrong doing of the respondents, to which, the petitioner was not at all guilty or at fault.

The Administrative Department feeling requirement that the vacant jobs of Lecturer Geography be filled in totality, made a request to Punjab Public Service Commission, but such request has been refused simply for the reason that in view of the policy of the Commission, the validity period of the merit list came to an end on 11.12.2012. This position is of no avail to the respondents for the reason that much before the expiry of stated validity of the merit list, the petitioner seeking justice had already knocked the door of this Constitutional Court on 03.05.2012 and when this Court had already taken cognizance of this issue, all subsequent events were subject to the ultimate decision of the petition by this Court.

The petitioner was entitled to have the benefit of such additional five marks, which if included in his tabulated marks, he would have easily been achieved the position at Serial No. 20 of the merit list even before expiry of the validity period of the said merit list and would have been appointed against one of two vacant posts, which remained vacant on account of non-joining by the candidates shown at Serial No. 3 and 11 of the merit list. The petitioner has been deprived of such position just on account of mismanagement on the part of the respondents and also delay caused by the functionaries in Respondents Department for which, the petitioner must not be suffered.

The Secretary, Higher Education Department although has granted five marks to the petitioner, but such uncalled for order dated 20.01.2016 has been subsequently added by a handwritten footnote, which must not be considered as an obstacle in way of the petitioner for the simple reason that when the petitioner was held entitled to get additional five marks for his experience as CTI, then the benefit of such marks must have been presumed with effect from the very initial date, when the process for appointment to the posts of Lecturer Geography (male) started and also for another reason that benefit of additional five marks was directed not to be extended in favour of the petitioner for future job opportunity. Five additional marks are not only for glorification purposes. The petitioner must have been provided some practical benefit of the same. The appointment to the post of Lecturer Geography (male) would be given effect as a result of process started in the year 2011 and thus, the grant of five additional marks to the petitioner would be having the effect on already started process, but it would not be treated as having some consequential effect for future job opportunity.

1. The petitioner after having obtained Master degree had undergone the process of a written test and interview for getting the job of Lecturer of Geography and out of 448 applicants, according to his merits, became entitled to fetch a position at Serial No. 20 of the merit list and for all purposes was qualified to be appointed, but was made victim of the red tapism and bureaucratic obstacles with which a youth of this country is being victimized daily. During such a long process, the petitioner must have crossed the age limit provided for induction into Government jobs. We must inculcate some hope in the eyes of future of this country and if the youth like the petitioner is deprived of his future, such position would result in disaster. We must

hand over the affairs of our tomorrow in the hands of a confident future generation, which can perceive that it has been given a legacy that it can carry on to the best of their abilities.

1. For what has been discussed above, this petition is allowed and the respondents are directed to proceed in the manner that the petitioner be given appointment to the post of Lecturer Geography (male) within a period of 15-days from today positively under intimation to this Court through Deputy Registrar (Judicial) of this Bench. The initial period of appointment of five years for which the other appointments were made, will be started from the date, when appointment letter to the petitioner as directed hereinabove, will be issued.

(R.A.) Petition allowed

PLJ 2017 Lahore 648 [Rawalpindi Bench Rawalpindi]

Present:Ibad-ur-Rehman Lodhi, J.

MUHAMMAD BASHIR--Appellant

versus

CHAUDHARY ABDUL RASHEED--Respondent

R.F.A. No. 177 of 2011, heard on 20.2.2017.

Qarz-e-Hasna--

----Scope of--Goodly loan--Loan should be a “goodly” one, that is, it should not be tainted with selfish designs and it should be given for the sake of Allah, for the purposes of pleasing Him. [P. 653] A

Loan--

----Scope--Qarz-e-Hasna--Term Qarz-e-Hasna is not available for a loan to be extended by a person in this world to another person. [P. 653] B

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

----O.XXXVIII, Rr. 1 & 2--Suit for recovery, decreed--Qarz-e-hasna--Loan facility--Pronote and receipt of loan facility--Requests for return of decretal amount in easy installments--Consent of decree-holder, decretal amount was allowed to be paid by judgment-debtor--It is also agreed in between the parties that by every first date of each month, the amount of Rs. 7500/-as installment will be paid by judgment debtor/appellant/defendant by depositing same in Bank account of respondent/plaintiff in suit being maintained having Branch Code and any single default in that regard would tantamount to forthwith and lump sum recovery of remaining decretal amount and for that purpose, executing Court, if approached, will be at liberty to proceed against the judgment debtor/appellant without notice and without adopting the coercive measures including forfeiture of bank guarantee furnished by him with executing Court in compliance with direction of order passed by High Court, when this appeal was admitted to regular hearing.

[P. 654] C

Mr. Haroon Irshad Janjua, Advocate for Appellant.

Mr. Muhammad Kashif, Advocate for Respondent.

Date of hearing: 20.2.2017.

Judgment

By means of this appeal, the appellant has challenged the decree dated 12.07.2011 granted in favour of the respondent in his suit filed under Order XXXVII C.P.C. for recovery of Rs. 2,30,000/- by the Additional District Judge, Chakwal.

1. In the plaint, the plaintiff/present respondent had come forward with the plea that loan facility of Rs. 2,30,000/- was extended by him to the appellant and such deal was named as Qarz-e-Hasna. A pronote and receipt of such loan facility were also separately executed on 25.07.2008, but on account of failure on the part of the defendant/present appellant to repay the same, the plaintiff/present respondent had to file the referred suit for recovery of amount of pronote. The plaintiff, when appeared in the witness-box as PW-1, has again deposed that the amount of Rs. 2,30,000/- was given by him to the defendant as Qarz-e-Hasna. The learned trial Judge after recording respective evidence of the parties proceeded to decree the suit of the plaintiff as prayed for by means of impugned judgment and decree dated 12.07.2011.

2. When learned counsel for the appellant started arguments on the appeal, the learned counsel for the respondent/plaintiff was directed to demonstrate as to what would be the consequential effect if admittedly some amount changed hands and the person extending such financial facility in favour of the other one call such deal as Qarz-e-Hasna and what would be the legal consequences if such amount is demanded back by the creditor.

Learned counsel for the appellant by placing reliance on cases titled “Dr. M. Aslam Khaki versus Syed Muhammad Hashim and 2 others” (PLD 2000 SC 225) (Shariat Appellate Jurisdiction), “Muhammad Anwar Wahla versus Muhammad Tariq Tung” (2002 CLC 1779), “Habib Bank versus Messrs Qayyum Spinning Ltd.” (2001 MLD 1351) and “Badshah Jan versus Allah Ditta Sethi and others” (PLD 2013 Islamabad 39) has submitted that Qarz-e-Hasna is aloan repayable at borrower’s convenience and the same cannot be recovered unless the borrower is in a position to repay the same and that it is a loan given on compassionate ground free from interest, mark-up or service charges and repayable if and when the borrower is able to pay.

1. In comparison whereof, learned counsel for the respondent/plaintiff with reference to Ayat No. 177, 245, 282 of Sura Baqra, Ayat No. 12 of Sura Maida, Ayat No. 18 of Sura Al-Hadeed, Ayat No. 17 of Sura Taghabun, Ayat No. 20 of Sura Muzammal, as also Tafheem-ul-Quran by Moulana Syed Abul-Aala Modoodi and Tadabar-e-Quran by Moulana Ameen Ahsan Islahi has submitted that term Qarz-e-Hasna in fact is one, used by Allah Almighty in the Holy Quran and wherever this term is used, it denotes to a loan given by the creature to the Creator and nowhere the term Qarz-e-Hasna is used as a fiscal transaction in between two persons amongst creature and such Qarz-e-Hasna mainly consists on Aml-e-Salah and Sadqa Jaria and return of said Qarz is left on Almighty Allah Raheem-o-Kareem on the day of judgment.

2. The Holy Quran is the basic and primary source of law and it is complete code of life. In case of any controversy in any matter, one has to recourse to Holy Quran first and in case of any ambiguity, then to other sources of law. The word Qarz-e-Hasna is not coined by anybody, rather it is from Allah Himself and is found in the Holy Quran itself as referred to hereinabove by learned counsel for the respondent during arguments. For ready reference, the verses revealed in Holy Quran in the referred Suras alongwith its translation and elucidation/explanation by the learned authors of referred Tafseer are reproduced herein below:--

| | | | --- | --- | | | | | --- | | | |

From above verses, one can imagine that the almighty Allah, who can create anything by just saying “Kun”, is asking humans to give Him loan. Hence, anything that we spend in the way of Allah, in fact, is bestowed by Him. It is only because of His graciousness that He calls it a loan that we spend it in His way and He promises to return it to us in manifold. When He is asking for loan, it does not mean the loan that we get from some individual or bank for our needs, rather “Qarz-e- Hasna/goodly loan” signifies whatever is given to another for selflessly and absolutely pure motives with the belief that he shall get the reward in the next world. The stipulation, however, is that the loan should be a “goodly” one, that is, it should not be tainted with selfish designs and it should be given for the sake of Allah, for the purposes of pleasing Him.

In view of above discussion, it is, thus, declared that term Qarz-e-Hasna is not available for a loan to be extended by a person in this world to another person.

1. Further in this particular case, although the basic transaction was termed in the plaint and evidence as Qarz-e-Hasna, but at the same time, such transaction was reduced in writing in the shape of pronote and receipt showing such fiscal transaction in between the parties. The execution of pronote although has been denied by the defendant/present appellant, but both the documents Exh.P-1 and Exh.P-2 are shown to have been signed by Muhammad Bashir defendant/appellant. The signatures have been denied by Muhammad Bashir, but not only the learned trial Court, but this Court also obtained his signatures in the open Court and, while comparing the same with the signatures available on the referred documents, this is the consensus that both the documents were duly signed by Muhammad Bashir defendant/appellant.

While apprehending the dismissal of the appeal and maintaining the decree granted by the learned trial Court, the appellant, who is present in person alongwith his learned counsel requests for return of the decretal amount in some easy installments in view of the present financial constraints being faced by him.

With the consent of the decree holder/respondent herein, the decretal amount of Rs. 2,30,000/- is, thus, allowed to be paid by the defendant/appellant/judgment debtor by means of monthly installments of Rs. 7500/- each per month and first installment in that respect will be made on or by 01.03.2017. It is also agreed in between the parties that by every first date of each month, the amount of Rs. 7500/- as installment will be paid by the judgment debtor/appellant/ defendant by depositing the same in Bank Account No. 0010018681740017 of the respondent/plaintiff in the suit being maintained at Allied Bank Limited, Talagang Road, Chakwal having Branch Code No. 0060 and any single default in this regard would tantamount to forthwith and lump sum recovery of the remaining decretal amount and for that purpose, learned Executing Court, if approached, will be at liberty to proceed against the judgment debtor/appellant without notice and without adopting the coercive measures including forfeiture of bank guarantee furnished by him with the learned Executing Court in compliance with direction of order dated 20.09.2011 passed by this Court, when this appeal was admitted to regular hearing.

1. Before parting with this judgment, this Court extends profound gratitude to Mr. Muhammad Kashif, Advocate for the respondent, who rendered his valuable assistance to the Court in reaching a just decision on such intricate question.

2. With these observations, this appeal having no force is dismissed.

(R.A.) Appeal dismissed

PLJ 2017 Lahore 655

Present:Ch. Muhammad Iqbal, J.

M/s. TANVEER SPINNING & WEAVING MILLS--Petitioner

versus

TARIQ SAEED etc.--Respondents

W.P. No. 7386 of 2017, decided on 20.3.2017.

Punjab Rented Premises Act, 2009 (VII of 2009)--

----S. 19--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Ejectment petition on ground of expiry of tenancy period--Renewal of rent agreement--Granting time for vacation of demised premises--Non-service of legal notice regarding termination of rent agreement as well as vacation of demised premises--Validity--Despite termination of tenancy, petitioner/tenant is occupying rented premises without consent of landlord and status of such tenant is not better than an illegal occupant and it is well settled by now that law does not favour the illegal occupant--Grant of time is a discretionary kind of jurisdiction of the Court and its exercise is interlinked with previous as well as present conduct of tenant during judicial proceeding which carries a titling significance having direct bearing upon the assessment of the reasonableness of time with judicial application of mind to grant equitable relief according to entitlement of the party whereas ejectment order was passed against the petitioner--Tenancy period stood expired and there is no extension of lease agreement available on record and normally such a contumacious conduct tainted with malice dis-entitle a tenant for any discretionary relief--Period of six months’ for vacation of demised premises awarded by appellate Court is unreasonable which has no backing of the Punjab Rented Premises Act, 2009 as well as any other law. [Pp. 660 & 662] A, B, C & D

2015 CLC 468, 1997 CLC 640, 1995 MLD 1146 ref.

Malik Fida Hussain, Advocate for Petitioner.

Mr. Pervaiz I. Mir, Advocate for Respondent No. 1.

Date of hearing: 20.3.2017.

Order

Through this single order, I intend to decide titled writ petition alongwith connected Writ Petition No. 5583 of 2017 as subject matter of both writ petitions and parties to the lis are same as well as have been arisen out of same impugned order and judgment in which common questions of law and facts are involved.

1. Through this writ petition, the petitioner has challenged the legality of order dated 20.01.2017 passed by the learned Special Judge (Rent), Lahore whereby application for leave to contest filed by the petitioner was dismissed and ejectment petition of Respondent No. 1 was accepted subject to return of commercialization fee amounting to Rs. 12,422,500.00 to the petitioner and judgment dated 20.02.2017 passed by the learned Addl. District Judge, Lahore dismissing the appeal of the petitioner while granting six months’ time for vacation of the demised premises commencing w.e.f. 20.01.2017.

2. Brief facts of Writ Petition No. 7386/2017 are that Respondent No. 1 (ejectment petitioner to be referred hereafter as Respondent No. 1) has filed ejectment petition on 11.11.2016 against the petitioner (respondent tenant to be referred hereafter as petitioner) under Section 19 of the Punjab Rented Premises Act, 2009 in respect of House No. 98-A/B-3, Gulberg-III, Lahore (demised premises). The petitioner has obtained the demised premises on rent through registered rent agreement dated 25.09.2010 for a period of six years uptill 09.11.2016. Respondent No. 1 served a legal notice dated 18.06.2016 to the petitioner through registered post AD for vacation of the rented premises on target date i.e.09.11.2016 and, thereafter, filed ejectment petition on the sole ground of expiry of tenancy period. The petitioner filed application for leave to contest asserting therein that the tenancy agreement has been extended for further six years; that the petitioner has paid advance rent of six months and also spent a huge amount for establishment of business as well as in getting it declared as a commercial building; that in the presence of first ejectment petition second ejectment petition is not maintainable; that no notice for vacation of the demised premises has been served upon the petitioner

The learned Special Judge (Rent), Lahore vide order dated 20.01.2017 dismissed the application for leave to contest of the petitioner and accepted the ejectment petition directing Respondent No. 1 to return commercialization fee of Rs. 12,422,500.00/- to the petitioner and also directed to the petitioner to hand over the demised premises to Respondent No. 1 within 30 days of passing the final ejectment order. Petitioner filed Writ Petition No. 2585/2017 for seeking direction against Police harassment which was subsequent withdrawn on 03.02.2017 and against the said order of ejectment, the petitioner filed an appeal under Section 28 of the Punjab Rented Premises Act, 2009, which was also dismissed by the learned Addl. District Judge, Lahorevide judgment dated 20.02.2017 while granting six months’ time for vacation of demised premises. Petitioner being dis-satisfied by the judgment of the appellate Court challenged it through W.P.No. 7386 of 2017.

1. Respondent No. 1 (landlord) has also filed Writ Petition No. 5583/2017 challenging the impugned judgment dated 20.02.2017 passed by the learned Addl. District Judge, Lahore to the extent of grant of extension in time upto six months for vacation of the demised premises.

2. Learned counsel for the petitioner submits that second ejectment petition in presence of first ejectment petition is not maintainable; that the tenancy period was renewed orally by the attorney of the respondent and the petitioner has deposited advance rent of six months @ Rs. 3,36,000/-per month in the account of Respondent No. 1 after deducting the taxes. That the learned Courts below have not taken into account those fact and have illegally passed the ejectment order and also have not provided reasonable time for vacation of the demised premises, as such, the impugned order and judgment of the learned Courts below are against the law and facts of the case and also based on surmises and conjectures.

3. Learned counsel for Respondent No. 1 submits that second ejectment petition is maintainable; that the period of tenancy has been expired on 09.11.2016 which was not further renewed and a fresh cause of action was accrued against the petitioner; that learned appellate Court has no jurisdiction to give six months’ time for vacation of the demised premises whereas no provision is available in the Punjab Rented Premises Act, 2009 granting any jurisdiction to the Court to allow six months’ time; that no oral agreement regarding extension of period of tenancy exists between the parties; that the impugned order and judgment of the learned Courts below are in accordance with law to the extent of allowing the ejectment petition but the learned appellate Court has illegally granted six months’ time for vacation of the demised premises which is not in consonance with any provision of Punjab Rented Premises Act, 2009 and the same deserved reversal to the extent of enlargement of the time for vacation of the rented premises.

4. I have heard the arguments of the learned counsels for both the parties and gone through the record with their able assistance.

5. Admittedly House No. 98A-B-3 Gulberg-III, Lahore was rented out to the petitioner for a period of six years uptill 09.11.2016, relevant portion whereof is as under:

The lessor leases to the lessee and the lessee accepts to take on lease the demised premises for a period of 6 years, commencing on 10 November 2010 and ending on 9th November, 2016, but shall be renewable for a further period of three years with mutual consent.”

and rate of rent is also admitted between the parties. Respondent who is residing in America send a notice to the petitioner/tenant intending not to extend the tenancy and also for the eviction of the rented premises on 18.06.2016. That legal notice went un-responded by the petitioner which culminated into filing of the ejectment petition. The main controversy involved in this petition is firstly regarding the renewal of Rent Agreement for further term of six years and secondly whether the appellate Court is vested with any Power to grant or enlarge the time for vacation of the rented premises.

The learned counsel for the petitioner while arguing the case submits that the lease period has been extended orally for a further period of six years commencing from 10.11.2016 and, in this respect, the petitioner has made deposit of six months’ advance rent @ Rs. 3,36,000/- per month in the bank account of Respondent No. 1, whereas, Respondent No. 1 submits that he came into Pakistan in the mid of October, 2016 obtained his bank account statement and on perusal of same it was disclosed to him that an un-authorized amount of Rs. 10,69,270/- was deposited by the petitioner and Respondent No. immediately after having deducted the outstanding rent due amount handed over Cheque No. SA0047720910 amounting to Rs. 14,24,515/- to the petitioner who has accepted the same and said amount was got transferred in his account. Respondent No. 1 has placed on record the copy of Bank Statement (balance sheet) as well as cheque which shows that amount of cheque was duly encashed by the petitioner, as such, the stance taken by the learned counsel for the petitioner that orally rent agreement was extended and he deposited six months’ rent in the account of Respondent No. 1 stand falsified/negated and it stood proved that no renewal of rent agreement was entered into between landlord and tenant.

