PLJ 2019 Judgments

PLJ 2019 Karachi 1 (DB)

Present: Muhammad Ali Mazhar & Agha Faisal, JJ.

TCS PRIVATE LIMITED through Authorized Representative and others--Petitioners

versus

PAKISTAN POST and another--Respondents

C.P. No. D-2987 of 2018, decided on 3.8.2018.

Constitution of Pakistan, 1973--

----Arts. 18, 24, 25 & 199--Constitutional petition--Pakistan Post Office Act, 1898, Ss. 2, 3, 4 & 5--Pakistan Postal Services Management Board Ordinance, 2002, S. 11--Statutory organization--Partnership with private entrepreneur--Request for public partnership--Bidder was obliged to build partnership with Pakistan Post--Company was formed as “Pakistan Post Logistics Company” to provide services--Pakistan policy on public private partnership--Challenge to--A cautious scrutiny of Pakistan Post Logistics document designed to submit “Request For Proposal” (RFP) makes obvious that Pakistan Post through a private sector participation intends to launch a project that would be implemented in public private partnership to optimize current courier and express parcel services by integrating with existing international system--It obvious that Pakistan Policy on Public Private Partnership (Private Participation in Infrastructure for Better Public Services) was approved by Economic Coordination Committee (ECC) of Cabinet on January 26th, 2010--On 29th May, 2014 National Economic Council approved manuscript of Pakistan Vision 2025 in which one of components was Public Private Partnership (PPP)--Council decided to promote Public Private Partnership through 8 comprehensive policy regime that would be used for better infrastructure development and improving connectivity to facilitate Private Sector Growth. [P. ] A & B

Post Office Act, 1898--

----S. 2(i)--An expression “postal article” includes a letter, postcard, newspaper, printed paper or small packet, parcel and every article or thing transmissible by post--In clause (k), expression “Post Office” means department established for purpose of carrying provisions of this Act into effect and presided over by Director General Sanguine to controversy onboard, we consider it quite apt to reproduce Section 3, 4 and 5 of Post Office Act, 1898 for ease of convenience. [P. ] H

Company Ordinance, 1984 (XLVII of 1984)--

----S. 2(e) Company infrastructure--Company means “Infrastructure Project Development (DF), a corporate entity registered and operating under provisions of Companies Ordinance, 1984. [P. ] C

Agreement--

----“Agreement” means a written agreement between an implementing agency and a private party for implementation of a project and any other agreement subsidiary or incidental to it. [P. ] D

Public Private Partnership Authority Act, 2017--

----Ss. 2(p), 3, 4, 5, 6, 8 & 13--Request for proposal--Public Private Partnership Authority--Agreement--Function and Powers of Authority and Board--Validity--A public private partnership authority has been established under Section 3 whereas board has been constituted under Section 6--According to clause (p) of Section 2, “Request For Proposals” means a publicly advertised tender inviting proposals for a project prepared in accordance with provisions of this Act--This unquestionably manifests that on 17.02.2018, Pakistan Post published a request for proposals of project compliant to conditions mentioned in aforesaid Act. [P. ] E

Public Private Partnership Authority Act, 2017--

----Ss. 19, 21 & 25--Section 19 deals with provisions for negotiating rudiments of agreement with an indispensable stipulation that implementing agency shall invite successful Private Party for negotiation on partnership agreement in pursuit of approval of project proposal by Board and subject to approval of Board, implementing agency may execute Public Private Partnership Agreement--On signing off, all moveable and immovable properties associated with project shall vest in public private partnership but private party shall not create any lien, charge or encumbrance in favour of lenders over immovable properties of implementing agency--According to mandatory condition put down under Section 21, after expiry of public private partnership, all properties shall be transferred without any lien, charge and or encumbrance to implementing agency--A conscientious and an in-depth dissection of both legislation makes it vivid that that Public Private Partnership Authority Act, 2017 postulates regulatory framework and regime to execute public private partnership in Pakistan whereas Privatization Commission Ordinance, 2000 is meant for implementing privatization policy of Federal Government and utilization of proceeds of privatization for retirement of Federal Government debts and for poverty alleviation--Both laws have different premise and precincts without any overriding or overlapping effect but somewhat designed and premeditated to cater need and handle two different situations in two different state of affairs so in our considerate outlook a request for proposal invited under provisions of Public Private Partnership Authority Act, 2017 cannot be equated or tantamount privatization but it will straightforwardly amount to an agreement for public private partnership with certain terms and conditions expounded and explicated under law in field--Argument that under Post Office Act, logistic, courier, express and parcel business cannot be undertaken is misconceived as there is no specific bar contained in Act but as a Government; policy, Pakistan Postal Service Management Board initiated process which is being administered under provisions of Public Private Partnership Authority Act--Let’s assume for a while that under mandate of Post Office Act such businesses are not included even then there is neither any bar nor any embargo can be imposed that Post Office cannot establish a new company or enter into a partnership to establish new business under Government policy and Board so that they may improvise and expand their services through rebranding which is their dire need to meet up future challenges--This effort in our view is neither amount to violation of Post Office Act nor this will destruct or deface any privilege or exclusivity of Post Office service under Post Office Act when they would be stakeholder and partner in a new company, they will enjoy same privilege. [P. ] F, G & I

M/s. Anwar Mansoor Khan & Mir Muhammad Ali Talpur, Advocates for Petitioners.

Mr. Salman Talibuddin, Addl. A.G. for Pakistan assisted by Mr. Abdullah and Ms. Alizeh Bashir, Advocate.

Shaikh Liaquat Hussain, Asstt.A.G.

Mr. Ateeq-ur-Rehman, Asstt. Director (Law), Pakistan Post & Post Master General, Karachi.

Dates of hearing: 31.5, 6, 8, 13, 20 & 26.6.2018.

Order

Muhammad Ali Mazhar, J.--This petition has been brought to seek out declaration that Pakistan Post Office has no right and authority to go beyond Pakistan Post Office Act, 1898 hence they cannot enter into a partnership with a private entrepreneur. The petitioners have sought further declaration that the Pakistan Post Office has no authority to tender and form a company to run business in terms of Request For Proposal’ (RFP) which is illegal and incapable of being acted upon.

1. The short-lived facts of this Court case are that the Pakistan Post Office through an advertisement issued a ‘Request For Proposal’ (RFP) for Private Public Partnership. As per terms of tender document, the bidder was obliged to build in partnership with the Pakistan Post an infra-structure to operate the project for a defined ‘Concession Period’ and at the end of the ‘Concession Period’, transfer the assets to the implementing agency i.e. Pakistan Post Office.

2. The learned counsel for the petitioners in the beginning drawn our attention to fleeting profile of the petitioners. He argued that Petitioner No. 1 to 5 are providing services in relation to courier and domestic services. The Petitioners No. 6 & 7 are the associations representing around 850 companies and firms engaged in the business of courier, logistics and other related services. It was contended that the indenture of ‘Request For Proposal’ (RFP) shows that under the intended arrangement the Pakistan Post will be privatized. The functions of the Pakistan Post Department will be transferred to a private entity along with its assets for a concession period of 20 years commencing from the signing date of the Concession Agreement.

3. He further argued that under the “Scope of Work for Build, Operate, Transfer (BOT) of Pakistan Post Logistic Company”, a new company is to be formed under the name and style of “Pakistan Post Logistics Company” to provide services including Urgent Mail Service? (UMS), Urgent Mail Services-Cash on Delivery (UMS-COD), Express Mail Services (EMS), Fax Mail Service (FMS), and Supply Chain Management (SCM). The learned counsel argued that the proposed arrangement and concession agreement is in complete violation of the law including the Post Office Act, 1898 and the Pakistan Postal Services Management Board Ordinance, 2002.

4. It was further averred that a Pre-bid Investors Conference was held on 28.02.2018 wherein the CEO of the Petitioner No. 1 participated and requested to allow some time to present his proposal. However, he was not allowed to present his proposal by giving him only a few minutes for such presentation, which time was not sufficient for presenting the detailed proposal. The CEO repeatedly informed the officials that he will require more time to present the proposal as his ideas were detailed, however, the time was not allowed and the conference was ended. It was apparent that the respondents did not want the petitioner s to participate in the Bidding process by making it difficult for them. The correspondence in the form of chain of email is available at Annexure ‘E’ on Pgs. 575 to 589 of the Court file.

5. The learned counsel further argued Pakistan Post Office is a Department as defined in Section 2(k) of the Post Office Act, 1898 which is empowered to carry the postal articles as defined in Section 2(i) and the Post Office as defined in Section 2(h). The words “in course of transmission by post” and “delivery” have been defined in Section 3 of the Post Office Act, 1898. For the purposes of the Post Office Act, 1898 the word in the course of transmission by post would include the delivery of postal article to a “postman” or other person authorized to receive postal articles for the post, and such shall be deemed to be a delivery to a post office. Under Section 4 of the Post Office Act, 1898, Pakistan Post has an exclusive privilege of conveying letters, and such letters can only be conveyed by the Pakistan Post and no one else. The said privilege is also followed by a specific restriction under Section 5 of the Post Office Act, 1898, which includes restriction on certain persons to carry “letters” as specified in Section 4. In the wake of monopoly, the Pakistan Post wants to intrude in the business of the citizens/Pakistani companies, that they would utilize the existing thousands of Post Offices, and employees of the Post Offices to enter into the Logistic Business.

6. The learned counsel further argued that Pakistan Postal Management Board Ordinance, 2002 only provides for the management of Pakistan Post Office Department by the Pakistan Postal Services Management Board as established under Section 3 of the said Ordinance. The powers and functions of the Board are listed in Section 11 of the Ordinance, 2002. The Board does not have authority to perform any function or exercise any power that is not provided in the said Section 11.

7. It was further contended that the respondents through RFP have attempted to curtail the competition. The intended partnership will have an effect of creating a monopoly and curtailing the competition in this sector which will be in violation of Article 18 of the Constitution of the Islamic Republic of Pakistan, 1973 wherein free competition has been encouraged. The rights of the petitioners guaranteed under Articles 18, 24 and 25 have been violated as the foreign investor is being given preferential treatment over the local/ domestic investors.

8. It was further contended that no approval or any permission of the Federal Government or of any authority under the Public Private Partnership Act, 2017, nor any policy approved by the Federal Government has been brought on record by the Respondents. Article 90(1) of the Constitution of the Islamic Republic of Pakistan 1973 defines the Federal Government which is not the Prime Minister but consists of the Prime Minister and the Federal Ministers. In support of contention, the learned counsel for the petitioners cited following judicial precedents:--

2010 SCMR 1437 rel. at Pg. 1442 at “B”, 2008 SCMR 1148 rel. at Pg. 1151 at “F” & “G”. 2007 SCMR 307 rel. at Pgs. 312-313 at “B”., PLD 2005 SC 842 rel. at Pgs. 854-855 at “B”, 2001 SCMR 838 rel. at Pg. 842 at “B”, 2017 SCMR 683 - Suo Motu Case No. 19 of 2016- at Pg. 699 at “G” and Pg. 700 at “I”, PLD 2012 SC 132, PLD 2011 SC 997, PLD 2005 SC 193 and PLD 1975 SC 667

1. Quite the reverse, the learned Additional Attorney General conversed that Pakistan Post Logistics Company will be incorporated as a special purpose vehicle (SPV) regulated by the Securities and Exchange Commission of Pakistan. The project shall be implemented on a Build-Operate-Transfer basis (BOT) in three phases. It was further argued that under the terms of the Concession Agreement, the partner will develop, design, finance, construct, implement, insure, commission, test, manage, operate, maintain and upgrade existing services. With the resultant advancement in its present infrastructure and services, the scope of functions currently performed by Pakistan Post will be improved. The partner will also introduce Supply Chain Management defined as overseeing/ coordinating the movement of materials information and finances. The partner will launch, market sell, operate and maintain these services, with an aim to attract corporate customers for Pakistan Post. The partner will pay to Pakistan Post, a minimum of PKR 327.468 million in each operational year of the project with a 5% increase in the guaranteed amount per annum. However the partner will only be entitled to share the revenue generated by Post Log during the operations stage of the Concession Period.

2. It was further contended that Pakistan Post presently performs courier, urgent, fax mail, and express mail/parcel delivery services (local and international) in addition to regular mail services. These are major revenue generating operations and it will continue to perform its current services including the Urgent Mail Service (UMS) and Mobile Money Order. All post offices, office and residential buildings, vehicles and train lines currently owned and operated by Pakistan Post shall remain functional. Under the scope of work, the partner will provide the requisite technology and investment, in order to introduce track and trace facilities, expand the existing network, develop business, generate revenue and better the management or operations presently performed by the Pakistan Post, i. e. Urgent Mail Service, Urgent Mail Service-Cash on Delivery, Express Mail Service; and Fax Mail Service.

3. To answer specific query raised by the Court, the learned Additional Attorney General, argued that employees, assets, offices and resources of the Pakistan Post will be utilized in the course of the project at all times with the prior approval of Pakistan Post but the ownership of all assets and employment relationship with such employees shall remain with the Pakistan Post. No redundancy or retrenchment is at all envisaged and all existing employees shall continue in the service of Pakistan Post and will remain as civil servants on the same terms and conditions and subject to the same laws applicable thereto. He further confirmed that Pakistan Post shall bear the cost of all employees who may be assigned to assist the project and expressly clarified that no employee shall be transferred and such employees shall continue to be employees of Pakistan Post however during the Concession Period.

4. It was further averred that Pakistan Post is in attached department of the Federal Government. The definition of postal article includes anything transmissible by post intended to have a wide meaning. ‘Post’, ‘mail’, ‘courier’ and ‘logistics services’ demonstrate that these functions are synonymous whereas the meaning of ‘courier’ is a person whose job is to carry messages, packages etc., from one person to another and ‘mail’ is a material (such as letters and packages) sent or carried in a postal system. Section 29 of the Pakistan Postal Services Management Board Ordinance, 2002 does not derogate from or affect the Act; the ‘Pakistan Post Office’ shall be read as and constitutes a reference to the Board. The Board established under Section 3 of the 2002 Ordinance may prepare plans for development of postal and other services including expansion of its functions and services and may also formulate policies pursuant to directives of the Federal Government as was done for entering into the procurement process.

5. The 2010 Policy was formed being part of framework for Pakistan Vision 2025, which envisages public-private partnerships (PPP) and the mechanism of its implementation. The Postal Reform Agenda, emanating from these policies and directives was thereafter approved by the Prime Minister and subsequently set to action under the Pakistan Post’s Policy. The 2010 Policy was approved by the Economic Coordination Committee of the Cabinet on 26 January 2010, pursuant to Rule 17 of the Rules of Business with the aims to promote social and economic development through improvement in infrastructure and encouraging investment in PPP. Consequent upon approval of the Board in its meeting held on 19 April 2017, the DC Post Office established a Public Private Partnership Cell (PPP Cell) which included members of the IPDF. The Pakistan Vision 2025 was approved by the National Economic Council pursuant to Article 156 of the Constitution of Pakistan 1973.

6. He further argued the Court may not interfere in the policy making domain of the Federal Government unless the policy is perverse, arbitrary, patently mala fide or in violation of the constitutional mandate. The petitioners have failed to demonstrate that these exceptions are applicable with respect to the policies relied upon. The petitioners have no locus standi, especially as they have raised no grievance. The subject matter has no public importance nor is the action taken by the Pakistan Post mala fide, illegal or detrimental to the public interest. The petition has been filed under the garb of public interest, but is intended only to delay and disrupt the implementation of the project as the petitioners seek to prevent a competitor from entering the market in which they provide services. The learned counsel cited the case of Air India Ltd. vs. Cochin International Airport Ltd., (2000) 2 Supreme Court Cases 617, Dr. Akhtar Hassan Khan and others vs. Federation of Pakistan, 2012 SCMR 455, Watan Party vs. Federation of Pakistan, PLD 2013 S.C. 167.

7. In rebuttal, Mir Muhammad Ali Talpur, Advocate for the petitioners argued that the meaning of “Post” and “Logistics” are different. The word “Logistics” is not defined in the Post Office Act, 1898. The word “Logistics” in business has a different connotation which includes much more than the management. It was further averred that the petitioners are private companies/firms and governed and derive their authority under their Memorandum & Articles of Association whereas Pakistan Post is a Government Department which derives its authority and powers under the Post Office Act, 1898. The Pakistan Post can carry letters which the private courier service company cannot do. He referred to the judgment reported as 2004 MLD 1949 rel. at Para 25 at Pg. 1961 and Para 27 & 28 at Pg.1962, wherein the question of privilege of Pakistan Post was considered. It was further contended that if the law allows it to enter into Public Private Partnership, it could only be to the extent as prescribed in their law i.e. Post Office Act, 1898. He further argued that no policy has been approved by the Federal Government. Under the PPP Act, the approval of the Authority is required and if it is being done under the Policy, the approval of the Federal Government is required. He added that the apex Court has condemned selling of valuable national assets and also stayed the process of privatization of PIA.

8. Heard the arguments. A cautious scrutiny of the Pakistan Post Logistics document designed to submit “Request For Proposal” (RFP) makes obvious that Pakistan Post through a private sector participation intends to launch a project that would be implemented in public private partnership to optimize current courier and express parcel services by integrating with existing international system. In the Request for Proposal for Pakistan post logistics in Section-A, page 18 (file page-79), it is articulated that CPEC, essentially a logistics partnership will increase the demand for cost effective and reliable supply chain partners by the industry. CEP and logistics market is about to explore, Pakistan Post is offering its infrastructure, evolved in well over a century and reach spanning across the country and the world over. The proposed logistic partnership will enrich customer experience but Pakistan Post will continuously monitor and track key performance metrics of the private partner and such performance metrics include but not limited to revenue growth, operating cost, reliability, transparency of services and customer complaints. The project will be implemented on the basis of Build-Operate-Transfer (BOT) methodology detailed in Pakistan Post Public Private Partnership Policy. The core strength of Pakistan Post includes 12085 post offices, 835 office buildings, 3315 residential buildings, 424 vehicles and train lines covering distance of 3500 KM. Robust treasury operations mandate to perform courier, express and logistics services domestically and internationally and mandate to perform Financial Services. The Request For Proposal further highlights that using nation-wide infrastructure, Pakistan Post is already providing mail, courier and express parcel services which include urgent mail service, cash on delivery, express mail service international and premier service arm and fax mail service. The service area intended to be launched on BOT basis would inter alia include customs clearance, supply chain management, warehousing, packaging, printing, transporting, sorting, tracking and delivering the consignment for which Pakistan Post will also offer its manpower, infrastructure, outlets, delivery and existing fleet for Less than Truck Load (LTL) consignments but the private operator will have to develop, acquire, construct, rent and arrange its own infrastructure and fleet wherever the need will arise.

9. The niceties and exactitudes of the project envisions that private partner shall bring investments to plug gaps in fleet, technology, training, management and manpower and operate and manage Express Post existing products and product line by offering supply chain and logistics solutions from current 1000 outlets to 12085 postal outlets. Pakistan Post would offer non-exclusive rights to Express Post assets including revenue, dedicated outlets, manpower, fleet and technology to the concessionaire who will be expected to complement Pakistan Post’s other products and services and create further value by adding new products and services. All the projects risk shall be exclusively borne by concessionaire except chain in line and force measure. The concession period shall be for 20 years. The concessionaire will have to achieve Financial Close within sixty days from signing of Concession Agreement for its commercial debt for the project the successor bidder will have to invest 30% of the remaining project cost as equity and will also arrange 70% of the remaining project cost as debt as guarantee payment to Pakistan Post during each year amounting to PKR 327.468 Million escalated at 5% per annum.

10. The most important aspect is with regard to Human Resource Management wherein it has been clearly pointed out no redundancy or retrenchment shall be effected and all existing employees shall continue. An eloquent standpoint has been taken that Pakistan post shall not transfer any employee cost to the concessionaire. The partnership may request Pakistan Post to transfer any particular employees but such employees shall stay on the payroll of Pakistan Post and Pakistan Post shall reserve the right to withdraw the services of such employees and of expiry date of the agreement or its termination prior to the expiry date the concessionaire shall transfer all rights and interest including projects assets and intellectual property to Pakistan Post free from encumbrances in nominal consideration of KPR. In order to ensure safe implementation of the project, the concessionaire has to setup special purpose vehicle for the sole purpose of implementing the project.

11. The documents available on record make it obvious that Pakistan Policy on Public Private Partnership (Private Participation in Infrastructure for Better Public Services) was approved by Economic Coordination Committee (ECC) of the Cabinet on January 26th, 2010. On 29th May, 2014 National Economic Council approved the manuscript of Pakistan Vision 2025 in which one of the components was Public Private Partnership (PPP). The council decided to promote Public Private Partnership through a comprehensive policy regime that would be used for better infrastructure development and improving connectivity to facilitate Private Sector Growth. The record reflects that on 29th December 2015, meeting was convened by the Prime Minister to review the reform Agenda of Pakistan Post. It was attended by the Secretary Communication who led Pakistan Post Team Members. In the meeting, D.G keeping in mind the dire strait of financial health, dwindling mail traffic and emergence of new opportunities in logistics proposed to introduce/launch Pakistan Post Logistic Company and Mobile Money Order. The Prime Minister approved the rebranding of Pakistan Post and emphasized the significance of transparency and integrity in the launch and execution of approved initiatives. In view of the approval a reform agenda meeting was convened in the office of Director General Pakistan Post on 12.07.2016 for launching logistic company to be established under the provisions of Companies Ordinance on Public Private Partnership basis and consequent upon the approval of the Pakistan Post Postal Service Management Board in its 41st meeting held on 19.04.2017, the Director General and Chairperson was pleased to establish Public Private Partnership Cell with the term of reference to conceive and develop PPP Project, evaluate project proposals, provide technical support to the PPP steering committee, develop operating guidelines, procedure and model document for project for approval by starring committee, develop bidding document, develop draft PPP agreement, advertise, evaluate and select preferred bidder /bidders and present it to PPP starring committee, evaluate, the type and amount of Government support sought for a project, review bid evaluation report, prepare and regularly update on project and perform any other functions as may be assigned to it by steering committee.

12. On 1.8.2016, Pakistan Post invited Expression of Interest (EOI) for launching of Pakistan Post Logistics Company to develop a state of art logistics solution with a vision to reposition itself as the key player. However, on 17.02.2018 again a “Request For Proposal” was published in the newspaper for launching courier, express parcels and logistics services through public private partnership modality. As a rider, it was mentioned in the advertisement that in addition to the fresh bidders, the parties shown their interest pursuant to the issuance of Expression of Interest are also entitled to submit their proposals and all interested parties can obtain RFP documents free of cost.

13. At this juncture, we would like to refer to Public Private Partnership Authority Act, 2017 which was promulgated on 29th March 2017 to provide a regulatory and enabling environment for private participation in public infrastructure and related services through fair and transparent procurement processes and to promote domestic and foreign private investment in infrastructure to increase availability of public infrastructure, reduce transaction costs, ensure appropriate regulatory controls, and provide legal and economic mechanisms to enable the resolution of contract disputes. In Section 2, clause (e). Company means “Infrastructure Project Development Facility (IPDF), a corporate entity registered and operating under the provisions of the Companies Ordinance, 1984. Whereas in clause (g), “Implementing Agency” means any of the line ministries attached departments, body corporate, autonomous body of the Federal Government or any organization or corporation owned or controlled by the Federal Government. Whereas according to clause (a), “Agreement” means a written agreement between an implementing agency and a private party for implementation of a project and any other agreement subsidiary or incidental to it. In order to effectively enforce the provisions of this Act, a public private partnership authority has been established under Section 3 whereas board has been constituted under Section 6. According to clause (p) of Section 2, “Request For Proposals” means a publicly advertised tender inviting proposals for a project prepared in accordance with the provisions of this Act. This unquestionably manifests that on 17.02.2018, the Pakistan Post published a request for proposals of the project compliant to the conditions mentioned in the aforesaid Act. The functions and powers of the Authority are provided under Section 4, whereas, the functions and powers of the Board are provided under Section 8 of the Public Private Partnership authority Act, 2017. For the case of reference both the sections are reproduced as under:--

“4. Functions and powers of the Authority:--(1) subject to the provisions of this Act, the Authority may take such measures and exercise such powers as may be necessary for promoting and helping realization of the concept and methods of public private partnership.

(2). Without prejudice to the generality of the powers conferred by sub-section(1), the Authority may--

(a) ensure that projects are consistent with national and sectoral strategies;

(b) ensure value for money by conducting an analysis to evaluate projects. A public private partnership (PPP) arrangement yields value for money if it results in a net positive gain to society;

(c) adhere to the principle of budget affordability in the context of medium term budgetary framework;

(d) make assessment of fiscal risks;

(e) advise and facilitate the implementing agency to identify, develop, structure and procure the projects;

(f) prescribe and receive fee and charges;

(g) standardize the contractual provisions and to develop the sector specific provisions of the model public private partnership agreements;

(h) develop annuity, user-based and hybrid financial models for the projects;

(i) ensure that public private partnership agreement is consistent with the provisions of this Act;

(j) interact, collaborate and liaise with international agencies;

(k) play the role of gatekeeper at all stages of project cycle such as planning, tendering, bidding and contract; and

(l) notify, from time to time, a limit on the size of PPP projects that an implementing agency may undertake in relation to its annual spending”.

“8. Functions and powers of the Board.--(1) The general directions and superintendence of the Authority and its affairs shall vest in the Board which may exercise all powers, perform all functions and do all acts which may be exercised, performed or done by the Authority.

(2) Without prejudice to the generality of powers given in sub-section (1), the Board shall perform, inter-alia, which may include, the following, namely:--

(a) monitoring the implementation of public private partnership agreements, both in terms of the financial situation and the construction of physical assets and service delivery;

(b) approving relevant accounting policies and financial reporting standard and templates for contracting agencies;

(c) renegotiating, if necessary, public private partnership agreements or contracts;

(d) approve rules for the purposes of this Act;

(e) approve feasibility study, bid documents and proposal of a project;

(f) approve public private partnership agreement to be executed by the implementing agency;

(g) review and strengthen the institutional and regulatory framework for the effective implementation and operation of the public private partnership of the Federal Government;

(h) approve the yearly budget of the Authority; and

(i) establish viability gap fund and risk management unit, to perform such functions as it may prescribe”.

Whereas the responsibilities of the implementing agency are provided under Section 13 which is reproduced as under:

1. Responsibilities of an implementing agency.--(1) The responsibilities of the Implementing Agency in relation to the planning, development, procurement, implementation, execution and monitoring of a Project shall be such as may be prescribed.

(2) Without prejudice to the generality of sub-section (1), the implementing agency, inter-alia, shall, for the purposes of this Act,--

(a) identify, conceptualize, appraise and develop the project;

(b) undertake or cause to be undertaken a feasibility study;

(c) develop and issue or cause to be developed and issued a request for proposal including draft of the public private partnership agreement;

(d) procure a project only through a competitive bidding process as prescribed; and

(e) monitor and implement the project in accordance with the public private partnership agreement.

(3) The implementing agency shall submit the bid documents and the project proposal for approval of the Board.

(4) Once the project proposal is approved by the Board, the implementing agency shall procure the project in accordance with the provisions of this Act.

1. The nitty-gritties of “Public Private Partnership Agreement” are provided under Section 25. In unison, Section 19 deals with the provisions for negotiating the rudiments of agreement with an indispensable stipulation that the implementing agency shall invite the successful Private Party for negotiation on partnership agreement in pursuit of the approval of project proposal by the Board and subject to the final approval of the Board, the implementing agency may execute the Public Private Partnership Agreement. On signing off, all moveable and immovable properties associated with the project shall vest in the public private partnership but the private party shall not create any lien, charge or encumbrance in favour of the lenders over the immovable properties of the implementing agency. According to the mandatory condition put down under Section 21, after expiry of the public private partnership, all properties shall be transferred without any lien, charge and or encumbrance to the implementing agency.

2. The learned counsel for the petitioner vigorously articulated that the intended agreement amounts to privatization of Pakistan Post. So in order to thresh out the differentiation by dint of a comparative study encompassing an idea of privatization and public private partnership, we have also scanned the Privatization Commission Ordinance, 2000 which disseminated to establish Privatization Commission for implementing privatization policy of Federal Government. The purpose of this Ordinance is to carry out a programme of privatization with transparent process and utilization of the proceeds of privatization for the retirement of Federal Government debts and for poverty alleviation. In the definition clause (i) of Section 2 the word “privatization” includes a transaction by virtue of which any property, right, interest, concession or management is transferred to any person from the Federal Government or any enterprise owned or controlled wholly or partially, directly or indirectly by the Federal Government. Under Section 3, a Commission has been established as a body corporate with the powers to enter into agreements and contracts. The functions and powers of the Commission are provided under Section 5 which inter alia includes to recommend privatization policy to the Cabinet, preparation of comprehensive privatization programme and provide overall directions for the implementation of privatization related activities including restructuring, deregulation and post-privatization matters in sectors designated by the Cabinet. However, the general management and administration of the Commission is vested in the Board constituted under Section 6 of the Ordinance. Under Section 25, the Commission may carry out privatization through sale of assets; sale of shares through public auction or tender; public offering of shares through a stock exchange; management or employee buyouts by management or employees of a state owned enterprise; lease, management or concession contracts or any other method as may be prescribed.

3. A conscientious and an in-depth dissection of both the legislation makes it vivid that that Public Private Partnership Authority Act, 2017 postulates regulatory framework and regime to execute public private partnership in Pakistan whereas the Privatization Commission Ordinance, 2000 is meant for implementing privatization policy of the Federal Government and utilization of proceeds of privatization for the retirement of Federal Government debts and for poverty alleviation. Both laws have different premise and precincts without any overriding or overlapping effect but somewhat designed and premeditated to cater the need and handle two different situations in two different state of affairs so in our considerate outlook a request for proposal invited under the provisions of Public Private Partnership Authority Act, 2017 cannot be equated or tantamount privatization but it will straightforwardly amount to an agreement for public private partnership with certain terms and conditions expounded and explicated under the law in field.

4. Now, we aspire to mull over the provisions of Post Office Act, 1898. Under Clause (i) of Section 2 of the Post Office Act, 1898, an expression “postal article” includes a letter, postcard, newspaper, printed paper or small packet, parcel and every article or thing transmissible by post. In clause (k), expression “Post Office” means the department established for the purpose of carrying the provisions of this Act into effect and presided over by the Director General. Sanguine to the controversy onboard, we consider it quite apt to reproduce Sections 3, 4 and 5 of the Post Office Act, 1898 for the ease of convenience.

5. Meanings of “in course of transmission by post” and “delivery” For the purposes of this act,--

(a) a postal article shall be deemed to be in course of transmission by post from the time of its being delivered to a post office to the time of its being delivered to the addressee or of its being returned to the sender or otherwise disposed of under Chapter VII:

(b) the delivery of a postal article of any description to a postman or other person authorised to receive postal articles of that description for the post shall be deemed to be a delivery to a post office; and

(c) the delivery of a postal article at the house or office of the addressee, or to the addressee or his servant or agent or other person considered to be authorised to receive the article according to the usual manner of delivering postal articles to the addresee, shall be deemed to be delivery to the addressee.

1. Exclusive privilege of conveying letters reserved to the Government:--(1) Wherever within [Pakistan] posts or postal communications are established, by the [Federal Government], the [Federal Government] shall have the exclusive privilege of conveying by post, from one place to another, all letters, except in the following cases, and shall also have the exclusive privilege of performing all the incidental services of reviving, collecting, sending, dispatching and delivering all letters, except in the following cases, that is to say:--

(a) letters sent by a private friend in his way, journey or travel, to be delivered by him to the person to whom they are directed, without hire, reward or other profit or advantage for receiving, carrying or delivering them;

(b) letters solely concerning the affairs of the sender or receiver thereof, sent by a messenger on purpose; and

(c) letters solely concerning goods or property sent [by sea or by land or by air] to be delivered with the goods or property which the letters concern, without hire reward or other profit or advantage for receiving, carrying or delivering them;

Provided that nothing in the section shall authorize any person to make a collection of letters excepted as aforesaid for the purpose of sending them otherwise than by post.

(2) For the purposes of this section and Section 5, the expression “letters” includes postcards.

1. Certain persons expressly forbidden to convey letters.--Wherever within [Pakistan] posts or postal communications are established by the [Federal Government], the following persons are expressly forbidden to collect, carry, tender or deliver letters, or to receive letters for the purpose of carrying or delivering them, although they obtain no hire, reward or other profit or advantage for so doing, that is to say:-

(a) common carriers of passengers or goods, and their servants or agents, except as regards letters solely concerning goods in their carts or carriages;

(b) owners and masters of vessels sailing or passing on any river or canal in [Pakistan], or between any ports or places in Pakistan, and their servants or agents, except as regards letters solely concerning goods on board, and except as regards postal articles received for conveyance under Chapter VIII [;and]

(c) owners, pilots and other members of the crew of a aircraft flying from or to any airports in Pakistan.

1. In 2002, the Pakistan Postal Service Management Board Ordinance was promulgated to establish Pakistan Postal Service Board as a body corporate. The powers and functions of the Board are provided under Section 11 of the Ordinance which makes obvious that the Board shall have complete decision making power in matters relevant to all the administrative, operation and finance of the Pakistan Post Office Department provided that the Board to make decisions in important policy matters shall vest in the Federal Government. The Board has also certain powers and functions inter alia to manage and operate Pakistan Post Office Department; to frame overall market oriented postal policies and introduce flexible tariff regime in consultation with the Government; to conduct and assist research experiments or trials for the improvement of methods of postal facilities and other services being carried out by the Pakistan Post Office Department;. to advise the Federal Government on matters relating to postal and other services being provided by the Pakistan Post Office Department; to seek contracts and provide postal services abroad and to perform such other functions as the Federal Government may from time to time assign. Under Section 17 the board may in a transparent manner, enter into joint ventures, concession contracts and management contracts for operation or expansion of its services or functions including outsourcing its services. However under Section 25, for furthering the functions and objectives of Pakistan Post Postal Services Management Board, the Federal Government may when it considers necessary issue directive to the board on the matters of policy and such directives shall be binding on the board.

2. We have also looked through a number of lexicons to decipher the dictionary meaning of the words “courier” and “logistics” which are reproduced as under:

Black’s Law Dictionary.

Ninth Edition

Courier. A messenger, esp. one who delivers parcels, packages, and the like. In international law, the term denotes a messenger duly authorized by a sending state to deliver a diplomatic pouch.

Cambridge English Dictionary

Courier: A person or company that takes messages, letters, or parcels from one person or place to another.

Logistics: Logistics the careful organization of a complicated activity so that it happens in a successful and effective way.

Business Dictionary

(http://www.businessdictionary.com/definition/logistics.html)

Logistics

Definition: Planning, execution, and control of the procurement, movement, and stationing of personnel, material, and other resources to achieve the objectives of a campaign, plan, project, or strategy. It may be defined as the ‘management of inventory in motion and at rest.’

Chambers 21st Century Dictionary

Courier: 1. a guide who travels with and looks after, parties of tourists. 2 a messenger. 15c: French, from Latin currere to run.

Logistics: 1. the organizing of everything needed for any large-scale operation. 2. the control and regulation of the flow of goods, materials, staff, etc. in a business. 3. the art of moving and supplying troops and military equipment.

The Chambers Dictionary 10th Edition

Courier: a messenger, esp. one employed to deliver special or urgent messages or items; a state or diplomatic messenger; an official guide and organizer who travels with tourists; a title of certain newspapers.

Logistics: the art of movement and supply of troops; the handling of the practical detail of any large-scale enterprise or operation.

The Concise Oxford Dictionary

Ninth Edition

Courier: 1 a person employed, usu. by a travel company, to guide and assist a group of tourists. 2 a special messenger. (Middle English via French from Italian carriere, and from Old French coreor, both from Latin currere ‘run’).

Logistics: 1 the organization of moving, lodging, and supplying troops and equipment. 2 the detailed organization and implementation of a plan or operation.

WHARTON’S LAW LEXICON

Fifteenth Edition

Courier: an express messenger of haste; a travelling attendant

The New Shorter Oxford English Dictionary, Volume 1

Courier: 1 A running messenger, a messenger sent in haste; a special messenger. Also in titles of newspapers. LME. b A messenger for an underground or espionage organization. E20. 2 Mil. A light horse man acting as skirmisher or scout. E16-E17. 3 A person employed on a journey to make the necessary travel arrangements, now esp. to assist and guide a party of tourists. L16.

Logistics: The organization of moving, lodging, and supplying troops and equipment; transf. the detailed organization and implementation of a plan or operation.

1. In a general business sense, logistics is the management of the flow of things between the point of origin and the point of consumption in order to meet requirements of customers or corporations. The resources managed in logistics can include physical items such as food, materials, animals, equipment, and liquids; as well as intangible items, such as time and information. Logistics management is the part of supply chain management that plans, implements and controls the efficient, effective forward, and reverse flow and storage of goods, services, and related information between the point of origin and the point of consumption in order to meet customer’s requirements. The main fields of logistics can be broken down such as procurement logistics, distribution logistics, after-sales logistics, disposal logistics, reverse logistics, green logistics, global logistics, domestics logistics, concierge service, Ram logistics, asset control logistics, POS material logistics, emergency logistics, production logistics, construction logistics, capital project logistics and digital logistics. It also refers to the process of managing the flow of operations between the points of collection to the point of delivery. This includes all the mechanisms, warehouses, people and resources that are involved throughout the entire delivery process. Compared to courier services, logistics services are considered to be a safer option when it comes to shipping valuable goods. This is because it can accommodate the transport of pallets and containers. Packages and items that are placed on a pallet are usually handled mechanically with forklifts. The provider of the logistics services handles processes such as inventory, shipping, packaging, warehousing and security functions for shipments. Whereas the couriers are distinguished from ordinary mail services by features such as speed, security, tracking, signature, specialization and individualization of express services, and swift delivery times, which are optional for most everyday mail services. As a premium service, couriers are usually more expensive than standard mail services, and their use is normally limited to packages where one or more of these features are considered important enough to warrant the cost. Courier services operate on all scales, from within specific towns or cities, to regional, national and global services. In the broader spectrum, the Courier Services involve the collection of small and medium sized parcels and their transfer to the delivery point. They are usually a bit pricier than the standard postal services. This is a standard service for the delivery of portable goods, shipments of smaller dimensions and lighter shipments, documents, and mail. The parcels transported through courier services can be easily handled and lifted by a person given their small dimensions and weight whereas the Logistics Service is referred to as the general field of transportation services, which includes courier services too. This also refers to the process of managing the flow of operations between the point of collection to the point of delivery which includes all the mechanisms, warehouses, people and resources that are involved throughout the entire delivery process. Ref: https://en.wikipedia.org/wiki/Logistics and https://en.wikipedia.org/wiki/Courier

2. The terminology Build-operate-transfer (BOT) is a method and technique in vogue to arrange financing for a venture or business enterprise by means of which a private entity attains a concession from public sector to put money into, design, build own and operate a project enumerated in the concession agreement. As a result of long-lasting arrangement, the fees are usually raised during the concession period. In the BOT structure, a private sector is delegated an authority to design and build infrastructure and operate and maintain these facilities for a certain period then transfer the project to the public administration at the end of the concession agreement. Normally, the Government is the originator of the infrastructure project and decides if the BOT genre is suitable to live up the need. The concessionaire creates a special purpose vehicle (SPV) which is run through their own financial assistance. A BOT project is normally bring into play to grow a separate asset rather than a whole network.

3. If truth be told, though petitioners are vigorously opposing the arrangement of Public Private Partnership but at one fell swoop, they have shown their interest in the same partnership. In the pre-bid conference, the CEO of the Petitioner No. 1 participated and requested for time to present the proposal but according to the learned counsel for the petitioners, he was not allowed to present his proposal. The learned counsel also pointed out some e-mails to show that the petitioners started their working on the RFP and interested to apply. The counsel further alleged that respondent did not want petitioners to participate in the bidding process by making it difficult for them. It was further argued that the obvious reasons of haste by respondent was to create difficulties for the Pakistani Entrepreneurs and creating the RFP in a manner that it would become difficult for Pakistanis to participate in such a short time. It was further argued that RFP allowed very short period to submit financial as well as technical proposal and for arranging huge finance for a Pakistani investor, the 45 days period time was very short therefore the petitioners have approached this Court as their fundamental rights guaranteed under Articles 18, 24 and 25 are being violated. On the contrary, the record reflects that the first advertisement inviting request for proposal was published in the newspaper on 17.02.2018 with the directions that the technical and financial bids as per provisions of RFP should reach on the given address on or before 30th March 2018 however vide another advertisement dated 28.03.2018 extension was allowed in last date for opening of bids up to 15th April 2018 which shows that much reasonable time was allowed to all interested parties to submit their proposals.

4. The learned counsel for the petitioner cited various judicial precedents for instance Tehsil Nazim TMA, Okara vs. Abbas Ali & others (2010 SCMR 1437), Government of the Punjab, Food Department & another vs. Messrs. United Sugar Mills Ltd(2008 SCMR 1148), Raja Hamayun Sarfraz Khan & others vs. Noor Muhammad, (2007 SCMR 307) and Khyber Tractors (PVt.) Ltd. vs. Pakistan (PLD 2005 S.C. 842) in which the apex Court laid down the dictum that where law provided for doing of a particular act in a particular manner, then same would be done in such manner. It is elementary principle of law that if a particular thing is required to be done in a particular manner it must be done in that manner, otherwise it should not be done at all. The Courts are required to do justice between the parties in accordance with the provision of law. In our understanding, there is no equivocation to aforesaid well settled proposition of law enunciated in the aforesaid judicial precedents by the apex Court. We are also of the same view that the respondents should strictly comply with all relevant provisions of Public Private Partnership Authority Act, 2017 before entering into concession agreement with private partner. In the Suo Moto Case No. 19 of 2016, 2017 SCMR 683, the Court observed that the Sindh Coal Authority was established to explore, develop, process, mine and utilize coal in the Province of Sindh, however, instead of undertaking what the law mandates it to do, it undertook activities which the Act does not permit and that too without the approval of its Board. Here we would like to say again that arrangement for entering into public private partnership is to be done under the provisions of Public Private Partnership Authority Act, 2017 which generally applicable in all public private ventures hence the case of Sindh Coal Authority is distinguishable. The learned counsel for the petitioners also referred to PLD 2012 S.C. 132, Muhammad Yasin vs. Federation of Pakistan, PLD 2011 S.C. 997, Watan Party vs. Federation of Pakistan, PLD 2005 S.C. 193, Arshad Mehmood vs. Government of Punjab and Government of Pakistan vs. Zamir Ahmad Khan, PLD 1975 S.C. 667. The Court held that Article 18 and the rights guaranteed by it are concerned with the economic life of the nation and its citizens. Article 18 of the Constitution assures the citizens the right to enter upon any “lawful profession or occupation” and to conduct any lawful trade or business. Reasonable restriction, however, does not mean prohibition or prevention completely. Though this is a well settled legal position but here again it does not attract simply for the reason that the intended partnership under the Public Private Partnership Authority Act, 2017 does not in any case likely to affect or prejudice the rights of the petitioner to carry out their businesses nor any partial or impartial monopoly is being created. The petitioners shall continue to carry out their trade as they are carrying out right now. Ample time was provided in the advertisement for submitting the request of proposal by all interested parties so the petitioners at this stage cannot maintain that they were not provided fair opportunity to submit their proposal to participate. The learned counsel also referred to the case of Messrs Mustafa Impex, Karachi vs. Government of Pakistan, PLD 2016 S.C. 808 in which the apex Court held that the Prime Minister and the Federal Ministers, which, in turn, means the cabinet. The cabinet is a composite concept and its components are the Prime Minister and the Federal Ministers. Together they constitute the cabinet. In this case the appellants had challenged withdrawal of exemptions from sales tax on the ground that notification was not issued by Federal Government rather by Additional Secretary who was not competent to do so. We are fortified by this judgment but here under a Government policy, a public private partnership is intended under the provisions Public Private Partnership Authority Act, 2017 in which a request for proposal was published. Now the Authority and Board constituted in the aforesaid Act have to perform their duties and responsibilities envisioned under Sections 4 and 8 of the Public Private Partnership Authority Act, 2017 to examine and supervise /monitor the matter till finalizing the concession agreement and matter does not solely rests on Government policy but pros and cons of the project and partnership agreement are to be threshed out under the aforesaid act. In last, the learned counsel referred to the case of TCS (Private) Limited vs. Pakistan Post Office and another, 2004 MLD 1949, the Court while dilating upon Post Office Act held that the duty to convey letters vests exclusively in the Federal Government. This exclusive privilege however, is only confined to letters and not all forms of postal articles. The expression “letter” has not been defined in the Post Office Act and therefore, one has to resort to its ordinary dictionary meaning. In Black’s Law Dictionary, it has been prescribed as a written communication that is usually enclosed in an envelope, sealed, stamped and delivered. In Chamber’s 21st Century Dictionary, it is described as a written or printed message normally sent by post in an envelope. By virtue of Section 4 (2) of the Post Office Act, it would include post cards. In our view this judgment is also distinguishable here. As discussed above, the arrangement is for public private partnership and not privatization of Pakistan Post. The privilege or exclusive right with regard to some postal articles would not affect when Pakistan Post department shall itself be a partner in the new company (special purpose vehicle) and work in a joint venture.

5. The learned Additional Attorney General in support of his contention referred to the case of Air India Ltd. vs. Cochin International Airport Ltd., (2000) 2 Supreme Court Cases 617. The Court held that the award of contract, whether it is by a private party or by a public body or the State is essentially a commercial transaction. In arriving at a commercial decision considerations which are paramount are commercial considerations. The State can choose its own method to arrive at a decision. It can fix its own terms of invitation to tender and that is not open to judicial scrutiny. It can enter into negotiations before finally deciding to accept one of the offers made to it. But the State, its corporations, instrumentalities and agencies are bound to adhere to the norms, standards and procedures laid down by them and cannot depart from them arbitrarily. Though that decision is not amenable to judicial review, the Court can examine the decision making process and interfere if it is found vitiated by mala fides, unreasonableness and arbitrariness. The State, its corporations, instrumentalities and agencies have the public duty to be fair to all concerned. The learned Additional Attorney General next referred to the case of Dr. Akhtar Hassan Khan and others vs. Federation of Pakistan 2012 SCMR 455, the apex Court observed that the Court has to guard against frivolous petitions as it is a matter of common observation that in the garb of public interest litigation, matters are brought before the Court which are neither of public importance nor relatable to enforcement of a fundamental right or public duty. The public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/ or publicity seeking is not lurking. Some persons with vested interest indulge in the pastime of meddling with judicial process either by force of habit or from improper motives. Often they are actuated by a desire to win notoriety or cheap popularity. In last the learned counsel referred to the case of Watan Party vs. Federation of Pakistan, PLD 2013 S.C. 167, the apex Court observed that we cannot assume the functions of policy making or determining the priorities of various development projects in the country, which are the exclusive domain and functions of the Federal and Provincial Government, as the case may be, who have their own ministries, departments, commissions and consultants, etc. for policy making, determining the priorities of various development projects and its implementation. In our vision, the above judgments illustrate and expound the well settled theme and proposition vis-a-vis the powers of judicial review of the superior Courts in the matter of Government policies and the scope of public interest litigation but right now, the key question is whether the public private partnership can be entered into under the provisions of 2017 Act or not? The petitioners have not challenged any provision of Act, 2017 but right through contending that Pakistan Post cannot carry out logistics business which is a misconceived notion.

6. It appears from the conduct of the petitioners that since they could not meet the deadline or could not submit their proposals or failed to arrange the finance within the stipulated time thus in order to disturb the entire process they have filed this petition. It is indeed incongruous notion that if the same partnership is entered into with the petitioners then it would be legal and lawful but if it is entered into with any other person, the petitioners will raise hue and cry. On this count alone, this petition seems to be motivated and aroused to protect and safeguard the self-interest of petitioners to avoid healthy competition in the field rather than the public interest. We are fortified by the judgment of apex Court rendered in the case of Dr. Akhtar Hassan Khan (supra) that the public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity seeking is not lurking. Some persons with vested interest indulge in the pastime of meddling with judicial process either by force of habit or from improper motives. Often they are actuated by a desire to win notoriety or cheap popularity.

7. The purpose of intended partnership does not reflect in any case that it is designed or calculated to damage or impair the business of other courier service/logistics companies already in field so the apprehension of the petitioners is misconstrued and misconceived that this partnership will upset or prejudice their fundamental right enshrined under Article 18 of the Constitution or create any monopoly. The Pakistan Postal Service Management Board has complete decision making power in matters relevant to all the administrative, operation and finance of the Pakistan Post Office Department including to enter into joint ventures, concession contracts and management contracts for operation or expansion of its services or functions including outsourcing its services. The RFP clearly provides that CPEC, essentially a logistics partnership, will increase the demand for cost effective and reliable supply chain partners by the industry. The CEP (courier, express and parcel) and logistics market is about to explore, Pakistan Post is offering its infrastructure, evolved in well over a century and reach spanning across the country and the world over, to the potential private partner. The argument that under the Post Office Act, the logistic, courier, express and parcel business cannot be undertaken is misconceived as there is no specific bar contained in the Act but as a Government policy, the Pakistan Postal Service Management Board initiated the process which is being administered under the provisions of Public Private Partnership Authority Act. Let’s assume for a while that under the mandate of Post Office Act such businesses are not included even then there is neither any bar nor any embargo can be imposed that Post Office cannot establish a new company or enter into a partnership to establish new business under the Government policy and the Board so that they may improvise and expand their services through rebranding which is their dire need to meet up the future challenges. This effort in our view is neither amount to violation of Post Office Act nor this will destruct or deface any privilege or exclusivity of the Post Office service under the Post Office Act when they would be the stakeholder and partner in a new company, they will enjoy same privilege. If a rigid interpretation of Sections 4 and 5 of the Post Office Act, 1898 is taken into consideration it will otherwise expose the defilement of exclusivity and privilege of Pakistan Post by many private courier service companies.

8. As a result of above discussion, this Constitution petition is dismissed with pending applications. If the respondents are willing to establish a project under public private partnership, it is clarified that concession agreement of the project shall be processed, finalized and executed between the private party and implementing agency strictly in accordance with the provisions of Public Private Partnership Authority Act 2017 and the Authority and Board constituted in the aforesaid Act shall perform their duties and responsibilities with due diligence and transparency.

(M.M.R.) Petition dismissed

PLJ 2019 Karachi 28 (DB)

Present: Muhammad Ali Mazhar & Omar Sial, JJ.

BAHADUR ALI and others--Petitioners

versus

ELECTION COMMISSION OF PAKISTAN and others--Respondents

C.P. Nos. D-3672, 3931 & 4155 of 2018, decided on 4.7.2018.

Election Act, 2017--

----S. 20--Election Rules 2017, R. 10(5)--Constitution of Pakistan, 1973, Art. 199--Constitutional Petition--Proposal for delimitation of constituencies--Declaration regarding exclusion of area--Population variation--Principles of homogeneity--Contiguity of areas--Delimitation Committee--Modification scheme of delimitation--Challenge to--This is not case here that ECP out rightly rejected all proposals but partially accepted representations filed by Bahadur Ali, Munawar Ali Pathan, Zohaib Ali, Abdul Haq, Syed Mashooq Moeenuddin Shah, Syed Inayat Ali Shah and Zahid Ali Bhanbhan--Consequently modified delimitation on inclusion and exclusion of different territories in PS-26, PS-27, PS-28 and PS-29--Petitioners have alleged that preliminary delimitation has been maintained disregard to proposal of petitioners with sole aim to benefit same influential persons which amounts to gerrymandering but no name of any person or political party is mentioned in petition to substantiate this allegation of biasness or favoritism against ECP which is an independent entity--Placing of proposal to ECP by any person or voter of any constituency may invite attention of ECP to consider proposal in accordance with law but at same time, one cannot claim it as a vested right that whatever proposal placed by him should be considered and accepted in letter and spirit by ECP--Court has to see pith and substance of order--Obviously in a short span of time when number of representations have been filed for each district so as a practical and sensible procedure, ECP decided all representations in a consolidated order rather than picking up and deciding each and every representation separately which would have consumed much time with an acute likelihood of passing conflicting orders for one and same district--In nutshell what deciphered to us from impugned order that contentions have been recorded to demonstrate individual proposal and with assistance of Delimitation Committee, ECP has considered pros and cons including fundamental elements i.e. geographical proximity and impact of population variation--Impugned order makes it obvious that wherever ECP considered necessary changes and visualized proposal meaningful and rationale, they issued directions for modification in schemes of delimitation--One of petitioners raised a plea that half portion of Nara has been amalgamated with Taluk Faiz Ganj whereas other part with Taluka Thari Mirwah but then is no road leading or approaching to half portion of Nara from Taluka Faiz Ganj which will cause colossal difficulties to voters and there is also no facility of proper communication--We directed Convener, Delimitation Committee to physically examine as to whether there is any road for purpose of public convenience and communication from Faiz Ganj to half portion of Nara included in PS 29--Convener, Delimitation Committee was directed to inspect area in presence of District Election Commissioner, Khairpur and submit report to Election Commission, thereafter, Election Commission nay pass necessary orders in accordance with law--For remainder, we do not find any justification to upset entire delimitation process--Petitions were disposed of along with pending applications accordingly. [P. ] A, B, C, D & E

Mr. Farooq H. Naek, Advocate for Petitioners (in C.P. No. D-3672 of 2018) assisted by M/s. Muhammad Usman and Muzammil Soomro, Advocates.

Mr. Nisar Ahmed Bhambhro,Advocate for Petitioner (in C.P. No. D-3931 of 2018).

Mr. Obaid-ur-Rehman Khan,Advocate for Petitioner (in C.P. No. D-4155 of 2018).

Ms. Mamoona Nasreen, Advocate for Election Commission of Pakistan.

Mr. Shaikh Liaquat Hussain, DAG.

Ms. Rukhsana Mehnaz Durrani, State Counsel.

Mr. Abdullah Hanjra, Law Officer, Election Commission a/w. Nadeem Haider, Regional Election Commissioner, Shaheed Benazirabad, Imtiaz Ahmed Kalhoro, District Election Commissioner, Hyderabad, Zaheer Ahmed Sehto, District Election Commissioner, Kashmore/Member Delimitation Committee and Muhammad Yousaf, District Election Commissioner, Karachi Central.

Dates of hearing: 8 & 12.6.2018.

Order

Muhammad Ali Mazhar, J.--These Constitution Petitions have been brought to challenge the order dated 24.4.2018 passed by Election Commission of Pakistan on the representations put on record by different petitioners before the Election Commission of Pakistan concerning the delimitation of constituencies-2018 District Khairpur.

1. The twelve petitioners in C.P. No. D-3672/2018 had filed a joint representation to ECP on 26.03.2018. By dint of this petition, they want declaration that division of Khairpr and Kingri into different National Assembly and Provincial Assembly constituencies is illegal and entreated for directions to ECP to include Khairpur and Taluka Kingri in one National Assembly and Provincial Assembly constituencies. They have sought further declaration that exclusion of Koro Phulpoto and Khanpur from Khairpur PS-26 is illegal.

2. In C.P. No. D-3931 of 2018, the proposal of petitioner is described in Paragraph No. 5 of the petition. The pith and substance of the proposal leading to an assertion that Ranipur Town Committee is located at National Highway, Tapedar Circle Ranipur which is a part of U.C Gadeji located on the South-Western side of Ranipur. The people of Tapedar Circle Gadeji, Tapedar Circle Pir Taj Muhammad and Tapedar Circle Ranipur are affiliated with Ranipur Town in terms of business. The delimitation carried out by Election Commission had divided the homogeneity amongst the people of U.C. Gadeji, U.C Setharja Bala and Town Committee Ranipur in two constituencies of National Assembly in violation of principles of delimitation.

3. In C.P. No. D-4155 of 2018, the representation was filed by the petitioner to the ECP on 2.4.2018. The petitioner wants us to give directions to the ECP through this petition to include the Tapedar Circle Jhando Mashaikh in PS-27 Khairpur-II and keep intact the remaining Tapedar Circle of PS-27 as maintained by the Delimitation Committee vide order dated 5.3.2018.

4. The learned counsel for the petitioners argued that impugned order is factually incorrect and liable to be set aside which seems to have been passed in due haste without providing any logical justification to dismiss the representations. They further argued that the delimitation of the District Khairpur has been carried out in grave violation of Section 20 of the Elections Act, 2017 and Rule 10(5) of Election Rules, 2017. Learned counsel also opposed the exclusion of Tapedar Circle Bhulgari from PS-27 Khairpur-II. It was further averred that Kotiji has attained the status of administrative unit in terms of Section 20 of the Elections Act, 2017 and its existing boundaries should remain intact. The inclusion of Tapedar Circle Jhando Mashaikh in PS-27 will suffice the principle of homogeneity as this Tapedar Circle remained the part of Taluka Kotiji since decades. It was further contended by the learned counsel for the petitioners that delimitation of District Khairpur for National Assembly and Provincial Assembly was not carried out from Northern end as envisaged in Rule 10(5) of the Election Rules, 2017. The non-adherence to the principles of starting delimitation from the Northern end lead to favoritism to some influential individual. The proposed delimitation has separated Taluka Khairpur and Taluka Kingri which was previously one Tehsil. The amalgamation of these two Taluka would serve the purpose of public convenience and ensure equitable distribution of population. The boundaries of constituencies of PS-27 Khairpur, I have been disturbed and its parts have been included in three different constituencies such as PS-27, PS-31 and PS-32 without taking into consideration the public convenience, homogeneity and geographical features. It was further argued that there is a big Nara Water Canal flowing in Taluka Nara but there is no facility of communication/road to reach from one end to other end. It was further contended that people of Faiz Ganj would be facing extreme inconvenience from passing District Nawabshah and District Sanghar to reach Taluka Nara PS-29.

5. The Law Officer of the ECP and the Officer of the Delimitation committee have demonstrated us the actual position from maps in the open Court in presence of the learned counsel for the petitioners. They addressed us that the delimitation has been carried out keeping in mind the principles of homogeneity and contiguity of areas and equality of population as laid down under Section 20 of the Elections Act, 2017 and Rule 10(5) of the Election Rules, 2017. They refuted the contention of the petitioners that the voter of Tapedar Circle Shadi Shaheed will have to travel to a considerable length to cast their votes. They vehemently submitted that ECP never established any polling station at a distance of 1 to 2 k.m. away from the villages or residence of voters, therefore, voters of Tapedar Circle Shadi Shaheed will not have to travel to Town Committee Kotiji to cast their votes. They further stated that population of Nara Taluka is very small hence cannot be made separate Provincial Assembly constituency as population of Taluka Nara does not suffice the requirement of becoming an independent constituency. Hence the best option available to Delimitation Committee to amalgamate one part of Taluka Nara with Taluka Faiz Ganj and other part with Taluka Thari Mirwah. It was further contended that the petitioners have tried to confuse the delimitation of general assembly seats with delimitation of local Government system. The population variation amongst all three National Assembly constituencies finalized by ECP is 8% which is well within prescribed limit of 10%. In case Tapedar Circle Jhando Meshaikh is added in PS-27 and excluded from PS-30 the population of PS-30 will be decreased hence the Tepadar Circle Jhando Mashaikh with population of 20938 cannot be excluded from PS-30. The administrative boundaries of Taluka Kotiji have already been given due consideration so only one Tapedar Circle was excluded from PS-27 and included in PS-30 to rationalize the population. Much emphasis were made that due to increase of one PS constituency in District Khairpur, the present PS seat position is seven in number so on addition of one seat the delimitation of previous constituencies could not remain intact.

6. Heard the arguments. Vide impugned order dated 24.4.2018, ECP has decided 15 representations filed by different persons with different proposals for delimitation of constituencies-2018 District Khairpur. Apparently out of 15 petitioners before the ECP only present petitioners have approached this Court for challenging the impugned order. This is not the case here that the ECP out rightly rejected all the proposals but partially accepted the representations filed by Bahadur Ali, Munawar Ali Pathan, Zohaib Ali, Abdul Haq, Syed Mashooq Moeenuddin Shah, Syed Inayat Ali Shah and Zahid Ali Bhanbhan. Consequently modified the delimitation on inclusion and exclusion of different territories in PS-26, PS-27, PS-28 and PS-29. The petitioners have alleged that the preliminary delimitation has been maintained disregard to the proposal of the petitioners with the sole aim to benefit same influential persons which amounts to gerrymandering but no name of any person or political party is mentioned in the petition to substantiate this allegation of biasness or favoritism against the ECP which is an independent entity. Placing of proposal to ECP by any person or voter of any constituency may invite the attention of the ECP to consider the proposal in accordance with law but at the same time, one cannot claim it as a vested right that whatever proposal placed by him should be considered and accepted in letter and spirit by ECP. To contest the election and right of franchise is a fundamental right of a citizen but to contest the election on the basis of delimitation at the whims and leisure of a citizen is not a fundamental right. The impugned order unequivocally reflects that after considering all proposals and jotting down the details, the Election Commission has finalized the delimitation. It is also clear from the impugned order that the proposals given by the present petitioners have been mentioned in the impugned order separately but a plea has been advanced by the learned counsel for the petitioners before us that though the contentions with regard to their proposal have been recorded in the order but no separate discussion has been made one by one on each and every proposal. The Court has to see the pith and substance of the order. Obviously in a short span of time when number of representations have been filed for each district so as a practical and sensible procedure, ECP decided all representations in a consolidated order rather than picking up and deciding each and every representation separately which would have consumed much time with an acute likelihood of passing conflicting orders for one and same district. In the nutshell what deciphered to us from the impugned order that the contentions have been recorded to demonstrate individual proposal and with the assistance of Delimitation Committee, the ECP has considered the pros and cons including the fundamental elements i.e. geographical proximity and impact of population variation.

7. The impugned order makes it obvious that wherever ECP considered the necessary changes and visualized the proposal meaningful and rationale, they issued directions for modification in the schemes of delimitation. One of the petitioners raised a plea that half portion of Nara has been amalgamated with the Taluk Faiz Ganj whereas other part with Taluka Thari Mirwah but three is no road leading or approaching to the half portion of Nara from Taluka Faiz Ganj which will cause colossal difficulties to the voters and there is also no facility of proper communication. Insofar as this specific feature is concerned, we have already decided C.P. Nos.D-3848, 3872 & 4007 of 2018 in which this aspect was considered and resultantly, we directed the Convener, Delimitation Committee to physically examine as to whether there is any road for the purpose of public convenience and communication from Faiz Ganj to half portion of Nara included in PS 29. The Convener, Delimitation Committee was directed to inspect the area in presence of the District Election Commissioner, Khairpur and submit the report to the Election Commission, thereafter, Election Commission may pass necessary orders in accordance with law. So for all intent and purposes, this factor has already been taken due care by us in the above petitions therefore the directions given in C. P. Nos. D-3848, 3872 & 4007 of 2018 shall follow in these petitions also. For the remainder, we do not find any justification to upset the entire delimitation process. The petitions are disposed of along with pending applications accordingly.

(M.M.R.) Petition disposed of

PLJ 2019 Karachi 34 (DB)

Present: Muhammad Ali Mazhar & Omar Sial , JJ.

RUSTAM ALI and others--Petitioners

versus

ELECTION COMMISSION OF PAKISTAN through Chief Election Commissioner, Islamabad and 2 others --Respondents

C.P. Nos. D-4131, D-4132 & D-4134 of 2018, decided on 4.7.2018.

Election Rules, 2017 (XXXIII of 2017)--

----R. 10(5)--Constitution of Pakistan, 1973--Constitutional Petition--Delimitation of Constituencies--Representations--Dismissed--Population variations--Modification of constituencies--Facilitation of people of area--Challenge to--We do not find any illegality or violation which may suffice to hold that areas are not geographically compacted as compare to existing boundaries of administrative units and other cognate factors to ensure homogeneity--Impugned order reflects that Members of Delimitation Committee explained issues raised by persons including petitioners who filed their representation and Committee also took into consideration geographic conditions, proximity and impact of population variation--However, in order to facilitate people of area and public convenience, ECP partially accepted representation of some petitioners before them and modified constituencies to some extent with regard to National Assembly and Provincial Assembly constituencies--We do not find any substance in contentions raised by petitioners for upsetting entire delimitation process--Petitions dismissed. [Pp. 37 & 38] B, C & D

Election Rules, 2017 (XXXIII of 2017)--

----S. 20--Principles of delimitation--Distribution of population--No doubt according to principles of delimitation laid down under Section 20 of Elections Act, 2017 a mandate has been given for delimitation keeping in mind basic facets including distribution of population in geographically compact areas, physical features, existing boundaries of administrative units, facilities of communication, public convenience and other cognate factors.

[Pp. 36 & 37] A

Mr. Rafiq Ahmed Kalwar, Advocate for Petitioners

Ms. Mamona Nasreen, Advocate for Election Commission of Pakistan.

Mr. Abdullah Hanjra, Law Officer, Election Commission of Pakistan, Syed Nadeem Haider, Regional Election Commissioner, Shaheed Benazirabad and Mr.Muhammad Yousuf, District Election Commissioner, Karachi Central and Zaheer Ahmed Sehto, Member Delimitation Committee/District Election Commissioner, Kashmore.

Shaikh Liaquat Hussain, D.A.G.

Ms. Rukhsana Minhas Durrani, State Counsel.

Mr. Jam Zeeshan, Advocate for Intervener/Applicant (in C.P. No. D-4131/2018).

Date of hearing: 12.6.2018

Order

Muhammad Ali Mazhar, J.--These Constitution Petitions have been brought to challenge the order dated 26.04.2018 passed by Election Commission of Pakistan with reference to the delimitation of Constituencies-2018, District Sanghar. Record reflects that at least 24 representations have been decided through a common impugned order but only three petitioners have challenged delimitation order in this Court.