1. Admittedly, Respondent No. 1 earlier has filed first ejectment petition against the petitioner on the ground of willful default and violation of terms and conditions of the lease agreement, unauthorized alteration in the demised premises whereas second ejectment petition was filed by Respondent No. 1 exclusively on the fresh cause of action i.e. the expiry of tenure of tenancy under Section 15(a) of the Punjab Rented Premises Act, 2009. Thus arguments of the learned counsel for the petitioner that second ejectment petition in the presence of first ejectment petition is not maintainable is apparently misconceived, as the first ejectment petition was filed inter-alia on the grounds of willful default and violation of terms and conditions of the rent agreement whereas second ejectment petition was filed only on the ground of extinguishment of lease period which is a fresh cause of action accrued/matured during the pendency of first petition and it is settled law that on the new cause of action the second ejectment petition is maintainable and law does not bar the filing of second ejectment petition in the light of diction laid down by the Hon’ble Supreme Court of Pakistan in case titled as Muhammad Shafi vs. Haji Shaista Khan (2002 SCMR 480) wherein it is held in Para No. 7 as under:--

“We are not persuaded to agree with the said submission as the first eviction application was filed on personal bona fide use regarding the Khokha but subsequently another eviction application was moved on the main ground of reconstruction coupled with personal bona fide use of the Khokha as well as the shop and thus it was maintainable. In this regard, we are fortified by the dictum laid down in Dost Muhammad v. Muhammad Shabbir Hussain (1981 SCMR 528) wherein it was held that “circumstances having radically changed after dismissal of first application question of maintainability of second application, held, fell to be examined in context of changed circumstances and case did not fall within mischief of Section 14.”

As such, the above argument of learned counsel is without any force and same is hereby repelled.

1. So far as the arguments of the learned counsel for the petitioner that a reasonable time has not been given by the learned appellate Court for vacation of the demised premises as the petitioner’s company has to make alternate arrangement to shift the establishment of its main head office from the demised premises to some other suitable place is concerned, suffice it to say that rent agreement stood expired on 09.11.2016 and no evidence or document has been produced which may prove any renewal or extension of rent agreement by Respondent No. 1 rather Respondent No. 1 issued a legal notice to the petitioner for vacation of the demised premises which was received by the petitioner, followed an ejectment petition on the ground of expiry of tenancy period. Even otherwise, mere filing of an ejectment petition in itself was a sufficient notice to the tenant for termination of rent deed as settled by Hon’ble Supreme Court of Pakistan in case titled as Major (Retd.) Muhammad Yousaf vs. Mehraj-ud-Din & Others (1986 SCMR 751). Similar view has been taken by this Court on the case reported as Rahat Iqbal vs. Allauddin & Another (2010 MLD 1988), as such, the petitioner was well cognizant about the rigorous of the legal proceeding and it should have made arrangement bonafidely for vacation of the demised premises but no such honest effort is shown from the record and now petitioner cannot take stance about the non-service of legal notice regarding the termination of rent agreement as well as the vacation of demised premises. Further, despite the termination of the tenancy, the petitioner/tenant is occupying the rented premises without the consent of the landlord and the status of such tenant is not better than an illegal occupant and it is well settled by now that law does not favour the illegal occupant.

2. Next point for resolution before this Court is to determine the length of reasonable time ought to be given for facilitating the sitting tenant to make alternate arrangement for its settlement. From the perusal of Punjab Rented Premises Act, 2009, no such provision is available for giving any time to a tenant for vacation of the demised premises. The grant of time is a discretionary kind of jurisdiction of the Court and its exercise is interlinked with the previous as well as the present conduct of the tenant during the judicial proceeding which carries a titling significance having direct bearing upon the assessment of the reasonableness of time with judicial application of mind to grant equitable relief according to the entitlement of the party whereas in this case ejectment order was passed against the petitioner on 20.01.2017. Feeling apprehension of eviction as well as the harassment or pressure of Police, the petitioner filed Writ Petition No. 2585 of 2017 before this Court and the learned counsel for the petitioner under instructions of his clients has submitted that the petitioner is ready to vacate the demised premises subject to the payment of commercialization fee/amount settled by the learned Special Judge (Rent), Lahore as well also to restrain the Police Official from harassing the petitioner. This Court passed an order dated 27.01.2017 which is reproduced as under:-

“Learned counsel for the petitioner submits that the petitioner is ready to vacate the demised premises subject to the payment of the amount which has been settled by the learned Special Judge (Rent), Lahore; that Respondents No. 2 & 3 on the behest of Respondent No. 4 are harassing the petitioner.

1. Notice be issued to the respondents to file reply to this petition for 03.02.2017.

C.M.No. 1 of 2017

1. Subject to notice, Respondents No. 2 & 3 are restrained to harass the petitioner in any manner whatsoever. However, if any legal proceedings are pending against the petitioner, they may proceed in accordance with law.”

On 03.02.2017, both the parties appeared before this Court and at the very outset Respondent No. 4/landlord showing his bona fide presented a cheque amounting to Rs. 1,24,22,500/- regarding the amount of commercialization fee before this Court to be handed over to the petitioner but the learned counsel for the petitioner/tenant took surprisingly summer sault and refused to accept the same and opted to withdraw the said writ petition. For ready reference, order dated 03.02.2017 is reproduced as under:-

Mr. Pervez I. Mir, Advocate filed power of attorney on behalf of Respondent No. 4 who is present in person. Respondent No. 4/landlord states that he is ready to pay the amount of Rs. 1,24,22,500/- as directed by the learned Special Judge Rent, Lahore vide final order dated 20.01.2017 and he produced original cheque. When the above proposition confronted to the learned counsel for the petitioner he stated that the petitioner has filed an appeal against the final order dated 20.01.2017 which is pending before the learned Addl. District Judge, Lahore, in which, restraining order has been passed on 30.01.2017, at this stage, the learned counsel for the petitioner wishes to withdraw this writ petition.

1. Dismissed as withdrawn. However, the learned appellate Court is directed to decide the appeal within 15 days positively under intimation to the Deputy Registrar (Judicial) of this Court.

As the learned counsel for the petitioner under instruction made a statement in Writ Petition No. 2595/2017 that the petitioner is ready to vacate the demised premises subject to payment of commercialization fee of LDA. Respondent/landlord in response to the above statement presented a cheque equivalent to the commercialization fee for its handing over to the petitioner/tenant. Whereafter, the petitioner is debarred to challenge the impugned order as the principle of estoppel is duly applicable against the petitioner to resile from the earlier statement made in the judicial proceedings before this Court.

Today i.e. 20.03.2017, Respondent No. 1/landlord again made a generous offer to grant four months’ time to the petitioner/tenant to vacate the demised premises from the date of order of the learned Special Judge Rent, Lahore i.e. 20.01.2017 whereas learned counsel for the petitioner submits that one year time may be granted but later on, he under instructions of his client stated that matter may be decided on merits and such an astonishing conduct shows contumacious intention of the petitioner to prolog or perpetuate its possession over the rented premises for infinitum whereas, the tenancy period stood expired as back as on 09.11.2016 and there is no extension of lease agreement available on record and normally such a contumacious conduct tainted with malice dis-entitle a tenant for any discretionary relief. Even though the conduct of the petitioner militate against the grant of discretionary relief yet this Court is of view that some reasonable time should have been granted to the petitioner and in my considered opinion as well as the offer of landlord four months (120 days) time from the date of eviction order reasonably serve the ends of justice. The Hon’ble Supreme Court has also defined the reasonableness of time and rendered judicial pronouncement on the issue by considering four months (120 days) time fairly reasonable for vacation of rented premises in the cases reported as Munir Ahmed vs. Shahid Mahmood (1994 SCMR 360) and Khawaja Muhammad Razzak vs. Dr. Sultan Mehmood Ghouri & Another (2007 SCMR 1866), held as under:

1. We have considered the submissions of both the parties. While the High Court may be justified in dismissing the constitutional petition of the respondent, there was no lawful warrant for allowing usually long period of eighteen months for vacating the premises, which on the face of record, is most unreasonable and unlawful. In order to maintain a balance between the parties, we would set aside the order of the High Court to the extent of allowing eighteen months time for vacating the premises and substitute it by awarding 120 days from the date of the order of the High Court.

Further reliance is placed on the cases reported as Mrs. Keays Byrne vs. M. Obaidullah Khan (PLD 1959 Lahore 146), Sattar vs. Zaki Ahmad (1995 MLD 1146), New Trading Company vs. Trustees of Haji Sir Abdullah Haroon Waqf No. 1 (1997 CLC 640) and Malak Zahoor- ul-Haq through Special Attorney vs. IInd Addl. Judge, Sanghar & 2 Others (2015 CLC 468).

As such, the period of six months’ for vacation of the demised premises awarded by the learned appellate Court is unreasonable

which has no backing of the Punjab Rented Premises Act, 2009 as well as any other law, therefore, the same is not sustainable in the eye of law, as such, the same is reversed only to the extent of time and in the light of the dictum laid down by the Hon’ble Supreme Court of Pakistan supra as well as offer of the landlord and in my opinion four months’ time commencing from the date of eviction order dated 20.01.2017 is considered fair enough for making alternate arrangement subject to payment of monthly rent as well as the other bill of amenities installed at the rented premises.

1. The learned counsel for the petitioner has not been able to point out any illegality or material irregularity, in the impugned order/judgment passed by the learned Courts below and has also not identified any jurisdictional defect.

2. In view of above, this Writ Petition No. 7386 of 2017 titled “Tanveer Spinning and Weaving Mills vs. Tariq Saeed etc.” is dismissed being devoid of any force. Writ Petition No. 5583/2017 is hereby partially allowed. Order dated 20.02.2017 passed by learned appellate Court is hereby modified to the extent of time period for vacation of demised premises from six months to four months commencing from the date of eviction order dated 20.01.2017. No order as to costs.

(R.A.) Petition allowed

PLJ 2017 Lahore 663 (DB)

Present: Abdul Sami Khan and James Joseph, JJ.

IMRAN ALI--Petitioner

versus

STATE and 2 others--Respondents

W.P. No. 7681 of 2015, decided on 8.4.2015.

Constitution of Pakistan, 1973--

----Art. 199--Writ Petition--Ransom amount on superdari--No time-limit is available for disposal of appeal or revision, therefore, fate of above mentioned amount cannot be attach with decision of appeal or revision or any further proceedings thereof--Pendency of appeal or revision at any forum does not constitute any bar in facilitating an owner for his property especially in circumstances when there is no other rival claimant of such property--Even otherwise shifting custody of amount from government treasury to owner would not cause any vital effect on fate of appeal or revision--Even Assistant Advocate General has not express any reservation regarding handing over ransom amount to petitioner on superdari. [P. 664] A

Mian Shahid Ali Shakir, Advocate for Petitioner.

Mr. Sittar Sahil, Asstt. A.G. for Respondents.

Date of hearing: 8.4.2015.

Order

Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioner has challenged the validity of order dated 05.03.2015 passed by learned Judge, Anti-Terrorism Court-II, Lahore through which he has declined to hand over an amount of Rs. 480,000/- on superdari to the petitioner who is complainant of FIR No. 188/13, dated 19.05.2013 registered at Police Station in respect of offences under Sections 365-A/302/201/109, PPC.

1. After hearing the learned counsel for the parties and going through the record it has been noticed by us that the amount of ransom mentioned in preceding paragraph is case-property of above mentioned criminal case and the same is ordered by the learned trial Court to be kept intact till decision of appeal or revision if any filed or till expiry of limitation provided for it and, therefore, it be disposed of in accordance with law. In this context we have observed that so far no time-limit is available for the disposal of appeal or revision, therefore, the fate of above mentioned amount cannot be attach with the decision of appeal or revision or any further proceedings thereof. Considering this matter from another angle, the pendency of appeal or revision at any forum does not constitute any bar in facilitating an owner for his property especially in the circumstances when there is no other rival claimant of such property. Even otherwise shifting custody of amount from the government treasury to the owner would not cause any vital effect on the fate of appeal or revision. Even the learned Assistant Advocate General has not express any reservation regarding handing over the ransom amount to the petitioner on superdari.

2. For what has been discussed above this writ petition is, therefore, allowed and the custody of Rs. 480,000/- ransom amount be handed over to the petitioner who is complainant of above said

criminal case with the condition that he will furnish surety in the like amount equivalent to Rs. 500000/- to the satisfaction of the Deputy Registrar (Judicial) of this Court.

(R.A.) Petition allowed

PLJ 2017 Lahore 665

Present: Shams Mehmood Mirza, J.

ROSE WOOD COLLECTION (FURNITURE) through Proprietor--Petitioner

versus

DISTRICT CONSUMER COURT, SAARGODHA and another--Respondents

W.P. No. 27247 of 2012, decided on 17.9.2015.

Punjab Consumer Protection Act, 2005 ( of 2005)--

----S. 27--Jurisdiction of Consumer Courts--Section 27 of Act deals with jurisdiction of consumer Courts and stipulates that consumer Court shall have jurisdiction where defendants actually and voluntarily reside, carry their business or personally work for gain and where cause of action wholly and in part arises--Reading of aforementioned provisions makes it clear that it is pari materia to Section 20 of Code of Civil Procedure 1908--In present case, alleged cause of action accrued to respondent when he purchased furniture from petitioner in District Chiniot--Consumer Court at Faisalabad, therefore, had jurisdiction to entertain complaint regardless of fact that defect in furniture occurred at Sargodha--Judge consumer Court, Sargodha, therefore, wrongly entertained complaint and dismissed application filed by petitioner. [P. 666] A

Mian Shahid Ali Shakir, Advocate for Petitioner.

Date of hearing: 17.9.2015.

Order

This writ petition challenges order dated 01.10.2012 passed by the judge consumer Court whereby the application filed by the petitioner for rejection of the complaint of Respondent No. 2 was dismissed.

1. Brief facts of the case are that Respondent No. 2, who was resident of Sargodha purchased a sofa set along with a table from the petitioner’s shop situated in District Chiniot. On accounts of discovering faults in the furniture, the petitioner instituted the complaint before the judge consumer Court, Sargodha. The petitioner thereupon filed an application under Section 35 of the Punjab Consumer Protection Act, 2005 (the Act) for rejection of the same on the ground that the judge consumer Court Sargodha has no territorial jurisdiction to entertain the complaint. The judge consumer Court vide order dated 09.10.2012 dismissed the said application on the ground that Respondent No. 2 was residents of Sargodha and faults were detected in the furniture in Sargodha and, therefore, by virtue of Section 27(c) of the Act, the consumer Court at Sargodha had the necessary jurisdiction.

2. Learned counsel for the petitioner by making reference to Section 27 of the Act argued that the consumer Court at Faisalabad had the jurisdiction to entertain and adjudicate upon the complaint filed by Respondent No. 2. Respondent No. 2 has already been proceeded against ex-parte on 06.05.2015.

3. Section 27 of the Act deals with the jurisdiction of the consumer Courts and stipulates that the consumer Court shall have jurisdiction where the defendants actually and voluntarily reside, carry their business or personally work for gain and where the cause of action wholly and in part arises. The reading of aforementioned provisions makes it clear that it is pari materia to Section 20 of the Code of Civil Procedure 1908. In the present case, the alleged cause of action accrued to Respondent No. 2 when he purchased the furniture from the petitioner in District Chiniot. The consumer Court at Faisalabad, therefore, had the jurisdiction to entertain the complaint regardless of the fact that defect in the furniture occurred at Sargodha. The judge consumer Court, Sargodha, therefore, wrongly entertained the complaint and dismissed the application filed by the petitioner.

4. In this view of the matter, this petition is allowed order dated 01.10.2012 is set aside and the judge consumer Court, Sargodha is accordingly directed to return the complaint to Respondent No. 2.

(R.A.) Petition allowed

PLJ 2017 Lahore 667 [Multan Bench, Multan]

Present: Asjad Javed Ghural, J.

MUHAMMAD ISMAEEL--Petitioner

versus

SECRETARY HOME DEPARTMENT, etc.--Respondents

Writ Petition No. 9804/2013, decided on 28.3.2017.

Good Conduct Prisoners probational of offender Ordinance, 1960--

----S. 2--Constitution of Pakistan, 1973--Art. 199--Constitutional Petition--Suspension or remittance of sentence--Shifting of custody to probation officer--Releasing on parole--Competency of--Validity--Conditions precedent for release of a prisoner are that he was confined in prison under a sentence of imprisonment and it should appear from his antecedent or conduct in prison that he was likely to abstain from criminal activities--Probation is given to an offender by judiciary under Probation of Offenders Ordinance, 1960 (Ordinance No. XLV of 1960) whereas parole is authorized to executive under Section 2 of Good Conduct Prisoners Probational Release Act, 1926--Probation and parole both serve purpose of rehabilitation and reintegration of offenders. [P. 669] A & B

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

----S. 401--Suspension or remittance of sentence--Custody--Section 401 of Criminal Procedure Code, 1898 relates to power of Provincial Government to suspend or remit sentence awarded to an offender--Admittedly, sentence of respondents had neither been suspended nor remitted by Provincial Government and Respondent No. 1 being competent authority, after fulfillment of all codal formalities as required under Act ibid, had issued impugned order. [P. 669] C

Mr. Muhammad Ramzan Khalid Joiya, Advocate for Petitioner.

M/s. Jamshed Hayat and Malik Imtiaz Haider Maitla,Advocates for Respondents No. 5 & 6.

Mehar Nazar Abbas Chawan, A.A.G.

Munawar Hussain, Deputy Director (R & D), Multan and

Muhammad Saleem Parole Officer, Multan Division.

Date of hearing: 28.3.2017.

Order

Though this constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, petitioner Muhammad Ismaeel has challenged the legality and propriety of order No. SO (R & P) 4-5/2008 (P-II) 5273, Government of the Punjab, Home Department dated Lahore the 11th of July, 2013 whereby Respondents No. 5 & 6 alongwith other condemned prisoners were accorded conditional release on parole.

1. Succinctly, facts necessary for disposal of instant constitutional petition are that Respondents No. 4 & 5 had been convicted and sentenced to capital sentence in case FIR No. 01 dated 02.01.2004, registered at the instance of present petitioner under Sections 302 & 34, PPC at Police Station, City Muzaffargarh vide judgment dated 14.04.2005. Their sentence was converted to imprisonment for life by this Court vide judgment dated 22.04.2010, which was upheld by august Supreme Court of Pakistan vide judgment dated 18.05.2011. Both Respondents No. 5 & 6 had been confined in jail to undergo the aforementioned sentence. The jail authorities processed the case of Respondents No. 5 & 6 having fulfilled the conditions for their release on parole under The Good Conduct Prisoners Probational Release Act, 1926 (Punjab Act X of 1926) and approved their release on parole vide impugned order dated 11.07.2013. Feeling aggrieved, the petitioner being complainant of the aforementioned case, had challenged its legality through this constitutional petition.