1. The petitioners have approached this Court for setting aside the impugned order dated 26.04.2018 whereby delimitation of NA-215 Sanghar-I, NA-216 Sanghar-II and NA-217 Sanghar-III have been finalized. According to the petitioners, the delimitation carried out by the Election Commission of Pakistan was illegal, unlawful and unconstitutional. They have sought the directions of this Court against the Respondent No. 1 to carve out National Assembly constituencies for district Sanghar by combining PS-41 and PS-42 as NA-215 Sanghar-I, PS-43 and PS-44 as NA-216 Sanghar-II and PS-45 and PS-46 as NA-217 Sanghar-III.

2. The learned counsel for the petitioners argued that Election Commission of Pakistan has passed a non-speaking order. On the face of it the impugned order appears to be in violation of Section 20 of the Election Act, 2017. It was further averred that the present form of delimitation has disturbed the uniformity of administrative boundaries, public convenience and homogeneity due to irrational distribution of areas which made impossible for Election Commission of Pakistan to conduct fair election. While exercising the task of delimitation, the Delimitation Committee failed to observe the principles of delimitation enshrined under Rule 10(5) of the Elections Rules, 2017. The main purpose of delimitation is to divide geographical areas into territorial constituencies impartially to avoid the act of gerrymandering but the present delimitation has been carried out to benefit a particular political party which amounts to the worst kind of gerrymandering.

3. On the contrary, the Law Officer of the ECP referred to the comments and addressed that the seats of National Assembly constituencies of District Sanghar have been delimited in accordance with Section 20 of the Elections Act, 2017 read with Rule 10 (5) of the Election Rules, 2017. The Delimitation Committee adhered to all principles of delimitation i.e. geographically compact areas, existing boundaries of administrative units, facilities of communication, public convenience, homogeneity and other cognate factors. The delimitation was started from northern end of the district and proceeded clockwise in zigzag manner keeping in mind the population. It was further contended that the impugned order was passed by the ECP on 24 representations with proper application of mind. The allowable ratio of variation in the population provided under the law was also kept in mind and obeyed.

4. Heard the arguments. We have examined the impugned order minutely. In second paragraph of the impugned order the contentions of the present petitioners have been jot down by the ECP which are as follows:--

“Petitions of Haji Khuda Bux Dars, Jam Nafees Ali, Mukhtiar Ali and Muhammad Bux are identical in nature. Learned counsel for the petitioners has stated that Khipro Taluka malafidely included in NA-216 with Jam Nawaz Ali i.e. PS-43 whereas there is no direct road link between Jam Nawaz Ali and Khipro. The counsel has proposed that Taluka Khipro of PS-42 may be shifted to PS-41. It has further suggested that area of whole PS-42 may be shifted to PS-41 that will constitute NA-215. Learned counsel further proposed that Taluka Tando Adam i.e. PS-44 may be moved along with Jam Nawaz Ali i.e. PS-43 to constitute NA-216. He has further suggested that Shahdadpur Taluka i.e. PS-45 may be annexed with Sinjhoro Taluka i.e. PS-46 to constitute NA-217. In other words, petitioners desire to re-delimit all the three National Assembly constituencies of Sanghar district according to their proposed scheme.”

1. No doubt according to the principles of delimitation laid down under Section 20 of the Elections Act, 2017 a mandate has been given for delimitation keeping in mind basic facets including the distribution of population in geographically compact areas, physical features, existing boundaries of administrative units, facilities of communication, public convenience and other cognate factors to ensure homogeneity in the creation of constituencies with a rider that as far as possible, variation in population of constituencies of an Assembly shall not ordinarily exceed 10 percent and if the limit of 10 percent is exceeded in an exceptional case the Commission has to record reasons in the delimitation order. Much emphasis have been made by the learned counsel for the petitioners while signifying sub-Rule (5) of Rule 10 of the Election Rules, 2017 that as far as possible, the delimitation should start from the Northern end of the district and proceed clock-wise in zigzag manner keeping in view the population so that the constituencies shall remain as close as may be practicable to the quota. According to first proviso attached to sub-Rule (5), the quota shall be determined by dividing total population of the district or the agency with number of seats allocated to that district or agency. Whereas, in terms of second proviso the variation in population between two or more constituencies shall not ordinarily exceed 10 percent and the Delimitation Committee shall record reasons if in exceptional circumstances the variation has to exceed the limit. At the time of preliminary delimitation, a mechanism was laid down to file proposals in the form of representation with a responsibility and obligation to ECP to decide the same in accordance with law. Placing of proposal to ECP by any voter of any constituency may invite the attention of the ECP to consider the proposal in accordance with law but at the same time, one cannot claim as his vested right that whatever proposal placed by him should be considered and accepted by ECP in letter and spirit. To contest the election and right of franchise is a fundamental right but to contest the election on the basis of delimitation at one’s own philosophy and aspiration is not a fundamental right.

2. Mr. Zaheer Ahmed Sehto, Member Delimitation Committee has also demonstrated the limits and boundaries of National Assembly constituencies in question. At the very outset he addressed to us that in the present form of delimitation carried out by ECP, PS-41 and PS-46 are included in NA-215 whereas PS-42 and PS-43 in NA-216 and PS-44 and PS-45 in NA-217. On the contrary, the petitioners want that PS-41 and PS-42 should be included in NA-215, PS-43 and PS-44 in NA-216 and PS-45 and PS-46 in NA-217. According to the map displayed to us by the Delimitation Officer in open Court in presence of all learned counsel, we do not find any illegality or violation which may suffice to hold that the areas are not geographically compacted as compare to existing boundaries of administrative units and other cognate factors to ensure homogeneity. The presentation through map divulges that the exercise of delimitation was started from Northern end and then continued clockwise in a zigzag manner. The Delimitation Officer vigorously argued that in the present form of delimitation there is no violation of the basic principle of maintaining 10% population variation which assertion had not been denied by the learned counsel for the petitioners. The impugned order reflects that the Members of the Delimitation Committee explained issues raised by the persons including the petitioners who filed their representation and the Committee also took into consideration the geographic conditions, proximity and impact of population variation. However, in order to facilitate the people of area and the public convenience, the ECP partially accepted the representation of some petitioners before them and modified the constituencies to some extent with regard to National Assembly and Provincial Assembly constituencies.

3. The learned counsel for the petitioners in his arguments took a plea that the present delimitation has been carried out by ECP to commit gerrymandering in favour of one political party but they failed to point out any specific plea or name of person or party and on this verbal assertion the petitioners want us to upset the entire delimitation and reshuffling/ restructuring of six Provincial Assembly seats in different NA seats.

4. At this juncture, we would also like to point out that one Muhammad Aslam has also filed an application under Order I Rule 10, C.P.C. for impleading him as respondent who was represented by Mr. Jam Zeeshan advocate. The learned counsel argued that the preliminary delimitation was carried out in accordance with the provisions of Elections Act, 2017 and Election Rules, 2017 which closely followed the earlier delimitation and created a less possible disturbance in the existing voter blocks. He further argued that if the petitions are accepted it would vary the population of National Assemblies more than 10% and at least half of the population would be replaced and earmarked to new constituencies. He further argued that the present delimitation was carried out in most sensible manner for determining the Northern end of the district i.e taking most Northern point from the center of the district.

5. We do not find any substance in the contentions raised by the petitioners for upsetting the entire delimitation process. As a result of above discussion, the petitions are dismissed in limine with no order as to cost.

(Y.A.) Petition dismissed

PLJ 2019 Karachi 39

Present: Salahuddin Panhwar, J.

JAHAN ARA--Petitioner

versus

PROVINCE OF SINDH through Secretary, Home Department and 3 others--Respondents

C.P. No. S-2057 of 2017, decided on 2.5.2018.

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

----S. 491--Scope of--Habeas Corpus--Constitutional jurisdiction--Custody of minors--Pendency of guardian petition--Criterion for jurisdiction under habeas corpus--Interim arrangement--At time of entering into legal fight with respondent she was neither having a complaint of recent removal of present minors (alleged detenues) nor had felt any urgency though they (alleged detenues) were with respondent at such time--Petitioner has not apprehended that father will shift custody of minors out of country thereby attempting to close all rooms upon her custody through legal fight--Since status of petitioner as mother of minors (alleged detenues) is not a matter of dispute hence he legally cannot be denied right of visitation therefore, as an interim arrangement petitioner would be allowed to meet both minors (alleged detenues) on fortnightly, basis in premises decided by family Court--Petition was dismissed.

[Pp. 46 & 47] A, C & D

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

----S. 7--Jurisdiction of Family Court--The resort to habeas corpus jurisdiction legally cannot be exercised, particularly when petitioner has also filed petition before the Family Court under Section 7 of Guardian & Wards Act, 1890 thus prima facie--It is not a case, involving question, of recent removal of minor from lawful custody as well no great urgency is shown to be existing which could justify removal of minors from otherwise lawful custody of .their father (respondent)--Further, minors (alleged detenues) are admittedly not suckling child (very tender age) but are school going children and there has not been any allegation of apprehension of any harm/legal--Injury to minors if they stay/remain with respondent (father) during course parties get question of ‘welfare of minors’ determined by proper guardian Court where she (petitioner) has approached. [P. 46] B

Mr. Hussain Bukhsh Saryo,Advocate for Petitioner.

Mr. Wajid Ali Khaskheli, Advocate for Respondent No. 4.

Date of hearing: 26.4.2018.

Judgment

Salahuddin Panhwar, J.--Through instant petition, petitioner has invoked constitutional jurisdiction of this Court under habeas corpus petition wherein seeking custody of master Farhan and Baby Mehwish aged 5 years and 3 years respectively.

1. Record reflects that petitioner, mother of minors, contracted marriage with Respondent No. 4; from that wedlock there are four issues; two minors aged about 6 months and another one and a half years are residing with the petitioner whereas two minors (alleged detenues) are under the custody of Respondent No. 4 (father).

2. Documents placed on record by learned counsel for respondent shows that the petitioner preferred suit for maintenance claiming therein that she was compelled from her house and divorced hence she is entitled for maintenance of one minor, at that time she was pregnant.

3. While relying upon PLD 2010 Karachi 119, 2013 PCr.LJ 1503, SBLR 2015 Sindh 207, SBLR 2013 Sindh 510, PLD 1997 SC 852, 1998 SCMR 289, 2009 PCr.LJ 118 and 1994 PCr.LJ 2570, learned counsel for petitioner contends that under Section 491 Cr.P.C issue of forcibly removal is not material and this Court has to examine whether right of hazanat lies in favour of petitioner; he further contends that admittedly minors are under seven years hence right of hazanat is in favour of petitioner therefore this Court has no-option except to hand over the custody of minors to the mother however respondent may approach to the Guardian and Wards Court.

4. Whereas learned counsel for Respondent No. 4 while relying on PLD 2012 SC 758, 2001 SCMR 1782, 2013 YLR 583 and 2008 MLD 751, contends that scope of Section 491, Cr.P.C. with regard to habeas corpus is applicable in matters of forcibly dispossession or illegal detention whereas alleged improper custody by the father is to be decided by the Guardian and Wards Court as well petitioner left the house of Respondent No. 4 at her own choice and since one year she is residing with her parents alongwith two kids; both kids are school going and in District Tando Qaisar Taluka Hyderabad, whereas petitioner is residing in Karachi therefore at this juncture removal of custody would be not be in the welfare of the minors as their education would be disturbed and this issue may be left open for Guardian and Wards Court to decide interim/permanent custody. Besides, he has placed birth certificate showing therein that minors’ ages as 7 years and 5 years respectively.

5. Heard the parties and perused the record.

6. I am not inclined to proposition, so raised by the learned counsel for the petitioner, that “right of hizanat shall control the jurisdiction under habeas corups”. I have gone through the case laws, relied by learned counsel for the petitioner but same also do not support the said proposition. The law however is clear that for mere pendency of a guardianship application or availability of such jurisdiction would not ipso facto debar jurisdiction of habeas corups yet it would not control the absolute and exclusive jurisdiction of guardian Court in such like matter but could only be availed under certain criterion/situation.

7. In the case of Mst. Ghulam Fatima vs. The State (1998 SCMR 289), relied by petitioner, it is contended that pendency of the guardianship matter before a Family Court would not affect the proceedings pending under Section 491 of Cr.P.C. Relevant portion of such dictum which says that:

“At the outset it may be mentioned here that pendency of the guardianship matter before a Family Court, would not affect the proceedings pending under Sections 491 of Cr.P.C. Such question arose in the case of Muhammad Javed Umrao v. Mst. Uzma Vahid (1988 SCMR 1891) where a learned Bench of this Court observed as below:

“It is true that facts of individual cases may be such where the cover of proceedings of one sort is taken for advancing the cause of other. In such cases it has to be ascertained, as to, what is the substance of the proceedings and thereafter the proceedings are to be diverted to the appropriate channel be it of Section 491, Code of Criminal Procedure or one under Guardians and Wards Act.”

In said case the mother of children approached Family Court for custody of her minor children, but when she suspected that the minors were being shifted outside the jurisdiction of the Court, she moved the High Court under Section 491 of Cr.P.C. There is another view expressed in the case of Mst. Aisha Bibi v. Nazir and others (1981 SCMR 301), where it was observed that where the dispute between the parties is essentially regarding custody of the girl and no question of any forcible detention was raised, such was essentially a matter for Guardian Judge to resolve and no justification is made out in such a case for issuing a direction in the nature of writ of habeas corpus. In the case of Mst. Zenia v. Ahmed Jawad Sarwar (PLD 1994 Lah. 577) a learned Single Judge took view that the provisions of Section 491 of Cr.P.C. are more appropriate, efficacious and speedy. In the case of Muhammad Javed Umrao (1988 SCMR 1891) a learned Bench of this Court held that the two matters, one dealt with under Section 491 of Cr.P.C. and the other under Guardians and Wards Act were entirely different and there is no question of the one excluding the other, the one overlapping the other or the one destroying the other. In light of the case law, the High Court was not right in dismissing the Criminal Miscellaneous Application No. 10 of 1994.”

1. On similar analogy honourable apex Court has decide the case of Nisar Muhammad and another vs Sultan Zari (PLD 1997 SC 852) wherein it is contended that “The custody of the male child of such a tender age as 2 years and 8 months perhaps could have been provisionally given to the petitioner-mother in the case of Mst. Shaheen (PLD 194 Peshawar 143). Further it was held that “The only question was whether the detention of the child by the father was illegal at the time when the application was made. If it was so, then the other considerations apart which had to be determined by the Guardian Judge in the proper proceedings, the custody could have been provisionally given to the petitioner therein leaving all other matters to the Guardian Judge for determination.”

2. Whereas in the case of Mst. Nadia Parveen vs. Mst. Almas Naureen (PLD 2012 SC 758) it is contended that matter of custody of minor children can be brought before the high Court under Section 491, Cr.P.C. only if the children are of very tender ages they have quite recently been snatched away from lawful custody and there is a real urgency in the matter. In such a case the High Court may only regulate interim custody of the children leaving the matter of final custody to be determined by a Guardian Judge.

The above case laws help me in concluding that though every case would have its own peculiar fats however this would never change the following criterion which would be required to be examined by the Court while exercising jurisdiction under habeas corpus in such like matter i.e:--

(i) such jurisdiction never controls the absolute jurisdiction of Guardian Court which is proper forum for determining the welfare of the minor; (meaning that any order under such habeas corpus jurisdiction would have no bearing on merits of guardian proceedings).

(ii) only a temporary arrangement could be made which too shall be subject to:

(a) where the minor is of very tender age;

(though term very tender age is not defined however it has got nothing to do with hizanat else honourable Apex Court would have used hizanat in place of very tender age)

(b) minor quite recently been snatched away from lawful custody; (since legally custody of child with mother or father is not illegal yet if a patty to take advantage in Guardian Court removes minor from lawful custody same with help of habeas corpus jurisdiction be brought as it was earlier);

I would add that quite recent removal would also be applicable even if same is under a deception by exploiting jurisdiction of guardian Court, as was held in the case of Ahmed Sami & 2 others v Saadia Ahmed & another (1996 SCMR 271) as:

“It is true that a Guardian Court is the final arbitrator to adjudicate upon the question of custody of child but this does not mean that in exceptional cases when a person who is holding the custody of a minor lawfully and has been deprived of the custody of minor has no remedy to regain the custody pending adjudication by the Guardian Court. In exceptional cases where the High Court finds that the interest and welfare of minor demanded that the minor be committed immediately to the custody of the person who was lawfully holding the custody of minor before he was deprived of the custody, the Court can pass appropriate order under Section 491, Cr.P.C. directing restoration of the custody of minor to that person as an interim measure pending final decision by the Guardian Court.”

(c) there is a real urgency in the matter; (this is of prime consideration as it has direct nexus with welfare of minor even in temporary arrangement;

(d) there is apprehension that minor would be shifted out of country to diverge the proceeding under Guardianship and deprive the custody of petitioner.

1. The above criterion is well within guidance, provided by earlier case laws on the subject as well the very recent view of honourable Apex Court in case of Mirjam Aberras Lehdeaho v. SHO, PS Chung, Lahore and Ors (2018 SCMR 427) where, after discussing earlier views, it has been concluded in response to proposition:

“Whether the petition before the High Court under Section 491 read with Section 561-A, Cr.P.C. was not maintainable”

as:

1. The Guardian Court is the final Arbiter for adjudicating the question of custody of children. However, where a parent holding custody of a minor lawfully has been deprived of such custody, such parent cannot be deprived of a remedy to regain the custody while the matter is subjudice before a Guardian Court. Therefore, in exceptional cases (like the instant case), where the High Court finds that the best interest and welfare of the minor demand that his/her custody be immediately restored to the person who was lawfully holding such custody before being deprived of the same, the Court is not denuded of jurisdiction to pass appropriate orders under Section 491, Cr.P.C. directing that custody be restored to that person as an interim measure pending final decision of the Guardian Court. While the tender age of the minor is always a material consideration but it is not the only consideration to be kept in mind by the High Court. Other factors like best interest and welfare of the mirror, the procedural hurdles and lethargy of the system, delays in finalization of such matters, the handicaps that the mother suffers owing to her gender and financial position, and above all the urgency to take appropriate measures to minimize the trauma, emotional stress and educational loss of the minor are equally important and also need to be kept in mind while granting or refusing an order to restore interim custody by the High Court. The two provisions of law namely Section 491, Cr.P.C. and Section 25 of the Guardians and Wards Act deal with two different situations. As such, the question of ouster of jurisdiction of the High Court on account of provisions of Sections 12 or 25 of the Guardians and Wards Act or pendency of proceedings under the said provisions does not arise. There is no overlap between the two provisions as both are meant to cater for different situations, the first to cater for an emergent situation, while the latter to give more long term decisions regarding questions relating to guardianship of minors keeping in view all factors including their best interest and welfare.

2. We are not .persuaded by the argument of the learned counsel for Respondent No. 2 that the remedy under Section 491, Cr.P.C. is barred in view of the availability of an alterpative remedy by way of approaching a Guardian Court of competent jurisdiction. This Court as well as the High Court in exercise of their powers under Section 491, Cr.P.C. have to exercise parental jurisdiction and are not precluded in all circumstances from giving due consideration to the welfare of the minors and to ensure that no harm or damage comes to them physically or emotionally by reason of breakdown of the family tie between the parents. ...

3. Reverting to merits of the case, what prima facie appears from the record is that about a year back, the present petitioner (mother) earlier had filed a suit for maintenance of, minor who was with her but had not moved to any lawful forum for custody of present minors (alleged detenues) who were/are with respondent. This prima facie means that at time of entering into legal fight with respondent she was neither having a complaint of recent removal of present minors (alleged detenues) nor had felt any urgency though they (alleged detenues) were with respondent at such time. However, after about two months, she (petitioner) filed instant petition but without detailing those exceptional circumstances which could justify invoking of habeas corpus which legally is not a substitute to a proper guardianship application but an exception available in exceptional situation only which too for temporary arrangement. In absence of those developed exceptional circumstances, the resort to habeas corpus jurisdiction legally cannot be exercised, particularly when the petitioner has also filed petition before Family Court under Section 7 of Guardian and Wards Act, 1890, in March 2018. Thus, prima facie it is not a case, involving question, of recent removal of minor from lawful custody as well no great urgency is shown to be existing which could justify removal of minors from otherwise lawful custody of their father (respondent). Further, the minors (alleged detenues) are admittedly not suckling child (very tender age) but are school going children and there has not been any allegation of apprehension of any harm/legal. injury to minors if they stay/remain with respondent (father) during the course the parties get question of ‘welfare of minors’ determined by proper guardian Court where she (petitioner) has approached. The present petitioner also has not alleged that there is apprehension of removal of minors from custody of respondent (father) with an object to defeat the jurisdiction of guardian Court where such matter is pending rather the present petition was solely based on the count of hizanat which, as already discussed, is not sole criterion for jurisdiction under habeas corpus. As well petitioner has not apprehended that father will shift the custody of minors out of the country thereby attempting to close all rooms upon her custody through legal fight. On other hand, the continuous custody of the minors (alleged detenues) with respondent (father) least from time of divorce to present petitioner(more than a year) is not disputed, which too without an allegation of a harm to welfare of minors (alleged detenues), are circumstances justifying with-holding of exercise under habeas corpus particularly when same would surely affect the minors towards their education as well emotion if they (alleged detenues) are parted from atmosphere/ circumstances which do include their friends; school; teachers etc.

4. In view of above, I do not find any substance in instant petition which is accordingly dismissed, leaving the parties to contest

their case before Guardian Court which shall decide the matter expeditiously as per law, preferably within three months.

1. While parting; I would say that since the status of the petitioner as mother of the minors (alleged detenues) is not a matter of dispute hence he legally cannot be denied the right of visitation therefore, as an interim arrangement petitioner would be allowed to meet both minors (alleged detenues) on fortnightly, basis in the premises decided by family Court. The respondent being father, shall bear expenses of such meeting. Needless to mention that direction of visitation are subject to further order passed by Family Court.

(M.M.R.) Petition dismissed

PLJ 2019 Karachi 47

Present: Salahuddin Panhwar, J.

AKBER--Petitioner

versus

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

C.P. No. S-895 of 2018, decided on 10.5.2018.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional Petition--Illegal arrest--Harassment without any justification--Mental agony--Illegality--Lawful Authority--Direction to--Police officers are directed that in such type of cases a notice in writing shall be provided to concerned person (citizen), notice shall include details of inquiry /investigation .and on due appearance acknowledgment receipt shall be given to that citizen, such record shall be kept by every police station separately--Therefore, it is hoped rather expected that ultimate supervisory authority of every District i.e ‘Senior Superintendent of Police’ to:

(i) know people of his district and to know what his subordinates are doing;

(ii) by conducting meeting and attending grievances of public in this regard;

(iii) by taking legal action against any guilty official;

(iv) by educating officials to follow procedure;

No harassment on pretext of inquiry or information shall be caused, which may’ cause mental agony to citizen however if an assistance is found necessary then proper procedure shall be followed--IGP Sindh shall ensure that from now on every single police official shall follow procedure and a lawful authority be not allowed to be turned into harassment or an illegality. [P. 54] E, F & G

Principle of Administrative of Justice--

----An authority would only become lawful if directed procedure is followed because failure to follow procedure may turn a legal act into an illegality. [P. 50] A

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

----S. 44--Public Informan--Offences--Unearthing crimes--Right and obligations--A failure in establishing faith and confidence in public would not only result in keeping police officials wondering in search of assistance but would also leave a door opened for criminals to take role of helper thereby threatening concept of society even.

[P. 52] C

Harassment--

----Harassment means a course of conduct which annoys, threatens, intimidates, alarms, or puts a person in fear of his safety--Police officials, being bound by law, are never supposed to adopt such a course rather their every action is expected to be well within strictly drawn four corners of law. [P. 53] D

Legal Obligations--

----It clear that such lawful authority even has not given unbridled powers but brings such officer under a legal obligation to:--

(i) serve a summon/notice upon such person wherein date, time and place for appearance shall be mentioned;

(ii) date and time of his arrival as well departure shall be maintained/noted;

(iii) no avoidable trouble shall be given such person;

[P. 51] B

Mr. Noor Muhammad, Advocate alongwith Petitioner.

Mr. Raza Mian, DSP Legal on behalf of I.G.P. Sindh.

S.I.P. Javed Akhtar of P.S. Momindabad, Karachi.

Date of hearing: 10.5.2018.

Order

Through instant petition, the petitioner seeks directions to provide protection to him as well his family members and prays for an inquiry into the matter.

1. Precisely, relevant facts are that the petitioner is working in “Sarfraz Leath Karkhana”, situated in Mominabad, Karachi. On 24.03.2018 while the petitioner was present in the karkhana, police officials came and beat the petitioner. On query, the police told that they have to recover stolen articles and also to arrest absconding accused and then took the petitioner to P.S. Mominabad and kept him detained. After sometime, two police officials in plain clothes came and started beating the petitioner; he then submitted an application to the respondents for redressal of his grievances, but to no avail, hence the petitioner has filed the present petition with following prayers:--

(a) To issue directives to the Respondents No. 2 & 3 to inquire into the matter and take action against the responsible according to law.

(b) To direct the Respondents to provide protection to the petitioners and his family /brothers against the harassment caused by the police officials.

(c) Any other efficacious and equitable relief(s) as this Honourable Court may deem fit and proper under the circumstance of this constitution petition.

1. SIP Javaid Akhtar, Respondent No. 4, present and filed comments contending therein that the petitioner was called at police station with regard to information of two accused persons, having friendship with petitioner. Petitioner present contends that he has provided such information, despite of that concerned SHO is causing harassment without any justification. Official present in Court is unable to submit any notice issued by him to the petitioner or any acknowledgment receipt with regard to appearance of petitioner.

2. The admission of the Respondent No. 4 with regard to calling the petitioner for information which the petitioner claimed to have provided to Respondent No. 4 prima facie made the Respondent No. 4 to produce the requisite notice for such purpose which he (Respondent No. 4 failed. At this juncture, it is pertinent to mention that legally a competent police official always has jurisdiction (right) to call anyone for information or production of documents even while address is under legal obligation to provide such information or documents. Such competence (right) in law has been recognized as ‘lawful authority’ while an act of avoidance; refusal and preventing have been termed as ‘contempt of lawful authority’. The Chapter-X of Pakistan Penal Code, 1890 is having heading as “of contempt of the lawful authority of public servant”. Such acts and omissions have been recognized as offence(s). The term ‘public servant’ does includes police officer therefore, competence of a police officer to summon one for information or document is lawful.

3. There can be no denial to the well established principle of administration of justice that an authority would only become lawful if directed procedure is followed because failure to follow procedure may turn a legal act into an illegality. Now, let’s see how the police office is required to exercise such lawful authority. This has been explained in Rule 25.2 (Chapter-XXV) of Police Rules, 1934 as:

25.2. Powers of investigating officers.--(1) The powers and privileges of a police officer making an investigation are detailed in Sections 160 to 175, Criminal Procedure Code.

An officer so making an investigation shall invariably issue another in writing inform 25.2(1) to any person summoned to attend such investigation and shall endorse on the copy of the order retained by the person so summoned the date and time of his arrival at, and the date and time of his departure from, the place to which he is summoned. The duplicate of order shall be attached to the case diary.

(2) No avoidable trouble shall be given to any person from whom enquiries are made and no person shall be unnecessarily detained.

There has also been provided a format of notice as:

FORM No. 25.2(1)

ORDER TO REQUIRE ATTENDANCE AT INVESTIGATION UNDER SECTIONS 180 AND 175, CRIMINAL PROCEDURE CODE.

Name _______ son of _______ caste ______ Resident of _______

Whereas the presence of the aforesaid person is necessary for the purpose of enquiry into the offence reported to have been committed under section ______ at Police Station ____________ therefore the said person is hereby directed to appear before the undersigned at (place hour date) there to give such information relating to the said alleged offence as he may possess.

Signature and Designation of issuing Police Officer

Date _________ Hour

Note:--

........ mentioned in this order attended on at and was permitted to leave on at at ____________

Dated Signature and Designation of issuing Police Officer

1. The above makes it clear that such lawful authority even has not given unbridled powers but brings such officer under a legal obligation to:--

(i) serve a summon/notice upon such person wherein date, time and place for appearance shall be mentioned;

(ii) date and time of his arrival as well departure shall be maintained/noted;

(iii) no avoidable trouble shall be given such person;

Having attended to competence of police Official as well his obligation in exercise of such lawful authority, now, I would add here that since it can never be believed that a police officer would necessarily learn about the person, having some information or documents, necessary to unearth a crime therefore, it is always hoped rather believed from every member of a society to come forward in aid of law enforcing agency in achieving the ultimate object i.e bringing a criminal to justice. This obligation has been detailed as Chapter IV of Code (Cr.P.C) which has heading “Of aid and information to the Magistrates, the police and persons making arrests” and such Chapter is consisting upon Sections 42, 43, 44 and 45, Cr.P.C. It would be conducive to reproduce Section 44, being relevant, as under:

1. Public to give information of certain offences. (1) Every person aware of the commission of, or of the intention of any other person to commit, any offence punishable under any of the following Sections of the Pakistan Penal Code, namely, 121, 121-A, 122, 123,123-A, 124, 124-A, 125, 125-A 126, 130, 143, 144, 145, 147, 148, 153-A, 161, 162,163, 164.165. 168,170,231, 232, 255, 302, 303, 304, 304-A, 364-A, 382, 392, 393, 394, 395 396, 397, 398, 399, 402, 435, 436, 449, 450; 456, 457. 458, 459, 460 and 489-A, shall, in the absence of reasonable excuse, the burden of proving shall lie upon the person so aware, forthwith give information to the nearest Magistrate [Justice of the Peace] or police-officer of the such commission or intention.

(2) For the purposes of this section the term, ‘offence’ includes any act committed at any place out of Pakistan which would constitute an offence if committed in Pakistan.

1. From above discussion and references of relevant Chapters of the Codes (PPC & Cr.PC) it should no more be confusing that unearthing crimes would always require a good coordination of right and obligation. A failure in establishing faith and confidence in public would not only result in keeping the police officials wondering in search of assistance but would also leave a door opened for criminals to take role of helper thereby threatening the concept of society even. This concept has elaborately been detailed in Chapter XXI of Police Rules. Without a direct reference thereto the lust of subject would never find satisfaction, hence the same is referred hereunder:--

Prevention and detective organization:--The criminal of law in (Pakistan) and the police organization, which is based upon it, are both founded on the principle that public order depends essentially upon the responsibility of every member of the community within the law to prevent offences and to arrest offenders. The magisterial and police organization is set up to enforce, control and assist this general responsibility. This fundamental principle must be thoroughly understood and borne constantly in mind by police officers of all ranks, but more especially by gazetted officers and upper subordinates.

Instructions as to the general relations between police officers and magistrates are contained in Chapter 1 of these Rules and some further detailed instructions are placed in this chapter. The ideal to be aimed at in respect of relations with the public is that every police officer, of whatever rank, should be regarded by every law- abiding person as a wise and impartial friend and a protector against injury to his person and property. In proportion as this ideal is approached, the police will receive the information and assistance which they need, in order to combat crime successfully. When confidence and co-operation are lacking, private persons and village officials escort to connivance at crime and to seeking redress for their own losses through threat with criminals; the police are isolated in their efforts to prevent and detect offences, and can hope for but a small measure of success.

The proper relations between the police and the public in a district depend primarily upon the personal attitude of the Superintendent, and the example set by him and enforced upon his subordinates. The most important duties of a Superintendent are to know the people of his district and to know what his subordinates are doing. Such knowledge can only be gained by the fullest personal accessibility, activity in touring, thorough and intelligent supervision and a sympathetic interest in the life of the district and the facts and difficulties of the work of his own men. He must inspire confidence in his subordinates, as well as in the public. While alert to check tyranny, dishonestly and other abuses by his subordinates, he must be accessible to them as to non-officials, and ready at all times to help them in their difficulties and support them against the evil influences, which they have to face. This should be the attitude of all supervising officers. They should ensure direct access to themselves impeded by their subordinates, and must be ready to give a patient hearing to all complaints and grievances, but must avoid creating any impression of spying, which would destroy the confidence and undermine the authority of their officers.

1. Reverting to merits of the instant case what came out on surface is that a lawful authority not found to have been exercised in accordance with law which resulted into a complaint of harassment. The term harassment means a course of conduct which annoys, threatens, intimidates, alarms, or puts a person in fear of his safety. Police officials, being bound by law, are never supposed to adopt such a course rather their every action is expected to be well within strictly drawn four corners of law. If the police officials continue in such manner it shall result what has been mentioned in the Chapter-XXI as:

“...When confidence and co-operation are lacking, private persons and village officials escort to connivance at crime and to seeking redress for their own losses through threat with criminals; the police are isolated in their efforts to prevent and detect offences, and can hope for but a small measure of success”

This cannot be allowed to hold the field as it may result in collapsing the concept of safety which otherwise is the soul of every society.

1. Accordingly, police officers are directed that in such type of cases a notice in writing shall be provided to the concerned person (citizen), notice shall include the details of inquiry investigation and on due appearance acknowledgment receipt shall be given to that citizen, such record shall be kept by every police station separately. Therefore, it is hoped rather expected that ultimate supervisory authority of every District i.e. ‘Senior Superintendent of Police’ to:

(i) know the people of his district and to know what his subordinates are doing;

(ii) by conducting meeting and attending grievances of public in this regard;

(iii) by taking legal action against any guilty official;

(iv) by educating officials to follow the procedure;

This shall develop a proper relation between police and public which would materially help the police in combating the crime and criminal elements.

1. Besides, since the petitioner has also claimed to have provided required information about his friends therefore, I would not go in determining bona fide of Respondent No. 4 in calling the petitioner for such purpose but would prefer to leave it open for Sr. Superintendent of Police (Respondent No. 3 ) to examine, if is moved by petitioner. However, no harassment on the pretext of inquiry or information shall be caused, which may cause mental agony to the citizen however if an assistance is found necessary then proper procedure shall be followed.

2. In view of above, instant petition is disposed of. IGP Sindh shall ensure that from now on every single police official shall follow the procedure and a lawful authority be not allowed to be turned into harassment or an illegality and comply with para-9 of this order. Moreover, a refresher of Chapter-XXV of Police Rules as well Chapter­XIV of Code (Cr.PC) be circulated at all police stations thereby hammering the Investigating Officers of their authority and obligations. This order is complied with in its letter and spirit in whole Province with compliance report within 15 days.

(M.M.R.) Petition disposed of

PLJ 2019 Karachi 55 (DB)

Present: Salahuddin Panhwar and Fahim Ahmed Siddiqui, JJ.

JALIL AHMED & others--Petitioners

versus

PROVINCE OF SINDH through Secretary and others--Respondents

C.P. Nos. 343 & 1075 of 2017, decided on 20.10.2017.

Pure Food Ordinance, 1960--

----Ss. 2(9)(15), 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 18 & 21--Tobacco Vend Act 1958, S. 2(e)--Constitution of Pakistan, 1973, Art. 199 Constitutional Petition--Manufacturing and selling of chahliya Masala, etc. Hazardous business--Injurious to Health--Scope of Food Laws--Validity of Statute--Right to sell--Direction to--It was only after such report which necessitated for issuance general direction only to stop sale of hazardous/ articles to health articles/items which otherwise was/is not permissible--It appears that manufacturing, storing, distributing and even selling of Pan Masala requires food additives, likely to be used therein, to be of such standard as required by “Food Safety and Standards (Food Products Standards and Food additives Regulations, 2011--In other words Tobacco Pan Masala even in India never got an absolute exception ‘from operation of Food Laws and Regulations--Now, we can safely conclude that independent status of betel-nut and chewing tobacco to be not falling within meaning of food would not be sufficient for a self-imagined license to sell a mixture thereof with food additives particularly when same are found to be hazardous/injurious to health by allowing expansion of Tobacco Laws and limiting Food Laws--Court is not competent to limit or expand scope of a statute beyond its specified limitations because it is, otherwise, by now a well-established principle of law that hardship of few cannot be basis in determining validity of any statute--Law must be interpreted and applied on its plain language--Let’s take plea of sale of other injurious to health products like cigarettes, NASWAR etc. It would suffice to say that cigarettes are clearly governed by specific law while Tobacco Pan Masala does not Cigareites normally are not mixture of tobacco with other food additives same is position with NASWAR therefore, without making much comments, likely to prejudice issue not before us or a room for exercise of suo-moto jurisdiction which Court doesn’t, we would say that such plea is not helpful for petitioner as well as Intervener--Petitioner and Intervener are undeniably not growers of tobacco hence for sale of their products could not be continued except under a license which petitioner and Intervener do not have--Intervener and any person, dealing in such like product, would not be legally entitled for selling I marketing their Tobacco Pan Masala without first obtaining necessary license from competent authority, under relevant laws if such authority considers such product to be one falling within meaning of Chewing Tobacco--Federal Government as well Provincial Government prima facie failed to address issue despite its alarming rather abnormal effects upon young generation--Preparation of a Bill of a Law is nothing more than a bunch of papers because objectives thereof cannot be achieved unless a “Bill” becomes “Law” by completion of required process--This Court is direct custodian of fundamental rights hence can issue any appropriate directions for proper enforcement of a fundamental right--

(a) The, Secretary, Local Government shall ensure:

(i) true enforcement of Section 11 of Pure Food Ordinance, 1960 which insists for a License for preparation/ manufacturing; processing; blending; preserving, refrigerating, canning or bottling of any food canning or bottling as well to deal as wholesale dealer;

(ii) true enforcement of 15 of Pure Food Ordinance, 1960;

(iii) appointment of required number of Inspector (s), as per Section 16(1) of Pure Food Ordinance, 1960 but strictly following rules and procedure for such recruitment;

(iv) establishing of Lab, specifically meant for analysis of foods;

(c) Chief Secretary/Law Secretary shall:--

(i) follow-up process of proper enactment for permanent ban of GUTKA & MAINPURI or same product with any other title; and

(ii) process for enactment like Food Safety and Standards (food Products Standards and Food additives) Regulations’, 2011 so as to bring everything likely for human consumption under some safety and standard criterion;

(iii) write to Tobacco Board for clarification whether sale of TOBACCO PAN MASLA is permissible under Tobacco and Vend Act or Ordinance--If so, mechanism detailed too.

(iv) direct all Commissioners and Deputy Commissioners to ensure that GUTKAI MAINPURI and similar items are not sold or manufactured in their respective areas--They would be competent to take action against manufacturers, wholesalers and retailers, under relevant laws.

Gravity of issue would be appreciated by legislature while making enactments or amendments and proper and adequate punishments would be provided as well to consider making such offences cognizable so that such evil, causing prejudice to nation as a whole, may not earn their liberty by claiming offences boilable/non-cognizable Needless to mention that Since petitioner (CP No. 343) and Intervener have never made a categorical and, clear claim that status of manufacturer does include a right to sell Tobacco Pan Masala without a license of such like products which have been declared o be not fit for human consumption rather hazardous/ injurious to health therefore, legally they cannot claim continuity of sale of their product i.e Tobacco Masala under any name.

[Pp. 67, 71, 72, 73, 74, 75, 76, 77 & 78] D, H, I, J, L, M, N, O, P, Q & R

PLD 1989 Karachi, 404, ref.

Constitution of Pakistan, 1973--

----Art. 9--Liberty of a person--Hazardous Articles--Life--Word life is not limited to mere breathing but demands much more from State which includes an action by State to remove all threats likely to abridge such guarantee--Term ‘life’ so used in Article-9 of Constitution also requires State to come forward to help its subjects from use of any impure food or other injurious/hazardous to health items if same are otherwise at permitted. [P. 65] A & K

Constitution of Pakistan, 1973--

----Art. 18--Lawful Trade/Business--That protection of Article 18 of Constitution available to ‘lawful trade/business’ only which (lawful trade) eyen is subject to certain limitations hence plea of earning livelihood or dependency of number of persons in a business alone would not entitle one to get protection of Article 18 of Constitution. Since these pleas shall always be available for one committing a patent crime even therefore, protection of Article 18 of Constitution was deliberated worded in specific words whereby such protection could only be claimed if one satisfies coexistence of two conditions i.e--Business/trade must be lawful; and person, doing it, must follow relevant laws, regulating such business/trade--Fulfilling first condition is mandatory while exception can be to second condition because a failure to follow regulations could result in bringing penal clauses into operation hence fulfilling of requirements subsequently even may satisfy second condition but lacking or deficiency of second condition cannot declared a lawful trade/business as ‘unlawful’. [Pp. 66 & 67] B & C

PLD 2005 SC 193, ref.

Interpretation of Law--

----Meaning of term Food--It is by now a well settled principle of law that legislature intents can always be gathered either from express language of statute or by necessary implications. If words of Statute are themselves clear and unambiguous it is never necessary to expound those words in their natural and ordinary sense, words themselves in such a case best declare intentions of legislature--It is also equally well settled principle of interpretation that Courts are not supposed to read into and/or delete any word but requires giving meaning which is intended unless same is otherwise ambiguous--It had some wisdom which Legally cannot be questioned but interpreted: deliberation in expending meaning of term ‘food’ would stand clear from explanation that use of such article as medicine too shall not be sufficient to exclude such article from meaning of word ‘food’. [Pp. 68 & 69] E, F & G

2010 SCMR 1254, 2016 SCMR 430 & PLD 2012 SC 501, ref.

Mr. Ali Ahmed Palh, Advocate for Petitioner (in CP No. D-1075/2017).

Mr. Najeeb Jamali, Advocate for Respondent No. 11 (in CP No. D-343/2017).

Mr. Jhamat Jethanand, Advocate as Amicus Curiae.

Mr. Ismail Bhutto, Assistant A.G. Sindh.

Date of hearing: 28.9.2017.

Judgment

Salahuddin Panhwar, J.--By this common judgment, we are going to dispose of above titled Constitutional Petitions.

C.P. No. D-343/2017 prays as that:--

(a) to direct Respondents No. 1 to 10 and their subordinates, police including all SHOs working within their supervision, all Choki Incharge under supervision of SHOs’ and all police posts and also police pacts and lower officials of police to provide legal and lawful protection to the J.A. CHAHLIYA MASALA Company, its employees, distributors, authorized agents, worker-s, labors and transporters.

(b) To direct Respondents No. 2 to 10 to pass oral as well as written direction to all concerned officials working in their supervision not to interrupt, not harass, not demand illegal gratification, not stop form distributing, selling, transporting and not to create undue harassment and illegal demands form ‘the said employees, distributors, authorized agents, workers, labors and transporters J.A. CHAHLIYA MASALA company.

1. Petitioner states that he is running a company namely J.A. CHAHLIYA MASALA registered with Trade Mark Registry, Karachi, having registration certificate issued by that authority; such registration is for the purpose of manufacturing and selling of Chahliya masala, sweet toffee, bubblegum, chocolate, pan masala and all other confectionary items included in class 30 of Trade Mark Registry; petitioner’s company is carrying a lawful business and their rights to run such business are guaranteed under the Constitution, petitioner, being registered with FBR, paying all applicable government taxes; that petitioner’s company has authorized agents all over Sindh and is transporting the goods all over Sindh specially to Tando Allahyar ; Districts Hyderabad; Matyari, Shaheed Benazirabad, Sanghar, Mirpurkhas, Tando Muhammad Khan and Thatta engaging labourers and being source of livelihood for sellers, contractors, shop owners all over the province; that during business activities such as distribution, selling and transporting of their products from one District to another, different police officials/officers of various Districts working under supervision of SSPs’ as Defendants No. 2 to 10, demand illegal gratification from subordinate staff, sellers, distributors and authorized agents of the petitioner’s company and threatened to disallow transportation from one district to another in case their demand is not fulfilled hence business activities of petitioner’s company are seriously suffering with resultant financial losses, hence this petition.

2. CP No. D-1075/2017 seeks:--

(a) To direct Respondents No. 6 and 7 to take strict action against sellers, suppliers and manufacturers of cheap liquor and gutka in the District Tando Allahyar, register cases against all those individuals who are openly involved in this hazardows business in different areas of the District and submit detail report before this Court within a month.

(b) To direct Respondent No. 7 to take strict action against private respondents who are confirmed involved in manufacturing, known manufacturer and sellers of gutka and cheap liquor and have destroyed the established manufacturing units in the district.

(c) To direct Respondent No. 3 to provide details on the laws/legislation enacted or drafted for prevention and elimination of this hazardous business which as affected our youth and society.

(d) To direct Respondent No. 8 to submit a comprehensive report on how many people have lost their lives or have suffered mouth cancer and other diseases due to consumption of gutka, toxic liquor.

(e) To direct Respondents No. 9 and 10 to furnish compete report in this Court showing measures and actions taken against police officers who support gutka and cheap liquor business and receive illegal gratification from them in return of running their illegal business.

1. Petitioner in his petition submitted that he is law abiding citizen and member of Right Now Pakistan, an NGO, working volunteer in Tando Allahyar District, having passion to work against social evils; that petitioner has learnt that cheap liquor is being sold openly with support of police and further that gutka which is another poisonous material is also being sold in almost every nook and corner of the said district and thousands of youth and the people of other age groups including women are being affected by the diseases; that unfortunate aspect of all this is that such illegal activities are being done under auspices of police and other state institutions that are generating hundreds of thousands of rupees illegally from this hazardous business; that despite loss of precious lives every year due to consumption of toxic and hazardous materials, gutka, etc there is lack of action by police. It is stated by the petitioner that any perpetrators involved in this business are doing business without any fear as if at all they are booked, they are tried under Sections 269, 270, etc. of the PPC which carry lesser sentence and fines and there is no particular legislation in petitioner’s knowledge which has been enacted to curb this menace. It is stated by petitioner that he, from time to time, moved complaints to respondents but all in vain. That petitioner filed an application bearing No. 2/2014 before the Court of District & Sessions Judge, Tando Allahyar, in response to that application police falsely claimed that present petitioner is habitual criminal and involved in many criminal cases; that sale of cheap poisonous liquor, gutka and other toxic materials apparently target health. The petitioner recently moved a complaint to authorities pointing out the centers and sellers of drugs as well as gutka and mainpuri, he was called by police and such statement was recorded but no action was taken against this illegal business, hence this petition.

2. It is material to add here that during hearing of the above petition an order was passed on 18.8.2017 which included

“.......In our view that type of business cannot be continued with protection of police and it appears that some of the relevant officers of food department that cannot be ruled out are involved and they have patronized the business. Mr. Aurangzeb Talpur Advocate further contends that Sindh Government has enacted law with regard to complete ban on these type of hazardous food items Accordingly DIGP Hyderabad is hereby directed to launch a campaign against all the factories and shop keepers who are selling hazardous food in the name of Chahliya with various brands and

Mr. Jhamat Jethanand, Senior Counsel was appointed to assist the Court as amicus curie as the issue involved was serious in nature.

It were the consequence(s) of the above order as well follow-up order(s) in above matter which resulted into appearance of the intervener for his impleading as one of the parties as he (intervener) claimed to have suffered in consequence to order(s) passed in above matter .

1. The petitioner in CP No. 343/2017 has contended that petitioner is engaged in a lawful trade; paying all taxes therefore was/is entitled for continuity of his business activities without any hurdle but the officials, particularly police, does interfere; that his business, being lawful, requires guarantee provided by the Article 18 of the Constitution.

2. On the other hand, the petitioner in CP No. 1075/2017 argued that the business of selling Gutkha, Mainpuri as well tobacco pan masalas are hazardous/injurious to health hence cannot be termed as lawful trade. He even referred to photographs attached with petition so as to show the effects of use of such Gutkha, Mainpuri and Tobacco Pan Masalas; he also submitted a copy of bill for Prohibition of preparation, Manufacturing, Storage, Sale and Use of Gutka and mainpuri in Sindh Province, processed for its approval. He lasted while praying that complete ban is required on such illegal activity.

3. The learned counsel for the intervener claimed that he is a manufacturer of Dry Tobacco Pan Masala under Trademark; operating in the name and style of M/s New Farooq Products; is a recognized manufacturer of Tobacco product by Pakistan Tobacco Board as their name is listed on Page IV, 26 and 40 of Tobacco Statistical Bulletin Volume 40-41. He added that CP. No. D-343 of 2017 was against harassment of police officials in business product i.e. J. A. Chahliya Masala hence issue of tobacco Pan Masala was never before this Court but in consequences to order of this Court dated 18.8.2017 and regularly paying all the taxes, duties, cess/ fee imposed under various laws on him and his business; registered under the Factories Act, 1934; is an active member of Chamber of’ Commerce and Industry, Hyderabad; registered with Employees Old Age Benefits Institution and Sindh Employees Social Security Institution; has invested huge amounts in setting up his state of art manufacturing unit for manufacturing of chewing tobacco products. He has also imported machinery parts from abroad for the purpose of setting up the unit; was also successful in exporting its quality Chewing Tobacco via United Arabs Emirates to other countries with permission of Pakistan Tobacco Board and other concerned departments; had also filed Civil Suit No. 521 of 2013 against the Secretary Home Department, Police Officers and Director General Excise and Taxation and on 23.04.2013, the Honourable High Court was pleased to grant restraining order against the defendants therein from interfering in the manufacturing and lawful business of the present Intervener. In last it was claimed that tobacco is not food and gave references to number of well-known dictionaries in support of his such contention. Section 2 (9) of the Pure Food Ordinance, 1960 defines ‘food’ yet this definition does not cover chewing tobacco since chewing tobacco’ is a non-nutritious edible item. It is chewed and then spitted out, not taken into stomach. It is no food. The case of Abdul Razzak and Co. vs A.C. Customs (PLD 1993 Karachi 227) was referred for definition of “food”. He also referred to judgments of India Courts whereby such like product was not included in food. The Section 2 (e) Tobacco Vend Act, 1958 recognizes chewing tobacco as a form of manufactured tobacco. The Article 9 of the Constitution secures liberty of a person in all forms. It is the right of a person to enjoy freedoms and facilities provided in life with the limits prescribed by law; production or consumption of tobacco is recognized by laws as lawful and thus comes within the limits prescribed by law. Its consumption only affects the person consuming it and does not extend to people surrounding him. Prohibiting such an act will be in breach of this Article and thus unconstitutional hence this Court cannot ban manufacturing of chewable tobacco unless there is clear legislation to impose ban over it. Reliance was made to case of Arshad Mehmood (PLD 2005 SC 193) and Adeel-ur-Rehman (2005 SCMR 1). It was added that judiciary cannot assume the role of legislature. Reliance was made on the cases of Rahimud Din v. Sabahuddin (2016 MLD 20) and MQM v. Province of Sindh (2014 CLC 335). The bad effects of smoking were also highlighted as well of other articles including soft-drink etc which however are not prohibited.

4. Mr. Jhumat Jethanand advocate/Amicus Curiae contends that all the sachets/packets containing ‘adultered food’ as defined in Section 2(1)(i) to (vii) of the Pure Food Ordinance, 1960; definition of ‘food’ u/S. 2(9)(i) to (v) and explanation of Pure Food Ordinance, 1960 covers any article used as Food or Drink for human consumption other than drugs and includes substances, matters, chewing gum and other products of the like nature described in sub-clause (i) to (v) of sub-Section 2(9). Under the explanation the article shall not cease to be “Food” if it is capable of being used as medicine. Material placed in the above petitions shows that above articles Gutka etc. contain tobacco, Betel Nuts, Lime, Water, Saffron flavours etc., put in plastic Sachets/packets is sold in market without any restriction for no other purpose but for human consumption/chewing and mostly purchased by children of tender age without knowing the dangerous effects hence all the articles under different name of Gutka Manpuri, Dry Tobacco, Pan Masala etc. is tendered for human consumption/chewing are covered by the definition of “Food”. There is complete mechanism under the Pure Food Ordinance, 1960 to bring the offenders before the Court of law and get them punished. The record shows that the provisions of Sections 12 and 21, Sections 7 to 11 and 18 and Sections 3 to 6 and 13 are being violated with immunity through the connivance of police and ignorance or lack of knowledge or interest by the local authorities as defined u/S. 2(15), Pure Food Ordinance, 1960. There is a complete failure of performance of duty by local authority u/S. 15 of the Ordinance, 1960. There is’ failure by Public Analyst and Inspector u/S. -14 and 16 respectively. Material including the pleadings and documents produced by the intervener show that the entire business of manufacturer, storage and sale of above products is claimed without any license under any law including Section 11 of Pure Food-Ordinance, 1960. Contentions of the intervener that their products are governed under Tobacco Laws are not correct. Intervener himself has admitted that his products contain only 10% of Tobacco the remaining material in the product is Betal nuts, Lime, Water, Saffron, flavours etc. It is admitted that the packet of interveners contain warning with regard health and not to be used by person under 18 years of age; the very warning on the products proves that it is injurious to health. There is no guarantee if the sachet will not be having Fungus, Silica, Coloform bacteria after some time and there is no date of manufacture or expiry on the sachets. Comparison of the sale product with cigarette or alcohol is out of place as both these items are used mostly by adults while the product of intervener is admittedly being used by the children of tender age and have cused irreparable injury to the nation. Tobacco when used for sniff or smoking is not food but when it is used for chewing purpose or consumption it is food. The Indian decision, quoted on behalf of interveners beside being irrelevant does not show if the exercise conducted by this Court, the reports of officials and the uncontroverted analysis declaring Gutkaetc injurious to health and not fit for human consumption, were available before that Court passing the said decision. Complete ban on manufacture, sale and storage of Gutka etc will not in an manner interfere with the legal business and/or right of human begin to take pan masala etc. The business of all the ingredients used in Gutka etc is not being prohibited. All the items in their original pure shape are available in market. Anyone can purchase arid prepare pan masala for himself but not for sale. He referred the case laws reported as PLD 2009 Lahore 22; 2012 MLD 636; 2012 P.Cr.L.J. 1075; PLD 1978 SC 220; ­ PLD 2006 Ki 479; PLD 2004 SC 271; PLD 2004SC 482; PLD 1994 SC 102 & 693; 1994 SCMR 2061 and PLD 2001 SC 149. He lasted while submitting that that this Court is competent to issue appropriate directions even for making legislation.

5. We have heard the arguments of the respective sides; learned amicus curie as well have gone through the available record.

Before going deep into the matter it is necessary to make certain things/facts clear in view of the specific plea of Intervener that orders of this Court were consequences of suo-mota exercise. There were two petitions, pending before this Court; through one JA Chahliya, claiming its business of ‘JA Chhliya Masala’ to be lawful, prayed for on order to restrain officials from interfering in such business activities not limited to any District but whole Sindh province as shall stand evident from para-7 of petition which reads as.:

“07. That, the said petitioner is transporting the goods all over the Sindh especially to Tando Allahyar, District Hyderabad, District Matyari, District Shaheed Benazirbad...... “

therefore, challenge of Intervener that matter was confined to ‘Tando Allahyar District’ only was/is entirely misconceived. The order dated 18.8.2017 was in consequence to a report issued by Public Analyst Food Analysis Laboratory Hyderabad bearing No. DHO/TAR/ Gen:/4018/19 dated 10.8.2017 which reads as:

“Opinion The above samples of tobacco powder form Chahliya Masala, Lime Water, Betel Nuts, Chhaliya Masala (for sale) contains lime, catechu, tobacco, etc as their ingredients; these ingredients are not food items. These are all injurious to health. Hence samples does not recommend for human consumption within the meaning of Section (5) of Pure Food Ordinance, 1960 and also contravenes the provision of Rule (11) of Sindh Pure Foods Rules, 1965, with respect to the test performed.”

The issue prima facie involved sale of hazardous articles, offered for human consumption hence Article-9 of the Constitution directly became involved. The word life is not limited to mere breathing but demands much more from the State which includes an action by the State to remove all threats likely to abridge such guarantee. The petitioner (CP No. 343 of 2017) was insisting issuance of instructions while claiming sale of declared hazardous articles as lawful trade while in petitioner, (CP No. 1075/2017) was seeking direction for action against all involved in hazardous business. In either petitions the issue of hazardous effects on ‘LIFE’ of public at large was involved hence as per the case of M.Q.M. & Others v. Province of Sindh & Ors (2014 CLC 335) relied by learned counsel for the Intervener himself, this Court can issue any appropriate directions for enforcement of a fundamental right. Relevant portion thereof is reproduced hereunder:

“57. When a right is safeguarded by a Constitutional guarantee is called ‘fundamental right’ because by doing so it has been placed beyond the power of any organ of the State, whether, Executive or Legislative to act in violation of it. Such a right cannot be taken away, suspended or abridged. The fundamental rights are natural rights which are personal to the individual as a citizen of a free and civilized community. The essential characteristic of fundamental rights is that they impose limitations, express or implied, on public authorities, interfering with their exercise. It is the duty of the Court to protect Fundamental Rights granted in the Constitution. Article 199 of the Constitution empowers this Court to issue any appropriate directions for the enforcement of Fundamental Rights conferred by the Constitution. The superior Courts time and again pronounced that any law which is inconsistent and in contravention of fundamental rights or which took away or abridged such rights, is void, to the extent of such contravention. Paramountcy of fundamental right is recognized by the Constitution limiting the powers of State organs to the extent that what had been conferred by the Constitution is fundamental rights, could not be taken away or abridged by the State. What had been guaranteed by the Constitution is a fundamental right could not be annihilated or taken away in the garb of reasonable restrictions. The infringement of fundament al rights can be in many ways.”

Therefore, this Court passed a general order thereby directing the DIGP Hyderabad, Mirpurkhas and Shaheed Benazirabad to launch a campaign against all the factories and shop keepers who are selling hazardous food in the name of ‘Chahliya’ with various brands. It was further made clear by choosing specific and clear words as:

“… Such campaigns should however be not a formality but should be strictly in accordance with law and procedure thereby assuring that every single guilty of contravention of any law, costing serious damaging effect upon health and nation even, receives his due. If such items are not otherwise declared as injurious or in contravention of any law the requisite testing/chemical examination be got done first so as to prevent such campaign being exploited on plea of any prejudice to guarantee which law otherwise requires.’’

From above, it was/is never disputed that the balance was required to be maintained which otherwise is the obligation/duty of the Executing Functionaries. We, being conscious of law, would safely say that the protection of Article 18 of the Constitution is available to ‘lawful trade/business’ only which (lawful trade) even is subject to certain limitations hence plea of earning livelihood or dependency of number of persons in a business alone would not entitle one to get the protection of Article 18 of the Constitution. Since these pleas shall always be available for one committing a patent crime even therefore, the protection of Article 18 of the Constitution was deliberated worded in specific words whereby such protection could only be claimed if one satisfies coexistence of two conditions i.e:--

(i) business/trade must be lawful; and

(ii) person, doing it, must follow the relevant laws, regulating such business/trade;

Reference may be made to the very case of Arshad Mehmood & others v. Govt of Punjab and others (PLD 2005 SC 193), relied by learned counsel for the Intervener wherein it is held as:

1. It is well settled that the right of trade/business or profession under Article 18 of the Constitution is not an absolute right but so long a trade or business is lawful a citizen who is eligible to conduct the same cannot be deprived from undertaking the same, subject to law which regulates it .........”

We would not hesitate that fulfilling first condition is mandatory while the exception can be to second condition because a failure to follow regulations could result in bringing penal clauses into operation hence fulfilling of requirements subsequently even may satisfy second condition but lacking or deficiency of second condition cannot declared a lawful trade/business as ‘unlawful’ as was the ratio of case of Arshad Mehmood supra. Needless to add that mere self-imagination of being governed under a particular law alone would not turn an unlawful business into lawful.

1. As regard the plea of suo-moto jurisdiction. It would be sufficient to say that relief, sought in Petition No. 343/2017 was specifically relating to sale of tobacco Masla as lawful therefore, this Court for an appropriate order, got the product of petitioner (CP No. 343/2017) examined. For which this Court in exceptional matter, as was before this Court, can. Reference may be made to the case of Adeel-ur-Rehman referred by counsel for Intervener wherein it is held as:

“14. In the case at Serial No. 4, it was held that investigation in complicated questions of fact normally should be left to be done by the authorities concerned but the High Court while exercising writ jurisdiction can take evidence or even additional evidence when such evidence is necessary.......”

It was only after such report which necessitated for issuance of a general direction only to stop sale of hazardous/injuriousto health articles/items which otherwise was/is not permissible. Thus, issuance of such directions were always within four corners of the issue, involved in the petitions, therefore, the Intervener was again fell in misconception that this Court exercised suo-moto jurisdiction. Thus, the cases of Dr. Imran Khattak and Akhtar Abbas, so relied by the Intervener have got no relevancy.

These were the prima facie reasons because of which the review, so filed by the Intervener, never merited any consideration.

1. Having said so, before attending the merits of the case it would be necessary to say that these petitions as well case of Intervener are relating to ‘Gutkhas/mainpuri’ and ‘tobacco Masala’. The manufacturing of GUTKHAS/MAINPURl since has never been claimed to be lawful rather there have been notifications over complete ban on same hence this aspect does not need much discussion.

2. Now, focus remains with regard to sale of ‘TOBACCO PAN MASALA’ for which the Intervener also took plea that dry tobacco Masala was never before this Court. Suffice to such plea, it would be sufficient to refer the report of Public Analyst whereby the product of petitioner in C P. No. D-343/2017 was detailed to be containing almost all those articles which the product of Intervener does. Even otherwise, at no times any direction with regard to status of dry tobacco alone was issued by this Court but all the orders were confined to hazardous foods and sale thereof without their being first examination/declaration that same are safe for human consumption.

The case of present Intervener and that of petitioner (CP No. 343/2017) are almost identical though differently argued. Now, we would take every plea so raised by the Intervener.

1. It has been argued with much force that the ‘tobacco Pan Masala’ is not a food for which references to different dictionaries have been made. At the outset, we would not hesitate in saying that it is by now a well settled principle of law that 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 it is never necessary to expound those words in their natural and ordinary sense, the words themselves in such a case best declare the intentions of legislature. Reference may be made to the case of Mumtaz Hussain v. Nasir Khan (2010 SCMR 1254) wherein it is held as:

“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.”

It is also equally well settled principle of interpretation that the Courts are not supposed to read into and/or delete any word but requires giving the meaning which is intended unless same is otherwise ambiguous. Reference may be made to the cases of Zahid Iqbal v. Hafiz Muhammad Adnan and others (2016 SCMR 430) and Shakeel Sardar Awan v. Election Appellate Authority (2016 SCMR 242). Therefore, there appears no legal justification to take the meaning of the word ‘food’ from dictionaries when the Pure Food Ordinance, 1960 itself, defines the word ‘food’ as:

Section 2 (9) “food” means any article used as food or drink for human consumption other than drugs, and includes;

(i) any substance which is intended for use in the composition or preparation of food;

(ii) any flavoring matter or condiment;

(iii) any colouring matter intended for use in food;

(iv) chewing gum and other products of the like nature; and

(v) water in any form, including ice, intended for human consumption or use in the composition or preparation of food

Explanation. An article shall not cease to be food by reason only that it is also capable of being used as a medicine.

The deliberation in not limiting the meaning of ‘food’ to its ordinary dictionary meaning which are:

“as a nutritious substance especially sold in form that can be taken into an animal or plant to maintain life and growth.”

Hence is sufficient to conclude that it had some wisdom which Legally cannot be questioned but interpreted. The deliberation in expending the meaning of term ‘food’ would stand clear from explanation that use of such article as medicine too shall not be sufficient to exclude such article from meaning of the word ‘food’. Reference may be made to the case of Ghulam Haider v. Murad (PLD 2012 SC 501) wherein at Rel. P-541 it is held as:

“9. It is universally recognized principle of interpretation of statutes that where the plain language of a statute admits of no other interpretation then the intention of the legislature conveyed through such language is to be given its full effect...

In the same case it was further explained at page 548 that:

“9. ... It was held as back as 1916 in the case of T.G.Bhoja v. G.J. Thakur (AIR 1916 PC 182) that where the terms of Statute or Ordinance are clear even a long and uniform course of judicial interpretation of it may be overruled if it is contrary to meaning of enactment.”

Though, the above legal position is sufficient to avoid any further discussion onto such plea, however, let’s see what the Tobacco laws say about tobacco Pan Masala. Not a single reference has been made to any of the provision of Tobacco Laws which allows or permits sale of tobacco Pan Masalas. Be as it may, the Chewing Tobacco has also not been defined by the claimed applicable Tobacco Board Ordinance, 1968 as well West Pakistan Tobacco Vend Act, 1958 in a manner or fashion that it could include the TOBACCO PAN MASALA.

The learned counsel for the Intervener referred to the meaning of manufactured tobacco, per Section 2 (e) of West Pakistan Tobacco Vend Act, 1958 for justifying ‘Tobacco Pan Masala’ as chewing tobacco. The same reads as:

“2(e) “manufactured tobacco” means tobacco in any shape or form intended for the purpose of smoking chewing or for use as snuff, or any preparation or admixture of tobacco intended for the aid purpose or use, and includes bidis, cigarettes or cigars.”

The above definition even does not speak about Tobacco Pan Masala which is normally a mixture of:

“areca-nut’ (betal-nuts), slaked lime, and tobacco etc”

The intervener had attempted to take an exception by claiming that chewing tobacco and betel-nut do not have any properties which could make them fall within meaning of food. Since individual status of both these are not before this Court therefore, we feel it proper to refrain from making any comments on independents status thereof but would take the complete advantage of specific observations of honourable Apex Court, made in the case of Adeel-ur-Rehman and Ors v. Federation of Pakistan & others (2005 SCMR 1), referred by learned counsel for the Intervener himself wherein while dealing with issue of release of betel-nuts imported for use in ‘‘Nisar Allaichi Saunf Supari”, it has been observed as:

1. It is significant to note that the petitioners have not come to the Court with clean hands. They had done whatever possibly they could do to get the consignments released, irrespective of the fact that if released, it could cause “candida albicans”, serious infectious disease and moulds, which is another name of allergies caused by fungus and liver cancer (See “Foundations in Microbiology” by Kathleep Talaro and Artur Talalro, Second Edition, William C Brown Publishers, London, pages 146, 535 and 698). Besides, medical studies have shown that chewing of Pan containing betel nuts and other sweeteners causes sub-mucous fibrosis, which cause oral cancer (See ‘Tobacco Role in the Aetiology of Oral Cancer, Periodontal Disease and other Oral Leisons” by Doctor Heddie O. Sedano published by periodontics information Centre, University of California, Los Angeles, page 5).The petitioners have not even hesitated to submit fake reports for achieving their purpose.