2. Learned counsel for the petitioner submits that under Section 2 of The Good Conduct Prisoners Probational Release Act, 1926 the provisions of Section 401 of the Criminal Procedure Code, 1898 shall have overriding effect. It is further contended that Respondents No. 5 & 6 were hardened and desperate criminals, as such they did not fall under the requirements and conditions for their release on probation specified under the law.

3. Learned Assistant Advocate General appearing for the State has supported the impugned order.

4. Contrarily, learned counsel for Respondents No. 5 & 6 has vehemently opposed the aforesaid contentions stating that Respondent No. 1 was quite competent to release Respondents No. 5 & 6 under The Good Conduct Prisoners Probational Release Act, 1926.

5. I have heard learned counsel for the petitioner, learned Assistant Advocate General appearing for the State, learned counsel for Respondents No. 5 & 6 and perused the record.

6. Respondents No. 5 & 6 had been approved to be released on probation by the competent authority under Section 2 of The Good Conduct Prisoners Probational Release Act, 1926 vide aforementioned impugned order after fulfilment of all the conditions required under the said section. For ready reference Section 2 of the Act ibid is re- produced as under:--

“Notwithstanding anything contained in Section 104 of the Code of Criminal Procedure, 1898, where a person is confined in prison under a sentence of imprisonment, and it appears to the [Provincial Government] from his antecedents or his conduct in the prison that he is likely to abstain from crime and lead useful and industrious life, if he is released from prison, the [Provincial Government] may by licence permit him to be released on condition that he be placed under the supervision of authority of a [servant of the state] or a secular institution or of a person or society professing the same religion as the prisoner, named in the licence and willing to take charge of him.”

Bare perusal of the section ibid shows that the conditions precedent for release of a prisoner are that he was confined in prison under a sentence of imprisonment and it should appear from his antecedent or conduct in the prison that he was likely to abstain from criminal activities.

1. Respondents No. 5 & 6 alongwith others had been directed to be released on parole on the condition to be placed under the supervision or authority of the Probation Officer. Probation is given to an offender by the judiciary under the Probation of Offenders Ordinance, 1960 (Ordinance No. XLV of 1960) whereas parole is authorized to the executive under Section 2 of The Good Conduct Prisoners Probational Release Act, 1926. Probation and parole both serve the purpose of rehabilitation and reintegration of the offenders.

2. Section 401 of the Criminal Procedure Code, 1898 relates to the power of the Provincial Government to suspend or remit the sentence awarded to an offender. Admittedly, the sentence of Respondents No. 5 & 6 had neither been suspended nor remitted by the Provincial Government and Respondent No. 1 being competent authority, after fulfillment of all the codal formalities as required under the Act ibid, had issued the impugned order. It is not a case of suspension or remittance of the sentence rather custody of Respondents No. 5 & 6 had been shifted from jail authorities to the Probation Officer.

3. Learned counsel for the petitioner has failed to point out even a single instance showing that the impugned order had been issued in favour of Respondents No. 5 & 6 without serving out the mandatory period of substantive sentence as required under the Act ibid and Rules framed thereunder in 1964.

In view of what has been discussed above, the petition in hand is without any force, the same stands dismissed.

(R.A.) Petition dismissed

PLJ 2017 Lahore 670

Present: Syed Mansoor Ali Shah, C.J.

TALIB HUSSAIN--Petitioner

versus

PRINCIPAL SECRETARY TO CHIEF MINISTER, etc.--Respondents

W.P. No. 40732 of 2016, heard on 16.3.2017.

Child Protection and Welfare Bureau (Appointment and Conditions of Service) Rule, 2010--

----R. 3--Constitution of Pakistan, 1973, Art. 199--Appointment on additional charge--Director general child protection and welfare bureau--Method of recruitment--Minimum qualification age limit and either matters relating to posting in bureau--Validity--Appointment of respondent is, therefore, clearly in violation of Act and Rules--Reasons given at time does not meet requirement of law--Respondent has been holding post of D.G. on additional charge since 2014, she will relinquish her charge before close of working hours today--Board of governors will deal with day to day affairs of Bureau till appointment of new Director General by Government.

[Pp. 672 & 673] A, B & C

Mr. Sheraz Zaka, Advocate for Petitioner.

Mr. Nasar Ahmad, D.A.G. for Pakistan.

Ms. Hina Hafeezullah Ishaq, Assistant Attorney General for Pakistan.

M/s. Anwaar Hussain and Ahmad Hassan Khan, Assistant Advocates General, Punjab.

Mr. Muhammad Mumtaz,Child Protection Officer (Legal).

Ms. Saba, Child Protection Officer (legal).

Hafiz Arshad Mehmood, Law Officer, S&GAD (Regulations Wing).

Mr. Zawar Hussain, Section Officer (Dev.) Home Department.

M/s. Qaisar Abbas and Mohsin Mumtaz, Research Associates & Civil Judges, Lahore High Court Research Centre (LHCRC) for Research Assistant.

Date of hearing: 16.3.2017.

Judgment

Through the instant petition, the petitioner challenges the appointment of Respondent No. 3 namely Fatima Sheikh, who was appointed as Director General, Child Protection & Welfare Bureau, Punjab on additional charge vide order dated 15.10.2014 issued by the Services & General Administration Department, Government of the Punjab.

1. Learned counsel for the petitioner while giving factual background submits that the Punjab Child Protection Bureau is established under the Punjab Destitute and Neglected Children Act, 2004 (“Act”). The Act envisages a Board of Governors of the said Bureau under Section 6 of the Act, while under Section 13 of the Act the Director General is appointed whose powers and functions are determined by the said Board. Under Section 49 of the Act, Governor of the Punjab has promulgated the Child Protection & Welfare Bureau (Appointment and Conditions of Service) Rules, 2010 (“Rules”).

2. Learned counsel for the petitioner submits that as per Rule 3 of the Rules method of recruitment, minimum qualification, age limit and other matters relating to the posting in the Bureau is provided in the Schedule to the Rules in the following manner:--

| | | | | | | | --- | --- | --- | --- | --- | --- | | SCHEDULE | | | | | | | | Functional Unit | Name of the Post with Basic Pay Scale | Appointing Authority | Minimum Qualification & Experience for Appointment | Method of Recruitment | | 1 | 2 | 3 | 4 | 5 | 6 | | | Child Protection & Welfare Bureau | 1. Director General (BS-19) | Chief Minister | | By Posting from amongst DMG/Ex-PCS/PSS/PMS officers with five years experience in BS-18 or above. |

It is submitted that Respondent No. 3 is not from amongst the above mentioned groups and belongs to the Information Group as is evident from her appointment letter. She has also been appointed on additional charge while there is no provision for appointment of the Director General of the Bureau on additional charge under the Act or the Rules.

1. Learned law officer on the other hand submits that Respondent No. 3 was appointed as Director General because she was the senior most officer available at the time when the last incumbent was transferred out of the Bureau. He also submits that due to paucity of officers she was the best choice at the time, therefore she was given additional charge to the post of Director General. He also states that since her appointment Respondent No. 3 has improved the condition of the Bureau and performed well.

2. I have heard the parties and gone through the record of the case.

3. The appointment of Director General of the Bureau is provided in Schedule to the aforementioned Rules, which clearly states that only an officer from DMG/Ex-PCS /PSS/PMS Officers can be posted as Director General. Additionally, the Act and the Rules do not provide for appointment of Director General on additional charge. The appointment of Respondent No. 3, is, therefore, clearly in violation of the Act and the Rules. The reasons given by the learned law officer for appointment of Respondent No. 3 at the time does not meet the requirement of the law.

4. Even otherwise it is most disturbing to note that Respondent No. 3 has been appointed on additional charge, for the last almost three years, since 15.10.2014. This reflects poor governance on the part of Provincial Government.

5. For the above reasons appointment of Respondent No. 3 as Director General, Child Protection and Welfare Bureau, Punjab on additional charge is declared to be without lawful authority being in violation of the provisions of Act, as well as, the Rules. Respondent No. 3 is therefore removed from the office of the Director General, Child Protection and Welfare Bureau, Punjab. Reliance is placed on Barrister Sardar Muhammad v. Federation of Pakistan and others (PLD 2013 Lahore 343) and Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others (PLD 2012 S.C. 132).

6. Considering that Respondent No. 3 has been holding the post of Director General on additional charge since 2014, she will relinquish her charge before the close of the working hours today. In the meanwhile, the Board of Governors will deal with day to day affairs of the Bureau till the appointment of new Director General by the Government.

7. This writ petition is allowed in the above terms.

(R.A.) Petition allowed

PLJ 2017 Lahore 673 [Multan Bench Multan]

Present: Tariq Saleem Sheikh, J.

NADEEM JAVED--Petitioner

versus

JUSTICE OF PEACE/A.S.J., DUNYAPUR, DISTRICT LODHRAN and 2 others--Respondents

W.P. No. 17300 of 2016, decided on 9.3.2017.

Constitution of Pakistan, 1973--

----Art. 199--Pakistan Penal Code, (XLV of 1860), S. 489-F--Criminal Procedure Code, (V of 1898), S. 22-A--Constitutional petition--Payment for purchasing--Out of Court settlement--Cheque in partial discharge of liability--Cheque was dishonoured--Civil suit--Pendency of suit is no bar to registration of case under Section 489-F, PPC--Prima facie, a cognizable offence has been made out from contents of application. [P. 674] A

Mr. Muhammad Bilal Butt, Advocate for Petitioner.

Mr. Bashir Hussain, Advocate for Respondent.

Malik Riaz Ahmad Saghla, DPG for Respondent.

Date of hearing: 9.3.2017.

Order

Through this constitutional petition the Petitioner has assailed the vires of order dated 30-11-2016 passed by the learned Ex-officio Justice of Peace, Dunyapur, whereby the application moved by Respondent No. 3 under Section 22-A, Cr.P.C. was accepted.

1. Brief facts giving rise to the present petition are that Respondent No. 3 deals in fertilizers and has set up a shop at Railway Road, Dunyapur. On 15-6-2016 the Petitioner came to his shop and purchased 135 bags of urea worth Rs. 189,000/-and loaded them in a Mazda van. It was Zohar time so the Petitioner and the Complainant went to mosque to offer their prayer. The Petitioner said that he would make payment for his purchase on his way back. When the Respondent No. 3 returned from the mosque he found that the Petitioner had vanished with loaded van without making payment for his purchase. The Complainant got FIR No. 249/2016 dated 19-7-2016 registered about this incident. Subsequently, the Petitioner approached Respondent No. 3 for an out-of-the-Court settlement and the matter was considered in a Punchayat. The Petitioner gave Cheque No. 93667123 for Rs. 50,000/- to the Complainant in partial discharge of his liability and promised to pay the remaining amount of Rs. 139,000/- in two installments over a period of six months. When Respondent No. 3 presented the said cheque to the concerned bank for encashment the same was dishonoured. He approached the learned Ex-officio Justice of Peace seeking direction to Respondent-SHO for registration of case against the Petitioner which was accepted vide order dated 30-11-2016. Hence, this petition.

2. Learned counsel for the Petitioner contended that the application filed by Respondent No. 3 before the learned Ex-officio Justice of Peace was misconceived. The amount of cheque was covered in FIR No. 249/2016. As such, second FIR could not be ordered to be registered. He also argued that the Petitioner had filed a suit for rendition of accounts against Respondent No. 3 which was still pending. Until the suit is adjudicated registration of criminal case against the Petitioner cannot be ordered. On the other hand, learned counsel for Respondent No. 3 controverted the contentions of the Petitioner. He prayed for dismissal of this petition.

3. Arguments heard. Record perused.

4. FIR No. 249/2016 was registered in respect of an occurrence that took place on 15-6-2016. The Petitioner approached Respondent No. 3 for a settlement and an agreement was reached whereunder he gave him a cheque of Rs. 50,000/- in partial discharge of his liability. The fact that the said cheque was dishonoured constitutes a separate offence.

5. So far as civil suit is concerned, it is observed that the pendency of said suit is no bar to the registration of case under Section 489-F, PPC. Prima facie, a cognizable offence has been made out from the contents of the application of Respondent No. 3.

6. For the above reasons, no exception can be taken to the impugned order dated 30-11-2016. This constitutional petition has no merit and is hereby dismissed.

(R.A.) Petition dismissed

PLJ 2017 Lahore 675 (DB) [Multan Bench Multan]

Present: Qazi Muhammad Amin Ahmed and Ch. Mushtaq Ahmad, JJ.

KHADIM HUSSAIN--Petitioner

versus

STATE, etc.--Respondents

W.P. No. 13295-B of 2016, decided on 16.11.2016.

Constitution of Pakistan, 1973--

----Art. 199--Pakistan Penal Code, (XLV of 1860), Ss. 420, 409, 109 468, 471 & 477-A--Prohibition of Corruption Act, 1947, S. 5(2)--Constitutional petition--NAB reference--Misuing official position committed fraud--Caused huge loss to public exchequer--Validity--Petitioner attempted to shift blame to co-accused but it was responsibility of each official to check documents presented but all of them failed indicating their being privy to crime--Offence with which petitioners had been charged falls within prohibitory clause--No valid ground to grant them concession of bail. [Pp. 676 & 677] A

M/s. Abdul Rehman Laskani, Rana Muhammad Afzal, Malik Waqar Haider Awan and Bilal Butt, Advocates for Petitioner.

Mr. Muhammad Rasheed Qamar, Addl.D.P.G. for NAB with Javed Iqbal, Special Prosecutor for NAB.

Malik Waheed Ahmed, D.D. for NAB/I.O. with Record.

Date of hearing: 16.11.2016.

Order

Through this single order we intend to dispose of W. P.No. 13295/2016 filed by Khadim Hussain (petitioner), W.P.No. 12832/2016 filed by Ghulam Hussain (petitioner), W.P.No. 15751/2016 filed by Nabeel Raza Jafari (petitioner), W.P.No. 12683/2016 filed by Shoaib Manzoor (petitioner) and W.P.No. 12892/2016 filed by Hassan Latif Tahir (petitioner). All of them have prayed for the grant of post arrest bail in NAB Reference No-47-M of 2016 arising out of case FIR No. 10 dated 13.4.2016 under Sections 420, 409, 109, 468, 471, 477-A, PPC read with Section 5(2) of Prohibition of Corruption Act, 1947 registered at Police Station FIA/CBC Circle, Multan.

1. Precisely the prosecution case is that petitioners while misusing their official positions committed fraud/embezzlement with public exchequer to the tune of Rs. 45,09,62,910/- through ghost pension vouchers in order to gain pecuniary advantage.

2. The instant petitions have been moved on the grounds that the allegations leveled in the Reference against the petitioners are totally baseless and false; that so far no plausible or cogent evidence is collected by the prosecution/NAB to connect the petitioners with the alleged commission of offence. Learned counsel submits that all allegations are fake and there is no evidence against the petitioners available on record to show that they mis-appropriated any amount or committed the offence of criminal breach of trust. Lastly maintained that petitioners are behind the bars and no more required for further investigation, hence, petitioners be ordered to be released on post arrest bail.

3. Learned Additional Deputy Prosecutor General for NAB, on the other hand, has opposed these petitions on the grounds that prima facie case is made out against the petitioners punishable under Section 10 of the National Accountability Ordinance, 1999 and as concession of bail is not allowed under the statute the petitioners are not entitled for any such concession in constitutional jurisdictions as they being officials of National Bank of Pakistan as well as District Accounts Office, Muzaffargarh prepared fake record and facilitated each other to cause huge loss to the public exchequer.

4. We have heard the learned counsel for the parties at length and perused the record with their able assistance.

5. Admittedly interim Reference has already been filed by NAB against the accused including present petitioners in the Accountability Court at Multan in which proceedings are in progress. During interrogation the Investigating Officer of NAB has found them involved in the commission of crime. Petitioners have caused huge loss to public exchequer to the tune of Rs. 45,09,62,910/-. During remand they were confronted with documentary evidence in the shape of ghost pension vouchers, pass books, etc. to which they had no plausible explanation to justify their respective positions. During arguments learned counsel representing each petitioner attempted to shift blame to co-accused but it was responsibility of each official to check the documents presented but all of them failed indicating their being privy to the crime. The offence with which the petitioners have been charged

falls within the prohibitory clause. At this stage we find no valid ground to grant them concession of bail. Resultantly, all these petitions being meritless are dismissed.

(R.A.) Petitions dismissed

PLJ 2017 Lahore 677

Present: Shahid Karim, J.

M/s. MAKMA STEEL CRAFT (PVT.) LTD. and 13 others--Plaintiffs

versus

ALLIED BANK LIMITED--Defendants

C.O.S. Nos. 46 of 2002 and 24 of 2004, decided on 9.3.2016.

Leave to defend--

----Relief--It is settled by respectable authority that a mere denial of availing of amount by plaintiffs is not sufficient to entitle plaintiffs to grant of leave to defend. [P. 691] A

2012 CLD 337, ref.

Burden of Proof--

----Civil case--Onus and burden of proof of issue has been cast upon Bank--Normal standard of proof in civil cases is proof on balance of probabilities--Another term which is used is preponderance of probabilities, basic rule with regard to standard of proof in civil cases has been explained. [Pp. 697 & 698] B

1947 2 All ER 372, ref.

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

----S. 9--Suit for recovery of amount--Bank filed a suit for recovery of an amount--Case was of mis-appropriation of goods for its consumption--No consumption certificates have been brought on record or exhibited by Bank--Bank; who submits chat entire reliance with regard to Makmn Steel Craft is on delivery orders--If there is no delivery order and ultimate good are less in weight or do not conform to specification, then a presumption would arise that they have been misappropriated or pilfered--Weight of pledged goods is an important factor and not number of coils--Weight is given in bill of entry only and is conducted at time of import--This is a common thread running through different hills of entry and corresponding delivery orders--It is a case of misappropriation of goods for its consumption by plaintiffs and has to be contrasted from goods having been taken out of Godown and taken for purposes of weighing--If goods were misappropriated there is no question of those goods being; weighed at weighing station Another fact which lends credence to this aspect is that Godown is situated in premises of company--Plaintiffs had not at any stage raised any objection with regard to auction of pledged goods or their diminution in weight--No tangible steps have been taken by plaintiffs to allege misappropriation to have been perpetrated by Bank or any of its officers--Bank has approached NAB for registration of case and initiation of investigation against plaintiffs which investigation and proceedings are at an advance stage pending with NAB--This fact has not been denied by plaintiffs and can be taken into consideration as a stance in support of allegation made by Bank will regard to misappropriation--Bank has discharged onus of issue which is decided in favour of Bank and against plaintiffs. [Pp. 703 & 704] C, D & E

Mr. Asim Hafeez, Advocate of Plaintiffs.