The petitioner (CP No. 343/2017) as will intervener also attempted to get their product out of the scope of the Food Laws while saying that their products are chewed only and then spitted out hence do not go into stomach. Such explanation is never sufficient particularly when, Section 2(9)(vi) of Pure Food Ordinance, 1960 specifically includes ‘Chewing gum and other products of the like nature’ within meaning of ‘food’. The only logically reason for such deliberate expansion could be nothing but that in consequence of chewing the extracts of things, being chewed, directly go into stomach and only unwanted juices are expectorated therefore, would be considered for human consumption hence such things would always require to meet required standard of safety which the petitioner (CP No. 343) as well Intervener do not claim their products to be certified from any legal authority.

The learned counsel for the intervener has also given much stress upon the India Judgments which also seem to be not correctly applied as shall stand clear from reproduction of relevant portion thereof which is:

“Having perused the pleadings of the parties and materials on record including the impugned order, dated 07.11.2014, aforementioned, this Court finds and it is not disputed by the respondents that manufacture storage, distribution or sale of Pan Masla is not prohibited under the Food Safety and Standards Act, 2006 and that Regulation 2.11.5 of the Food Safety and Standards (Food Products Standards and Food additives) Regulations, 2011, lays down the standards of food additives, which may be used in, or added to, Pan Masala and unless Pan Masla is manufactured, stored, distributed or sold in breach of the standards laid down by Regulation 2.11.5 of Food Safety And Standards (Food Products Standards and Food additives) Regulations, 2011, the manufacture, storage, distribution or sale of Pan Masala is not legally prohibited by the impugned order, dated 07.11.2014, aforementioned.”

From above, it appears that manufacturing, storing, distributing and even selling of Pan Masala requires food additives, likely to be used therein, to be of such standard as required by “Food Safety and Standards (Food Products Standards and Food additives) Regulations, 2011. In other words the Tobacco Pan Masala even in India never got an absolute exception from operation of Food Laws and Regulations. Even otherwise, in a recent order the Supreme Court of India in Transfer Case (Civil) No. 1/2010 (Central Arecanut Marketing COPN & Others) went on in saying that:

Learned Amicus Curiae has also invited our attention to paragraph 21 of the Written Submissions on behalf of the Ministry of Health and Family Welfare, Government of India, in S.L.P. (C) No. 16308 of 2007, Which reads as follows:

1. It is most respectfully. submitted that to circumvent the ban on the sale of gutkha the manufacturers are selling pan masala (without tobacco) with flavoured chewing tobacco in separate sachets but often conjoint and sold together by the same vendors from the same premise, so that consumers can buy the pan masala and flavoured chewing tobacco and mix them both and consume the same. Hence, instead of the earlier ready to consume mixes chewing tobacco companies are selling gutkha in twin packs to be mixed as one.

Learned Amicus Curiae has also pointed out that this Court has not granted any stay of Regulation 2.3.4 of the Food Safety and Standards (Prohibition & Restrictions on Sales) Regulations, 2011 and the concerned authorities are duty bound to enforce the said regulation framed under Section 92 read with Section 26 of the Food Safety & Standards Act, 2006. In view of the above, the concerned statutory authorities are directed to comply with the above mandate of law. We also direct the Secretaries, Health Department of all the States and Union Territories to file their affidavits before the next date of hearing on the issue of total compliance of the ban imposed on manufacturing and sale of Gutkha and Pan Masala with tobacco and/or nicotine.”

The Tobacco Pan Masala, would always include food additives {Section 2(9)(i)to(iii) of Pure Food Ordinance, 1960} and since it is undeniably offered for consumption by human therefore, requires to be regulated by Laws relating to safety and Standard of all such things likely to offer or sell for human consumption.

1. Now, we can safely conclude that independent status of betel-nut and chewing tobacco to be not falling within meaning of food would not be sufficient for a self-imagined license to sell a mixture thereof with food additives particularly when the same are found to be hazardous/injurious to health by allowing expansion of Tobacco Laws and limiting Food Laws. The Court is not competent to limit or expand the scope of a statute beyond its specified limitationsbecause it is, otherwise, by now a well-established principle of law that hardship of few cannot be the basis in determining the validity of any statute. The law must be interpreted and applied on its plain language.

2. Let’s take the plea of sale of other injurious to health products like cigarettes, NASWAR etc. It would suffice to say that cigarettes are clearly governed by specific law while the Tobacco Pan Masala does not. The Cigareites normally are not mixture of tobacco with other food additives same is the position with NASWAR therefore, without making much comments, likely to prejudice the issue not before us or a room for exercise of suo-moto jurisdiction which this Court doesn’t, we would say that such plea is not helpful for petitioner as well as Intervener.

Let’s examine the case of petitioner and the Intervene from another angle which was presented by the counsels themselves i.e ‘differentiating their products with GUTKHA/MAINPURI’ on grounds of:

(i) preparation in some claimed hygienic condition in a factor while Gutkha/Mainpuri are prepared in houses;

(ii) paying taxes/cess, etc. while GUTKHA/MAINPURI manufacturers do not;

(iii) having registered trade mark while GUTKHA/MAINPURI manufacturers don’t;

(iv) they import tobacco while GUTKHA/MAINPURI manufacturers do not;

however, it is not claimed that articles used in GUTKHAS/ MAINPURIS, fall within meaning of Food. Thus, if the theory is applied then small money and formalities shall also result in entitling the GUTKHAS/MAINPURIS manufacturing permissible which legally cannot be, particularly when there have already number of unchallenged verdicts of this Court on such issue.

“CP No. D-306 of 2003 “Abrar Ahmed & another v. EDO (Health) and another” dismissed vide order dated 6.11.2003 with the specific observation as:

“No doubt the petitioners are the businessmen and they can trade freely under the Constitution but that is subject to the relevant laws. The Courts cannot permit them to make people habitual of eating their product including tobacco which are injurious to health. That bad habit shall have very far-fetching effects over the generations to come.”

CP No D-118 of 2007 (Saeed Mainpuri & others v. Province of Sindh & others) dismissed on 17.02.2009 with observation as:

“It further appears that in earlier petition samples of Mainpuri prepared by the petitioners were sent to PCSIR Laboratories Complex Karachi and its report dated 09.9.2004 is available on record, which reflects that Mainpuri prepared by petitioners is not fit for human consumption.”

In another judgment, recorded in the ‘‘CP No. D-111/2003 “Syed Tajlee Murtaza v. AIG Police and others” the Court went a little ahead while dismissing such petition vide order dated 29.5.2003 with following order:

“The petitions dismissed as both the petitioners have not pressed their petitions. However, Executive District Officer (Health) Dr. Ashraf Bhurghri, who is present along with Addl. A.G. is directed to ensure that items. injurious to public health, in any shape, may not be allowed to be processed or sold. He is also directed to take all the necessary steps in this regard including the collection of samples of such items. With the above observations the petitions stand dismissed.’’

Worth to add that in the case of Adeel-ur-Rehman supra referred

by learned counsel for the Intervener, the request for release of infected betel nuts, likely to be used for human consumption was declined while insisting on Article 9 of the Constitution with rider that:

“It is the duty of the State to see that the life of a person is protected as 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.”

Meaning thereby that the term ‘life’ so used in the Article-9 of the Constitution also requires the State to come forward to help its subjects from use of any impure food or other injurious/hazardous to health items if same are otherwise not permitted. Thus, even on this analogy the petitioner as well Intervener does not appear to have made out a case of an exception.

Further, the petitioner as well the Intervener have not referred a single document or specific provision whereby the Tobacco Pan Masala was declared by any of the Tobacco Laws as falling within meaning of tobacco or chewing tobacco only hence sale thereof could be taken as permissible merely on count that one is registered under FED Act as manufacturer. The petitioner and Intervener claim to be manufacturer and claiming applicability of Tobacco Board Ordinance, 1968 as well Tobacco Vend Act, 1958 but at no time they have claimed to be possessing any license issued for selling their products under these Laws.

1. The petitioner and the Intervener appear to be not aggrieved with affairs of manufacturing Tobacco Masala but grievance is confined to ‘sale and marketing of their Tobacco Pan Masala’ in open market. Even for a moment, it is believed that product of the petitioner and Intervener falls within meaning of Section 3(e) of the Act, as has been claimed by Intervener even then sale thereof shall require a license within meaning of Section 3 of the Act. The Section 3 of the Act says as:

“3. No person who does not grow tobacco himself or with the aid of the members of his family or by tenants or hired labour shall keep for retail sale or sell by retail manufactured tobacco in any urban area without a dealer’s licence.”

The petitioner and Intervener are undeniably not the growers of tobacco hence for sale of their products could not be continued except under a license which the petitioner and Intervener do not have. Even if it is believed for a moment that product of the petitioner and Intervener is not falling within meaning of food but is to be regulated by Tobacco laws even then they were/are required to first get a license for selling their claimed manufactured tobacco (Section 2 (e) of Act). Worth to add here that the Intervener was fair enough in saying that “the Tobacco Vend Act, 1958 provides that the requirement for license is only for the sellers and dealers but NOT manufacturers”. Thus, even the Intervener never claimed an exception to having a license for selling/marketing the manufactured tobacco even. Thus, the petitioner (CP No. 343), the Intervener and any person, dealing in such like product, would not be legally entitled for selling/marketing their Tobacco Pan Masala without first obtaining necessary license from competent authority under relevant laws if such authority considers such product to be one falling within meaning of Chewing Tobacco.

Since, the serious effects upon the lives by use of the Tobacco Pan Masala, Gutkha as well Mainpuri were/are not disputed which even become grave when the victim thereof include good numbers of children and women. The research and concern of the health officials need not be referred here being an open secret. However, what is alarming is that there is no proper mechanism and law to properly and adequately deal with such serious issue whereby the guarantee, provided by the Article-9 of the Constitution, has been under constant threat. The Federal Government as well Provincial Government prima facie failed to address the issue despite its alarming rather abnormal effects upon the young generation. Preparation of a Bill of a Law is nothing more than a bunch of papers because the objectives thereof cannot be achieved unless a “Bill” becomes the “Law” by completion of required process. This Court is direct custodian of the fundamental rights hence can issue any appropriate directions for proper enforcement of a fundamental right as has rightly been held in the case of M.Q.M. & Ors (supra) relied by counsel for the Respondent N11. The continuous failure of the State to do what otherwise is the unavoidable duty of the State cannot be left go unattended. The legislation may well be the function of the legislature alone but when situation requires necessary instructors can well be issued by this Court in exercise of writ jurisdiction. Reference may well be made to the case of Sharf Faridi v. The Federation of Islamic Republic of Pakistan (PLD 1989 Karachi 404) wherein it was held that:

“Since the various Federal and Provincial Governments after the enactment of the Constitution in 1973 have failed to do what they were/are required to do under the Constitution, direction/directions under Article 199 can be issued to them to do the same, and similarly a prohibitory direction can also be issued not to do which is not permitted by the Constitution. I may observe that in order to bring the existing laws in conformity with Articles 175 and 203 of the Constitution not only some administrative actions are required to be taken but also some legislative measures are needed. There seems to be no controversy that direction/directions to take administrative actions/measures required by the Constitution and/or any other law can be issued against the Executive. However, it is debatable point, whether a direction can be issued to the legislature to discharge its constitutional obligation as to bring the existing law in conformity with the provisions of the Constitution by legislating the required laws, but in my view, a direction can be issued to the Federal and Provincial Government to initiate legislative measures for bringing the existing laws in conformity with the above Articles 175 and 203 of the Constitution.

I am inclined to hold that there is a marked distinction between a direction to the Legislature to legislate and a direction to the Executive to initiate the legislative measures to bring the existing laws in conformity with the provisions of Constitution. The later in my view is permissible.”

Worth to add here that during proceedings of the instant petitions it has seriously been observed that the provisions of Pure Food Ordinance, 1960 which otherwise is the obligation of the Local Authority within meaning of Section 15 of the Ordinance though it relates to a subject having its direct consequences upon life.

1. Accordingly, in view of above discussion and undeniable situation, it is hereby ordered that:

(a) The Secretary, Local Government shall ensure:

(i) true enforcement of Section 11 of the Pure Food Ordinance, 1960 which insists for a license for preparation/ manufacturing; processing; blending; preserving, refrigerating, canning or bottling of any food canning or bottling as well to deal as wholesale dealer;

(ii) true enforcement of 15 of the Pure Food Ordinance, 1960;

(iii) appointment of required number of Inspector (s), as per Section 16(1) of Pure Food Ordinance, 1960 but strictly following the rules and procedure for such recruitment;

(iv) establishing of Lab, specifically meant for analysis of foods;

(b) The I.G. Police shall continue with campaign against manufacturing/preparation and sale of GUTKA/MAINPURI and similar items under any title;

(c) The Chief Secretary/Law Secretary shall:--

(i) follow-up process of proper enactment for permanent ban of GUTKA & MAINPURI or same product with any other title; and

(ii) process for enactment like Food Safety and Standards (food Products Standards and Food additives) Regulations, 2011 so as to bring everything likely for human consumption under some safety and standard criterion;

(iii) write to Tobacco Board for clarification whether sale of TOBACCO PAN MASALA is permissible under Tobacco and Vend Act or Ordinance. If so, mechanism detailed too.

(iv) direct all Commissioners and Deputy Commissioners to ensure that GUTKA/ MAINPURI and similar items are not sold or manufactured in their respective areas. They would be competent to take action against manufacturers, wholesalers and retailers, under the relevant laws.

1. While parting, it is hoped that gravity of issue would be appreciated by the legislature while making enactments or amendments and proper and adequate punishments would be provided as well to consider making such offences cognizable so that such evil, causing prejudice to the nation as a whole, may not earn their liberty by claiming offences bailable/non-cognizable. Needless to mention that Since the petitioner (CP No. 343) and Intervener have never made a categorical and clear claim that status of manufacturer does include a right to sell Tobacco Pan Masala without a license of such like products which have been declared to be not fit for human consumption rather hazardous/injurious to health therefore, legally they cannot claim continuity of sale of their product i.e Tobacco Masala under any name. One who is permitted to work as manufacturer for exporting its manufactured tobacco, if is permitted for exporting, may continue but such status alone shall never earn him a right to sell; market and offer Tobacco Pan Masala for human consumption. However, needless to add that petitioner (CP No. 343/2017) and the Intervener may themselves approach to Tobacco Board for instruction made in (C)(iii) supra which, if is answered so, would give a right to them to claim continuity of their business and not before that. Till such time, no sale of such like product would be allowed and I.G .P. Sindh shall ensure that Tobacco Pan Masala, under any title is not sold or marketed.

2. In view of above, C.P. No. D-1705/2017 is disposed of whereas C.P No. D-343/2017 and intervener’s applications are dismissed.

At this juncture we appreciate the assistance provided by senior counsel Mr. Jhamat Jethanand as amicus curiae. Office shall send copy of this judgment to concerned quarters as well to amicus curiae.

(M.M.R.) Order accordingly

PLJ 2019 Karachi 79

Present: Salahuddin Panhwar, J.

Mst. NASEEM ZEHRA and others--Appellants

versus

GHAYAZ AHMED and others--Respondents

Second Appeal No. 52 & 57 of 2018, decided on 31.5.2018.

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

----Arts. 117 & 118--Burden of Proof--Settled principle of law that it is the duty and obligation of beneficiary of a transaction or a document to prove same--There can be no denial to another well established principle of law that mere possession over a property would not, ipso facto, vest title but claimant would always require in establishing title independently and a failure thereof would turn such possession into unauthorized/illegal. [Pp. 93] A & B

2015 SCMR 1, ref.

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

----Ss. 8, 12, 42, 54--Suit for possession, declaration, mesne profit and injunction--Decreed--Suit of respondent was dismissed--Consolidated judgment--Property was gifted--Acceptation of property--Appeal--Allowed--Cases was remanded--Plaintiffs suit was decreed--Suit of defendants was dismissed--Unregistered sale agreement--Concurrent findings--Execution by person who was not alone entitled--Challenge to--Maintainability--Determination--Perusal of record would show that property in question was gifted to Respondent No. 1 & 2 by their father which fact even is not disputed by present appellant herself rather is admitted in cross-examination by present appellant yet she (appellant) claims Specific Performance from defendant no.1--Such admission (s) were always sufficient to make it clear that there had never occasioned any cause of action for present appellant to file a suit against a person, having no title--It may well be added here that relief of Specific Performance of Contract could be sought against an ostensible owner and not against person who legally was/is not competent to make a legal sale (transfer)--Mere agreement with an incompetent person alone would not entitled holder of such agreement to claim title in immovable property because an agreement/contract with a competent person alone could give rise to claim title but would leave person (deceived) with a single option to claim damages/compensation--Claimed general power of attorney in favour of defendant Mst. Riffat Qureshi could never be declared as ‘lawful general power of attorney’--As against claim of present appellant, admitted title holders i.e. respondents (plaintiffs in leading suit) had claimed that due to law and order situation in year 1993 they had shifted from subject matter; later found appellant’s party into unauthorized possession for which had made complaint to police and such application was also placed on record--Such claim was also admitted by attorney of present appellant--Admitted owners of subject matter i.e. respondents (plaintiffs in leading suit) cannot be denied their right to have their immovable property merely on basis of a claimed agreement which otherwise proved to be void.

[Pp. 93, 94, 97 & 100] C, D, E, G & H

2018 SCMR 566 & 2017 SCMR 1882, ref.

Registration Act, 1908--

----S. 6--General Power of attorney--Lawful--There can be no denial to legal position that for a claimed general power of attorney to earn status of ‘lawful’, it must be established that same is duly registered, as required under Registration Act, 1908--Perusal of document (claimed general power of attorney in favour of Mst. Riffat Qureshi), same does not appear to have been registered before ‘Registrars or sub-Registrars’, as defined by Section 6 of Registration Act. [P. 97] F

M/s. Mehmood Habibullah and Muhammad Fahim Zia, Advocates for Appellant.

Mr. Haider Raza Arian, Advocate for Respondents No. 1 and 2.

Date of hearing: 31.5.2018.

Judgment

Captioned appeals assail judgment dated 10.04.2018 passed by IIIrd Addl. District Judge, Karachi Central dismissing Civil Appeals No. 147 & 148 of 2016 filed against consolidated judgment and decree dated 09.09.2016 of the trial Court in Civil Suits No. 929/2002 and 620/2007 whereby Suit No. 929/2002 was decreed to the extent of prayer clauses A to F while Suit No. 620/2007 was dismissed.

1. Succinctly, facts leading to filing of these appeals are that plaintiffs Ghayaz Ahmed and Muhammad Sikandar Zulqarnain (respondents herein) filed Civil Suit No. 929 /2002 for possession, declaration, mesne profit and injunction against the appellant and others, while later on plaintiff Mrs. Naseem Zehra (appellant herein) filed Civil Suit No. 620/2007 for Declaration, permanent injunction and specific performance of contract; both these suits were consolidated vide order dated 24.10.2010 treating Suit No. 929 /2002 as leading one wherein it was pleaded that plaintiffs/respondents are brothers and sons of late Abdul Hakim son of Abdullah who was fully seized and possessed and well sufficiently entitled to a lease hold property bearing No. A-359/12, measuring 200 sq. Yards situated in Scheme No. 16, Federal ‘B’ Area, Karachi, duly leased out in their favour vide Registration No. 5017 dated 10.12.1982; that late Abdul Hakim during his life time gifted the said properly to the plaintiffs who accepted the said gift and occupied the said property vide Registration No. 164-8 dated 5.5.1984, the plaintiffs were in lawful occupation and use of the said property since beginning and lived there up to the year 1993 without any obstruction and thereafter due to political crisis in the city of Karachi and especially in the area of Federal B Area where the said property was located, the plaintiffs shifted to Malir and started living therein along with their elder brother, mother; that the plaintiffs while leaving the said property they also left valuable articles therein worth Rs.50,000/- (Rupees Fifty Thousand) and locked the inner doors as well as main gate door of the said property; plaintiffs as routine practice were looking after the said property twice/thrice a month regularly without fail; that on or about 14-06-1997 Plaintiff No. 1 on usual visit went to the said property and found saw that some unknown persons are living in the said property without their consent illegally and unlawfully by breaking open the inner doors locks as well as outer door lock of the said property and after due enquiry made by plaintiffs, it was transpired that the Defendant No. 1 has illegally and unlawfully trespassed into the said property by breaking open the lock and thus committed offence punishable under the law; that Plaintiff No. 1 lodged a complaint on 16.06.1997 against Defendant No. 1, whereupon SHO Gulberg Police Station called the parties in the police station and recorded statements, during enquiry, conducted by the Police officer, the Defendant No. 1 promised to vacate the said property within one month thereof however inspite of the said undertaking failed to honour his commitment to vacate the said property. It was the case of the plaintiffs before the trial Court that they have never appointed any attorney in respect of said property, and the Defendant No. 1 after occupying the said property illegally, made certain changes in the said property resulting thereby impaired its value; that Defendant No. 1 was in unauthorized use and occupation of the said property since 14.6.1997 and is liable to pay compensation/mesne profits to the plaintiffs as well for such un-authorized wrongful use and occupation hence sent legal notice to Defendant No. 1 asking to vacate, and hand over vacant possession of the said property which was not replied hence plaintiffs filed suit for following reliefs;--

(a) A decree for possession be passed against the Defendant No. 1 directing him to hand over the plaintiffs the actual vacant and physical possession of the property bearing No. A-359/12, situated in F.B Area, Karachi, on account of unauthorized occupation and used by the Defendant No. 1.

(b) Declaration that the plaintiffs are the absolute owners of the suit property viz. A-359/12, measuring 200 sq. Yards situated in F.B Area, Karachi with its construction thereon and that the Defendant No. 1 being in occupation thereof himself or through his men, agents or assigns, attorney, principal, as trespasser liable to be evicted therefrom.

(c) A decree for Rs.9000/- being the amount of mesne profit for the period from 14.6.1997 to 31.7.1997, Rs. 6000/- per month against the Defendant No. 1 favour of the plaintiffs.

(d) A decree for future mesne profit at Rs.6000/- per month from the date of the suit till the possession of the suit property is delivered by the Defendant No. 1 to the plaintiffs.

(e) Permanent injunction restrain the Defendant No. 1 and his agents attorney sub-ordinate, assign, from parting with or handling over, alienating, mortgagee transferring, selling, disposing of the suit property or portion thereof in manner whatsoever which may be prejudice or adversely effect the plaintiffs proprietary or possessory rights in respect of the suit property or any portion thereof.

(f) Permanent injunction be issued against the Defendants No. 2 & 3 retraining them from mutation, transferring, registration by themselves or by any other Sub-Registrar subordinate to the Defendant No. 3 of any document including General Power of attorney in respect of the suit or any portion/part thereof effecting tending to effect plaintiffs proprietary and possessory right in respect of the said suit property or ant parts thereof excepting the documents presented registration, mutation by the plaintiffs themselves.

(g) Costs of the suit, and

(h) Any other and/or better relief which this Honorable Court may deem fit and proper under the circumstance of the case.

The Defendants No. 1, 2 & 6 filed their written statements, whereas Defendants No. 3, 4 and 5 prefer not to file written statements. The Defendant No. 1 pleaded that the Suit fails for mis­joinder and non-joinder of parties and hit by the provisions of Sections 42 and 56 of the Specific Relief Act, and Section 9, C.P.C. as well Order VII Rule 11 C.P.C.; that the suit is not maintainable in law in as much as it has neither cause of action against the Defendant No. 1 nor there is any balance of convenience in favour of the plaintiffs and it is barred by law and also undervalued; that the plaintiffs have wrongly filed the suit for possession, declaration, mesne profit and injunction against the Defendant No. 1 on false, fictitious and concocted ground with ulterior motives making entirely fraudulent story. It was pleaded that plaintiffs Ghayyas Ahmed and Muhammad Sikander Zulqarnain executed at Karachi, a general power of attorney duly attested by the Additional City Magistrate, Court No. III, Karachi West, on 9.5.1985, in favour of Mst. Rifat Quresi wife of Salauddin Qureshi resident house No. R-114, Habib, Road P.E.C.H Society Karachi, with general power to transfer the suit property by way of sale, gift and mortgage etc. to anyone. Simultaneously the plaintiffs Mohammad Sikander Zulqarnain and Ghayyas Ahmed executed a sale agreement, dated, 29.05.1985, the valuable consideration of Rs.5,75,000/- and received the total price of the said house. By virtue of the said agreement, the plaintiffs assured the said purchaser Mst. Rifaat Qureshi that the house was free from all short of claims, liens demands sale, mortgage cases or any other encumbrances of whatsoever nature, that the plaintiffs had delivered the possession of the said house together with all papers, rights, titles, interests and privileges therein over the said house, and that the plaintiffs, (first party) shall keep the second Party (Mst. Riffat Qureshi) indemnify against all losses detriments the first party and any person demanding title from the first party, herein plaintiffs, shall be caused and better and more perfect the said house in favour of the second party, Mst. Riffat Qureshi; that plaintiffs passed on receipt for receiving the payment of Rs.7,75,000/- in respect of the suit premises viz. House No. A-359, Mst. Rifaat Qureshi, the purchaser and general attorney of the plaintiffs, Ghayyas Ahmed and Mohammad Sikander Zulqarnain executed sub-Attorney power in favour of Mohammad Saleem son of Mohammad Naeem duly registered vide Registration No. 131, dated 30.04.1997, with general power to sell, mortgage, etc. and to .execute conveyance deed, sale deed gift deed, mortgage deed, rectification deed, etc., before the Sub Registrar, simultaneously sale agreement, dated 30.04.1997, was executed between Mst. Rifaat Qureshi and Mohammad Saleem for valuable consideration of Rs.6,90,000/- and the said consideration was received by Mst. Rifaat Qureshi under valid receipt. On 10.05.1997, Mohammad Saleem son of Mohammad Naeem being the owner of the suit property executd a sale agreement with Mst. Naseem Zehra wife of Nusrat Rizvi, for 8,50,000/- in respect of the said and paid the entire amount of Rs.8,50,000/- to Muhammad Saleem under valid receipt, dated: 10.05.1997 as full and final settlement for the said house. The seller Mohammad Saleem delivered the peaceful physical possession with original documents and transaction became final. Thus the Defendant No. 1 through his wife came into physical possession the house as rightful owner and he is not the trespasser as fraudulently alleged by the plaintiffs, who have filed the present suit falsely, fraudulently and by clear misrepresentation.

Defendant No. 2/KDA filed written statement stating that the suit is incompetent and bad in law for want of statutory notice as required under Article 131 of the KDA Order No. V of 1957, as the same has not been served upon KDA before institution of the above suit and as such the suit is not maintainable and liable to be dismissed; that as per their record, the plot in question stands leased out in the name of Mr. Abdul Hakim son of Abdullah and there is no record in KDA showing relationship except two complaints against unauthorized occupation of the house; that no such documents as stated in the plaint have been submitted by the plaintiff in the office of answering defendant except photocopy of the complaint made to Gulberg Police station.

Defendant No. 6 Mrs. Naseem Zehra (appellant herein) in her written statement had pleaded that the suit had no cause of action, not maintainable due to misjoinder and non-joinder of parties and is hit by the provisions of Sections 42 & 56 of specific Relief Act and Section 9 CPC as well as Order VII Rule 11, C.P.C. and has wrongly been filed against answering defendant and as against Defendant No. 1 and the plaintiffs has not come to the Court with clean hands; she pleaded that it is an imaginary plea that the plaintiff left the house in question unattended and shifted to Malir after 1993 due to political crises in the city and that it is also a white lie that the plaintiff left the valuable articles valued Rs.50,000/- in the house and was looking after the house in routine from 1993; that no person having common sense can accept this unfounded plea of their leaving the house from 1993 to 1997 when the suit was filed with dishonest and fraudulent intention; that the defendant above named purchased the said house for valuable consideration of Rs.8,50,000/- and invested a lot on incomplete construction and repair occupied the house lawfully as owner thereof along with her husband S. Nusrat and children; she pleaded that plaintiffs had involved the police in the matter to deprive her of her lawful occupation and legal right and to pressurize her husband and harassment by police caused to give undertaking that has had no evidentiary valve in the eyes of law and such statement or undertaking before the police cannot be treated as valid piece of evidence and the same cannot be used against her or her husband; that lodging of police report allegedly on 16.6.1997 against Defendant No. 1 has no concern with subject property and his undertaking keeping in view harassment and fear of police torture his promise to vacate the house as no evidentiary value under the circumstance; she pleaded that Defendant No. 1 had nothing to do with the said property and had no right to give any undertaking as the Defendant No. 6 is the owner of the said property and not the Defendant No. 1 at any point of time; that making application to the different departments to desist from giving any facilities/ amenities to Defendant No. 1 or to give application to Defendant No. 2 not to mutate the property in the name of any person , are meaningless and such applications were frivolous as the plaintiffs were not owner at relevant time and it has been sold out to the Defendant No. 6 lawfully and she had become the owner of said property; she pleaded that Defendant No. 1 has nothing to do with the said property and not at all liable to pay any so called alleged compensation and mesne profits to the plaintiffs as well as for such alleged unauthorized/wrongful use and occupation or any occupation to vacate the house; that the allegations of plaintiffs are misconceived, unfounded false, fraudulent and with ulterior motive; she stated that she is now the owner of subject property and possession thereof is legal and lawful and plaintiffs have no right to claim possession of the property and benefits therefrom; that no notice as alleged was served on proper person viz. the Defendant No. 6, she denied the claim as false and stated that plaintiffs are not entitled to any relief as prayed and prayed for dismissal of suit.

1. Plaintiff Naseem Zehra in her Civil Suit No. 620/2007 pleaded that late Abdul Hakeem during his life time gifted the said property in favour of his two sons i.e. Defendants No. 2 and 3, who accepted said gift and occupied the suit property vide Registration No. 1648, dated 05.05.1984; she submitted in her plaint that on 29.05.1985 the Defendant No. 2 and 3 executed general power of attorney and sale Agreement in favour of Defendant No. 4, received entire sale consideration Rs.5, 75,000/- and handed her all documents and physical possession of the suit property; it was pleaded that on 30.04.1997 Defendant No. 4 executed General Power of Attorney in favour of Defendant No. 1, she executed an agreement of sale in favour of Defendant No. 1; defendant paid her entire sale consideration Rs.8,50,000/- and received physical possession of the suit property with documents; that on 10.05.1997 Defendant No. 1 executed an Agreement of sale in favour of the Plaintiff against total sale consideration of Rs.8,50,000/- the plaintiff paid him entire sale consideration .and received physical possession of the suit property without any interception, that just after executing sale agreement Defendant No. 1 went abroad and before executing the sale deed, and had promised to execute the sale deed after return from abroad; that the plaintiff vigilantly watching Defendant No. 1 for execution of sale deed and after long period when in the year of 2006 he came back, the Plaintiff contacted him and requested him execute a sale deed in her favour at the first instance he avoided to meet and then kept the plaintiff in false hopes on one another pretext and lastly 22.03.2007 he demanded enhancement of sale consideration, which the plaintiff refused, then Defendant No. 1 refused to execute sale deed in favour of the plaintiff; it was pleaded that the Plaintiff has paid full sale consideration, received physical possession and entire documents hence denial of Defendant No. 1 to execute the sale deed is illegal, hence prayed:--

(a) to declare that the Plaintiff is lawful purchaser of the suit property viz. bearing No. A-359, Block 12, measuring 200 sq. yards, situated in Scheme No. 16, Federal B Area, Gulberg Karachi.

(b) The Defendant No. 1 may kindly be directed to execute sale deed in favour of the plaintiff in respect of the suit property i.e. property bearing No. A-359 Block, 14 measuring 200 Sq. yards, situated in Scheme No. 16 Federal B Area, Gulberg Karachi, and failing which the Nazir of this Hon’ble Court may kindly be directed to execute sale deed in favour of the Plaintiff on Behalf of the Defendant No. 1.

(c) The defendant their legal heirs, all agents/workers, any/all assignees, anybody on their behalf may kindly permanently be restrained and debar from interfering and raising obstacles in peaceful and physical possession and occupation of property bearing No. A-359, Block 12, measuring 200Sq. yards situated in Scheme No. 16, Federal B Area, Gulberg Karachi.

(d) Cost of the suit.

(e) Any other relief or reliefs which this Hon’ble Court may deem fit and proper under the circumstance of this case.