Mr. Moiz Tariq, Advocate for Defendant.

Dates of hearing: 3, 6, 8.7.2007, 1, 4.12.2015, 15, 24.2.2016.

Judgment

This judgment shall decide COS No. 46/2002 and COS No. 24/2004. COS 24/2004 has been filed by Allied Bank Limited (ABL) for the recovery of an amount of Rs. 94,844,797/- under Section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (Ordinance, 2001). COS No. 46/2002, on the other hand has been filed by M/s. Makma Steel Crafts (Pvt.) Ltd. against ABL and in which the plaintiffs-company has sought the following prayer:

“In view of the submissions it is, therefore, respectfully prayed as under:--

The defendants be directed through a decree to return the Stocks of 3739 M.T imported under the Letters of Credit opened under the agreement August 1999 as the Plaintiffs have paid the amount of all Letters of credit.

It be declared through a decree that amount of Demand Finance of Rs. 67.448 Million created under the agreement August 1999 are payable subject to release of pledge goods available at the time of entering in to agreement and in case the defendants are not in a position to release the goods they are bound to pay the price of goods amounting to Rs. 112,860,000/- after deducting the amount of demand finance of Rs. 67.448. Million.

A decree for recovery of Rs. 22,785,558/ be passed against the defendants being the amount of Custom duty wrongly debited to the account of the Plaintiff.

Costs of the suit be also award.

Any other and further relief which this Hon’ble Court may deem fit and proper in the circumstances of the case be also awarded.”

1. In COS No. 46/2002, leave was granted on 06.03.2003. On 28.03.2003 the following issues were struck by this Court out of the pleadings of the parties:

2. Whether the suit insofar, as it pertains to matters that are covered in the Deed of Compromise executed in August 1999 and on the basis of which consent decree(s) were passed in the suits instituted by the Defendant Bank, is not maintainable by virtue of Section 47, CPC and the plaint in respect thereof is liable to be rejected? GPD.

3. Whether the relief of declaration, on the terms sought in the plaint cannot be granted ? GPD.

4. Whether the suit has been instituted and filed by a duly authorized person? OPP.

5. Whether an amount of Rs. 22,758,558.00 paid by the Plaintiff as custom duty other duties was wrongly debited by the defendant Bank to the Plaintiffs account? OPP.

6. Whether the Plaintiffs have paid the entire amounts of the letters of credit established by the Defendant Bank after the execution of the Compromise Agreement dated August 1999. If so, what is its effect ? OPP.

7. Whether the Plaintiffs are obliged to repay the amounts to the Defendant Bank mentioned in paragraph 8 of “Basic Submissions” of the petition for leave to defend/written statement? OPD.

8. Whether the pledged goods have been misappropriated by the Plaintiff? OPD.

9. Initially six issues were framed to arise from the pleadings of the parties. Later on the ABL (hereinafter referred to as the defendant-Bank) filed an application CM No. 499-B/2002 seeking an amendment in the written statement filed by the defendant-Bank in COS No. 46/2002, which was allowed vide order dated 03.11.2003. As a consequence thereof, an additional Issue No. 7 was framed and which has been brought forth above.

10. Evidence was led pro and contra by the parties in COS No. 46/2002 and report of the local commission was duly filed upon recording of the entire evidence. Vide order dated 16.06.20I5, an order was passed in COS No. 24/2004, which is reproduced as under:

“By the concurrence of the parties, it is agreed as follows:

(i) The defendants are granted leave to defend the suit unconditionally.

(ii) This suit upon grand of leave to defend is consolidated with the Suit No. 46/2002, titled “M/s. Makma Steel Crafts (Pvt.) Ltd. vs. Allied Bank Ltd., which has been filed by the defendants against the plaintiff bank.

(iii) The counsel for the parties agree that the issues framed in COS No. 46/2002, shall be considered to be the issues in the instant suit as well and the evidence recorded in the said suit shall also be read as evidence in the present suit.

1. This course is expedient in order to avoid conflict in judgments and multiplicity of litigation. Since the evidence has been completed in the consolidated suit COS No. 46/2002, the matter is now set down for final arguments on both the consolidated suits for 03.07.2015.”

2. As is evident from the order reproduced above, the suits were consolidated and were ordered to be tried together and the parties agreed that the issues framed in COS No. 46/2002 were the same issues which arise out of the pleadings of the parties in COS No. 24/2004 and thus, the issues framed and the evidence led by the parties was sufficient to be considered for the decision of both the suits upon consolidation.

3. I shall now take up the issues in seriatim and my findings on the said issues are as follows:

ISSUE No. 1

Whether the suit insofar as it pertains to matters that are covered in the Deed of Compromise executed in August 1999 and on the basis of which consent dccree(s) were passed in the suits instituted by the Defendant Bank, is not maintainable by virtue of Section 47, CPC and the plaint in respect thereof is liable to be rejected? GPD.

(i) The learned counsel for Makma Steel Crafts (Pvt.) Limited and M/s. Al-Shamsher Engineering (Pvt.) Limited (hereinafter referred to as the plaintiffs) submitted at the outset that the subject matter of the suits relates to the period between August, 1999 to the year 2002 when a number of letters of credit were opened by the defendants and is not related to the events prior thereto. This submission of the learned counsel for the defendants can be viewed in the historical perspective of these cases. Suffice to state that in a previous round of litigation between the parties; a deed of compromise was executed between the parties in August, 1999 which is Ex.P.28. By the said deed of compromise, which was made part of the decree by this Court, three finance facilities were granted by the defendant-Bank to the defendants in terms of the compromise and certain facilities were re-scheduled. As brought forth above, the defendants concede that the subject matter of these suits only relates to post-compromise issues and does not raise a dispute regarding the default committed by either of the parties in terms of the compromise agreement. It, therefore, follows that Issue No. 1 is to be decided in favour of the defendant-Bank and against the plaintiffs and it is held that the instant suits do not pertain to matters that are covered in the deed of compromise executed in August, 1999. I am, therefore, left to dilate upon the issues arising out of events which took place after the deed of compromise and the facilities which were extended by the defendant-Bank to the plaintiffs in the form of letters of credit.

ISSUE No. 2

1. This issue arises from the prayer in the plaint (COS 46/2002) to the effect that the defendant-Bank be directed through a decree to return the stocks of 3739 M.T imported under letters of credit opened under the agreement dated August, 1999 as the plaintiffs had paid the amount against all letters of credit. The learned counsel for the plaintiffs agree that this issue has become moot and such a decree can perhaps not be granted anymore in the changed circumstances of the case. In any case, the prayer is not based upon any legal proposition or a provision of law which can entitle such a prayer to be granted by way of decree to the plaintiffs. The precise submission of the learned counsel for the plaintiffs is that the pledged stock was ordered to be sold by order dated 29.11.2002. By the said order the pledged stock was auctioned and the bid was confirmed and by the consent of the learned counsel for the parties, the only issue that remained to be determined was regarding the payment of the customs duty. It is also pertinent to mention that the entire auction of the pledged stock was done with the mutual consent of the learned counsel of the parties and the auction was conducted accordingly. Therefore, the relief of declaration of the term sought in the plaint, having become moot, cannot be granted and the issue is decided against the plaintiffs.

ISSUE No. 4

1. The precise submission of the plaintiffs is that the amount of customs duty was paid by the plaintiff and which was required to be paid by the bank. However, that amount has not been excluded from the claim of the bank and in case the said amount is excluded from the said claim, nothing would be due to the bank from the plaintiffs. The onus to prove the said issue was on the plaintiffs.

2. In this regard, the first document which was referred to was the sanction advice at page 1623 of paper book III Ex.PW.6/40. The relevant clause in the sanction advice is reproduced as under:--

“Against FIM the goods will be------in Godowns at factories premises under Bank’s Lock and Key and under Bank’s approved Muqaddam after payment of concessionary Custom Duty by the Bank.”

1. The arrangement, according to the learned counsel for the plaintiff was that the customs duty was to be paid by the bank and it was debited in the statement of accounts relating to FIM facility and correspondingly credited in the plaintiffs current account.

2. In this regard, the primary document on which both the learned counsels relied upon is Ex.PW.3/8, which depicts a chart of the details of the customs duty paid by the company but debited by the bank to the account of the company. This document can be found at page No. 1224 of paper book III. The learned counsel for the plaintiffs does not dispute these entries as also that these depict the customs duty debited to the FIM account of the plaintiff and in turn credited to the plaintiffs current account. However, the entries which are disputed by the plaintiff are at Serial Nos. 17, 23 and 34. The learned counsel has referred to page 343 and to the statement of PW.3 in this regard to contend that the witness admitted these entries.

3. Jamil Ahmad, Manager ABL appeared as PW.6. He was called as a witness-by the plaintiffs. The following extract from his cross-examination is relevant:--

“It is incorrect to suggest that the plaintiffs made payment of customs duty according to Exh.PW-3/8. Actually some of the payments were made by the party and the rest were made by the Bank. The party also claimed refund with regard to the payments made by them towards customs duty. The following payments were made by the party which are mentioned in the following Serial Nos. in Exh.PW-3/8:

Serial Nos. 1, 3 to 17 and 27”

“...The following vouchers bear my signatures and were issued by me. Photo copies are compared with the originals, found correct and photo copies are allowed to be placed on the file as Exh.PW-6/82 to 98. I also produce vouchers which were prepared and signed by colleague of my. They are compared with the originals...”

1. It will be seen that PW.6 was called by the plaintiffs as its witness although he was an employee of the defendant bank. In his statement, the said witness has verified the payments made by the plaintiffs reflected in the document Ex.PW.3/8. These payments are at S. Nos. 1, 3 to 17 and 27. The learned counsel for defendant bank however says that the 17 has been mentioned as a result of typographical error and in fact the witness did not mean that entry 17 was also paid by the plaintiffs. The learned counsel for the plaintiffs also relied upon the evidence of PW.4 Azhar Ali, the proprietor of Zia & Co., Clearing and Forwarding Agency. He referred to the following portion of the examination of the statement of the said witness:

“I conduct business in the name of Zia & Co. I have a clearing and forwarding agency. I am on the approved panel of Allied Bank of Pakistan. I have been getting the goods of Al-Shamshair (Pvt) Ltd. (one of the plaintiff) cleared from Customs Department and I also handle the work of Makma Steel Crafts (Pvt) Ltd. by forwarding the goods to Gadoon Amazai after getting them cleared from Customs Department.”

“... The Bank never paid the customs duty. It was always the party which get the goods cleared ...”

1. From the above statement, the learned counsel for the plaintiffs invited this Court to conclude that PW.4 was a reliable witness and since he was conducting the entire business of clearing of the goods from the Customs Department, his statement and the evidence brought forth should be given weight and is worthy of credence. However, an analysis of the statement of the said witness would show that apart from a bald assertion by the said witness, no documentary proof is forthcoming which would substantiate the evidence given by the witness. Certainly, if the customs duty was paid by the plaintiffs and not by the defendant bank then there must be unimpeachable and reliable evidence in the shape of documents to bring home the said assertion. No such documents are forthcoming and none was produced in the evidence. A mere assertion without more by the said witness will not suffice as the transaction relating to the clearance of goods and the payment of customs duty are all documented and ought to have been produced in evidence.

2. The learned counsel for the plaintiffs in order to establish that the payments of customs duty as given in Ex.PW.3/8 were made by the plaintiffs referred to the current account statement maintained by the defendant bank with regard to the plaintiff. At page 218 of Vol-1 is the entry with regard to payment of Rs. 2690073.00/- by way of customs duty. The entry shows that the said amount was transferred from the current account statement of the plaintiffs. It may be stated that basically it is a two-tier transaction and the second transaction as reflected in the current account statement is merely an adjustment of the FIM liability. This is the amount (one of which is the entry referred to by the learned counsel at page 218) which is now being claimed by the plaintiff as the customs duty paid by it and which is sought to be adjusted against the claim of the bank.

3. As stated above, these amounts which are now being claimed by the plaintiff having been paid by the plaintiff itself by way of customs duty were required to be brought home and established by the plaintiffs since the onus of the said issue was placed on the plaintiff. The learned counsel for the defendant bank has taken this Court through the various documents by which it has been established that the said payment against the customs duty was made by the defendant bank and in this regard, by way of an illustration, the learned counsel has referred to the delivery order issued on 24.1.2001 which is of the same date as the entry at page 218. The learned counsel for the defendant bank retorts that the bank paid the customs duty, debited the FIM account and credited the current account. According to the learned counsel, the plaintiffs had sought the release of the goods which goods were in fact released and the same amount was credited to the FIM account. He has in this regard referred to Ex.PW.6/131 at page 862. Once again, it is emphasized that the onus to prove this issue was on the plaintiffs and the learned counsel for the defendant bank has rightly pointed out that these amounts are not being claimed by the defendant bank and, therefore, it was not required to file the Statement of accounts with regard to these entries. Once again, the learned counsel for the defendant bank has referred to the FIM statement of account of letter of credit 2448 at page 984 of COS No. 24 of 2004 to drive home the contention that the amounts were paid by the bank and the goods were released. The release of goods could only have taken place after these payments were paid by the plaintiffs and thereafter the delivery orders were issued. The delivery orders with regard to such payments have been produced in evidence by PW.6 who although an employee of the bank was a witness of the plaintiffs and was summoned as such by the plaintiffs.

4. It would bear repetition that the plaintiffs are asking for the refund or adjustment/ set off of the customs duties purportedly paid by the plaintiff company with regard to the entries at S. No. 1, 17, 23 and 24 reflected in Ex.PW.3/8. However, as explicated above, these transaction have been explained in paragraph 10(a) of COS No. 24 of 2004 which is the suit of the bank and with regard to which no denial has been made by the plaintiffs. The vouchers as also the call deposits have all been, produced and exhibited as EX.PW.6/82 to Ex.PW.6/98 and therefore, nothing turns on the claim that these payments of customs duty were made by the plaintiffs. The learned counsel for the defendant bank has referred to a series of documents produced in evidence which are vouchers showing that the payments were paid by the bank and the goods were got released by the plaintiffs. The learned counsel for the plaintiffs takes serious issue with the fact that these entries of the payments made by the bank are not shown as debit entries in the statement of accounts and, therefore, they cannot be claimed. The simple answer to this argument of the learned counsel is that the bank in fact admits that there is no statement of account and the plausible reason which has been put forth is that these amounts are not being claimed by the bank as these were adjusted by the plaintiffs and the goods were duly released. The evidence is woefully lacking in reliability and cogency and the plaintiffs have failed to establish or discharge the onus which was placed on the plaintiffs with regard to Issue No. 4.

5. With regard to entry at 17 in Ex.PW.3/8 and which too is being claimed by the plaintiffs, the learned counsel for the defendant has invited this Court to discard, the said assertion as a typographical error. He has referred to the following portion of the statement of the evidence of PW.3:--

“...I did not personally deposit the amount of custom duty mentioned in Exh, PW.3/8. The entries of customs duty mentioned in Exh.PW-3/8 were paid to the customs Department through Demand Draft/Pay Order. The documentary evidence showing the deposit of customs duty mentioned in Exh. PW-3/8 are in possession of both the companies. It is correct that the amount of Rs. 26,90,073/- appearing as transfer entry dated 27.1.2001 in Exh. PW-3/3 corresponds with the amount of customs duty mentioned against LC No. 2448 in Exh. PW-3/8.”

“…. It is correct that the amounts mentioned against entries Nos. 1, 3 to 13 and 27 in PW-3/8 were refunded back to the company as illustrated by the transfer entries mentioned in Exh. PW-3/3. I have not gone through the loan statements of both the plaintiff companies. I am not aware of the details of litigation going on in the present case.”

1. Once again, a reading of the portion of the statement of PW.3, reproduced above, would show that firstly the amount of customs duty was not deposited by the said witness. He has stated that the customs duty was paid through demand draft/ pay order and which documents were in possession of the company. This shows that there were allegedly documents which ought to have been produced in order to substantiate the claim of the plaintiffs which were not, in fact, produced and the inference can only be drawn against the plaintiffs that there were, in, fact, no such documents and the amount of customs duty was not paid by the plaintiffs. Secondly, it is evident that the said PW.3 does not mention the Entry No. 17 as the amount which had to be refunded to the companies. In fact, he has stated that the amounts at entries Nos. 1, 3 to 13 and 27 were refunded to the company. The Issue No. 4 is, therefore, decided against the plaintiffs and in favour of the defendant bank.

2. The Issue No. 5 and 6 are inextricably linked with Issue No. 7 and these are thus dealt with together.

ISSUE Nos. 5 & 6

1. Whether the Plaintiffs have paid the entire amounts of the letters of credit established by the Defendant Bank after the execution of the Compromise Agreement dated August 1999. If so, what is its effect ?OPP.

2. Whether the Plaintiffs are obliged to repay the amounts to the Defendant Bank mentioned in paragraph 8 of “Basic Submissions” of the petition for leave to defend/written statement? OPD.

(i) These issues together with Issue No. 7 are the pivotal issues between the parties and a finding thereupon should be sufficient to determine the respective liabilities of the parties. In a nub, the defendant-Bank alleges certain amounts to be outstanding against the plaintiffs on the ground that the plaintiffs have defaulted on the terms of the finance facilities which were extended to the plaintiffs and are thus liable to make over the said amounts and the defendant-Bank is entitled to a decree for the recovery of the said amount. On the contrary, the plaintiffs deny any amount to be due to the defendant-Bank and it has been averred without equivocation by the plaintiffs that no amount is due to the defendant-Bank as the plaintiffs have not fallen in default of the terms of the finance facilities. The controversy, therefore, narrows down and revolves around the true construction of statement of accounts as the availing of the facilities is not denied by the defendants.

(ii) As brought forth above, the subject matter of these suits relates to 89 letters of credit at site which was established by the defendant-Bank on behalf of the plaintiffs commencing in the year 1999 and ending in the year 2001 for the import of raw-material. It is the case of the defendant-Bank that upon the arrival of the goods under the letters of credit and after debiting the bank charges, the amount was debited to Payment Against Documents (PAD) account and the defendants were intimated about it. Further that the amount due under the letters of credit/PADs were adjusted through FATR (Finance Against Trust Receipts) and FIM (Finance Against Imported Merchandize) and in some cases through cash payment by the plaintiffs. The amounts of FIM, FATR and PAD were paid by the plaintiffs through their current accounts. It is the case set up in the plaint (COS 24/2004) by the defendant-Bank that the goods imported under the letters of credits were subject to concessionary customs duties by virtue of SRO No. 357(I)/2002 dated 15.6.2002 and in terms of which the plaintiffs were obliged to consume the imported goods within a period of one year. It has been mentioned in the suit by the defendant-Bank that there are a number of letters of credit which were adjusted through FIM and FATR facilities and which are the subject matter of the suits. The details of these letters of credits have been given in the body of the plaint. In order to secure the finance facilities, certain properties were mortgaged by the plaintiffs as well as other charge documents were executed such as DP personal guarantees and letters of pledge. Two finance agreements dated 27.10.2000 and 19.9.2001 were executed between the parties and memorandum of deposit of title deeds were also executed as a security for the finance facilities. The route which the transaction took has been explicated in paragraph 9(a) of the plaint in COS 24/2004. A chart depicting the amount disbursed, the principle (and mark-up) repaid and the respective dates have been brought forth in the above suit. This has been done in respect of both the plaintiffs separately, and in respect of each facility availed by them.

(iii) During the pendency of COS No. 46/2002 filed by the plaintiffs, legal notices were sent on 17.5.2002 by the defendant-Bank to the plaintiffs for the repayment of the dues of the defendant-Bank. Upon the failure of plaintiffs to make the payment of dues demanded by the defendant-Bank, an advertisement was issued by the defendant-Bank for the sale of the pledged stocks in the newspapers. This constrained the plaintiffs to file an application in COS No. 46/2002 for the stay of the sale of pledged stocks but this Court refused to grant that stay to the defendants. In short, the sale of the pledged stocks took place and M/s. Muhammad Waheed & Company and M/s. A.D Services were declared the highest bidders on 4.11.2002 for having offered the highest bids for the pledged stocks of the plaintiffs. As a result of the proclamation, pledged stocks weighing 427.680 M. Tons was auctioned and an amount of Rs. 11,034,144.00 was paid to the defendant-Bank by M/s. A.D Services. Similarly, M/s. Muhammad Waheed & Co. lifted the pledged stocks weighing 482.185 M. Tons and paid an amount of Rs. 10,253,443.00 as the auction price for the pledged stocks. The case of the defendant-Bank is that the following facilities were granted to the plaintiffs with a date of expiry as 30.06.2000:

(a) LC facility for Rs. 50.000 (M).

(b) FIM Facility for Rs. 25.000 (M)

(c) FATR facility for Rs. 10.000 (M)

These facilities were renewed twice and the expiry was extended to 30.06.2001 and 30.06.2002. It has been averred by the defendant-Bank that the plaintiffs did not make any payment under the FIM and FATR facilities and, therefore, the following; amounts have become overdue against the plaintiffs, a part of which is reproduced as under:

“Makma Steel Crafts (Pvt.) Limited

FIM (Principal): Rs. 22,325,019.00

FIM (Mark up): Rs. 5,653,373.00

Al-Shamsher Engineering (Pvt.) Limited

FIM (Principal) Rs. 42,988,456.00

FIM (Mark up) Rs. 11,110,117.00

FATR (Principal) Rs. 9,964.834.00

FATR (Mark up) Rs. 2,610.438.00

Grand Total: Rs. 94,652,237.00

(Paragraph 8 of the Basic Submissions)

Sale Proceeds: Rs. 21,287.587.00

(If decided in favour of the Bank, as per order dated 06.12.2007)

Total Outstanding Rs. 73,364,650.00”

(iv) The learned counsel for the plaintiffs has referred to the affidavit of Mr. Muhammad Ashfaque (PW.3) and the relevant contents of the affidavit submitted by the said witness are reproduced as follows:

“Affidavit of Mr. Muhammad Ashfaq S/o Noor Muhammad, R/o Street No. 22, House No. 5, Karam Nagar, Misri Shah, Lahore.

I, the above named deponent do hereby solemnly affirm and declare as under:--

That deponent is the Chief Accountant of M/s. Makma Steel Craft (Pvt) Limited and Al-Shamsher Engineering (Pvt) Limited. I prepared statement of Account of Makma Steel Craft (Pvt) Limited and Al-Shamsher Engineering (Pvt) Limited, these statements are according to the books of company and further the amounts mentioned in these statements of Accounts are also shown in the statement of Account of the Company provided by the bank, these entries are available in the Current Accounts of both the companies maintained with the bank. I can point out each and every entry in the statement of Account of Constitutional jurisdiction Account of the Company provided by the bank. Statement of Account submitted to this Honorable Court was provided by the bank. According to statement of Account of Makma Steel Craft (Pvt) Limited, given by the bank the amounts showd credit are Rs. 84,422,920/- and in Al-Shamsher Engineering (Pvt) Limited are Rs. 286,408,938/-.”

1. The precise submission of the learned counsel for the plaintiffs by reference to the statement made by PW.3 as also the statement of account of Makma Steel Crafts (Pvt.) Ltd. Ex.P.6/6 was that the amounts which have been paid for the adjustment of the liability of the plaintiffs have been credited in the current account of the plaintiffs. Correspondingly, these amounts have been debited from the current account of the defendants and it is thus these debit entries that have to be explained by the defendant-Bank to have been adjusted against letters of credit. According to the learned counsel, Ex.P.6/6 and Ex.P.6/7 which are current account statements of the plaintiffs, are admitted documents and the transfer entries in these statements of account are the obligation of the defendant-Bank to explain. He submitted that as per the statement of PW.3, the amounts that have been shown to have been credited against Makma Steel Crafts (Pvt.) Ltd. are Rs. 84,422,920 and in the case of Al-Shnmsher Engineering (Pvt.) Ltd. are Rs. 286,408,938/-. These amounts, as per learned counsel, are admitted amounts and it lies upon the defendant-Bank to explain these transfer entries which were debited from the current account of the plaintiffs and in respect of which no explanation is forthcoming. He has, in this regard, pointed out certain entries from Ex.P.6/6 to bring home his submission where simply the word ‘transfer’ has been mentioned against certain entries without any explanation as to what caused these transfers unlike other entries which do offer an explanation when a transfer is made and the accounts are debited.

2. The stance of the plaintiffs is lacking in clarity and material particulars. In the plaint filed in COS 24/2002, the primary focus is on the return of stocks on the pretext that these related to compromise agreement and cannot be retained as security for LCs after the year 1999. In the same vein the plaintiffs claim to have repaid the entire amount due under the finance facilities. It identifiably follows that the availment and disbursal of facilities is a forgone conclusion and the claim is of the entire repayment having been made. Thus the onus was on the plaintiffs to bring home this fact through cogent evidence. During the course of these proceedings, and after the auction of the pledged goods by this Court, the plaintiffs realigned their stance and restated it thus; that the pledged goods had been misappropriated in connivance with the bank officials and not on account of the plaintiffs’ fault, and thus the price that those goods were likely to fetch must be set off against the plaintiffs’ alleged liability. This represents a substantial shift in the plaintiffs’ stance. Thus the plaintiffs are now putting forth a case beyond their pleadings.

3. Again, in the application for leave to defend filed by the plaintiffs in C.O.SNo. 24/2004, a claim has been made of the adjustment of facilities, yet no proof is forthcoming in the evidence in order to prove that claim. The plaintiffs admit to the opening of 82 LCs and the creation of a FATR facility. However, the assertion is that that facility stands adjusted. No evidence has been produced in this regard and the assertion remains unsubstantiated. In paragraph II of the application, allegations of misappropriation have been made and corresponding threats of legal action too yet no steps have been taken to follow up on these words. This reflects adversely on the bona fide of the plaintiffs to say the least. Likewise with regard to FIM facility, the plaintiffs lay a claim to having repaid the entire amount standing against the said facility. A perusal of the entire evidence is bereft of any proof to support that claim. From the above, it becomes evident that the dispute narrows down to a dispute regarding accounts and no more and the quality of the evidence produced with regard thereto.

4. As a prefatory, it may be mentioned that it is now settled by the-respectable authority that a mere denial of the availing of the amount by the plaintiffs is not sufficient to entitle the plaintiffs to the grant of leave to defend. Apart from a healthy body of case law on the subject, this has been stated authoritatively by the Supreme Court of Pakistan in Apollo Textile Mills Ltd. and others v. Soneri Bank Ltd. (2012 CLD 337). The relevant portions of the judgment of the Supreme Court of Pakistan are reproduced for facility as under:--

“15. The rationale of the schematic discipline of Ordinance of 2001 is evident. A banking suit is normally a suit on Accounts which are duly ledgered and maintained compulsdrily in the books of Accounts under the prescribed principles/standards of Accounting in terms of the laws, rules and Banking practices. As such instead of leaving it to the option of the parties to make general assertions on Accounts the Ordinance binds both the sides to be absolutely specific on accounts. The parties to a suit have been obligated equally to definitively plead and to specifically state their respective accounts.”

1. The ratio of the judgment of the Supreme Court of Pakistan is that a banking suit is, in essence, a suit upon accounts. Therefore, the parties are to put forth their respective accounts in order to rebut and stunt the pleas raised by the opposite party. In the case of a suit filed by a bank, the bank is obliged to support and rely upon the statement of account as also all other documents upon which the bank relies for the support of its claim. These documents may include the agreement, the security documents etc. relating to the grant of finance. Conversely, in order to respond to the claim of the defendant-Bank, the plaintiffs are under a corresponding obligation to attach all documents relating to accounts, ledgers and balance sheets upon which the plaintiffs rely in order to rebut the claim of the defendant-Bank. In other words, a simple denial will not do as necessary documents which are essential, to raise a substantial question of law and fact have to be filed and relied upon so as to entitle the defendants to grant of leave to defend and for the suit to proceed for regular trial. The onus to prove the Issue Nos. 5 and 6 was on the defendant-Bank which has been successfully discharged. The issues are thus decided in favour of the defendant-Bank and against the plaintiffs.

ISSUE No. 7

1. It would be useful to refer once again to the summary of the facts which form the cause of action for the instant suits. That summary has been provided by the learned counsel for the Bank and the broad facts narrated in the summary are not denied. These are reproduced as under:

SUMMARY OF FACTS OF THE CASE:

1. Defendant Bank in the year 1995-1996 established various letters of credit on behalf of Plaintiff No. 1 and its sister concerns details whereof are given in Clause 1 of the recitals of the Deed of Compromise executed in August 1999.

2. Plaintiff No. 1 and its sister concerns did not make the payment of the letters of credit and the same was paid by the Defendant Bank in terms of its contractual obligations. At the request of Plaintiff No. 1 and its sister concerns and as per standard practice, the Defendant Bank put the goods, that were the subject matter of the said letters of credits, in Shahid Bonded Warehouse to save the cost of demurrage.

The goods that were stored in Shahid Bonded Warehouse for the sake of clarity and convenience shall hereinafter be referred to as “Pledged Goods No. 1”. The prefix “Pledged” has been added for clarification purposes only because legally and by definition the goods stored in a Customs Bonded Warehouse cannot be termed as goods under the pledge of the Bank.

1. Plaintiff No. 1 and its sister concerns did not make the payments therefore Defendant Bank filed suits for the recovery of its amounts, inter alia, under the above letters of credits. The detail of the recovery suits filed by the Defendant Bank is given in the Deed of Compromise.

Plaintiff No. 1 and one of its sister concern namely M/s. G. A. Traders also filed suits (C.O.S. No. 99/98 & C.O.S. No. 98/98 respectively) against the Defendant Bank, inter alia, for the release of Pledged Goods No. 1.

1. In August 1999, the parties arrived at a compromise package setling all their disputes. The terms of settlement were reduced in writing in the Deed of Compromise that was filed in all the suits pending between the parties. Resultantly, the suits filed by the Defendant Bank were decreed and the suits filed by Plaintiff No. 1 and the said M/s. G. A. Traders were unconditionally withdrawn in terms of the Deed of Compromise.

2. Rights and obligations of the respective parties with regard to Pledged Goods No. 1 and all the issues with reference thereto were comprehensively spelt out and settled in the said Deed of Compromise.

Clause 5 (ii) of the Deed of Compromise, since it directly touches the matter in issue, is, therefore, reproduced in extenso.

5(ii) Customer No. 1 undertakes that if it succeeds in getting condonation from CBR regarding remission of penal surcharge, it will pay a further sum of Rs. 20.000 million through sale of stocks comprising hot rolled cold steel sheets which are presently lying in Shahid Bonded. Warehouse situated at Lahore. The Bank will release all pledged goods against payment by Customer No. 1 of all dues including customs duties and warehouse charges, etc. The Bank will not be responsible for any damage to, or shortage or deterioration in value, of the said pledged goods. However, it is ultimately agreed between Customer No. 1 and the Bank that in case of any short-fall in the goods lying in the Custom Bonded Warehouse, the Bank will extend all co-operation to Customer No. 1 and both will lodge joint claim against the Bonded Warehouse for this shortfall in accordance with law. “(emphasis supplied)

From a bare perusal of the above clause it becomes clear that the Defendant Bank was assuming no responsibility either for Pledged Goods No. 1 or deterioration and short-fall in their value, if any. As stated earlier, the Goods in the first place were brought to the Custom Bonded Warehouse because no custom duty was paid on them and to save the demurrage that would have been levied on them for lying on the Dry Port. The only responsibility assumed by the Defendant Bank under the Deed of Compromise was to provide to Plaintiff No. 1 the Delivery Orders for the release of the goods lying in Shahid Bonded Warehouse and that too on the fulfillment of the condition precedent, viz., payment of custom duties and warehouse charges etc. Again, though no time frame was given in the Deed of Compromise, by virtue of Section 98 of the Customs Bonded Warehouse, the goods lying in the Customs Bonded Warehouses had to be released within a period of three months. Obviously, the Custom Department was well within its rights to auction Pledged Goods No. 1 lying in Shahid Bonded Warehouse. The goods were auctioned and at the time of their weighment on 27.06.2000, there was detected a short fall. The successful bidder lifted goods weighing only 742 M. Tons. In this regard, reference may be made to Writ Petition No. 14996/2000 and the parawise comments filed thereto by the Customs Department. Pledged Goods No. 1 lying in Shahid Bonded Warehouse were auctioned on account of the inordinate delay by Plaintiff No. 1 in getting the same released by paying the custom duties and warehouse charges etc.

1. Plaintiff No. 1 also wrote to the Defendant Bank categorically committing to make the payment of the Demand Finance regardless of release of the goods from Shahid Bonded Warehouse.

2. In pursuance of the Deed of Compromise, the Defendant Bank granted the following fresh finances facilities to the Plaintiffs:

(a) Letter of Credit (LC) facility for Rs. 50.000(M)

(b) Finance against Imported Merchandise (FIM) for Rs. 25.000(M)

(c) Finance against Trust Receipt (FATR) facility for Rs. 10.000(M)

The expiry of the above facilities was 30.06.2000. The said facilities were twice renewed with expiry on 30.06.2001 & 30.06.2002. It was a condition of the grant of the said facilities that the margin of the letters of credit would be appropriated towards adjustment of the Demand Finance facility for Rs. 67.448 (M).

In pursuance of the Finance facilities, in total eighty-seven (87) letters of credit were established by the Defendant Bank on behalf of the Plaintiffs starting from the year 1999 till the year 2001. The amounts of these letters of credits were adjusted through FATR and FIM facilities.

1. Plaintiffs did not make the payments of the letters of credits on due dates with the result that the Defendant Bank had to make the payments in terms of its contractual obligations by debiting the FIM account. After payment of the customs duties etc, the goods that were the subject matter of the letters of credit were brought under the pledge of the Defendant Bank and are stored in the godowns situated at the factory sites of the Plaintiffs. The goods that are stored in the godowns of the Plaintiffs for the sake of clarity and convenience shall hereinafter be referred to as ‘Pledged Goods No. 2”.

2. Defendant Bank also released goods under the FATR facility to Plaintiff No. 2. The payment against the said goods was to be made by the Plaintiffs within a period of 45 days. Plaintiff No. 2, however, contumaciously failed, refused and neglected to make the payment thereof. This conduct apart from others, makes Plaintiff No. 2 and its sponsors/directors liable to criminal action in terms of Section 20 of the Financial Institutions (Recovery of finances) Ordinance, 2001. The Defendant Bank has filed a criminal compliant against Plaintiff No. 2 and its sponsors/directors in this regard.

3. Plaintiff No. 1 failed to make the payments of Demand Finance facility for Rs. 67.448 (M) in accordance with the terms of the said Deed of Compromise, the Defendant Bank instituted Execution Petitions against Plaintiff No. 1 and its sister concerns before the Banking Court No. IV, Lahore.

4. Plaintiffs failed to deposit the amounts of the FIM facility therefore the Defendant Bank in accordance with its rights under the law decided to sell the pledged stocks and to that end issued Legal Notices dated 17.05.2002 to the Plaintiffs for repayment of their dues. In reply to the said Notices, the Plaintiffs took an inexplicable and spurious plea that they are ready to adjust the outstanding amount of the FIM & FATR provided the Defendant Bank hand over to them “Pledged Goods No. 1”. It may pertinently be mentioned here that the Plaintiffs did not dispute the amounts due under the FIM & FATR facilities and the Defendant Bank’s right to recover them.

5. The Defendant Bank had to advertise the sale of pledged stocks “Pledged Goods No. 2” in the newspapers. The Plaintiffs in order to cover up its default, filed a totally false and frivolous present suit, C.O.S. No. 46/2002. The Plaintiffs approached the Hon’ble Court, for stay of the sale proceedings regarding the pledged stocks by filing CM. No. 740/B/2002 in C.O.S. No. 46/2002 (page 2516 of book V). The sale of the pledged stocks was allowed by the Hon’ble Lahore High Court. M/s. A. D. Services and M/s. Muhammad Waheed and Co. were declared to be the successful bidders.

6. The following events would lead to the filing of a suit by the defendant-Bank which is being jointly dealt with in this judgment. It also led to the framing of the Issue No. 7, which for facility is reproduced as under:

“Whether the pledged goods have been misappropriated by the Plaintiff? OPD.