The Defendants No. 2 & 3 filed their written statement while the Defendant No. 1 and 4 chose not to file their written statements and they were debarred from filing written statement dated 23.02.2009; Defendants No. 2 & 3 raised preliminary legal objections that the suit of the plaintiff is false, fabricated, afterthought and not maintainable under the law, that the suit of the plaintiff is barred under Sections 10 & 11, CPC, under the principles of Estoppel and Waiver, under the principles of non-joinder and misjoinder of the parties, barred by the law of Specific Act. They denied that on 29.05.1985, the answering defendants executed a General Power of Attorney and Sale Agreement in favour of the Defendant No. 4 received entire sale consideration of Rs.5,75,000/- and handed her all documents and physical possession of the suit property. It was submitted that the late Abdul Hakim during his life time gifted the suit property in favour of the answering defendants who accepted the said gift and occupied the suit property vide Registration No. 1648 dated 05.05.1984. That the answering defendants are in lawful occupation and use of the suit property hence beginning and lived therein up to the 1993 without any obstruction and hindrance and thereafter due to political crises in the city of Karachi and especially in the area of Federal B Area, where the suit property was located, the answering defendant shifted to House No. 1 near Masjid Jamia Millia Campus Malir, Karachi and stated living therein along with their elder brother, mother (who dead) and sister therein. That the answering defendants while leaving the suit property they left valuable articles therein worth Rs.50,000/­ (Rupees Fifty Thousand) and locked the inner doors as well as main gate door of the suit property. That the answering defendants as routine practice are looking after suit property twice/thrice a month regularly without fail. That on or about 14.6.1997 the Defendant No. 1 on usual visit went to the suit property and found/saw that some unknown persons are living in the suit property without their consent illegally and unlawfully by breaking open the inner door locks as well as outdoor lock of the suit property and after duly inquiry made by the answering defendants it was transpired that husband of the plaintiff namely Nusrat Rizvi illegally and unlawfully trespassed the suit property by breaking open the lock and thus committed offence punishable under the law. The Defendant No. 2 after two days i.e. on 16.6.1997 lodged a complaint against the husband of the plaintiff before Gulberg Police Station for necessary action who has committed offence punishable under the law. That on the said complaint, the SHO Gulberg Police Station called the parties in the police station and recorded statements. That during enquiry conducted by the police officer, the husband of tint-plaintiff promised to vacate the suit property within one month thereof. That the answering defendants moved applications to the deferent departments concerned to desist upon to give any facilities of amenities to the husband of the plaintiff who is illegally and unlawfully occupied the suit property of the answering defendants. Photo Copies of the said application are annexed P/3 to P/4. That the answering defendants filed applications in the office of then KDA (Now City District Government) not to mutate the name of any person in the record in respect of the suit. They submitted in their reply that the answering defendants have never appointed any Attorney in respect of the suit property. It is further submitted that: the husband of the plaintiff after occupying the suit property illegal and unlawfully made certain changes in the suit property resulting thereby he has impaired the value of the suit property. That the husband of the plaintiff failed to handover the vacant possession of the suit property as per commitment and in failure thereof, the answering defendant filed a Civil Suit No. 997/1997 in this Court against the husband of the plaintiff, KDA and District Registrar, said suit was transferred on the pecuniary jurisdiction increased up to Rs.30 Lacs by the Senior Civil Judge and renumbered as 929/2002 in the Court of IInd Sr. Civil Judge Karachi Central. That during the pendency of suit in this Court, the plaintiff herein, Defendant No. 1 were impleaded as necessary parties and plaint was amended and they were joined as necessary parties and they are still parties in the suit pending in the Court of IInd Senior Civil Judge Karachi; that the alleged Power of Attorney dated 29.5.1985 and sale Agreement undated annexed with the plaint allegedly executed by the answering defendants are forged and manipulated documents hence denied. They denied the alleged signatures on the said Sale Agreement, Receipt and alleged undated General Power of Attorney; they further denied that on 30.4.1997 the Defendant No. 4 executed General Power of Attorney in favour of Defendant No. 1 as alleged, the deed of gift annexed with the plaint was also denied being a forged document; they denied that on 10.5.1997 the Defendant No. 1 executed an Agreement of Sale in favour of the plaintiff against total sale consideration of Rs.8,50,000/- as alleged; it was submitted that the Defendant No. 1 is a fake person who is also a party in the suit filed by the answering defendant and did not appear till now inspite of repeated notices given to her on her given address, it was denied that the plaintiff has paid full sale consideration, received physical possession and entire documents as alleged or otherwise. It was pleaded that the entire documents of the suit property are still with the answering defendants which can be produced at the time of evidence and whatever documents have been filed with the plaint are the documents which were supplied to the husband of the plaintiff at the time of complaint before the Police Station Gulberg and further documents annexed with the above mentioned suit and supplied copies thereof to the defendants whom the plaintiff and her husband are parties to that suit. The defendants prayed for dismissal of suit.

1. From the pleadings of the parties following consolidated issues framed were answered by the trial Court as under:--

| | | | | --- | --- | --- | | Issue No. | Issues | Findings | | 1 | Whether the suit Bearing No. 929/2002 is not maintainable and without any cause of action? | Affirmative | | 2 | Whether the Suit No. 620/2007 is not maintainable and not time barred? | Affirmative | | 3 | Whether the plaintiff in Suit No. 929/2002 are the absolute owners of the suit property bearing Suit No. A-359, Block No-12 F.B. Area, Karachi by virtue of registered Gift deed? | Affirmative | | 4 | Whether plaintiff in Suit No. 929/2002 had not sold the Suit property prior and executed General Power of Attorney dated 29.05.1985 in favor of Mst. Rifat Qureshi, the defendant ? | As discussed | | 5 | Whether Mst. Riffat Qureshi the Defendant No. 4, in Suit No. 929/2002, was legally authorized to sell the suit house by appointing Muhammad Saleem the Defendant No. 5, in Suit No. 929/2002 as her registered power of attorney vide General power of attorney dated 24.04.1997. | As discussed | | 6 | Whether Mrs. Naseem Zehara alias Shaheen, the Defendant No. 6 in Suit No. 929/2007 and plaintiff in Suit No. 620/2007 is in occupation of the suit property as bonafide purchaser from Muhammad Saleem by virtue of sale agreement dated 10.5.1997? | As discussed | | 7 | Whether the plaintiff in Suit No. 620/2007 are entitled to the relief claimed and to what extent? | As discussed | | 8 | What should the decree be? | As discussed |

1. Record reveals that learned Senior Civil Judge vide common Judgments/decrees dated 30.01.2012 had earlier decided above suits whereby decreed Suit No. 929/2002 whereas Suit No. 620/2007 was dismissed; that judgment & decrees were impugned by the present appellant by filing Civil Appeals No. 52/2012 & 53/2012 which was decided by the learned 2nd Additional District Judge, Karachi Central vide Judgment & decree dated 13.01.2016 whereby impugned Judgments/decrees passed by the learned Senior Civil Judge, Karachi Central were set aside and the appeals were allowed by remanding the cases back to the learned trial Court with directions to provide opportunity to the appellant to lead her oral as well as documentary evidence and after hearing the parties to decide the case afresh on merits according to law. Consequent thereto, parties were examined at trial Court and they were subjected to cross examined by their respective opposite counsel; after hearing the parties, the learned trial Court vide consolidated judgment & decree dated 09.09.2016 decreed Suit No. 929/2002 to the extent of prayer clauses A to F, whereas dismissed Civil Suit No. 620/2007.

2. Learned Counsel for appellant Naseem Zehra argued that the impugned Judgment and decree are not warranted by law and facts, as such, liable to be set aside; that trial Court failed to appreciate the evidence on record and the findings without applying the mind properly; that the findings of learned trial Court are totally contrary on settlement of issues in respect of Section 53-A of the Transfer of Properties Act, 1882 as the appellant was put into possession as part performance of sale agreement dated 10.05.1997 therefore she is the bonafide purchaser of the suit property; that the learned trial Court as well as appellate Court did not properly appreciate the evidence according to Qanoon-e-Shahadat Order, 1984 and it is crystal clear from the plain reading of the impugned judgments that the Courts below did not follow the real facts of the case of the appellant and have failed to understand the case of appellant in respect of the physical possession of the suit property; that the respondents failed to prove their case through evidence but the learned trial Court passed the impugned judgment and decreed by not reading and misreading the evidence on record; that under the circumstances the impugned consolidated judgment and decree of the trial Court as well as judgment of the appellate Court are liable to be set aside.

3. In contra, learned counsel for Respondents No. 1 and 2 (Legal heirs of Ghayaz Ahmed & Muhammad Sikandaer Zulqarnain) has argued that the Judgment & Decree passed by the two Courts below are according to law and after discussing material available on the record; that the appellant has miserably failed to discharge her onus to prove the sale transaction allegedly arrived in between the Respondents Saleem & Riffat Qureshi, she also failed to prove the agreement and other documents allegedly executed in her favour, insomuch so even the marginal witnesses of the sale agreement allegedly executed in the name of the present appellant were not examined by her thus the requirement of Articles 17(a) and 79 of Qanun-e-Shahadat Order been not been met by the appellant; that the attorney of the appellant himself has admitted that the original title documents concerning the suit property are in my custody, which were even shown to the said attorney at the time of his cross-examination, thus the documents produced by the appellant through her attorney were all forged and fabricated; that the suit for declaration was filed by the appellant, whereas no title exists in her favour, but only an unregistered agreement of sale filed by the appellant, that too was executed by person who had no title in respect of the suit property, thus the same could not have conferred any right, title of interest in favour of the appellant, even otherwise execution of such document, payment of consideration and delivery of possession is not proved by the appellant in nexus with the alleged transaction of sale; that plaintiffs of Suit No. 929 /2002 had fully established their case before the learned trial Court, inasmuch as they are undisputed legal and lawful owners of the suit property, which is still in their name and they are holding registered deed in their names in respect thereof, hence the learned trial Court has rightly decreed Suit No. 929/2002 and dismissed Suit No. 620/2007 of the present appellant, hence judgments of the two Courts below do not call for any interference.

4. Before going into merits of the case, in hand, I would like to examine the scope of the 2nd Appeal in the matter of concurrent findings of the two Courts below. The scope of the 2nd appeal also appears to be no at much variance with that of the revision because for succeeding in the 2nd appeal the appellant has to, prima facie, establish that decision was either contrary to law or substantial error or defect in the procedure was committed while deciding the matter. A mere title of second appeal would not be sufficient to extend the scope thereof but criterion would remain almost same as that for a revisional jurisdiction. Reference in this regard may well be made to the case of Naseer Ahmed Siddique v. Aftab Alam (PLD 2011 SC 323) wherein it is observed as:--

“17. ......Where trial Court has, exercised its discretion in one way and that discretion has been judicially exercised on sound principles and the decree is affirmed by the appellate Court, the High Court in second appeal will not interfere with that discretion, unless same is contrary to law or usage having the force of law.”

In another case of Anwar Textile Mills Ltd. v. Pakistan Telecommunication Company Ltd., reported as (2013 SCMR 1570), it is observed as:--

“15. Thus, by reading of this provision, it is apparent that the High Court will be justified to interfere with the decision of the lower Courts when it is contrary to law or failed to determine material issue of law or commits substantial error or defect in the procedure, which may have resulted in error or defect in the decision of the case on merits.”

The above legal position, prima facie, makes it quite clear and obvious that to succeed in second appeal, the appellant must establish that concurrent findings of two Courts below were/are result of their failure in determining the material issue or that conclusions, so drawn, were/are contrary to settled principles of law. Thus, point of determination for decision of instant appeal (s) could well be:

whether findings of two Courts below are proper, legal and in accordance with available material and settled principles of law or otherwise?

1. The main contentions of the appellant seem to be that there was a valid agreement of sale in her favour and that her possession was protected by Section 53-A of the Transfer of Property Act but both the Courts below failed to properly appraise such position.

At the outset, I would say that I am conscious that the Code does not explain as to whom the burden would rest but the Court (s) should always be conscious that it is the Qanun-e-Shahdat Order, 1984 which provides a complete mechanism in this respect per Part-III Chapter-IX under title ‘of the Burden of Proof’. This Chapter starts with Article 117 which reads as:--

1. Burden of proof. (1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exists.

(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person;

The Article 118 further explains that:

1. On whom burden of proof lies. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.

The above articles are very much clear in explaining that as to on whom the burden would rest in respect of a particular question of law and fact. Since, it is the appellant who is claiming to be holding possession over subject matter under a valid sale agreement therefore burden was upon her to establish the legality of such document as well her assertions of being in bona fide possession. It is, needless to add that, it is, by now, an equally settled principle of law that it is the duty and obligation of the beneficiary of a transaction or a document to prove the same. Reference may be made to the case of Amjad Ikram v. Asiya Kausar (2015 SCMR 1). There can be no denial to another well established principle of law that mere possession over a property would not, ipso facto, vest title but claimant would always require in establishing title independently and a failure thereof would turn such possession into unauthorized/illegal.

1. Perusal of the record would show that property in question was gifted to the Respondents No. 1 & 2 by their father which fact even is not disputed by the present appellant herself rather is admitted in cross-examination by the present appellant yet she (appellant) claims Specific Performance from Defendant No. 1. This shall stand evident from a referral to relevant admission (s), made by attorney of appellant during cross-examination i.e:

‘It is fact that I not produce title documents in my evidence which shows ownership in favour of Defendant No. 4 and 5 of leading suit. It is fact that the title documents are still on the names of plaintiffs of leading suit. It is fact that I pray in my suit for specific Performance of the contract from Defendant No. 1 Muhammad Saleem and also sought execution of sale deed in favour of plaintiff namely Naseem Zehra from said defendant.’

Such admission (s) were always sufficient to make it clear that there had never occasioned any cause of action for the present appellant to file a suit against a person, having no title. It may well be added here that the relief of Specific Performance of Contract could be sought against an ostensible owner and not against the person who legally was/is not competent to make a legal sale (transfer). Reference may well be made to the case of Major (R) Pervaiz Iqbal v. Munir Ahmed & Ors (2018 SCMR 566) wherein it is held as:--

“8. Under the agreement dated 10.7.1986, the petitioner agreed to sell seven Kanals which were part of the property that at that time had not yet been transferred in his name by the successors-in-interest of Syed Chiragh Ali Shah, therefore, unless such transfer takes place, there was no occasion for the buyers to seek transfer of seven Kanals of land in their names. This uncertainty continued until a compromise was reached in the suit filed by the petitioner and the property in question was eventually conveyed in the name of the petitioner on 2.3.2000. It was from this date onwards that the petitioner was legally competent to honour his commitment under the agreement entered into with the buyers.”

“11. In the case of Imran Naqshaband v. Haji Shaikh Ijaz Ahmed (PLD 1995 SC 314) it was held as under:--

‘6. ..... It is by now well settled that the cause of action to sue for the specific performance of the contract arises only When the vendee is in a position to perform his part of contract effectively and till such date no cause of action arises for the other party to compel him to per form his part of the contract.....”

It may also be added that a mere agreement with an incompetent person alone would not entitled the holder of such agreement to claim title in immovable property because an agreement/contract with a competent person alone could give rise to claim title but would leave the person (deceived) with a single option to claim damages/ compensation. Reference may well be made to the case of Falak Sher v. Province of Punjab & Ors (2017 SCMR 1882) wherein it is held as:

“3. Even otherwise, it is settled law that title in immovable property cannot be claimed merely on the basis of an agreement and the alleged status of the petitioner vis-a-vis the property in dispute has been adjudicated upon unfavourably by the Civil Courts in two rounds of litigation as well as revenue authorities.”

The above legal position was always sufficient to hold the suit of the present appellant as incompetent unless the appellant brings her case within exception, provided by the Section 18 of the Specific Relief Act which too covers those agreements only, executed bona fide with a person, having an imperfect title. An imperfect title shall never be equated with that of ‘no title’. The provision reads as:--

“18. Where a person contracts to sell or let certain property, having only an imperfect title thereto, the purchaser or lessee (except as otherwise provide by this Chapter) has the following rights:--

(a) if the vendor or lessor has subsequently to the sale or lease acquired any interest in the property, the purchaser or lessee may compel him to make good the contract out of such interest;

(b) where the concurrence of other persons is necessary to validate the title, and they are bound to convey at the vendor’s or lessor’s request, the purchaser or lessee may compel him to procure such concurrence;

(c) where the vendor professes to sell unincumbered property, but the property is mortgaged for an amount not exceeding the purchase-money, and the vendor has in fact only a right to redeem it, the purchaser may compel him to redeem the mortgage and to obtain a conveyance from the mortgagee;

(d) where the vendor or lessor sues for specific performance of the contract, and the suit is dismissed on the ground of his imperfect title, the defendant has a right to a return of his deposit (if any) with interest thereon, to his costs of the suit, and to a lien for such deposit, interest and costs on the interest of the vendor or lessor in the property agreed to be sold or let.”

It has been a matter of record that the title till date is in name of the respondents (plaintiffs of leading suit) and undeniably the present appellant claims specific performance from Defendant No. 1 namely Muhammad Saleem while claiming him (Muhammad Saleem) to be lawful sub-attorney of defendant Mst. Riffat Qureshi. Such claim would, at the most, bring the case within meaning of Section 18(b) of the Act whereby the purchaser (appellant) could have sought a relief of compelling the seller (Defendant No. 1 Muhammad Saleem) to obtain such concurrence. However, it is also a matter of record that no such relief was sought by the present appellant but she (appellant) sought title from Defendant No. 1 Muhammad Saleem only.

Be that as it may, I would add that even to substantiate a claim of creditor it was always be necessary for the appellant (purchaser) to establish that such person was/is bound to give such concurrence. Reference may well be made to the case of Nisar Ahmed Afzal v. Muhammad Taj & Ors (2013 SCMR 146) wherein the term creditor has been explained as:

“21. The cancellation deed (Exh.D.W.1/3) between the Respondents Nos. 1 and 2 on the face of it was hit by the provisions of Section 53 of the Transfer of Property Act, which provides that if a fraudulent transfer is made with intent to defeat the interest accrued to a party which it has acquired through a sale agreement, then such party can enforce the same not only against the vendor but also against the person from whom such a vendor has acquired the interest. The word “Creditor” used in Section 53 of the Transfer of Property Act is not to be construed in a narrow sense while interpreting the section. The word ‘Creditor’ would mean and include the one, who has a right to require of another the fulfillment of a contract or obligation and or one to whom another owes the performance of an obligation.”

In search of an answer to above, the perusal of the record shows that Muhammad Saleem (Defendant No. 1) was never claimed to be direct attorney of respondents (plaintiffs in leading suit) but was/is claimed to be sub-attorney of defendant Mst. Riffat Qureshi who allegedly had purchased the subject matter from the respondents (plaintiffs in leading suit) against a consideration and had obtained a general power of attorney in her favour. Thus, I would conclude that to establish legal obligation of such persons (plaintiffs in leading suit) for title in favour of the present appellant, it was always obligatory upon her to first prove the root (pleaded facts) i.e:--

(i) Mst. Riffat Qureshi (defendant) had purchased subject matter from respondents (plaintiffs in leading suit) against consideration under an agreement;

(ii) In consequence to such a concluded agreement between Mst. Riffat Qureshi (defendant) and respondents (plaintiffs in leading suit), she had obtained a lawful general power of attorney;

However, it is a matter of record that in proof of first part, the appellant produced such a sale agreement. The perusal whereof reveals that it does not bear the date and time of its execution and such fact also been admitted by the appellant in her cross as:

‘‘It is fact that some over writing is made on the Ex.D/5 in the date of stamp paper. It is fact that in Ex.D/5 the date, month of execution is not mentioned and remained blank. It is fact that in the entire sale agreement the date and month of execution is not mentioned.

Further, no witness to such a claimed concluded agreement (Ex. D/5) was examined by the appellant despite full opportunity. Worth to add that since such agreement was/is the root of the claimed right of the appellant hence the burden was always upon her (appellant) to prove the same and a failure would make the appellant to face the consequences thereof.

Be that as it may, it is also an admitted position that the appellant while claiming specific performance from Defendant No. 1 Muhammad Saleem first acknowledged the title (general power of attorney) of Defendant No. 4 Mst. Riffat Qureshi as lawful. Thus, it was also obligatory upon her (appellant) to prove such title of Defendant No. 4 Mst. Riffat Qureshi as lawful.

1. There can be no denial to the legal position that for a claimed general power of attorney to earn the status of ‘lawful’, it must be established that same is duly registered, as required under the Registration Act, 1908. The perusal of the document (claimed general power of attorney in favour of Mst. Riffat Qureshi), same does not appear to have been registered before ‘Registrars or sub-Registrars’, as defined by Section 6 of the Registration Act rather it is claimed to be ‘attested’ before “the Additional City Magistrate, Court No. III, Karachi West” who has never claimed to have been notified as ‘registrar or sub-registrar’ for purpose of registering a document within meaning of Registration Act as well to endorse the certificate of registration within meaning of Section 60 of the Registration Act. Needless to add that it is by now a well settled principle of law that where things are required to be done in a particular manner then same must be shown to have been done so and a departure thereof shall render the act nothing but a nullity because dictates of law cannot be termed as technicalities. Reference is made to the case of Muhammad Anwar & Ors v. Mst. Ilyas Begum & Ors (PLD 2013 SC 255) wherein it is observed as:--

“It is a well known principle of law that where the law requires an act to be done in a particular manner it has to be in that manner alone and such dictate of law cannot be termed as a technicality.”

In addition to above, there is also a categorical admission of the attorney of the present appellant that:

“It is fact that Ex.D/4, General power of attorney produce by me in favour of Riffat Qureshi is not registered in the office of sub-registrar. It is fact that it is not mentioned in General Power of attorney that the same be given to Riffat Qureshi for consideration or in respect of any sale agreement.”

The position, being undeniably so, permits me to say that the claimed general power of attorney in favour of defendant Mst. Riffat Qureshi could never be declared as ‘lawful general power of attorney’. The consequence of such conclusion would be nothing but that sub-attorney, if any, executed by said Mst. Riffat Qureshi in favour of Muhammad Saleem (Defendant No. 1) would be of no legal consequence nor would be sufficient to deprive the respondents (plaintiffs in leading suit) of their property. In other words, the appellant also failed to establish herself to be a creditor so as to take benefit of Section 53 of the Transfer of Property Act. The legal position, being so, was/is always sufficient for dismissal of the claim of the present appellant and render the agreement of appellant with defendant Muhammad Saleem as void to extent of subject matter. I may also add that remedy of Specific Performance of a Contract, being equitable in nature, cannot be granted to enforce a transaction which otherwise is void. Reference is made to the case of Mst. Naseem Akhter & ors v. Abdul Tawab & Ors (2012 SCMR 1526).

Be that as it may, I would also attend the claim of bona fide of the appellant in claimed purchase of the subject matter. I would add that this would only be available to a person who first satisfies himself of following four facts i.e:

“(a) that the transferor was the ostensible owner; (b) that the transfer was made by consent express or implied of the real owner; (c) that the transfer was made for consideration; and

(d) that the transferee while acting in good faith had taken reasonable care before entering into such transaction.”

Unless it is established that these four imperative/essential ingredients co-exist the person cannot claim the benefit of the equitable principle. If the appellant would have taken a little care she (appellant) would have easily learnt that the Mst. Riffat Qureshi (Defendant No. 4) never possessed a lawful general power of attorney hence sub-attorney, if any, executed by her in favour of Defendant No. 1 Muhammad Saleem was also of no legal value. Guidance is taken from the case of Ghulam Rasool & Ors v. Noor Muhammad & Ors (2017 SCMR 81) wherein it is observed as:--

“5. ... the essential ingredients of this section are, (a) that the transferor was the ostensible owner; (b) that the transfer was made by consent express or implied of the real owner; (c) that the transfer was made for consideration; and (d) that the transferee while acting in good faith had taken reasonable care before entering into such transaction. These four imperative/essential ingredients must co-exist in order for a person take the benefit of the equitable principle, however, merely on account of some error committed by the revenue staff in the revenue record unintentional or deliberate or motivated which excludes the name of the lawful owner of the property therefrom and the property, shown to be in the name of some other person who is not the owner of the whole or a part thereof by itself shall not deprive and denude the true and actual owner from the title of the property and this by no means can be construed that the transfer, to the person claiming protection of the rule of equity ibid by a person who actually is not the owner is being made by consent express or implied of the real owner.......Thus if the appellants had taken reasonable care in going into the genesis of the ownership, and examining the record in depth, which they as purchasers were required to do so, they would have found that the property being an inherited property was originally owned by Muhammad Siddique which devolved upon his legal heirs i.e four ......Obviously such unauthorized sale to the extent of their share in the sold property was void and that the case of the appellants do not squarely qualify the test of Section 41 and, therefore, they could not take up the plea of bona fide purchaser and their sale could not be protected on that account.”

Further, it is also a matter of record that single witness, examined by the appellant, himself admitted in his cross-examination as:--

“It is fact that the seller of agreement (Ex.D/10) namely Muhammad Saleem is not known to me personally. I do not know whether said Muhammad Saleem was owner of the property of the sale agreement or otherwise. I cannot say whether said Muhammad Saleem was not owner of the disputed property at that time. I do not remember the place at where the said agreement of sale was reduced and executed between the parties. I also do not remember that who and how many persons were present at the time of said agreement of sale. I also do not remember regarding payment of sale consideration and its mode of payment.”

From above, it is quite obvious that appellant had never taken any reasonable care in going into the genesis of the ownership of Defendant No. 1 Muhammad Saleem, which she, as purchaser, was required to do so. Thus, prima facie floating of this aspect is sufficient to conclude that appellant also failed to establish co-existence of all above four ingredients.

1. I am conscious that appellant also failed in producing two attesting witnesses of the claimed agreement with Defendant No. 1 Muhammad Saleem but would not go in much details as such agreement was/is with defendant Muhammad Saleem and respondents (plaintiffs in leading suit) are not parties nor it is proved, as discussed above, that defendant Muhammad Saleem was lawful and competent person to enter into a lawful agreement as it may prejudice the claim of compensation/damages, if appellant subject to law, intends to launch against defendant Muhammad Saleem.

As against the claim of the present appellant, the admitted title holders i.e respondents (plaintiffs in leading suit) had claimed that due to law and order situation in year 1993 they had shifted from subject matter; later found the appellant’s party into unauthorized possession for which had made complaint to police and such application was also placed on record. Such claim was also admitted by the attorney of the present appellant. The admitted owners of the subject matter i.e respondents (plaintiffs in leading suit) cannot be denied their right to have theirimmovable property merely on basis of a claimed agreement which otherwise proved to be void.

1. In consequence of what has been discussed above, I am of the clear view that concurrent findings of the two Courts below are not open to any exception and the point for determination is answered accordingly.

These are reasons for short order dated 31.5.2018.

(Y.A.)

PLJ 2019 Karachi 100 (DB)[Circuit Court Hyderabad]

Present: Muhammad Iqbal Kalhoro and Khadim Hussain M. Shaikh, JJ.

NIZAMUDDIN MANSOORI--Petitioner

versus

RIFFAT SHAHNAZ and 10 others--Respondents

C.P. No. D-2904 and M.A. No. 14896 of 2015, decided on 19.10.2017.

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

----O. I R. 10--Sindh Rented Premises Ordinance, 1979, S. 15--Ownership of property--Filling of civil suit--Application for joining as defendant--Allowed--Civil revision--Dismissed--Ejectment petition--Filling of civil suit which was tagged in litigation--Necessary and proper party--Jurisdictional defect--Opportunity of hearing--Concurrent finding--Eject petition was filed before filling of suit--Challenge to--It would be seen that respondents claiming themselves to be owners of subject property through registered sale deed, filed application under Order I Rule 10, CPC seeking their joining as defendants in proceedings of suit undisputedly rent application under provisions of Section 15 of Sindh Rented Premises Ordinance 1979, filed by Respondents No. 7 to 10 against plaintiff/ petitioner, seeking his ejectment from subject property was filed before learned Rent Controller/Senior Civil Judge, Sanghar prior to filing of subject suit, but plaintiff/petitioner Nizamuddin without joining them as party has filed aforesaid suit against Mst. Riffat Shahnaz and others although Respondents No. 7 to 10 intervenes, who having already been tagged in litigation with Petitioner/plaintiff over subject property claiming it to be their property, were necessary and proper party, and in their absence no effective decree, could be passed rather adjudication of suit would definitely have affected their rights and interest over subject property, depriving them of opportunity of hearing and advancing their pleas--We are of humble view that (learned trial Court by allowing application of intervenors/respondents under Order I Rule 10, CPC, and joining them as party to aforesaid suit and learned Revisional Court by dismissing Revision Application filed against aforesaid order have not committed any illegality--Learned counsel for petitioner has also not been able to point out any illegality or infirmity or any jurisdictional defect in impugned orders passed by both learned Courts below, attracting exercise of jurisdiction of this Court under provisions of Article 199 of Constitution of Islamic Republic of Pakistan, 1973--Petition was dismissed.

[Pp. 103, 104 & 105] A & C

Administration of Justice--

----Impleadment intervenors as defendant in subject suit has caused no prejudice to any party, for, parties would be having opportunity to establish their respective rights and claims, and, thus, instead of objecting to joining of Respondents No. 7 to 10/intervenors as party to suit, Petitioner/plaintiff should have welcomed it, more so when intervenors asserted their ownership and interest in subject property, so as to avert multiplicity of proceedings, otherwise on their non-impleading as party, no effective decree could be passed, for, main object of making a person as a party to proceedings is to prevent multiplicity of proceedings, and it is conducive for administration of justice that all parties having interest in subject property/should be before Court and are provided opportunity to defend their rights. [P. 104] B

Mr. Hakim Ali Siddiqui, Advocate for Petitioner.

Mr. Mansoor Ali Leghari, Advocate for Respondent No. 7.

Date of hearing: 19.10.2017.

Judgment

Khadim Hussain M. Shaikh, J.--Through this, petition, petitioner Nizamuddin Mansoori has called in question order dated. 16.11.2015, passed by learned Ist. Additional District Judge, Sanghar whereby Civil Revision Application No. 13 of 2014 re: Nizamuddin Mansoori v. Riffat Shahnaz & others filed against order dated 25.8.2014, passed by Senior Civil Judge, Sanghar, allowing the application under Order I Rule 10, CPC in F.C. Suit No. 04 of 2014 re: Nizamuddin Mansoori v. Riffat Shahnaz & others and joining the applicants/interveners as defendants in the said suit, has been dismissed.

1. Briefly the facts of the case are that the petitioner Nizamuddin Mansoori has filed a suit being F.C. Suit No. 04 of 2014 re: Nizamuddin Mansoori v. Riffat Shahnaz & 5 others in the Court of Senior Civil Judge, Sanghar, for specific performance of contract with subsequential relief of permanent injunction in respect of an agreement of sale dated 19.1.2010, allegedly executed between the Defendant No. 1 and the plaintiff in respect of an area of 2091 sq. ft. out of C.S. No. 950 Ward ‘A’, Sanghar. Pending the suit, Respondents No. 7 to 10/interveners Abdul Latif, Zulfiqar Ali both sons of Abdul Razzak, Mst. Rukhsana wife of Zulfiqar Ali and Mst. Uzma wife of Abdul Latif filed an application under Order I Rule 10., CPC seeking their joining as defendants in the proceedings of the above suit on the ground that they have purchased an area of 9923 sq. feet, out of total area of 12019 sq. ft from C.S. No. 950, situated in Ward ‘A’ Sanghar through registered sale deed dated 4.2.2010, showing therein that in the remaining area of the said C.S. No. 950, a Telenor Tower is installed and no area claimed to have been purchased by the plaintiff through alleged agreement out of the aforesaid C.S. No. 950 was available; that the interveners/Respondents No. 7 to 10 have already filed Rent Application No. 01 of 2012 under the provisions of Section 15 of Sindh Rented Premises Ordinance, 1979, seeking ejectment of the Petitioner/plaintiff from the subject property belonging to the applicants and, thus, the applicants are necessary and proper party to be impleaded in the proceedings of the suit and in their absence conflicting judgments would come into the field. After hearing counsel for the parties and intervenors, the leaned trial Court allowed the application under Order I Rule 10, CPC vide order dated 25.8.2011, which was called in question in Civil Revision Application No. 13 of 2014 that has been dismissed vide order dated 16.11.2015, passed by the 1st. Additional District Judge, Sanghar, hence this petition.

2. It is, inter alia, contended by the learned counsel for the Petitioner that the orders passed by the learned trial Court and the learned Revisional Court are illegal; that the interveners/Respondents No. 7 to 10 ought not to have been joined as party in the suit filed by the petitioner against the Defendants No. 1 to 6; and, that both the learned Courts below have committed illegality, while passing the impugned orders. He, therefore, prays that petition may be allowed and the impugned orders by both the Courts below may be set aside. He has placed his reliance on the cases of S.M. Ilyas v. Karachi Building Control Authority (PLD 2001 Karachi 85), Province of Punjab v. Messrs Qavi Engineers (Pvt.) Ltd. (2007 MLD 89), Al-Hoqani Securities and I.C. (Pvt.) Ltd. v. National Clearing Company of Pakistan (PLD 2009 Karachi 227), Muhammad Saddiq v. Mst. Ruqaya Begum (PLD 2001 Karachi 60), National Bank of Pakistan v. Syed Muzammal Hussain (PLD 1965 Karachi 633), Vidur Impex Traders (Pvt.) Ltd. v. Tosh Apartment Pvt. Ltd. (2013 SCMR 602).

3. On the other hand, learned counsel for the respondents has mainly contended that learned trial Court as well as the learned Revisional Court after appreciating the material placed before them and considering the arguments of learned counsel for the parties, have passed the impugned orders in an exhaustive manner; and, that there is no illegality or any infirmity in the impugned orders. He, therefore, prays that the petition may be dismissed. He has placed his reliance on the cases of Muhammad Naeem Butt v. Shaukat Ali (2008 SCMR 1024), Hazrat Khan v. Amanullah Khan (1996 SCMR 1217), Zia-ur-Rehman v. Additional District Judge (2012 YLR 1257), Jamila Pirzada v. Mansoor Akbar (2011 CLC 1619), Mst. Farasa Aijaz v. Qamran Construction (Pvt.) Ltd. (2012 CLC 1477), Hussain Ali v. Shaikh Muhammad Shahid (2011 CLC 1239) and Alam Khan v. Pir Ghulam Nabi Shah & Co. (1992 SCMR 2375).

4. We have considered the submissions of learned counsel for the parties and have gone through the material brought on record.

5. From a perusal of the record it would be seen that the Respondents No. 7 to 10 namely Abdul Latif, Zulfiqar Ali, Mst. Rukhsana and Mst. Uzma claiming themselves to be the owners of the subject property through registered sale deed dated 11.01.2010, filed application under Order I Rule 10, CPC seeking their joining as defendants in the proceedings of suit being FC Suit No. 4 of 14 re: Nizamuddin Mansori vs. Riffat Shahnaz and others in the Court of Senior Civil Judge Sanghar; undisputedly the rent application under the provisions of Section 15 of the Sindh Rented Premises Ordinance, 1979, filed by the Respondents No. 7 to 10 against the plaintiff/ petitioner, seeking his ejectment from the subject property was filed before the learned Rent Controller/Senior Civil Judge, Sanghar prior to the filing of the subject suit, but the plaintiff/ petitioner Nizamuddin without joining them as party has filed the aforesaid suit against Mst. Riffat Shahnaz and others although the Respondents No. 7 to 10/intervenes, who having already been tagged in litigation with the Petitioner/plaintiff over the subject property claiming it to be their property, were necessary and proper party and in their absence no effective decree, could be passed rather adjudication of the suit would definitely have affected their rights and interest over the subject property, depriving them of opportunity of hearing and advancing their pleas. In our humble view, impleadment of the intervenors as defendant in the subject suit has caused no prejudice to any party, for, the parties would be having opportunity to establish their respective rights and claims, and, thus, instead of objecting to the joining of the Respondents No. 7 to 10/intervenors as party to the suit, the Petitioner/plaintiff should have welcomed it, more so when the intervenors asserted their ownership and interest in the subject property, so as to avert the multiplicity of the proceedings, otherwise on their non-impleading as party, no effective decree could be passed, for, the main object of making a person as a party to the proceedings is to prevent multiplicity of the proceedings and it is conducive for the administration of justice that all parties having interest in the subject property should be before the Court and are provided opportunity to defend their rights. We have seen the impugned order dated 25.8.2014, passed by the learned trial Court, allowing application under Order I Rule 10, CPC of the Respondents No. 7 to 10 and joining them as defendants and the order dated 16.11.2015 passed by the learned Revisional Court namely 1st Additional District Judge, Sanghar dismissing the Revision Application filed against the aforesaid order and find that both the impugned orders are patently well reasoned, having been passed by both the learned Courts below after considering the material brought on record and submissions of the learned counsel for the parties in a proper manner.

6. The cases quoted at bar by the learned counsel for the petitioner are not helpful to the petitioner, for, in the case of Muhammad Sadiq (supra), the application under Section 153, CPC filed by the legal heirs of Abdul Wahid seeking amendment in the date of order in execution proceedings on the ground that error had occurred due to inadvertent clerical mistake and ultimately the matter was brought before this Court in writ petition, in which, the petitioners made the Province of Sindh through Secretary Law Department as respondent to overcome the objection that might be raised by the Writ Branch on the maintainability of the petition; the case of Province of the Punjab (supra), involved the proceeding of the suit for recovery of damages and compensation on account of breach of contractual obligations, wherein the defendants, who were not party to the contract and there was no question of any breach thereof by them, sought for deletion of their names from the array of the defendants; in the case of National Bank of Pakistan (supra), the plaintiff/bank sought for joining of KPT as co-defendant in the suit for recovery of some amount with interest, in which, the plaintiff/bank had stood surety for the defendant firm and in the case of Vidur Impex and Traders (Pvt.) Limited (supra), the appellants had filed application after seven years of passing of the injunction order seeking their impleadment as party to the suit, who had purchased the subject property in subsistence of order of injunction, passed by Delhi High Court, which had restrained the Respondent No. 2 from alienating the suit property or creating third party interest therein, and whereas, the cases of Al-Hoqani Security and Investment Corporation and S.M. Ilyas & another (supra) are against the petitioner, for, the applicants/ intervenors being necessary party were joined as defendants in the suits in both the said cited cases. On a query, learned advocate for the petitioner has submitted that the Respondents No. 7 to 10 have since been joined as defendants before the trial Court and they have also filed their written statements and the matter is now fixed for evidence after framing of the issues by the trial Court.

7. In view of what has been discussed above, we are of the humble view that (the learned trial Court by allowing the application of the intervenors/Respondents No. 7 to 10 under Order I Rule 10, CPC, and joining them as party to the aforesaid suit and the learned Revisional Court by dismissing the Revision Application filed against the aforesaid order have not committed any illegality. The learned counsel for the petitioner has also not been able to point out any illegality or infirmity or any jurisdictional defect in the impugned orders passed by both the learned Courts below, attracting exercise of jurisdiction of this Court under the provisions of Article 199 of Constitution of Islamic Republic of Pakistan, 1973. Accordingly, this petition being devoid of merit is liable to be dismissed. These are the reasons of short order announced by us on 19.10.2017, whereby this petition was dismissed.

(M.M.R.) Petition dismissed

PLJ 2019 Karachi 106 (DB)

Present: Muhammad Iqbal Kalhoro & Shamsuddin Abbasi, JJ.

NOMAN ALI BHATTI--Petitioner

versus

NATIONAL ACCOUNTABILITY BUREAU & others--Respondents

C.P. No. D-990 of 2018, decided 3.9.2018.

National Accountability Ordinance, 1999 (XVIII of 1999)--

----Ss. 9(a)--Criminal Procedure Code, (V of 1898), Ss. 26 & 161--Constitution of Pakistan, 1973, Art. 199--Constitutional Petition--Post Arrest Bail, refusal of--Investigation reveals that illegal sales tax refunds amounting to Rs.30,095,873/- against bogus and flying sale tax invoices of fake companies, which were deposited in his Bank account and withdrawn--Purported owners of said firms have been examined un/s 26 Cr.P.C, some have denied existence of any firm under their propriety and issuing invoices to petitioner’s firm, and some have denied to have any business transactions with petitioner’s firm--Their statements are in line with prosecution case and support allegations against petitioner--Record shows that NAB has been able to collect relevant documents which bear signature of petitioner--Petitioner has not denied his signature on said papers and has simply based his case on premise that his CNIC was misused by somebody else, which, however, is not born out of record--It may be mentioned here that while deciding a bail plea of an accused, deeper appreciation of evidence is not required--If there is prima facie sufficient evidence against him, he would not be held entitled for concession of bail--In this case as discussed above, sufficient evidence against petitioner in form of relevant documents with his signature thereon, 161, Cr.P.C.--Statements of witnesses, relevant Bank account papers, etc. has been collected by NAB.

[P. 109] A

National Accountability Ordinance, 1999 (XVIII of 1999)--

----Ss. 18(d), (e) & (f)--Before parting with this order must show our displeasure over manner investigation has been conducted by Investigation Officer of this case--Although, investigation report shows that investigation officer was able to collect relevant record i.e. computerized analysis sheets, refund payment orders and refund cheques in respect of claimed files, etc. from office of R.T.O. concerned, yet he could not or did not identify relevant officials and completely ignored their obvious role in league with petitioner in committing alleged offence--Let a copy of this order be sent to Chairman, NAB, Islamabad and Director General NAB, Karachi for perusal and looking at credentials of Investigating Officer of this case in light of observations made in above para--Petition was dismissed. [Pp. 109 & 110] B

Mr. Zeeshan Abdullah, Advocate for Petitioner.

Mr. Yasir Siddique, Special Prosecutor, NAB for State.

Date of hearing: 3.9.2018.

Order

By means of this petition, the petitioner Noman Ali Bhatti is seeking post-arrest bail in Reference No. 03/2007 pending against him before the learned Accountability Court No. III at Karachi.

1. The facts in brief are that on receipt of Suspicious Transaction Report (STR) from CEO of Mybank Ltd. regarding suspicious transactions in 70 Bank accounts including Account No. 4399-2 Karachi in the name of M/s. Expose International, an inquiry was conducted, which revealed that the said firm had received illegal sales tax refunds. Such preliminary finding led to the investigation in which it was discovered that the petitioner had got the said firm viz. M/s. Expose International fraudulently registered with Collectorate of Sales Tax and Central Excise, Government of Pakistan vide Sales Tax Registration No. 17004203031073 on 29.04.2004 as an exporter/ wholesaler showing office address at Suite No. 607, 6th Floor, Noman Tower Marston Road, M.A. Jinnah Road, Karachi, and had obtained a total Sales Tax Refund of Rs.30,095,873/- during the period of 2004 and 2005. The details of which in tabular form have been reproduced in the Reference as well as in the Investigation Report. The said sales tax refunds were found to have been obtained against sales tax invoices issued by bogus companies to M/s. Expose International. It was also found .in the, investigation that M/s. Expose International never existed physically on its alleged address and the petitioner by using fake and flying sales tax invoices obtained sales tax refunds of aforesaid amount and thus caused a huge loss to the National Exchequer, which is an offence under Section 9(a) of NAO, 1999 punishable under Section 10 of the Ordinance.

2. Learned counsel for the petitioner has argued that the whole case has been contrived against the petitioner by the NAB authorities; that there is no evidence that he had got the alleged firm registered in his name; that there is no reliable evidence that the petitioner had opened the Bank account, where the cheques of sales tax refunds were deposited and withdrawn; that there is no evidence that sales tax refunds were received by the petitioner; that although there are allegations that in all six (06) claims for refund were filed by the petitioner but NAB could find only one file of refund claimed in the investigation, whereas no trace of remaining files was found by the NAB; that the NAB has failed to examine the relevant Bank officials who allegedly opened account of the petitioner, attested his signature or the interviewing officer before whom the petitioner had allegedly appeared at the time opening his account to verify that the petitioner is the same person or not or that he had withdraw the amount or not. Learned counsel for the petitioner further submitted that CNIC of the petitioner was misused and fraudulently in his name somebody else got the firm registered and the Bank account opened but the NAB did not look into this aspect of the case during the investigation. Besides, making above submissions, learned defence counsel has referred to 161, Cr.P.C. statements of many witnesses, who are shown purported proprietors of the fake companies, and who had allegedly sold goods to the petitioner’s company and had issued sale tax invoices to emphasize that case of the petitioner is on the same footings to that of those witnesses who have alleged in their statements that their CNIC was misused by someone else. According to him, the NAB has indulged in colorful investigation as the alleged offence admittedly could not have been committed by one person without active connivance of relevant Custom and Sales Tax officials but the I.O. has only roped the present petitioner in the case. Learned defence counsel in support of his arguments has relied upon the case law reported in 2017 YLR Note 144, PLD 2004 Karachi 617, 1996 SCMR 1132, 2014 SCMR 12 and an order dated 25.05.2017 passed by this Court in C.P. No. D-6321/2016.

3. On the other hand, learned Special Prosecutor, NAB has opposed grant of bail to the petitioner and has referred to various documents showing the signature of the petitioner thereon. These documents include applications for registration of the alleged firm, for its registration under Sales Tax Act, relevant Bank account papers where the cheques of Sales Tax Refunds were deposited and withdrawn, Tenancy Agreement of the office of M/s. Expose International etc. Learned Special Prosecutor, NAB has further contended that the petitioner was issued a Call-Up-Notice but did not appear before the I.O. for recording his statement and avoided investigation. He submitted that in the trial 22 witnesses have been cited out of whom 13 witnesses have already been examined and as such trial is likely to be concluded in near future.

4. We have considered submissions of the parties and perused material available on record and have taken guidance from the case law cited at the bar. The order dated 25.05.2017, in the unreported case of Muhammad Ibrahim in C.P.No. D-6321/2016, shows that the petitioner was granted bail on the ground that the entire sanctioned and paid amount of refund was not found bogus and out of the total amount so claimed some amount was admitted. The said petitioner was also found engaged in manufacturing as well as sales exports and he had filed the invoices, Export Form-E and filed goods declarations pertaining to various consignments, which were not denied by the NAB. Whereas in the present case the investigation reveals that the petitioner had got a fake firm registered on the fake address and obtained illegal sales tax refunds amounting to Rs.30,095,873/-against the bogus flying sales tax invoices of the fake companies, which were deposited in his Bank account and withdrawn. The purported owners of the said firms have been examined u/S. 161, Cr.P.C., some have denied existence of any firm under their propriety and issuing invoices to the petitioner’s firm, and some have denied to have any business transactions with the petitioner’s firm, their statements are in line with the prosecution case and support the allegations against the petitioner. The record shows that NAB has been able to collect relevant documents which bear signature of the petitioner. The petitioner has not denied his signature on the said papers and has simply based his case on premise that his CNIC was misused by somebody else, which, however, is not born out of the record. It may be mentioned here that while deciding a bail plea of an accused, deeper appreciation of evidence is not required. If there is prima facie sufficient evidence against him, he would not be held entitled for concession of bail. In this case as discussed above, sufficient evidence against the petitioner in the form of relevant documents with his signature thereon, 161, Cr.P.C. statements of the witnesses, relevant Bank account papers, etc. has been collected by NAB.

5. As learned Special Prosecutor, NAB has informed that out of 22 cited witnesses, 13 witnesses have already been examined and the trial is likely to be concluded in near future, we therefore at this juncture would refrain from exercising our discretion in favour of the petitioner and would rather like to direct the trial Court to expedite the trial and complete the same within a period of three (03) months hereof. Resultantly, this petition is dismissed.

6. Needless to mention that the observations made hereinabove are tentative in nature and would not prejudice the case of either party at the trial.

7. We, however before parting with this order must show our displeasure over the manner the investigation has been conducted by the Investigation Officer of this case. Although, the investigation report shows that the Investigation Officer was able to collect relevant

record i.e. computerized analysis sheets, refund payment orders and refund cheques in respect of claimed files, etc. from the office of R.T.O. concerned, yet he could not or did not identify the relevant officials and completely ignored their obvious role in league with the petitioner in committing the alleged offences.

1. Let a copy of this order be sent to the Chairman, NAB, Islamabad and Director General NAB, Karachi for perusal and looking at the credentials of the Investigating Officer of this case in the light of observations made in above para.

(K.Q.B.) Petition dismissed

PLJ 2019 Karachi 110 (DB)

Present: Muhammad Ali Mazhar & Omar Sial, JJ.

RAZA MUHAMMAD GORAR & others--Petitioners

versus

ELECTION COMMISSION OF PAKISTAN through Chairman and others--Respondents

C.P. Nos. D-3648, 3952 & 4169 of 2018, decided on 5.7.2018.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Election Act, (XXXIII of 2017), S. 20--Election Rules, 2017, R. 10(5)--Preliminary delimitation--Delimitation Committee--Allegation of gerry mandering--Principles of delimitation--Responsibility of Election Commission--Variation in population--We would like to observe here that mere leveling allegations cannot prove anything except some concrete and cogent reasons are placed to prove allegation of gerrymandering--What we have noticed that no petitioner in his petition has given any specific details to prove this allegation--Delimitation has been carried out by ECP which is an independent constitutional body--Principles of delimitation are provided under Section 20 of Elections Act, 2017 in which as far as practicable, constituencies may be delimited having regard to distribution of population in geographically compact areas, physical features, existing boundaries of administrative units, facilities of communication and public convenience and other cognate factors to ensure homogeneity in creation of constituencies--There is no variation of population in all constituencies of District Jamshoro which is well within allowable variation of 10%--Law provides rights to submit proposals by means of representation to ECP for making some changes and modification in preliminary delimitation but after considering all cognate factors, it is sole responsibility of ECP to finalize delimitation--One cannot claim vested right that whatever proposal placed by him should be accepted by ECP in letter and spirit nor any person can claim unbridled right to carve out/delimit a constituency according to his desires, proposals and wishes--Petitions was dismissed.

[Pp. 114 & 115] A, B, C & D

Mr. Kashif Paracha, Advocate for Petitioners (in C.P. No. D-3952/2018).

M/s. Rasheed A. Razvi, Tahmasp Rasheed Razvi and Abbas Rasheed Razvi, Advocates for Petitioners (in C.P. No. D-3648/2018), assisted by Mr. Shoaib Ali and Mr. Agha Mir Mustafa Durrani, Advocates.

Mr. M. Luqman-ul-Haq, Advocate for Petitioner (in C.P. No. D-4169/2018), assisted by Mr. Asadullah Shah, Advocate.

Raja Jawad Ali Saahar, Advocate for Respondent No. 3 (in C.P. No. D-3648/2018).

Mr. Murtaza Wahab, Advocate for the Interveners (in C.P. No. D-3648/2018), assisted by Mr. Asad Iftikhar Advocate.

Ms. Memona Nasreen, Advocate for the Election Commission of Pakistan.

Ms. Rukhsana Mehnaz Durrani, State Counsel.

Mr. Abdullah Hanjra, Law Officer, Election Commission a/w. Sain Bux Channer, Director (H.Q), Imtiaz Ahmed Kalhoro, District Election Commissioner, Hyderabad, Zaheer Ahmed Sehto, District Election Commissioner, Kashmore/Member Delimitation Committee.

Date of hearing: 20.6.2018

Order

Muhammad Ali Mazhar, J.--These Constitution Petitions have been brought to challenge the order dated 27.04.2018 passed by the learned Election Commission of Pakistan on the representations filed with regard to delimitation of constituencies-2018, Jamshoro district.

1. The impugned order reflects that total ten (10) representations were filed with different proposals for delimitation of constituencies Jamshoro District PS-80, PS-81 and PS-82. The petitioners in C.P. No. D-3648/2018 filed their representations with some proposals and their names are reflecting at Sr. No. 9 of the impugned order. The grievance of the petitioners in this petition is that the preliminary delimitation of provincial assembly constituency District Jamshoro was wrongly modified through final delimitation. The learned counsel for the petitioners argued that the impugned order is contrary to well established principles of delimitation. The principles of maintaining equality of votes have been violated. The Election Commission of Pakistan (ECP) considered the convenience of the candidates rather than voters. There is acute likelihood of gerrymandering, whereby, certain political persons/parties have been given preference in order to ensure their success.

2. Mr. Raja Jawwad Ali Sahar advocate appeared for the Respondent No. 3 who supported the final delimitation order and argued that STC Manjhand Tappa Unerpur, Tapa Lakha, Tappa Manjhand were unlawfully excluded from PS-82 Jamshoro-III in preliminary delimitation, therefore, the ECP rightly excluded these areas from PS-80 and included again in PS-82. He further argued that the ECP after hearing the objections of all objectors including the persons filed their representations decided the applications in accordance with law. It was further contended that the total population of District Jamshoro was about 993142, therefore, the requirement of each constituency for provincial seat is about 331047 and in the preliminary delimitation the population was imbalance as the population of PS-80 Jamshoro-I was about 347402 and population of PS-82 Jamshoro-III was about 318108 but after passing final delimitation order the population has been equalized.

3. Mr. Murtaza Wahab advocate appeared for interveners who also filed their representations before the ECP and their names are also appearing at Sr. Nos. 4, 5 & 6 of the impugned order. Learned counsel argued that Taluka Manjhand is a part of District Jamshoro as per notified census and as per preliminary proposals the Taluka Manjhand was divided into two parts. Taluka Manjhand has been made part of PS-81 which predominantly comprises of Thana Bulla Khan. He further argued that there is no physical communication between Taluka Manjhand and Thana Bulla Khan as both the Talukas are naturally divided by mountains and there is no road directly connecting the two Talukas. The person from Thana Bulla Khan to reach Taluka Manjhand would have to first exist District Jamshoro then he has to enter in District Thatta and through Kotri he will get access to Taluka Manjhand which fact is also confirmed by the letters issued by Deputy Commissioner, Jamshoro and Executive Engineer Highways, Jamshoro.

4. Learned counsel for the petitioners in C.P. No. D-4169/2018 referred to the same impugned order. The name of petitioner is mentioned at Sr. No. 2. He also pointed out Page No. 75 where proposal of the petitioner placed before the ECP is available. Learned counsel argued that TC Lakhri is part and parcel of STC Manjhand which is also in PS-80 Jamshoro-I and TC Lakhri may be included in PS-80 Jamshoro-I and excluded from PS-82 Jamshoro-II. He further argued that the ECP should have considered the convenience of people and geographical features including the communication and public convenience.

5. Learned counsel for the petitioners in C.P. No. D-3952/2018 pointed out the representation of his petitioner available at page No. 127. He argued that in the best interest of voters and public convenience, it was quite feasible that TC Bada be excluded from constituency PS-81 and be inserted into PS-82 and TC Manjhand be included in the constituency PS-81. Learned counsel argued that without giving proper reasoning, the ECP overturn its preliminary delimitation which tantamount to commit gerrymandering to benefit certain political persons/parties to ensure their success in the upcoming general elections. He further argued that while finalizing the delimitation through impugned order the ECP failed to consider the principles of delimitation enshrined under Section 20 of the Elections Act, 2017 and Rules 10 of the Election Rules, 2017. The Delimitation Committee had already considered the geographically compactness, physical features and existing boundaries of administrative units including the facilities of communication and public convenience and also started the delimitation from Northern end so there is no justification to upset the preliminary delimitation.

6. Heard the arguments. Perusal of record reflects that in the preliminary delimitation carried out by the delimitation committee, the population of PS-80 was 347402, PS-81 was 327632 and PS-82 was 318108, whereas in final delimitation the population of PS-80 is 314898, PS-81 is 345993 and PS-82 is 332251. There is also some variance in the number of constituencies as PS-81 is now PS-82 and PS-82 is PS-81. The ECP officials vehemently argued that despite making some changes through final delimitation order by ECP there is no variance in the population and the threshold of 10% variation in the population has been maintained and virtually the variation is below 10%. As far as the allegation raised by the petitioners collectively that ECP has made some changes to favour some political figures and influential persons to commit gerrymandering, we would like to observe here that mere leveling allegations cannot prove anything except some concrete and cogent reasons are placed to prove the allegation of gerrymandering. What we have noticed that no petitioner in his petition has given any specific details to prove this allegation. The delimitation has been carried out by the ECP which is an independent constitutional body. Without any proper details and the substance in allegation, we recuse ourselves to give any findings on this point which is nothing but exploitation.

7. We have seen the impugned order which shows the pros and cons of the proposals placed before the ECP and after examining the record and map produced by the petitioners and members of delimitation committee, the ECP felt it expedient to make some changes in the preliminary delimitation and excluded STC Uner pur, STC Bada, Town Committee Jamshoro and TC Lakhri from PS-81 and included in PS-82 and Town Committee Manjhand, STC Lakha, Uner pur and Manjhand were excluded from PS-80 and included in PS-82, whereas, Bholari and TC Vee and Bholari and Raheer excluded from PS-82 and included in PS-81.

8. It appears from the order that there was no justification to include STC Uner Pur and STC Bada in PS-81 due to huge mountain in between, therefore, these changes were made for the public convenience and the boundaries were again carved out accordingly. Much emphasis were made by the learned counsel for the petitioner that on 26.03.2018 and 28.03.2018 the Additional Deputy Committee-I District Jamshoro and Executive Engineer Highways Division, Jamshoro submitted a report to the District Election Commissioner, Jamshoro that there is no communication between Thana Bulla Khan and Taluka Manjhand. We had been shown the maps made out on the basis of preliminary delimitation for PS-80, PS-81 and PS-82, Jamshoro. Earlier Taluka Manjhand, Uner Pur STC and Bada STC including some other areas were part of PS-81 but in the final delimitation Taluka Manjhand, Uner Pur and Bada all have been carved out from PS-81 and included in PS-82 so the grievance lodged by the learned counsel for the petitioners that there is no road or access for general public from Manjhand and Thana Bulla Khan has already been redressed after excluding Taluka Manjhand, Uner Pur and Bada from PS-81 and included in PS-82. We have also noted that earlier Lakhri was part of PS-81 which is now in PS-82. In our view, it was rightly shifted to PS-82 with other areas such as Uner Pur, Bada and Taluka Manjhand due to big mountains and desert in between PS-81 and PS-82. The principles of delimitation are provided under Section 20 of the Elections Act, 2017 in which as far as practicable, the constituencies may be delimited having regard to the distribution of population in geographically compact areas, physical features, existing boundaries of administrative units, facilities of communication and public convenience and other cognate factors to ensure homogeneity in the creation of constituencies. It is further provided in the same section that as far as possible, variation in population in constituencies of an Assembly shall not ordinarily exceed ten percent and if it is exceeded in exceptional circumstances, the Commission shall record reasons in the delimitation order.

9. What we have observed here that there is no variation of population in all constituencies of District Jamshoro which is well within the allowable variation of 10%. We have also noted that ECP honoured the reasonable and sensible proposal placed before them and even in the final delimitation order they directed to shift some areas from one constituency to another keeping in mind the public convenience, geographically compactness and homogeneity. There is also no issue that the delimitation was not started from the Northern end and failed to proceed clockwise in zigzag manner keeping in view the population among the constituency as provided under sub-Rule (5) of Rule 10 of the Election Rules, 2017. Though the law provides rights to submit proposals by means of representation to ECP for making some changes and modification in the preliminary delimitation but after considering all cognate factors, it is the sole responsibility of ECP to finalize the delimitation. One cannot claim vested right that whatever proposal placed by him should be accepted by ECP in letter and spirit nor any person can claim unbridled right to carve out/delimit a constituency according to his desires, proposals and wishes. After going through the impugned order and the record available before us, we do not find any illegality in the impugned order.

10. As a result of above discussion, the aforesaid petitions are dismissed.

(Y.A.) Petition dismissed

PLJ 2019 Karachi 116 (DB)

Present: Ahmad Ali M. Shaikh, C.J. & Mohammad Karim Khan Agha, J.

Mst. RAHILA widow of Fawad Ahmed Batra--Petitioner

versus

NATIONAL ACCOUNTABILITY BUREAU through Chairman NAB and 2 others--Respondents

Constitution Petition No. 822 of 2016, decided on 3.10.2017.

Pakistan Penal Code, 1860 (XLV of 1860)--

----S. 84--NAB Ordinance, 1999, S. 9(a)(iv) & (vi)--Act of person of unsound mind--Important ingredients--Mental health--Medical insanity and legal insanity--Bipolar affective disorder--Right of fair Trial--trial Court in impugned order had erred in not fully appreciating or understanding medical evidence placed before it and as such impugned order should be set aside and this Court should find that Section 84 P.P.C. was applicable to him--There was no medical evidence that at time of commission of offense petitioner’s husband was of unsound mind and that even now he was not of unsound mind and was fully aware of nature of proceedings--Accused smoker, non diabetic, obese was examined by Board--History of weeping spells, ideas of suspiciousness, decreased, attention and concentration, there is history of his previous Psychiatric treatment--There is also history of loud noises during sleep and recurrent day time attacks of sleep--medical board diagnoses accused as patient of Bipolar Affective Disorder--There is no evidence that during his approximately 25 years service at HBL that accused was either hospitalized or took considerable time off work during his service at HBL on account of his mental health problems--He received performance awards and rose to position of branch manager at HBL--No material was produced that during his career at HBL he had acted in an unusual, bizarre or weird manner--According to Consultant Psychiatrist, petitioner is suffering from “Bipolar affective disorder”--This ailment connotes two different conditions of patient--In one condition, he is a normal person but in other, when he is under fit, loses control over his mind and may become dangerous for himself and others--Initial burden of proof of defense of insanity fell on defense--Thus, in terms of “nature and extent” of petitioner’s husband illness in our view, petitioner is not presently confined as a patient in a psychiatric Hospital on account of his illness and is in fact on contrary regularly attending trial proceedings and as per trial judge seems to be understanding nature of those proceedings, at this point in time--Petitioner’s husband is not of such an unsound mind so as to make it incapable for him to make his defence--It is made clear that if in opinion of trial Court petitioner’s husband is becoming incapable of making his defense due to a deterioration in his medical condition or another application to this effect is made to trial Court by petitioner trial Court may consider seeking a Medical Boards opinion on whether medical condition of petitioner at relevant time--Petition was dismissed.

[Pp. 122, 123, 143, 144, 147, 153 & 154] A, B, O, P, Q, V, W

PLD 1984 Lahore 434; 2012 SCMR 1768; 1997 SCMR 239; 1983 PCr.LJ 778 [SC(AJ&K)]; 1955 NUC (Madhya Bharat 5686) (V 42); 2000 P.Cr.LJ 64; PLD 2011 Lahore 153; 2012 P.Cr.LJ 1328; 2014 PCr.LJ 113, ref.

Unsoundness of mind--

----Unsoundness of mind implies an unusual feature of mind as has tended to make if different from normal and has in effect impaired man’s capacity to look after his affairs in manner in which another person without such mental irregularity will be able to do in matter of his own--Idea suggests some derangement of mind--Whatever be its degree and it is not to be confused with or taken as analogous a mere mental weakness or lack of intelligence. [P. 125] C

1990 Cr.LJ 742, ref.

Lunatic--

----A lunatic is one who is affected by his disorder only at certain periods of vicissitudes, having intervals of reason--Madness is permanent--Lunacy and madness are spoken of as required insanity, and idiocy as natural insanity. [P. 125] D

Mentally ill person--

----In Mental Health Act 1987, expression ‘lunatic’ is not used, but instead, expression ‘mentally ill person’ is used. [P. 125] E

[Mini v. James Koshy Alexander (1996) 1 Hin LR 294 at 296 (Mad); Usha Gupta v. Santosh Kumar 1996 MPLJ 42, (1996) 1 Hind LR 233]. ref.

Insanity

----Insanity implies existence of either or both of mental conditions namely, an incapacity (i) to know nature of act; and (ii) to know that act is wrong or contrary to law. [P. 125] F

1994 Cr.LJ 1173 ref.

Legal insanity and medical insanity--

----There is a clear distinction between legal insanity and medical insanity--Legal insanity is insanity which affects not only cognitive faculties of mind, which guide our actions, but also our emotions which prompt our actions and will by which our actions are performed--It is only unsoundness of mind which materially impairs cognitive faculties of mind that can form a ground of exemption from criminal responsibility, nature and extent of unsoundness of mind required being such as would make offender incapable of knowing nature of act or that he is doing what is wrong or contrary to law. [Pp. 125 & 126] G

ILR 1947 Nag. 226, ref.

Mental Health Ordinance 2001--

----Courts in Pakistan in recent times have tended to give a narrow interpretation to these definitions under Mental Health Ordinance 2001--It was held that schizophrenia in all cases was not a permanent mental disorder as to come within definition of “mental disorder”. [P. 127] H

PLD 2017 SC 18; PLD 2002 SC 92; Parikh’s (2006 Ed) Textbook on Medical Jurisprudence, Forensic Medicine and Toxicology; McNaghten Rules; Durham Rule; Currens Rule; American Law Institute’s Test; Norwegian System, ref.

Doctrine of Partial Responsibility--

----If a person who had committed a crime is suffering from some aberration or weakness of mind, though not completely insane, he is not fully but only partially responsible for his act--Thus, a charge of murder may be reduced to one of manslaughter--This doctrine is applicable in cases of depression, obsessional states, paranoid states, and certain organic states. [P. 129] I

Pakistan Penal Code 1860 (XLV of 1860)--

----S. 84--A bare perusal would indicate that there are four important ingredients of said section, which are as under:--

(a) Commission of an offence;

(b) Unsoundness of mind;

(c) Incapability of knowing nature of act/ offence;

(d) Distinction between right and wrong.

[Pp. 134 & 135] J

PLD 2002 SC 92, ref.

Permanent or temporary incapability--

----Pivotal question, however, would be as to whether petitioner was capable enough to know nature of act duly committed, whether he was permanently incapable (antecedents, subsequent and past conduct, family history and medical expert’s opinion are to be seen) or is incapable during certain intervals and thereafter cause/causes for permanent or temporary incapability will have to be examined which can possibly be as follows:--

(1) Lunacy.