1. Issue No. 7 was framed vide order dated 03.11.2003 after it was found that there was a shortfall in the pledged stock and which necessitated the amended written statement to be filed by the defendant-Bank through CM No. 499-B of 2002, which was allowed vide order dated 03.11.2003. It is the case of the defendant-Bank that at the time when the pledged stock was permitted to be auctioned by this Court, and as a result of the auction M/s. A.D. Services and M/s. Muhammad Waheed and Co. were declared as the successful bidders, it came to light that the stocks, which were proposed to be auctioned, were deficient in weightage and thus there was a misappropriation of the pledged stock. According to the defendant-Bank, the misappropriation had taken place by the plaintiffs who had been guilty of pilferage in connivance with the Muqaddam appointed by the defendant-Bank. It was found that M/s. A.D. Services lifted a pledged stock weighing 427.680 M. Tons from 8-Din Road, Badami Bagh, Lahore whereas as per the record of the defendant-Bank raw material weighing 2654.787 M. Tons was pledged with the Bank and the same quantity of stock ought to have been present and available at the Godown at the time when it was auctioned. Likewise, M/s. Muhammad Waheed and Co. lifted the pledged stock weighing 482.185 M. Tons from 270-Industrial Estate, Gadoon Amazai, Distt. Swabi whereas in the record of the defendant-Bank, raw material weighing 1292.80 M. Tons was pledged with it. The successful bidders paid an amount of Rs. 11,034,144.00 and Rs. 10,253,443.00 as price of the pledged stock weighing 427.680 M. Tons and 482.185 M. Tons respectively. As stated above, the defendant-Bank was constrained to file its own recovery suit COS No. 24 of 2004 which has been consolidated to be decided together with the suit (COS No. 46 of 2002) filed by the plaintiffs.

2. The parties produced their evidence, pro and contra, the detail of which is annexed with this judgment as Annexure ‘A’.

3. As a prefatory, it may be started that the onus and burden of proof of the Issue No. 7 has been cast upon the defendant-Bank. It may be reiterated that the normal standard of proof in civil cases is proof on the balance of probabilities. Another term which is used is the preponderance of probabilities. The basic rule with regard to the standard of proof in civil cases has been explained and is oft-quoted in Miller v. Minister of Pensions (1947) 2 All ER 372 in the following words:

“The degree in cogency required to discharge a burden in a civil cases well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the Tribunal can say: “We think it more probable than not’ the burden is discharged but, if the probabilities are equal, it is not.”

1. It is this standard of burden of proof which will be required to be kept in mind while determining the Issue No. 7. At first blush, it can be seen that the onus or the burden of proof to be discharged has been placed on the defendant-Bank. Therefore, what the defendant-Bank has to prove is that the pledged goods have been misappropriated by the plaintiffs. Conversely, there is no onus on the plaintiffs to prove that the pledged goods have been pilfered by the defendant-Bank or any of its officers. Therefore, the inevitable inference is that: the defendant-Bank or any of its officer is not charged with misappropriation or pilferage nor has the plaintiffs raised a finger in this regard or have made any effort to attempt to fix the liability this regard on the defendant-Bank. It has chosen to watch as a bystander and let the defendant-Bank prove that the misappropriation was done by the plaintiffs and in case the onus is not discharged on a balance of probabilities, the question of the misappropriation of the pledged goods too would lose significance. This would mean effectively that firstly the pledged goods will have been misappropriated in any case and secondly the plaintiffs will not be burdened with the liability as a consequence thereof. This question assumes importance in view of the significance of a holding by this Court with regard to the misappropriation of the pledged stock. According to the learned counsel for the plaintiffs, the pledged stock was sufficient to set off any liability of the plaintiffs and thus in case the misappropriation is not proved to have been done by the plaintiffs, a set off will automatically follow. This argument of the learned counsel is based on a fallacy and the automatic consequence which is alleged to follow will not be the consequence which, in my opinion, will inevitably follow.

2. To reiterate, the learned counsel for the defendant-Bank submits that the pledged stock was misappropriated in connivance with the Muqaddam appointed by the Bank. In this regard, the learned counsel has produced a Chart which summarizes the letters of credit, the bills of entry and the date, the description of the goods and the weight, the delivery order and the consumption certificates in this order with regard to Al- Shamsher Engineering (Pvt.) Ltd. and Makma Steel Craft (Pvt.) Ltd. It is common ground between the parties that all of these documents have been duly exhibited and can be traced to the Annex ‘B’ with this judgment. With regard to Al-Shamsher Engineering (Pvt.) Ltd. the learned counsel for the defendant-Bank has drawn the attention of this Court to the consumption certificates which were issued by the Customs Department and which demonstrate beyond reasonable doubt that the goods mentioned in the consumption certificates have been taken by the plaintiffs and have been consumed yet no payment has been made to the Bank in respect thereof. The learned counsel for the plaintiffs does not dispute the fact that consumption certificates were issued and also does not seriously deny the evidential value of these consumption certificates. The learned counsel for the defendant-Bank referred to the statement of PW.6, Jamil Ahmad, Manager Allied Bank who was a witness called by the plaintiffs and the following part of his statement:

“... The goods released under the orders of the Court belonging to Al-Shamshair were less in quantity. On weighment 2027 M/tons was fond less. 810 M/tons goods were found shore in the godown at Gadoon Amazai..”

1. According to the portion of the statement of PW.6, reproduced above, it has been brought forth that the goods released under the orders of this Court were far less in quantity than what should have been in the Godown at Gadoon Amazai. He next referred to the statement of PW.IO, Manzoor Ah Khan who is the Chief Executive of Makma Steel Craft (Pvt.) Ltd. The following portion of his statement is pertinent for the purposes of the point in issue:

“...The raw material which we used to import, the government used to charge concessionary customs duty. We used to give indemnity bond to the Bank Guarantee Section of Customs Department. After converting the raw material into finished goods we used to inform the customs authority with a request to release our indemnity bond. We used to apply to the Sales Tax Department for the grant of consumption certificate after the raw material was converted into finished goods... “

1. From the above portion of PW.IO, the learned counsel for the defendant-Bank wants this Court to draw the conclusion that the consumption certificates were only issued by the Sales Tax department after the raw material was converted into finished goods. There is no doubt that PW-10 was called by the plaintiffs and was the Chief Executive of one of the companies and he states in his cross-examination that the consumption certificates were only issued after the raw material was converted into finished goods and which statement is ample proof that the pledged goods were, in fact, consumed by the plaintiffs. By a necessary corollary, this statement also leads to the conclusion that the consumption certificates were procured without there being any delivery order issued by the Bank and thus the consumption of the pledged goods was done without the express permission of the defendant-Bank. The learned counsel for the defendant-Bank has also referred to the statement made by PW. 13 Manzoor Ali Khan who is one of the Directors of Plaintiff No. 1 and the following part of his statement:

“…The plaintiff companies had paid the entire amount due to the defendant bank yet their goods have not been released in Lahore. The defendant Bank is withholding release of 753 M/Tons of Al-Shamshir Engineering and 1293 M/tons belonging to Makma Steel in Gadoon Amazai... “

1. Two inferences can be drawn from the statement made by PW. 13. One, that there is an admission with regard to the shortfall in the pledged goods and second, that no delivery orders have been issued and those delivery orders are still with the Bank.

2. The learned counsel for the defendant-Bank also referred to other documentary evidence brought on record in order to bring home the Issue No. 7 and the fact that the pledged goods were misappropriated by the plaintiffs. The first document to which a reference was made by the learned counsel is a letter of pledge executed by Makma Steel Craft (Pvt.) Ltd., Ex.PW.6/1. By clause 4 of this letter of pledge, the defendant-Bank has been held harmless and has been indemnified by the plaintiffs against all damage, injury, deterioration etc. that may be caused to the pledged goods as a consequence or result of any cause what included inter alia theft, misappropriation or embezzlement. By this letter of pledge and clause 4, the plaintiff No. 1 undertook to deposit further securities in the manner and to the extent of shortfall in the value of the same. The learned counsel for the defendant-Bank next referred to EX.PW.6/146, which is a sample of the delivery order in order to show that three copies of the delivery order were issued one was retained by the Bank, one for the customer and one was for the Muqaddam. Further, he made a reference to Ex.PW.10/66 which is a show cause notice issued by the Customs department to one of the plaintiffs company and also to Ex.PW. 10/67 which is a final order passed by the Customs department against the plaintiff-company. These documents have been brought on record in evidence in order to show the conduct of the plaintiffs although these orders by the Customs department are with regard to separate raw material.

3. Coming back to the table, which was produced by the learned counsel for the defendant-Bank and which was also relied upon by the learned counsel for the plaintiffs (annexed with this judgment as Annexure ‘B’). The learned counsel for the defendant-Bank referred to the misappropriation with regard to Al-Shamsher Engineering (Pvt.) Ltd. As illustration, the learned counsel referred to the letter of credit at Serial No. 1, which is Ex.DW.9/6 (at page 2483 of Paper Book-V) and the corresponding bill of entry which is Ex.P.I at page 461 of the Paper Book-I as also the description of goods which is given in the bill of entry. With regard to material and goods in this letter of credit, the learned counsel submits that the consumption certificates have duly been issued by the relevant department although no delivery orders have been issued by the Bank. The ineluctable conclusion is that the goods were consumed by the plaintiffs without a delivery order from the Bank and, therefore, misappropriation and pilferage was done by the plaintiffs. The learned counsel for the plaintiffs was not in a position to rebut this proposition. From the scheme of the transaction which too is not denied by the learned counsel for the plaintiff’s, for the goods to be taken out of the Godown and consumed for the purposes of manufacturing, a delivery order from the defendant-Bank was the basic document and without that document no goods could be taken out of the Godown. If the goods were consumed and consumption certificate was procured, it is not difficult to draw the inference that the plaintiffs in connivance with the Muqaddam consumed the goods and did not make good the shortfall nor was any permission of the Bank procured. The consumption certificates which have been issued with regard to the letters of credit and the bill of entry have been exhibited and brought on record, one of which is Ex.PW.10/48 at page 2013 at Paper Book IV. No evidence in rebuttal has been brought on record by the plaintiffs to deny or off-set the unimpeachable evidence that these goods were consumed without a delivery order having been issued by the defendant-Bank.

4. Learned counsel for the defendant-Bank has also relied upon Ex.PW, 10/69, which is a stock report issued by the Muqaddam and signed by the plaintiffs as on 24.7.2002. It may be emphasized that the pledged goods are in the form of coils and bundles, however, the number of coils and bundles is not important but the weight of the coils and bundles has to conform to a certain weight at which the goods were imported and which finds mention in the bill of entry corresponding to each import. Thus, the factor of weightage is all important factor in the instant matter around which the entire case and the determination of Issue No. 7 revolves. In the case of Makma Steel Craft (Pvt.) Ltd. the learned counsel for the defendant-Bank submits that the consumption certificates could not be procured as the goods were at Gadoon Amazai and it was not possible for the consumption certificates to be issued. However, according to the learned counsel, in the case of Makma Steel Craft, the entire reliance of the defendant-Bank is on the issuance or otherwise of delivery orders.

5. The learned counsel for the defendant-Bank next referred to the statements of accounts of both the companies i.e. Al-Shamsher Engineering (Pvt.) Ltd. and Makma Steel Craft (Pvt.) Ltd, which are at pages 984 and 1100 of the plaint. These statements of accounts are in respect of FATR and FIM facilities. The corresponding current account statements of Makma Steel Craft are at page 1018 and that of Al-Shamsher Engineering (Pvt.) Ltd. at page 1823. The requirements of Section 10 of Financial Institutions (Recovery of Finances) Ordinance, 2001 have been duly fulfilled and in this regard a reference has been made to Paragraphs 14, 15 and 16 of C.O.S No. 24 of 2004. According to the learned counsel, the mark up beyond the period claimed in the suit was Rs. 5,453,122/- which has been deleted from the amount claimed in the suit. Also the pledged stock sold during the course of these proceedings for Rs. 21,287 million have also been deducted from the total amount chimed in the suit and the remaining outstanding amount in the suit is Rs. 68,104,675/- for which a decree is prayed for along with cost of funds and the cost of the suit.

6. Mr. Asim Hafeez, Advocate learned counsel for the plaintiffs, in rebuttal, also relied upon the Chart at Annexure ‘B’. In a nub, he has not denied that consumption certificates were issued as also that the quantity in the consumption certificates tallies with the bill of lading of the corresponding goods. He, however, submits that the allegation regarding the consumption certificates is not with regard to all the entries in the Chart submitted by the learned counsel for the defendant-Bank. He contends that the delivery order does not mention the weight and likewise the documents which have been relied upon issued by the Customs department regarding the release of bill of entry do not mention the quantity as well. From this, the learned counsel seeks to establish that it cannot be established from these document as to what was the quantity actually consumed by the plaintiffs. This arguments has no legal legs to stands upon. The preponderance of evidence leads to the conclusion that the goods were in the Godown of the plaintiffs and quite a few consumption certificates have, in fact, been issued. The inference would be that the consumption certificates with regard to the reference given in those certificates would also tally with the weight of the goods in the corresponding bill of entry.

7. The learned counsel for the plaintiff with regard to Makma Steel Craft pleads that no consumption certificates have been brought on record or exhibited by the defendant-Bank. This is not denied by the learned counsel for the defendant-Bank; who submits that the entire reliance with regard to Makma Steel Craft is on the delivery orders. According to the learned counsel for the defendant-Bank and this seems to be the position from a reading of the evidence brought on record that the real document is the delivery order to be issued by the Bank. If there is no delivery order and the ultimate good are less in weight or do not conform to the specification, then a presumption would arise that they have been misappropriated or pilfered. Referring to two transactions as an illustration, the learned counsel for the defendant-Bank referred to Ex.DW.7/4 (page 2383, Paper Book V) which relates to the letter of credit No. 2392 in respect of which a delivery order was issued for lesser quantity of goods and thus the rest of the quantity of the coils/goods ought to have been present in the Godown as the goods comprised in the bill of entry were much more than the delivery order which was issued. In most of the bills of entry of Makma Steel Craft, no delivery orders were issued by the defendant Bank. It was once again sought to be emphasized by the learned counsel that weight of the pledged goods is an important factor and not the number of coils. The weight is given in the bill of entry only and is conducted at, Karachi at the time of import. This is a common thread running through the different bills of entry and the corresponding delivery orders. The weight of the pledged goods in the bill of entry is on the higher side whereas the delivery orders have been issued for a lesser weight and quantity. The only inference to be drawn from this is that the remainder of the quantity in terms of weight ought to be present in the Godown but ultimately, as stated above, pledged goods with far less weight were found at the time when the goods were ultimately ordered to be auctioned by this Court.

8. The learned counsel for the plaintiffs referred to the statement of DW.4, DW.5 and DW.6 in order to drive home his point that from the release of the goods from the Godown to the weighing station, no one accompanied the goods and, therefore, the goods could have been pilfered on the way and, therefore, the plaintiffs cannot be burdened with the liability. This argument of the learned counsel is flawed and does not take into consideration the basic premise that the goods cannot be taken out of the Godown without the delivery order having been issued by the defendant-Bank and thus the misappropriation took place in a different manner from the one which is sought to be alleged by the learned counsel for the plaintiff. It is a case of misappropriation of goods for its consumption by the plaintiffs and has to be contrasted from the goods having been taken out of the Godown and taken for the purposes of weighing. Quite obviously, if the goods were misappropriated there is no question of those goods being; weighed at the weighing station Another fact which lends credence to this aspect is that the Godown is situated in the premises of the plaintiffs-company. The plaintiffs have not at any stage raised any objection with regard to the auction of the pledged goods or their diminution in weight. No tangible steps have been taken by the plaintiffs to allege the misappropriation to have been perpetrated by the defendant-Bank or any of its officers. On the other hand, the defendant-Bank has approached the National Accountability Bureau for the registration of the case and the initiation of investigation against the plaintiffs which investigation and proceedings are at an advance stage pending with the NAB in which the Muqaddam is also an accused. This fact has not been denied by the plaintiffs and can be taken into consideration as a stance in support of the allegation made by the defendant-Bank with regard to misappropriation.

9. As a result, the defendant-Bank has discharged the onus of Issue No. 7 which is decided in favour of the defendant-Bank and against the plaintiffs.

Relief

1. In view of the findings on the issues above and in particular the Issues No. 5, 6 and 7 the suit filed by the plaintiffs COS No. 46 of 2002 is hereby dismissed with costs all along.

2. The suit COS No. 24 of 2004, filed by the defendant-Bank is decreed in favour of the defendant-Bank and against the plaintiffs, jointly and severally for an amount of Rs. 68,104,675/- along with costs of funds and the costs of the suit.

Please see Annexures original judgment.

(A.A.K.) Suit dismissed

PLJ 2017 Lahore 705

Present: Abid Aziz Sheikh, J.

SARDAR QASIM HASSAN KHAN--Petitioner

versus

FEDERATION OF PAKISTAN etc.--Respondents

W.P. No. 21403 of 2014, heard on 4.4.2017.

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

----Ss. 231-B, 234 & 148--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Withholding tax/Advance tax--Registration of vehicle--Imported motor vehicles were purchased from importers after verification of import documents--Motor Vehicle Registering authority demanded advance tax--Advance tax shall be collected at time of transfer of registration or ownership of a private vehicle, if such transfer is before five years from date of first registration in Pakistan--None of petitioners are original importers or have paid advance tax under Section 231-B(3) of Ordinance or paid tax u/S. 148 of Ordinance--Advance tax paid under Section 231-B by subsequent purchaser is not final tax and same is adjustable under Section 231-B(5) of Ordinance--Petitioners if pay advance tax, will be entitled to adjust same at time of their final assessment for particular tax year--Demand of advance tax/withholding tax from petitioners by Excise and Taxation Department on behalf of F.B.R. cannot be held to be illegal or against provision of Section 231-B(4) of Ordinance. [Pp. 707, 708 & 709] A, B, C & D

Mr. Ikram Ullah Malik, Advocate for Petitioner.

Sardar Qasim Ali Khan, Petitioner in person in this petition and also in connected writ petitions.

Mian Muhammad Javaid, AAG-Pk and Mr. Khalid Waheed Khan, AAG for Respondents.

Mr. Zafar Iqbal, Advocate/Legal Advisor for Custom Department.

Date of hearing: 4.4.2017.

Judgment

This judgment will also decide Writ Petitions No. 6078, 9319, 12726, 15422 and 27757 of 2015 as common questions of law and facts are raised in all these petitions.

1. Through these constitutional petitions, the petitioners have challenged the demand of advance tax/withholding tax on the registration of their motor vehicles u/S. 231-B of the Income Tax Ordinance, 2001 (“Ordinance”). The facts common in all these petitions are that petitioners purchased imported motor vehicles from various importers after verification of import documents. The petitioners applied for the registration of these vehicles in their name to the Excise and Taxation Department (“Department”). The department beside registration charges also demanded advance tax/withholding tax from the petitioner u/S. 231-B of the Ordinance. The petitioners being aggrieved filed these constitutional petitions.

2. Learned counsel for the petitioners argued that vehicles in question were imported by various importers who paid tax u/S. 148 of the Ordinance at the time of import, therefore, no advance tax/withholding tax was recoverable from the petitioners at the time of registration or transfer of ownership in their name under sub-section (4) of Section 231-B of the Ordinance. Further submits that petitioners provided proof of advance tax to the respondents but they have illegally refused to register the vehicles and demanded advance tax/withholding tax which has already been paid at the time of import.

3. Learned counsel for the respondents submit that Motor Registering Authority has lawfully demanded advance/withholding tax from the petitioners in accordance with Section 234 read with Section 231-B of the Ordinance as per rate introduced through Finance Act, 2014.

4. I have heard learned counsel for the parties and perused the record. The main arguments of the petitioners are that as they purchased the vehicles from different importers who had already paid tax u/S. 148 of the Ordinance, therefore petitioners are not liable to pay advance/withholding tax u/S. 231-B of the Ordinance. To examine this argument, it is necessary to go through the provision of Section 231-B of the Ordinance which is reproduced as under:--

[231B. Advance tax on private motor vehicles.--(1) Every motor vehicle registering authority of Excise and Taxation Department shall collect advance tax at the time of registration of a motor vehicle, at the rates specified in Division VII of Part IV of the First Schedule

(2) Every motor vehicle registering authority of Excise and Taxation Department shall collect advance tax at the time of transfer of registration or ownership of a private motor vehicle, at the rates specified in Division VII of Part IV of the First Schedule:

Provided that no collection of advance tax under this sub-section shall be made on transfer of vehicle after five year from the date of first registration in Pakistan.

(3) Every manufacturer of a motor car or jeep shall collect, at the time of sale of a motor [vehicle], advance tax at the rate specified in Division VII of Part IV of the First Schedule from the person to whom such sale is made.

(4) Sub-section (1) shall not apply if a person produces evidence that tax under sub-section (3) in case of a locally manufactured vehicle or tax under Section 148 in the case of imported vehicle was collected from the same person in respect of the same vehicle.

(5) The advance tax collected under this section shall be adjustable:

Provided that the provisions of this section shall not be applicable in the case of –

…………………………………………………….

…………………………………………………….

(d) in all other cases the date of first registration by the Excise and Taxation Department.

(7) For the purpose of this section, “motor vehicle” includes car, jeep, van, sports utility vehicle, pick-up trucks for private use, caravan automobile, limousine, wagon and any other automobile used for private purpose.]

(underlining by me to add emphasis)

Plain reading of Section 231-B shows that under sub- section (1), every Motor Vehicle Registering Authority of Excise and Taxation Department shall collect advance tax at the time of registration of motor vehicle at the rates specified in Division VII of Part IV of the First Schedule. Under sub-section (2) of Section 231-B of the Ordinance, advance tax shall be collected at the time of transfer of registration or ownership of a private vehicle, if such transfer is before five years from the date of first registration in Pakistan. Under sub-section (3) of Section 231-B of the Ordinance, every manufacturer of motor car or jeep shall collect advance tax at the time of sale of vehicle. However, sub-section (4) of Section 231-B provides an exception that sub-section (1) shall not apply if a person produces evidence that tax under sub-section (3) in case of a local manufactured vehicle or tax u/S. 148 of the Ordinance in case of imported vehicle, was collected from the same person in respect of same vehicle. The words “person produces evidence” and the words “same person in respect of same vehicle” used in sub- section (4) of Section 231-B leaves no doubt that subsection (1) of Section 231-B shall not apply, only if registration of vehicle under sub-section (1) is sought in the name of same person who already paid advance tax under sub-section (3) of Section 231-B or paid tax u/S. 148 of the Ordinance at the time of import in respect of same vehicle. In converse this means that at time of initial registration of vehicle under sub-section (1) of Section 231-B in name of a person who is not an importer and has not paid tax under Section 148 of the Ordinance, the benefit of exception under sub-section (4) of Section 231- B will not apply and said subsequent purchaser shall be liable to pay advance tax under sub-section (1) of Section 231-B. Further sub-section (2) of Section 231-B postulates that if initial registration under sub-section (1) was made in favour of the importer who already availed benefit of sub-section (4) of Section 231-B, the subsequent purchaser when apply for transfer of registration or ownership, he will still be liable to pay advance tax, if said transfer is within five years from the date of first registration in Pakistan. The exception provided under sub-section (4) of Section 231-B being in form of exemption, the said provision has to be construed very strictly against the assertion of tax payer and in favour of the taxing power. Further in case of any ambiguity or two possible interpretations, the one favours the taxation authorities has to be adopted. In this contest reliance is placed on Islamabad and another vs. Wapda and another (PLD 2014 SC 766), M/S Army Welfare Sugar Mills Limited and others vs. Federation of Pakistan and others (1992 SCMR 1652), (Collector of Customs and others vs. Ravi Spinning Ltd and others (1999 PTD 1078) and Ahmad Ali Anjum vs. Deputy Commissioner, Faisalabad (1998 SCMR 1950).

1. The above plain language of Section 231-B and its interpretation when applied to these petitions, it is found that none of the petitioners are original importers or have paid advance tax under sub-section (3) of Section 231-B of the Ordinance or paid tax u/S. 148 of the Ordinance. The petitioners are subsequent purchasers of vehicles imported by various importers and have applied either for its initial registration under sub-section (1) or transfer of registration in their name under sub-section (2) of Section 231-B of the Ordinance. As already discussed above, the exception in sub-section (4) of Section 231-B of the Ordinance is only available to same person who already paid tax and seeking registration in his own name, for same vehicle and not applicable to the subsequent purchaser. Therefore, petitioners’ cases are not covered under sub-section (4) of Section 231-B of the Ordinance.

2. The above interpretation is also in consonance with settled law that “income tax” is on the income of a particular person and not on the goods. The advance tax paid u/S. 148 of the Ordinance by importer was a final tax on the income of said importer arising from import. Therefore, subsequent purchaser cannot take advantage of said final tax paid by importer when benefit of final tax was also availed by him. I have also noted that advance tax paid under Section 231-B by subsequent purchaser is not final tax and same is adjustable under sub-section (5) of Section 231-B of the Ordinance. Therefore, petitioners if pay advance tax, will be entitled to adjust same at the time of their final assessment for particular tax year.

3. In view of above discussion, the demand of advance tax/withholding tax from the petitioners by the Excise and Taxation Department on behalf of Federal Board of Revenue cannot be held to be illegal or against provision of Section 231-B (4) of the Ordinance. The upshot of above discussion is that these petitions have no merits, therefore, same are dismissed with no order as to cost.

(R.A.) Petitions dismissed

PLJ 2017 Lahore 709

Present: Shahid Bilal Hassan, J.

MIAN ZAHEER AHMAD--Appellant

versus

MUHAMMAD SABIR and others--Respondents

R.S.A. No. 216 of 2011, heard on 31.3.2017.

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

----O. XLI, R. 33--Power of Court of Appeal--Recovery of amount--Jurisdiction--First appellate Court has not travelled beyond vested jurisdiction rather to bring litigation to ultimate end has aptly exercised same and has reached to just conclusion--It is settled principle of law that appellate Court while deciding appeal enjoys powers similar to that trial Court and when it is established on record that trial Court non-reading evidence produced by parties, appellate Court by exercising power delegation on it under Order XLI, Rule 33 of, CPC could extend that relief even same was not prayed--Appellate Court has not travelled beyond vested jurisdiction, rather to bring litigation to an ultimate end has aptly exercised same and has reached to a just conclusion--Moreover, it is settled principle of law that Appellate Court while deciding appeal enjoys powers similar to that trial Court and when it is established on record that trial Court non-read evidence produced by parties, Appellate Court by exercising powers delegated on it under Order XLI, Rule 33 of C.P.C. could extend that relief even same was not prayed--While placing on judgments supra, appeal in hand being devoid of any force and substance stands dismissed--Appeal was dismissed. [Pp. 713 & 714] A, B & C

Sheikh Muhammad Waqas, Advocate for Appellant.

M/s. Ijaz Hussain Naqvi and Raheel Kamran Cheema, Advocate for Respondent No. 1.

Date of hearing: 31.3.2017

Judgment

Succinctly, the Respondent No. 1 instituted a suit for declaration, possession, specific performance and permanent injunction against the present appellant and the Respondents No. 2 to 4 claiming therein the possession alongwith declaration through Specific Performance with regard to two shops. It was averred in the plaint that the appellant had received Rs. 300,000/- from the Respondent No. 1 as loan on 13.01.2000 with an undertaking to return the same till 30.06.2000 and he was liable to pay Rs. 100,000/- as compensation if amount of Rs. 300,000/- would not be returned in time. Mian Bashir Ahmad, Respondent No. 2 stood guarantor for his son and he promised to alienate his two shops mentioned in para No. 1-A of the plaint in consideration of Rs. 300,000/- already paid to the Respondent No. 1. The agreement dated 13.01.2000 was written by the Respondent No. 4; the Respondent No. 1 was an uneducated simple villager while the appellant and Respondents No. 2 to 4 were wily and astute people, so in the above noted agreement, by playing fraud the shops were shown to be owned by the appellant while the Respondent No. 2 was cited as marginal witness instead of guarantor of his son. On 4.8.2000, the appellant received further amount of Rs. 140,000/- which was to be disbursed till 10.09.2000; that time the Respondent No. 3 emerged as a guarantor for payment of the disputed amount and in default he was to transfer his shop mentioned in para No. 1-B of the plaint in favour of the Respondent No. 1. That agreement was also reduced into writing by the Respondent No. 4, but instead of showing the Respondent No. 3 as guarantor for return of loan amount, his name was cited as marginal witness. Allegedly, the respondents did not pay above said amount of Rs. 440,000/- till 10.09.2000. On the intervention of the respectables of the area, the period for payment of disputed amount was extended on 10.07.2001 and it was agreed that appellant and Respondents No. 2 & 3 would pay Rs. 150,000/- till 10.10.2001 and rest of the loan amounting to Rs. 290,000/- would be paid on 10.01.2002. In this regard, agreement dated 10.07.2000 was scribed in the Punchayat. It was further averred that the Respondent No. 4 joined hands with the remaining respondents/defendants and the appellant and for that reason he mentioned outstanding amount as Rs. 307,000/- only in agreement dated 10.07.2001. Moreover, the previous agreements were also shown to have been cancelled. The appellant and the Respondents No. 2 to 4 were required to return the loan amount of Rs. 440,000/- but demand of the Respondent No. 1 was not met. He thus had become owner of the shops mentioned in Para No. 1-A and B of the plaint. The appellant and Respondents No. 2 to 4 were required to execute sale-deed regarding disputed shops but they refused. He prayed for declaration to the effect that he had become owner of the disputed shops and in the alternative he prayed for decree of specific performance with injunction.

The appellant and Respondents No. 2 to 4 being defendants filed joint written statement and took the stance that the Respondent No. 1/plaintiff was a money lender by profession; the whole amount of loan was returned to him. The Respondent No. 1/plaintiff filed an application before the Deputy Superintendent of Police, Pasrur which was sent for inquiry to the Station House Officer, Police Station Sabiz Peer. Zaffar Iqbal, Sub-Inspector called the parties and it was resolved that an amount of Rs. 137,000/- only was outstanding against the appellant and Respondents No. 2 to 4, which was to be paid in January to April 2003. Allegedly, the appellant and the Respondents No. 2 to 4 had paid the entire amount as per decision of Punchayat held under the supervision of Zaffar Iqbal SI and nothing was left to be payable against them. It was further contended that the Respondent No. 1 had been demanding interest on the principal amount and he filed the suit with mala fide intention; the appellant and other defendants prayed for dismissal of the suit.

Out of the divergent pleadings of the parties, to resolve the controversy, the learned trial Court framed as many as 13 issues including “Relief” and invited evidence of the parties. The Respondent No. 1/plaintiff and the appellant as well as Respondent No. 2 to 4/defendants adduced their evidence in pro and contra. The learned trial Courtvide judgment and decree dated 09.04.2010 dismissed the suit instituted by the Respondent No. 1, who being aggrieved of the same, preferred an appeal before the learned lower appellate Court, which was, vide impugned judgment and decree dated 15.09.2011, accepted with the following observation:--

‘…………………In the light of above stated facts and circumstances, the appellant is found entitled to recover Rs. 137,000/- from Respondents No. 1 and 2 along with profit payable under PLS account of Scheduled bank till the realization of suit amount. This appeal is accepted accordingly leaving the parties to bear their own costs……….’

The appellant being aggrieved of the impugned judgment and decree passed by the learned lower appellate Court has preferred the instant regular second appeal.

1. Learned counsel for the appellant has argued that the impugned judgment and decree is result of exercise of jurisdiction which is not vested in the learned lower appellate Court, as the Respondent No. 1/plaintiff did not plead the relief extended to him in his plaint. He further argues that the impugned judgment and decree is against law and facts of the case as well as based on sheer misreading and non-reading of evidence on record, because the Respondent No. 1 admitted in his statement that he had obtained the signatures and thumb impressions of the appellant on blank paper and he further admitted that there was nothing between the parties except the loan amount, but these aspects have been ignored by the learned appellate Court. Moreover, the Respondent No. 1 could not produce any marginal witness of the agreement in his favour. As such, the learned lower appellate Court by travelling beyond vested jurisdiction has passed the impugned judgment and decree; hence, the same is not sustainable in the eye of law. By allowing the appeal in hand, the impugned judgment and decree may be set aside and the judgment and decree dated 09.04.2010 passed by the learned trial Court, dismissing the suit of the Respondent No. 1, may be restored. Relies on Dr. Faqir Muhammad v. Maj. Amir Muhammad etc. (1982 SCMR 1178), Muhammad Gohar and others v. Pakistan and others (1982 CLC 1621-Lahore) and Government of Khyber Pakhtunkhwa and others v. Mst. Zubaida (2013 YLR 372-Peshawar).

2. Perversely, the learnd counsel appearing on behalf of the Respondent No. 1 has argued that the learned lower appellate Court being Court of fact coupled with appeal before it in continuation of the suit had ample powers as contemplated under Rule 33 of Order XLI of the Code of Civil Procedure, 1908, to pass or make such or other decree or order as the case may require, even if the appeal or objection are not filed; therefore, the learned lower appellate Court has rightly exercised vested jurisdiction and has not committed any misreading and non-reading of evidence on record. Prays for dismissal of the appeal in hand.

3. Heard.

4. Convening of Punchayat under supervision of one Zaffar Iqbal, Sub-Inspector is admitted on record and the learned lower appellate Court while thrashing the record found an application filed by the Respondent No. 1 to the Deputy Superintendent of Police, Pasrur and inquiry report of the said Zaffar Iqbal SI dated 03.09.2002, which was accompanied by a writing duly signed/thumb marked by Muhammad Sabir (Respondent No. 1) as well as his real son Safdar Hussain, wherein it was resolved that amount of Rs. 137,000/- only was outstanding against the appellant, which was undertaken to be paid by Respondent No. 2, being father of the appellant, as he had settled abroad and the learned lower appellate Court taking notice of the same, as the parties concealed true facts and could not bring on record substantive material assisting the learned Courts below in reaching just conclusion of the case. Moreover, in order to negate the factum with regard to convening of Punchayat, neither the appellant nor his father Bashir Ahmad, Respondent No. 2, jumped in the witness-box.

In addition to the above, though the Respondent No. 1 did not plead his claim for recovery of amount in his plaint, but Rule 33 of Order, XLI of the Code of Civil Procedure, 1908 is much clear on the point of powers to be enjoyed by the learned appellate Court while dealing with appeal. For ready reference, the same is reproduced infra:

‘33. Power of Court of Appeal.--The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection:

Provided ………………………………………’

In view of the above provision of law, the learned lower appellate Court has not travelled beyond vested jurisdiction, rather to bring the litigation to an ultimate end has aptly exercised the same and has reached to a just conclusion. In this regard reliance is placed on Basharat Ali and others v. Muhammad Anwar and others (2010 SCMR 1210), wherein it was invariably held:

‘No doubt, Adalat Khan did not prefer appeal before the District Court but the dispute was common as the entry was

affecting all the plaintiffs. The appellate Court allowed the prayer in toto, which can be done under Order XLI, Rules 4, 20 and 33 of Code of Civil Procedure, 1908 (hereinafter referred to as ‘C.P.C.) as held in the case of PRTB v. Abdul Ghafoor PLD 1989 SC 541.’

Moreover, it is settled principle of law that the learned Appellate Court while deciding the appeal enjoys powers similar to that of learned Trial Court and when it is established on record that the learned trial Court non-read the evidence produced by the parties, the learned Appellate Court by exercising powers delegated on it Under Order XLI, Rule 33 of the C.P.C. could extend that relief even the same was not prayed. In this regard reliance is placed on Khaliqdad Khan and others v. Mst. Zeenat Khatoon and others (2010 SCMR 1370).

In addition to the above, in case of conflicting judgments of learned Trial Court and Appellate Court, the findings of the Appellate Court would be preferred and respected. In this regard reliance is placed on Muhammad Hafeez and another v. District Judge, Karachi East and another (2008 SCMR 398).

1. As far as the case law relied upon by the learned counsel for the appellant is concerned, with utmost respect, the same has no relevance to the peculiar facts and circumstances of the case in hand; thus, it does not render any assistance or help to the appellant’s case.

2. For the foregoing reasons and discussion, while placing on the judgments supra, the appeal in hand being devoid of any force and substance stands dismissed. No order as to the costs.

(R.A.) Appeal dismissed

PLJ 2017 Lahore 714

Present: Faisal Zaman Khan, J.

MUHAMMAD SALEEM, etc.--Petitioners

versus

PERVAIZ AHMAD--Respondent

C.R. No. 2533 of 2014, heard on 3.4.2017.

Pre-emption--

----If in plaint names of witnesses of talb-e-ishhad are not mentioned same shall be fatal for suit--Revision was dismissed. [P. 715] A

Mr. Inayat Ullah Ch., Advocate for Petitioners.

Mr. Waqar-ul-Hassan Butt, Advocate for Respondent.

Date of hearing: 3.4.2017.

Judgment

This civil revision is directed against the judgment and decree dated 14.06.2014 passed by the learned Additional District Judge, Jaranwala, whereby, appeal preferred by the respondent has been accepted and suit for possession through pre-emption filed by the petitioner has been dismissed.

1. Succinctly, the facts of the case are that in order to assail the sale made in favour of respondent through Sale-Deed No. 859/1 dated 13.05.2005 qua property measuring 42-Kanals 18-Marlas situated in revenue estate of Chak No. 564/GB Tehsil Jaranwala District Faisalabad, a suit for possession through pre-emption was filed by the petitioner claiming a superior right. The suit was contested by the respondent denying his claim. Out of divergent pleadings of the parties as many as 07 issues were framed; evidence pro and contra was lead, whereupon, through judgment and decree dated 03.04.2012 passed by the learned Civil Judge, Jaranwala the suit was decreed. Feeling aggrieved an appeal was preferred by the respondent, which was accepted and the suit was dismissed, hence, this revision petition.

2. At the very outset, learned counsel for the petitioners has been confronted with the judgment passed by the Honourable Supreme Court of Pakistan reported as Dr. Pir Muhammad Khan v. Khuda Bukhsh and others (2015 SCMR 1243), wherein, it has been held that if in the plaint names of witnesses of Talb-e-Ishhad are not mentioned the same shall be fatal for the suit.

3. Replying to the above, learned counsel submits that the names of witnesses of Talb-e-Muwathibat have been written in Paragraph No. 2 of the plaint out of whom some were also the witnesses of Talb-e-Ishhad, therefore, it was not necessary to reproduce/repeat the names of the such witnesses in the plaint while explaining Talb-e-Ishhad.

4. Arguments heard. Record perused.

5. From the perusal of the plaint, it is evident that in Paragragh No. 2 of the plaint petitioners have mentioned the names of witnesses of Talb-e-Muwathibat. A further reading of the plaint (Paragraph Nos. 3 to 5) which relate to Talb-e-Ishhad it is evident that names of witnesses of the said Talb have not been mentioned in these paragraphs.

6. Placing the contents of these paragraphs in juxta-positjon with the judgment passed by the Honourable Supreme Court of Pakistan in case of “Dr. Pir Muhammad Khan” mentioned supra, it is manifest that since the names of witnesses of Talb-e-Ishhad are not mentioned in the plaint, therefore, the suit could not be decreed.

7. It shall not be out of place to mention here that the afore-noted judgment has further been followed by the Honourable Apex Court in an unreported judgment passed in Civil Petition No. 27-L/2016 (Kashif Mahmood (decd.) through L.Rs. v. Rasheed Ahmad), wherein, it has been held that conspicuous absence of names of witnesses of Talb-e-Ishhad in the contents of the plaint is fatal to the suit for pre-emption.

8. In view of the above, since the petitioners have failed to mention the names of the witnesses of Talb-e-Ishhad in their plaint, therefore, in view of the dicta laid down by the Honourable Supreme Court of Pakistan mentioned supra the suit was not maintainable.

9. As a sequel to the above, this civil revision fails and the same is dismissed.

(R.A.) Revision dismissed

PLJ 2017 Lahore 716

Present: Atir Mahmood, J.

WAJID ALI--Petitioner

versus

PAKISTAN BAR COUNCIL through Vice-Chairman Islamabad and 5 others--Respondents

W.P. No. 15279 of 2016, decided on 3.4.2017.

Constitution of Pakistan, 1973--

----Art. 199--University is neither competent nor required to issue equivalence certificate to a degree issued by other universities and if there is need of any recognition or equivalence of degrees of universities, it can solely be done by H.E.C. and not by any university including Punjab University--This is even otherwise unconstitutional as legislative field of High Education exclusively falls within jurisdiction of federal legislature with undisputedly prevails once provincial legislature--University is neither competent nor required to issue equivalence certificate to a degree issued by universities and if there is any need of recognition or equivalency of degrees of universities, it can solely be done by H.E.C. and not by any university including Punjab University--This is even otherwise unconstitutional as legislative field of Higher Education exclusively falls within jurisdiction of federal legislature which undisputedly prevails over provincial legislature--Petition was allowed.

[P. 719] A & B

Mr. Sheraz Zaka, Advocate for Petitioner.

Mr. Amir Mahmood, Advocate for Respondents.

Date of hearing: 14.3.2017.

Judgment

Brief facts of the case are that the petitioner is a practicing lawyer. He wanted to get admission in Master in Law Program of Punjab University (hereinafter called “the university”). When he contacted the university, he was advised to first get Equivalence Certificate from the Equivalence Department of the university which act of the university has been challenged in this writ petition.

1. Learned counsel for the petitioner inter alia contends that the petitioner is a qualified person whose degrees are recognized by the Higher Education Commission as well as by Punjab Bar Council; that one university cannot be allowed to issue equivalence certificate with respect to the degree issued by its counterpart rather some other department (Higher Education Commission in this case) can only declare equivalence or otherwise of degrees issued by two or more universities; that the act of the respondent university is against the provisions of Legal Education Rules, 2015 as well as Higher Education Commission Ordinance, 2002; that the functioning of Equivalence Department of the university is illegal and unlawful, therefore, this writ petition be allowed and the function of Equivalence Department of the university to issue Equivalence Certificates be declared illegal, void and unconstitutional.

2. On the other hand, learned counsel for the respondent university has vehemently opposed this writ petition while asserting that the respondent university under Section 28(2)(h) of the University of the Punjab Act, 1973 has all powers to recognize or otherwise the examination of other examining bodies as equivalent to the corresponding examinations of the university.

3. Arguments heard. Record perused.

4. The moot point in this case is as to whether the University of the Punjab can or cannot issue equivalence certificate to a degree issued by some other university of Pakistan. The whole reliance of learned counsel for the respondent is on Section 28(2)(h) of the University of the Punjab Act, 1973 which is reproduced below:

“28. Powers and duties of the Academic Council - (2) ... the Academic Council shall have the powers to:--

(h) to recognize the examinations of other Universities or examining bodies as equivalent to the corresponding examinations of the University.”

The above provision of law undoubtedly empowers the respondent university to declare a degree of some other university as equivalent or otherwise to that issued by the respondent univefnity. In case, degrees issued by other universities are not declared to be equal by the respondent university to those issued by it, the same treatment may be given by other universities to the degrees of the respondent university as well which will create frustration and chaos resulting in uneasiness and discomfort to the students of different universities as well as closing doors of education by one university to the students of other universities. Therefore, there must be some institution having status upper than that of the universities to declare equivalence or otherwise of degrees issued by different universities. Luckily, we have such institution in shape of Higher Education Commission who undeniably has not only such powers but is also exercising the same to recognize and issue equivalence certificate or otherwise. In my view, such powers can be best exercised by the Higher Education Commission having status upper than that of the educational institutions, i.e. universities and if each and every university is allowed to do so, this will not be beneficial to students of any of the universities and may curtail their right to higher education which is a basic and fundamental right of each and every citizen of the country and cannot be taken away under any provision of law.

1. Section 10(1)(o) of Higher Education Commission Ordinance, 2002 is very much relevant in this case which is reproduced below:

“10. Powers and functions of the Commission. (1) For the evaluation, improvement, and promotion of higher education, research and development, the Commission may

(o) determine the equivalence and recognition of degrees, diplomas and certificates awarded by Institutions within the country and abroad;”

(Emphasizes provided)

Bare reading of above provision of law reveals that it is the domain of the Higher Education Commission to determine the equivalence and recognition of degrees issued by various institutions within and outside the country. But as noted above, Section 20(2)(h) of the University of the Punjab Act, 1973 gives such powers to the University of the Punjab as well. Here arises a question if there are provisions repugnant to each other in two statutes: one enacted through Provincial Legislation and the other through Federal Legislation, as to which legislation will prevail. The answer to this question is clearly and unambiguously given by the Constitution of Islamic Republic of Pakistan, 1973 in its Article 143 which reads as under:

“143. 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 repugnancy, be void.”

(Emphasis provided)

In light of Article 143 of the Constitution, the Higher Education Commission Ordinance, 2002 being enacted through the Parliament (Federal Legislation) has precedence over the University of the Punjab Act, 1973 (Provincial Legislation) to the extent of repugnancy. In view of the aforesaid, I am of the considered opinion that the respondent university is neither competent nor required to issue equivalence certificate to a degree issued by other universities and if there is any need of recognition or equivalency of degrees of the universities, it can solely be done by the Higher Education Commission and not by any university including the Punjab University. Consequently, the equivalence department of Punjab University to practice a parallel system of equivalence leads to distortion within the equivalence scheme as provided by Higher Education Commission and amounts to usurpation of powers of the Higher Education Commission. This is even otherwise unconstitutional as the legislative field of Higher Education exclusively falls within the jurisdiction of the Federal Legislature which undisputedly prevails over Provincial Legislature. The judgment of this Court reported as Rais Munir Ahmed v. Returning Officer/Additional District and Sessions Judge, Sadiqabad and 4 others (2008 CLC 1111 Lahore) is referred in this regard.

1. For the aforementioned reasons, this writ petition is allowed and it is held that the act/function of the respondent University regarding issuance of equivalence certificates is illegal, void and of no legal effect.

(R.A.) Petition allowed

PLJ 2017 Lahore 720 [Multan Bench Multan]

Present: Abdul Sattar, J.

SHABIR-UL-HASSAN--Petitioner

Versus

Mst. TANVEER ZAIDI and 3 others--Respondents

W.P. No. 1102 of 2017, decided on 16.3.2017.

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

----S. 25--Guardian, appointment of--Application for custody of minor was rejected by trial Court--Appeal was dismissed by 1st appellate Court--Decision without reasoning--Decision in slip shod manner--Rewriting of judgment--Validity--It is evident from oral evidence of parties, present age of minor child is more than 10 years and petitioner as well as respondent after separating from each other through divorce have not remarried--Reasons are to be given even in case of affirmative judgment--Similarly appellate Court is to state its own reasons for arriving at its conclusion--Court has not taken pain to discuss evidence of parties and it merely decided appeal in slip shod manner--High Court in exercise of constitutional jurisdiction set aside judgment passed by 1st appellate Court and case was remanded back for decision afresh in accordance with law by avoiding lapses noted above--Petition was allowed. [P. 722] A

Mr. Muhammad Nasir Javed Khan, Advocate for Petitioner.

Date of hearing: 16.3.2017.

Order

Respondents No. 1 & 2 have been served notices personally but they have not appeared to contest the writ petition, hence, proceeded against ex-parte.

1. Ex-parte arguments of learned counsel for the petitioner heard.

2. Through this writ petition petitioner Shabir-ul-Hassan has impugned the judgment dated 27.07.2016 passed by Guardian Judge, Burewala dismissing the custody petition of the petitioner filed under Section 25 of Guardians and Wards Act, 1890 and judgment dated 08.12.2016 passed in appeal by learned Additional District Judge, Burewala maintaining the trial Court decision.

3. Brief facts of the case are that the petitioner Shabbir-ul-Hassan filed petition under Section 25 of the Guardians and Wards Act, 1890 against the respondents in the Court of Guardian Judge, Burewala seeking custody of minor son Meesam Abbas aged about 10 years and it was averred in the petition that the petitioner and Respondent No. 1 were married on 15.01.2006 and out of this wedlock minor son Meesam Abbas was born. On account of differences, the petitioner divorced the Respondent No. 1 on 11.02.2008. The minor son Meesam Abbas was in custody of his mother/Respondent No. 1. The petitioner alleged that Respondent No. 1 was not having any source of income and the amount of maintenance allowance provided by him was misused. The Respondent No. 1 was also suffering from medical problems. It was alleged in the petition that Respondent No. 1 had unduly given the custody of minor to Respondent No. 2 paternal aunt due to which his upbringing was adversely affected. The welfare of the minor required the switching over custody of minor son to the petitioner. The petition was contested from the respondents’ side. Issues were framed. Evidence of the parties was recorded. After conclusion of the trial custody petition of the petitioner was dismissed by the learned Guardian Judge, Burewala vide judgment dated 27.07.2016. The appeal was also dismissed by the learned Additional District Judge, Burewala vide judgment dated 08.12.2016, hence, this writ petition.

4. Learned counsel for the petitioner has argued that impugned judgments are against law and facts as outcome of misreading and non-reading of evidence; that necessary issue on the controversy that minor child had been given to Respondent No. 2 was not framed by the trial Court; that the impugned findings are fanciful, arbitrary and based on surmises and conjectures and lastly the Courts below did not apply the judicious mind.

5. As noted above the respondents have not opted to contest the writ petition inspite of service on the notice.

6. Arguments considered. Record perused.

7. Learned trial Court framed Issues No. 1 and 4 on the main controversy as to where lied the welfare of the minor and both the parties were required to prove the common issues. To prove his version the petitioner examined himself as AW1 and one of his friend Rehan Anwar as AW-2 and in documentary evidence receipts regarding payment of maintenance allowance were tendered. In rebuttal Respondent No. 1 Mst. Tanveer Zaidi examined herself as RW-1 and one Syed Moazzam Askri as RW-2, who happened to be relative of two ladies. In documentary evidence receipts of school fee were tendered.

8. As is evident from the oral evidence of the parties, the present age of the minor child is more than 10 years and the petitioner as well as Respondent No. 1 after separating from each other through divorce have not remarried. In this situation, it was bit difficult to decide as to whom the custody of minor child should belong. Nevertheless Guardian Judge after fair and exhaustive analysis of parties’ evidence rejected the custody petition. But in appeal learned Additional District Judge, Burewala recorded his opinion on half page, which cannot be termed as judicial findings as the appellate judgment should state points arising for determination, its decision thereon and the reasons for its decision. Reasons are to be given in the judgment for the decision arrived at. Reasons are to be given even in case of affirmative judgment. Similarly the appellate Court is to state its own reasons for arriving at its conclusion.

9. From the perusal of opinion portion of learned Additional District Judge, Burewala judgment dated 08.12.2016, it is noticed that the said Court has not taken pain to discuss the evidence of the parties and it merely decided the appeal in slip shod manner. It is thus a case of rewriting of the judgment in accordance with law.

10. In view of above impugned judgment of Additional District Judge, Burewala dated 08.12.2016 is set aside, while allowing the writ petition in the terms that appeal filed by the petitioner shall be deemed to be pending before the senior most Additional District Judge posted at Tehsil Burewaia District Vehari, who after summoning the parties to the appeal and hearing arguments of their counsel shall decide the same afresh in accordance with law by avoiding the lapses noted above. Copy of this order be immediately sent to the Court concerned for compliance.

(R.A.) Petition allowed

PLJ 2017 Lahore 723

Present: Ali Akbar Qureshi, J.

DEFENCE HOUSING AUTHORITY--Petitioner

versus

Mst. NUSRAT AYYAZ, etc.--Respondents

C.R. No. 2430 of 2014, heard on 7.3.2017.

Land Acquisititon Act, 1894 (I of 1894)--

----S. 4--Registered sale-deed--Agreement to sell--Document--Power of attorney--Mutation--Petitioner who is an authority, is claiming titled of suit land on ground that same was purchased by authority through an agreement to sell against consideration from an attorney of original owner, but unfortunately, petitioner had miserably failed to place on record or to produce any document during course of recording evidence to prove its claim--Neither agreement to sell nor power of attorney in any manner whatsoever was brought on record whereas respondents placed on record in their evidence, duly executed and registered sale-deed, mutation and copy of notification--All these documents are sufficient to prove that suit land is owned by respondents--Revision was dismissed.

[Pp. 724 & 725] A

Mr. Altaf-ur-Rehman Khan, Advocate for Petitioner.

Mr. Athar Mansoor Butt, Advocate and Mr. Omer Farooq Khan, Asstt.A.G. for Respondents.

Date of hearing: 7.3.2017.

Judgment

This civil revision calls in question the judgment and decree dated 10.04.2014 and 05.05.2011, passed by the learned Courts below, while decreeing the suit for declaration with consequential relief of possession filed by predecessor-in-interest of the Respondents No. 1 to 5 and Respondent No.6.

1. The facts, as depict from the record are that, the predecessor-in-interest of the Respondents No. 1 to 5 and Respondent No.6/plaintiffs filed a suit for declaration with consequential relief on the ground, that the suit property was purchased on 02.05.1979 through registered sale-deed No.9421 from one Muhammad Akmal Khan; that the mutation on the basis of the sale-deed was entered in the revenue record in favour of respondents; that the petitioner entered into negotiation with the respondents predecessor-in-interest of the Respondents No. 1 to 5 and Respondent No.6 to purchase the suit land but subsequently without giving any notice to the respondents, started acquisition proceedings by issuing notice under Section 4 of the Land Acquisition Act, 1894; that on hue and cry of Respondents No. 1 and 2, the suit land was deleted from the notification issued under Section 4 of the Act ibid and the petitioner restarted the negotiation of sale with the respondents; that the respondents, in order to protect their property, filed a Constitutional petition W.P.No.14002/1994, praying therein, that the petitioner be restrained to use the land of respondents; that the writ petition was disposed of having been withdrawn with the observation, that if the respondents prove their title, the petitioner will compensate them in accordance with law; that the respondents filed the instant suit which was contested by the other side mainly on the ground, that the suit land was purchased by the petitioner-authority twenty years back through an agreement to sell from the attorney of Muhammad Akmal Khan and the petitioner has developed the land; and lastly the respondents have no concern with the suit land.

2. The learned Trial Court, after completing all the codal and legal formalities, decreed the suit; against which an appeal was filed which was dismissed. Hence, this civil revision.

3. Learned counsel for the petitioner mainly argued, that the suit land was purchased by the petitioner-authority through power of attorney executed by the original owner i.e. Muhammad Akmal Khan, the land has been developed and respondents have no concern whatsoever with the land in question. Learned counsel also argued, that the suit filed by the respondents is hopelessly barred by time.

4. In response thereof, learned counsel for the respondents supported the findings recorded by the learned Courts below and submitted, that the respondents are the lawful owners of the suit land on the basis of a validly executed and registered sale-deed.

5. Heard. Record perused.

6. During the course of arguments, with the assistance of learned counsel for the parties, the record as well as the findings recorded by the learned Courts below were surveyed. The petitioner, who is an Authority, is claiming the title of the suit land on the ground, that the same was purchased by the authority through an agreement to sell against consideration from an attorney of the original owner i.e. Muhammad Akmal Khan but unfortunately, the petitioner has miserably failed to place on record or to produce any document during the course of recording the evidence to prove its claim. Neither the agreement to sell nor the power of attorney in any

manner whatsoever was brought on record whereas on the other hand, the respondents placed on record, in their evidence, duly executed and registered sale-deed, mutation and copy of the notification. All these documents are sufficient to prove, that the suit land is owned by the respondents and the suit land has neither been purchased nor acquired by the petitioner-authority and the same is being used by the petitioner-authority which is not only against the law but also the Constitutional promises. The provision of Constitution of the Islamic Republic of Pakistan, 1973 says, that nobody can use the land of anyone except in accordance with law, therefore, in these circumstances, it can safely be held, that the petitioner-authority has illegally and unlawfully encroached/possessed the land of the respondents. The respondents are entitled to the compensation according to the prevalent market rate.

1. Even otherwise, there is hardly any reason to interfere with the well worded concurrent findings of the learned Courts below. I am fortified by the esteemed judgments of the Hon'ble Supreme Court of Pakistan, in the case of Cantonment Board through Executive Officer Cantt. Board, Rawalpindi v. Ikhlaq Ahmed and others (2014 SCMR 161), Mst. Zaitoon Begum v. Nazar Hussain and another (2014 SCMR 1469) and Noor Muhammad and others v. Mst. Azmat-e-Bibi (2012 SCMR 1373).

2. Resultantly, this civil revision has no force and the same is dismissed with no order as to cost.

(Z.I.S.) Revision dismissed.