(2) Idiocy/imbecility.

(3) None compos merits (sic)

(4) Temporary paroxysms.

(5) Insanity/Insane delusions.

(6) Somnambulism.

(7) Frantic humour and its gravity.

(8) Maniacal trend.

(9) Periodic epileptic fits.

(10) Delirium tremens.

(11) Irresistible impulsive insanity.

(12) Obsession.

(13) Mania.

(14) Amentia.

(15) Dementia.

(16) Melancholia. [Pp. 134 & 135] J

Pakistan Penal Code 1860 (XLV of 1860)--

----S. 84--Unsound mind--Court has to determine whether a person is of unsound mind although it appears that despite importance of medical reports it is a question of law for judge to decide--No hard and fast rule can be set down which defines unsoundness of mind and that each case will depend on its own particular facts and circumstances, medical opinion of an expert medical board and extent of that illness taking various definitions/tests into account we are of view that from a Pakistani legal perspective being of unsound mind would in most cases be a permanent medically recognized mental condition/impairment which was not self induced and which was so severe/disabling that person having such illness was incapable of knowing nature of act or that what he was doing is either wrong or contrary to law. [Pp. 136 & 137] K

Pakistan Penal Code 1860 (XLV of 1860)--

----S. 84--If a person is of unsound mind at time when offense is committed then he cannot be held liable for committing any offense and will be entitled to be acquitted. [P. 137] L

McNaughten Rules; Modi’s, Medical Jurisprudence and Toxicology 23rd Ed. Ref.

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

----S. 465--If, accused through an application raises plea under Section 84 P.P.C. of being of an unsound mind then procedure to be followed by Court is set out under Section 465, Cr.P.C. [P.137] M

1997 SCMR 239; PLD 1984 Lah. 434; 2017 PCr.LJ 255 SC AJK), ref.

Mental Illness--

----It is incumbent upon Court to constitute a medical board consisting of experts in relevant field to pine through detailed reasoning whether accused is of unsound mind and whilst not being bound by such report use it in assisting it to reach its determination on this issue. [P. 139] N

2012 SCMR 1768, ref.

Bipolar affective disorder--

----This ailment connotes two different conditions of patient--In one condition, he is a normal person but in other, when he is under fit, loses control over his mind and may become dangerous for himself and others--Such person under fit cannot defend himself but once he is out of it, he behaves normally and rationally. [P. 148] R

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

----Article 121 of provides that burden of proving that case, of an accused person falls within an exception is on him. [P. 150] S

2006 SCMR 1755, ref.

Pakistan Penal Code, 1860 (XLV of 1860)--

----S. 84--If benefit was to be had from section 84, P.P.C. it was necessary for appellant to establish legal insanity in context of reasonable doubt at time of committing offence. [P. 150] T

1971 PCr.LJ 1285, ref.

Constitution of Pakistan, 1973--

----Art. 10 (A) of Constitution, which in essence provides right to a fair trial and is reproduced as under for ease of reference, and need for Section 465 and 466 only being pressed into service in genuine cases and not on account of feigned illnesses in order to avoid criminal liability as alleged by prosecution in this case. [P. 153] U

Mr. Muhammad Ilyas Khan, Advocate for Petitioner.

Mr. Muhammad Altaf, Special Prosecutor, NAB alongwith Baqa Muhammad, I.O. for Respondents.

Date of hearing : 29.8.2017.

Order

Mohammad Karim Khan Agha, J.--Through this petition, the petitioner (the wife of the accused Fawad Ahmed Batra) has challenged the order dated 02.12.2015 passed by the Accountability Court No. IV Sindh at Karachi whereby the petitioner's application under section 465, Cr.P.C. was dismissed (the impugned order) and prayed that the same be set aside and that this Court order that the case of the petitioner's husband comes within the ambit of Section 84 P.P.C.

1. Briefly stated the facts of the case are that the husband of the petitioner is facing trial vide Reference No. 09 of 2009 filed by the National Accountability Bureau (NAB) under the National Accountability Ordinance 1999 (NAO) for his involvement in corruption and corrupt practices, more particularly his role in embezzling approx RS7 crore whilst he was HBL Garden branch manager through operating a parallel banking system with other co-accused who have now entered into plea bargains under the NAO, which reference is presently proceeding before the Accountability Court No. IV, Karachi and according to the Special Prosecutor NAB is on the verge of conclusion.

2. The petitioner's husband was arrested by the NAB on 08.05.2009 and as per record he sought admission to a psychiatric hospital on the grounds of his poor state of mental health. By order dated 26-04-2012 this Court granted the petitioner's husband bail on medical grounds wherein it was held that in view of two reports of two renowned Doctors the stay of the petitioner in jail would be dangerous to his life as according to the doctors the accused/petitioner has the tendency of suicidal idea.

3. It appears that the petitioner then moved an application before the trial Court under Section 465, Cr.P.C. which was dismissed and then challenged before this Court. This Court vide order dated 02.05.2011 with the agreement of the DPG remanded the matter back to the trial Court for a fresh decision on the petitioner's application under section 465, Cr.P.C. keeping in view of all the provisions which are relevant to be examined including 464, Cr.P.C. After hearing both parties and recording evidence and considering medical evidence the trial Court dismissed the petitioner's application under Section 465, Cr.P.C. vide the impugned order which the petitioner's wife has now assailed before this Court through this Constitutional petition.

4. Learned counsel for the petitioner's husband contended that at the time of commission of the offense in 2005 whilst working at the bank the petitioner's husband was of unsound mind due to mental health reasons and as such could not be tried for the commission of the offense as he in effect did not know what he was doing or that he was committing any wrong on account of his on going mental health condition. In this respect he contended that the evidence and material on record based on his hearing before the trial Court under Section 465, Cr.P.C. had shown that he was of unsound mind at the time when he committed the offense and as such Section 84 P.P.C. was applicable which meant that he could not be liable for committing any offense. He contended that the trial Court in the impugned order had erred in not fully appreciating or understanding the medical evidence placed before it and as such the impugned order should be set aside and this Court should find that Section 84 P.P.C. was applicable to him. In this respect he placed reliance on various medical reports and evidence of CW Prof. Mohammed Iqbal Afridi, Article 59 Qanun-e-Shahadat Ordinance 1984 and the following authorities; Khan Baig v. The State (PLD 1984 Lahore 434) State of Rajasthan v. Shera Ram alias Vishnu Dutta (2012 SCMR 1768) Fauqual Bashar v. The State (1997 SCMR 239), Munshi Khan v. The State (1983 PCr.LJ 778 [SC(AJ&K)], 1955 NUC (Madhya Bharat 5686) (V 42), Surendra Mishra v. State of Jharkhand (SC India dated 06.01.2011) and Archbold (2008).

5. On the other hand learned Special Prosecutor for NAB fully supported the impugned order and emphasized that there was no medical evidence that at the time of the commission of the offense the petitioner's husband was of unsound mind and that even now he was not of unsound mind and was fully aware of the nature of the proceedings and was simply raising the Section 465 issue now at this belated stage in order to wriggle out of facing the trial which was close to conclusion and as such his petition should be dismissed. In support of his contentions learned counsel for NAB placed reliance on the following authorities; Muhammad Anwar v. The State (2000 P.Cr.LJ 64 (Karachi), Walidad Khan v. The State and another (PLD 2011 Lahore 153) and Irfan ul Haq v. The State and another (2012 P.Cr.LJ 1328 (Lahore), 7. We have considered the submissions of learned counsel for the parties, case laws cited by them and carefully perused the material available on record.

6. In essence this petition revolves around whether the petitioner's husband was/is of unsound mind. In our view this aspect divides into two parts:

(a) Whether the petitioner was of unsound mind at the time when the offense was committed and

(b) If not, whether the petitioner is now of unsound mind so that he is unable to understand the nature of the proceedings and thereby is incapable of making a defense.

Turning to whether the petitioner was of unsound mind at the time when the offense was committed.

When is a person of "unsound mind"?

1. In answering Para 8 (a) and (b) above we must first define what we mean by an "unsound mind" since it is of crucial significance in terms of Section 84 P.P.C.

2. According to Blacks Law Dictionary (6th Ed) "unsound mind" is defined as follows:

"Unsound mind. Non-legal term referring to one who from infirmity of mind is incapable of managing himself or his affairs. The term, therefore, includes insane persons (see Insanity). It exists where there is an essential deprivation of the reasoning faculties, or where a person is incapable of understanding and acting with discretion in the ordinary affairs of life. Oklahoma Natural Gas Corporation v. Lay, 175 Okl. 75, 51 P.2d 589, 582. But eccentricity, uncleanliness, slovenliness, neglect of person and clothing, and offensive and disgusting personal habits do not constitute unsoundness of mind (bold added)".

1. According to Blacks Law Dictionary (6th Ed) "insanity" is defined as follows:

"Insanity. The term is a social and legal term rather than a medical one, and indicates a condition which renders the affected person unfit to enjoy liberty of action because of the unreliability of his behavior with concomitant danger to himself and others. The term is more or less synonymous with mental illness or psychosis. In law, the term is used to denote that degree of mental illness which negates the individual's legal responsibility or capacity."(bold added)

Insanity as Defense to Crime

'There are various tests used by the Courts to determine criminal responsibility, or lack thereof, of a defendant who asserts the defense that he or she was insane at the time of crime. A frequently used test as provided in Section 4.01 of the Model Penal Code is as follows: "A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality (wrongfulness) of his conduct or to conform his conduct to the requirements of law." Under this test there must be a sufficient causal link between the defendant's mental disease or defect and his inability to control his behavior. U.S v. Jackson, 553 F.2d 109, 113, 179 U.S. App. D.C. 375. This test, as defined by the American Law Institute, has been adopted (sometimes with slight modifications) by a number of states and also in most federal Courts. See 18 U.S.C.A. s 4241.(bold added)

1. According to K.J.Aiyar Judicial Dictionary (13th Ed) "unsound mind" is defined as follows:

"Unsound mind. The term comprehends imbecility whether congenital or arising from old age or mental aberration, resulting from disease" [See Lunatic].

1. According to K.J.Aiyar Judicial Dictionary (13th Ed) "Lunatic" is defined as follows:

"Lunatic. The word 'lunatic' except in the phrase criminal lunatic' and in relation to person detained as lunatics outside England, shall cease to be used in relation to any person of or alleged to be of unsound mind, and the words 'person of unsound mind,person' patient of unsound mind', or 'of unsound mind', or such other expression as the context may require are to be substituted in any enactment or document thereunder. (Wharion's Law Lexicon, 1976 reprint, p 613. See also Mental Health Act 1987, S. 2].

The Act is intended to be exercised in respect of lunatic or a criminal lunatic. No body has case that Satyanathan is a criminal lunatic as defined in section 3(4) of the Lunacy Act is defined as an idiot or person of unsound mind. Who is a person of unsound mind? The said words have not been defined in the Act, but those words indicate an abnormal state of mind as distinguished from weakness of mind. A man of weak mental strength cannot be called a man of unsound mind. Unsoundness of mind implies an unusual feature of the mind as has tended to make if different from the normal and has in effect impaired the man's capacity to look after his affairs in manner in which another person without such mental irregularity will be able to do in the matter of his own. The idea suggests some derangement of the mind. Whatever be its degree and it is not to be confused with or taken as analogous a mere mental weakness or lack of intelligence. [Abdul Kareem v. T Gopalakrishnan Nambisan 1990 Cr.LJ 742 (745) (Ker).

A lunatic is one who is affected by his disorder only at certain periods of vicissitudes, having intervals of reason. Madness is permanent. Lunacy and madness are spoken of as required insanity, and idiocy as natural insanity.

The definition is very wide in terms and will certainly include a schizopherenic. In the Mental Health Act 1987, expression 'lunatic' is not used, but instead, the expression 'mentally ill person' is used. [Mini v. James Koshy Alexander (1996) 1 Hin LR 294 at 296 (Mad); Usha Gupta v. Santosh Kumar 1996 MPLJ 42, (1996) 1 Hind LR 233]. (bold added)"

1. According to K.J.Aiyar's "Judicial Dictionary (13th Ed) "Insanity" is defined as follows:

"Insanity" implies the existence of either or both of the mental conditions namely, an incapacity (i) to know the nature of the act; and (ii) to know that the act is wrong or contrary to law. [Sankaram v. State 1994 Cr.LJ 1173 at 1178 (Ker).

There is a clear distinction between legal insanity and medical insanity. Legal insanity is the insanity which affects not only the cognitive faculties of the mind, which guide our actions, but also our emotions which prompt our actions and the will by which our actions are performed. It is only unsoundness of mind which materially impairs the cognitive faculties of the mind that can form a ground of exemption from criminal responsibility, the nature and extent of the unsoundness of mind required being such as would make the offender incapable of knowing the nature of the act or that he is doing what is wrong or contrary to law. It is this rule which is the basis of section 84 I.P.C. (Kalicharan v. Emperor ILR 1947 Nag. 226; Baswantrao Bajrao v. Emperor (bold added)

1. In M. Illyas Khan's and Farah Khan's Medico Legal Digest of Pakistan "insanity" is defined as follows:--

Insanity: In law the term insanity is used interchangeably with unsoundness of mind. This covers a wide range of synonyms lunacy, madness, mental disorder, and mental disarrangement. In this situation an individual loses the power of regulating his actions and conduct according to the rules of society in which he is moving. Insanity is solely a legal and a sociological concept, has no technical meaning in law or in medicine and does not connote any definite medical entity. Insanity is seen to be a social inadequacy and medically it takes the form of a mental disease. Insanity implies a degree of mental disturbance so meaning and so disabling that the person may be considered from the legal point of view to be immune from certain responsibilities and may disallow him certain privileges that may require a degree of competence such as a decision to marry, make business contracts or manage property (Modi). (bold added)

1. In Pakistan the Lunacy Act of 1912 was repealed and was replaced by the Mental Health Ordinance 2001 (Ordinance VIII of 2001) which no longer uses the word lunatic which is in line with K.J.Aiyar's aforementioned Judicial Dictionary definition which appears to reflect the Indian Mental Health Act 1987 with a view to perhaps helping reduce the negative social stigma which is associated with this term. The Mental Health Ordinance 2001 provides the following definition in terms of mental illness at Section 2 (m) as set out below:

"(m). "mental disorder" means mental illness, including mental impairment, severe personality disorder, severe mental impairment and any other disorder or disability of mind and "mentally disordered" shall be construed accordingly and as explained hereunder:

(i) "mental impairment" means a state of arrested or incomplete development of mind (not amounting to severe mental impairment) which includes significant impairment of intelligence and social functioning and is associated with abnormally aggressive or seriously irresponsible conduct on the part of the person concerned and "mentally impaired" shall be construed accordingly;

(ii) "severe personality disorder" means a persistent disorder or disability of mind (whether or not including significant impairment of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the person concerned'

(iii) "severe mental impairment" means a state of arrested or incomplete development of mind which includes severe impairment of intelligence and social functioning and is associated with abnormally aggressive or seriously irresponsible conduct on the part of the person concerned and "severely mentally impaired" shall be construed accordingly;

Explanation.--Nothing contained in clause (m), sub-clauses (i), (ii) and (iii) above shall be construed as implying that person may be dealt with under this Ordinance as suffering from mental disorder or from any other form of such mental disorder defined in this section, by reason only of promiscuity or other immoral conduct, sexual deviancy or dependence on alcohol or drugs.

1. Under the Mental Health Ordinance 2001 the Courts in Pakistan in recent times have tended to give a narrow interpretation to these definitions under the Mental Health Ordinance 2001. For instance, in the recent Supreme Court case of Mst. Safia Bano v. Home Department Government of Punjab (PLD 2017 SC 18) it was held at P.26 Para 10 that schizophrenia in all cases was not a permanent mental disorder as to come within the definition of "mental disorder" as defined in the Mental Health Ordinance 2001 in the following terms:

"10. Thus, schizophrenia is not a permanent mental disorder, rather imbalance, increasing or decreasing, depending the level of stress. In recent years, the prognosis has been improved with drugs, by vigorous psychological and social managements, and rehabilitation. It is, therefore, a recoverable disease, which, in all the cases, does not fall within the definition of "mental disorder" as defined in the Mental Health Ordinance, 2001".

1. However in the earlier case of Mehran alias Muna v. State (PLD 2002 SC 92) which dealt specifically with Section 84 P.P.C. at P..96 the Hon'ble Supreme Court laid down some guidance on the potential width of Section 84 P.P.C. which we shall consider later in this order.

2. In considering the question of unsound mind/insanity as a defense in criminal law it is also useful to consider the various tests as mentioned in Parikh's (2006 Ed) Textbook on Medical Jurisprudence, Forensic Medicine and Toxicology (for class rooms and Court rooms) which at P.6.29 provides as under:

McNaghten Rules

The present legal test on the defence plea of insanity is based on McNaghten rules. McNaghten was an accused in a criminal case. He, while laboring under a delusion of persecution, shot Mr. Drummond, the private secretary of the Prime Minster Sir Robert Peel, at Charing Cross, London, in mistake for the latter. Evidence of insanity was led and a verdict of "not guilty by reason of insanity" was given. The public reacted adversely to the acquittal and a discussion took place in parliament. The House of Lords put certain questions to all the 14 judges in connection with this case. From the answers given by them, some rules were framed for the criminal responsibility of the insane, and they have been named after McNaghten. According to these rules, to establish defence on the ground of insanity, it must be clearly shown that at the time of committing the act, the accused was laboring under such defect of reason from disease of the mind as not to know the nature and quality of the act he was doing, or if he did know this, that he did not know that what he was doing was wrong it must be borne in mind that the defence can be founded only on a known and nameable disease of the mind. Lesser conditions which may prevail temporarily at the time of the act do not suffice, and these include rage, jealousy, transient loss of control, and others including unresisted impulse.

The legal test of insanity that is accepted in India is embodied in Section 84 I.P.C. which lays down that nothing is an offence which is done by a person, who at the time of doing it, by reason of unsoundness of mind, incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.

With the advances in medicine, insanity is better understood now and many criminologists and psychiatrists are of the opinion that McNaghten Rules are now totally outdated and require a complete revision. Some of the States in the West have already formulated certain improvements in these rules.

Criticism of McNaghten Rules.

The primary defect of McNaghten rules is that the criterion for deciding that a person is insane is purely an intellectual one. There is no place for emotional factors of the ability of the individual to control his impulses. Medicine has now come to recognise that there is mental disorder, however partial, that does not have its repercussions throughout the rest of the affected mind. Consequently, it is now accepted that intellectual defect means deficient emotional control. Allowance is therefore being made in some states for all such well-known phenomena as the disordered ideation of the schizophrenic, post-hypnotic and epileptic automatisms, and the overwhelming influence of affective disorders which may, for example, cause a depressed person to murder his wife or children whom he loves and whom he knows full well it is normally wrong to kill.

Doctrine of Partial Responsibility

The doctrine is recognized in some of the states in the West. According to it, if a person who had committed a crime is suffering from some aberration or weakness of mind, though not completely insane, he is not fully but only partially responsible for his act. Thus, a charge of murder may be reduced to one of manslaughter. This doctrine is applicable in cases of depression, obsessional states, paranoid states, and certain organic states.

Durham Rule

In 1954, the United States Court of Appeals in the case of Durham v. United State held that an accused is not criminally responsible if his unlawful act was the product of mental disease or mental defect. This corresponds very nearly to the strong subjective sense that psychiatrists have of what responsibility should mean. It has an advantage over the irresistible impulse rule in that it covers acts which are the result of slowly rather than suddenly formed resolutions such as the acts of the melancholic and the paranoiac.

Currens Rule

Currens Rule (1961) postulates that an accused is not criminally responsible if at the time of committing the act he did not have the capacity to regulate his conduct to the requirements of the law as a result of mental disease or mental defect. This is similar to the irresistible impulse rule, proposed by Lord Justice Atkin's Committee in 1923 but withdrawn in 1924.

American Law Institute's Test

Under this test (1970), proof that a criminal defendant as a result of mental disease or defect lacked substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to requirements of law now constitutes defence to a criminal charge. The test does not cover repeated criminal or otherwise antisocial acts of psychopaths.

Norwegian System

Norwegian law provides that no defendant considered insane or unconscious at the time of committing the offence may be punished. The term insane means whatever doctors at the time classify as mental illness. Thus, there is no difference between medical and legal insanity. The term unconscious includes a series of abnormal mental states characterized by peculiar conduct associated, among other things, with a total loss of memory. Many pathologic states such as hysterical or schizoid reaction, or epileptic seizure, are considered legally as predisposing the offender to a state of unconsciousness during which time he could not be considered responsible for his actions. Once insanity or unconsciousness is established as existing at the time of the crime, this is complete defence under the Norwegian law. No other element, e.g., a lack of knowledge that what he did was wrong, or a casual link between insanity and crime needs to be established.(bold added)

1. Under English law in recent times it even appears that the defense of insanity is not limited to mentally ill people through a so called disease of the mind as is illustrated in Smith and Hogan's criminal law (13th Ed) at P.295 to 298 as under:

11.2.2.2 The test of insanity

Whatever the effect of the recent changes on procedure and disposal, the M'Naghten Rules remain of great importance symbolically both because they provide the legal test of responsibility of the mentally abnormal and because they set a limit to the defences of automatism and, in theory, of diminished responsibility. The basic propositions of the law are to be found in the answers to Questions 2 and 3 of the M'Naghten Rules.

the jurors ought to be told in all cases that every man in presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfactions; and that to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know he was doing what was wrong.

It will be seen that there are two limbs of defence open to an accused person (often called the two limbs'):

(1) He must be acquitted if, because of the mind, he did not know the nature and quality of his act (effectively a denial of mens rea); or

(2) Even if he did know the nature and quality of his act, he must be acquitted if, because of a disease of the mind, he did not know it was 'wrong'.

The Rules have been heavily criticized for being over-inclusive; 'disease of the mind' has been widely construed as to include within the scope of insanity such everyday illnesses as diabetes. In addition, in some instances D qualifies for the defence even though he was responsible for his inability to appreciate the nature or wrongness of his actions. As Mackay has recently pointed out, some commentators have argued that the first limb is superfluous as anyone who did not know the nature and quality of the act must also not have known it was wrong. Others, including Glanville Williams, argued that the second limb was superfluous since anyone who did not know the nature and quality of his act must also have lacked awareness that it was wrong. The Rules are also criticized for focus on the cognitive state of D (has he appreciated the nature or wrongness) rather than on whether D had the capacity to be held responsible or to conform with criminal regulation.

Disease of the mind

The two limbs of the Rule require separate consideration but the first question, under either limb, is whether D was suffering from 'a defect of reason from a disease of the mind'. If D was unaware of the nature and quality of his act for some reason other than a defect of reason from a disease of the mind (such as mistake) he will usually be entitled to a straightforward acquittal on the ground that he lacked the necessary mens rea. Moreover, in such a case the onus of proof remains on the Crown, whereas it shifts to D once he tenders evidence of a defect of reason arising from disease of the mind. If D was unaware that his act was 'wrong' for some reason other than from a defect of reason from a disease of the mind, this will generally not amount to a defence at all. It is a cardinal principle that neither ignorance of the law, nor good motive will normally afford a defence.

The question whether D has raised the defence of insanity is one of law for the judge. Whether D, or indeed his medical witnesses, would call the condition on which he relies, 'insanity' is immaterial. The expert witnesses may testify as to the factual nature of the condition but it is for the judge to say whether that is evidence of 'a defect of reason, from disease of the mind', because, as will become apparent, these are legal not medical, concepts.In the leading case of Sullivan, the defence to a charge of assault occasioning actual bodily harm was that D attacked V while recovering from a minor epileptic seizure and did not know what he was doing. The House of Lords held that the judge had rightly ruled that this raised the defence of insanity. D had then pleaded guilty to the charge of which he was manifestly innocent, and his conviction was upheld.

It seems that any disease which produces a malfunctioning of the mind is a disease of the mind. Commonly the insanity plea will involve mental illness (schizophrenia being the most common, epilepsy, diabetes, sleepwalking, pre-menstrual syndrome and all physical diseases, may amount in law to a disease of the mind if they produce the relevant malfunction. The lack of correlation with medical definitions of mental illness renders this aspect of the test potentially incompatible with the ECHR (see below) where it results in D's loss of liberty or loss of private life.

It is critical to reiterate the distinction between pleas of insanity and pleas of sane automatism. A transitory malfunctioning of the mind is not a disease of the mind when it is caused by some external factor - a blow on the head causing concussion, the consumption of alcohol or drugs, or the administration of an anaesthetic. In such cases sane automatism may be pleaded. That 'defence' imposes no burden of proof on D and, if successful, results in a complete acquittal. Insanity on the other hand must be proved by D. (on the balance of probabilities) and results in a special verdict of not guilty by reason of insanity. In terms of process and outcome much turns on this distinction between internal and external causes of the malfunction of the mind, yet the basis for the distinction is unsatisfactory.

In determining whether D suffers a disease of the mind, it is clear that the law considers not only D's state of mind at the time, but how it came about. Devlin J thought that the object of the inclusion of the words `disease of the mind' was to exclude 'defence of reason caused simply by brutish stupidity without rational power; but it seems the words exclude more than that. In Quick, D who had inflicted actual bodily harm called medical evidence to show that he was a diabetic and that he was suffering from a hypoglycqemic attack at the time of the alleged offence and was unaware of what he was doing. Bridge J ruled that he had thereby raised a defence of insanity, whereupon D pleaded guilty. On appeal it was held that D's mental condition at the time of the offence was caused not by D's diabetes (an internal factor) but by his use of insulin prescribed by the doctor coupled with his failure to follow that prescription by eating after injecting insulin (an external factor). This use of the prescribed drug was an external factor and the plea of sane automatism should have been left to the jury. If D's mental condition had been caused by his diabetes the plea would have been insanity, being based on that internal factor of disease. The case illustrates the fine line between the two pleas although the consequence of pleading them successfully is markedly different. The unsatisfactory nature of this distinction is further discussed in the next section.

Disease of the mind includes physical illnesses that manifest themselves by affecting reasoning. In Kemp, D made an entirely motiveless and irrational attack on his wife with a hammer. He was charged with causing grievous bodily harm to her with intent. D suffered from arteriosclerosis which caused a congestion of blood in his brain, leading to a temporary lapse of consciousness during which he made the attack. It was conceded that D did not know the nature and quality of his act and that he suffered from a defect of reason but it was argued on his behalf that this arose, not from any mental disease, but from a purely physical one. It was argued that, if a physical disease caused the brain cells to degenerate (as in time, it might), then it would be a disease of the mind; but until it did so, it was aid, this temporary interference with the working of the brain was like a concussion or something of that sort and not a disease of the mind. Devin J rejected this argument and held that D was suffering from a disease of the mind. He said.

"The law is not concerned with the brain but with the mind, in the sense that 'mind' is ordinarily used, the mental faculties of reason, memory and understanding. If one reads for 'disease of the mind' disease of the brain', it would follow that in many cases pleas of insanity would not be established because it could not be proved that the brain had been affected in any way, either by degeneration of the cells or in any other way. In my judgment the condition of the brain is irrelevant and so is the question of whether the condition of the mind is curable or incurable, transitory or permanent".

In the earlier case of Charlson, where the evidence was that D was 'acting as an automaton without any real knowledge of what he was doing as a result of cerebral tumour. Barry J directed the jury to acquit if the defence might reasonably be true. Devlin J distinguished Charlson on the ground that there the doctors were agreed that D was not suffering from a mental disease. As this is a question of law the distinction seems unsound and in Bratty Lord Denning approved Kemp and disagreed with Charlson. Lord Denning put forward his own view of a disease of the mind.

"It seems to me that any mental disorder which has manifested itself in violence and is prone to recur is a disease of the mind. At any rate it is the sort of disease for which a person should be detained in hospital rather than be given an unqualified acquittal".

Quick casts some doubt on this dictum, and it is surely right to do so. The definition might fit a diabetic, but 'no mental hospital would admit a diabetic merely because he had a low blood sugar reaction', and it might be felt to be 'an affront to common sense' to regard such a person as insane; yet the Court saw the weakness of the argument, agreeing with Devlin J that the disease might be 'curable or incurable…..transitory or permanent', and the fact that the Home Secretary might have had a difficult problem of disposal did not a affect the matter. Lord Denning 's dictum has also been rightly criticized on the ground that it is tautologous and that a disease of the mind may manifest itself in wrongful acts other than violence, such as theft." (bold added)

1. For the purposes of Pakistani law the case of Mehran alias Muna v. State (PLD 2002 SC 92) at P.96 the Hon'ble Supreme Court laid down some guidance on the potential width of Section 84 P.P.C. in the following terms;

"84. Act of a person of unsound mind.-Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law."

A bare perusal would indicate that there are four important ingredients of the said section, which are as under:--

(a) Commission of an offence;

(b) Unsoundness of mind;

(c) Incapability of knowing the nature of act/ offence;

(d) Distinction between right and wrong.

1. It may be kept in view that word "insanity" has not been used in the said section but on the contrary the Legislature has chosen the word "unsoundness of mind". It is not an accidental choice but a deliberate one because an unsoundness of mind covers almost all the ailments concerning mind. The very intendment of the Legislature as manifested in the said section seems to be that provisions as contained therein should be considered in a broader spectrum. The pivotal question, however, would be as to whether the petitioner was capable enough to know the nature of the act duly committed, whether he was permanently incapable (antecedents, subsequent and past conduct, family history and medical expert's opinion are to be seen) or is incapable during certain intervals and thereafter cause/causes for permanent or temporary incapability will have to be examined which can possibly be as follows:--

(1) Lunacy.

(2) Idiocy/imbecility.

(3) None compos merits (sic)

(4) Temporary paroxysms.

(5) Insanity/Insane delusions.

(6) Somnambulism.

(7) Frantic humour and its gravity.

(8) Maniacal trend.

(9) Periodic epileptic fits.

(10) Delirium tremens.

(11) Irresistible impulsive insanity.

(12) Obsession.

(13) Mania.

(14) Amentia.

(15) Dementia.

(16) Melancholia.

None of the above mentioned causes were ever referred by the learned counsel except that he was an insane person that too without any evidence. The plea of unsoundness of mind cannot be agitated if at the time of commission of offence accused was capable enough and can make distinction in between right and wrong. It is also to be examined as to whether his cognitive facilities were impaired due to unsoundness of mind and if so up to what extent. It is well settled by now that "the crucial point of time for deciding whether the benefit of this section should be given or not is the material time when the offence takes place". If at that moment a man is found to be labouring under such a defect of reason as not to know the nature of the act he was doing or that, even if he knew it, he did not know it was either wrong or contrary to law, then this section must be applied. In coming to that conclusion, the relevant circumstances like the behaviour of the accused before the commission of the offence and his behaviour after the commission of the offence, should be taken into consideration.

…………………………………….

…………………………………………………………………………….………………………………………………………………………

It may be kept in view that it is not every person suffering from mental disease that can avoid responsibility for a crime by invoking the plea of insanity. There is distinction between medical insanity and legal insanity and the Courts are only concerned with the legal and not with the medical view of the question. (Bagga v. Emperor (1931) 32 Cr.LJ 1230, Emperor v. Saggan Singh (1991) 32 Cr.LJ 816). There is no cavil to the proposition that there is a clear difference between medical insanity and legal insanity. It is only legal insanity which furnishes a ground for exemption from criminal responsibility. There can be no legal insanity unless the cognitive faculties of the accused are, as a result of unsoundness of mind, completely impaired. In order to constitute legal insanity the unsoundness of mind must be such as should make the offender incapable of knowing the nature of the act or that he is doing what is wrong or contrary to law. (1952) Patiala 254)" (bold added)

1. The point of setting out the above definitions and tests is to show how difficult it is to precisely determine whether a person is of unsound mind although it appears that despite the importance of medical reports it is a question of law for the judge to decide.

2. Whilst it seems that no hard and fast rule can be set down which defines unsoundness of mind and that each case will depend on its own particular facts and circumstances, the medical opinion of an expert medical board and the extent of that illness taking the various definitions/tests into account we are of the view that from a Pakistani legal perspective being of unsound mind would in most cases be a permanent medically recognized mental condition/impairment which was not self induced and which was so severe/disabling that the person having such illness was incapable of knowing the nature of the act or that what he was doing is either wrong or contrary to law.

3. This determination of what amounts to an unsound mind is of key significance since under Section 84 P.P.C., which very much follows the above mentioned McNaughten Rules (as does Section 84 of the Indian Penal Code 1860 which is identical to Section 84 P.P.C. as pointed out in Modi's, Medical Jurisprudence and Toxicology 23rd Ed) if a person is of unsound mind at the time when the offense is committed then he cannot be held liable for committing any offense and will be entitled to be acquitted. For ease of reference Section 84 P.P.C. is set out as under:

"S. 84. Act of a person of unsound mind. Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.(bold added)

1. It is also of significance that Section 84 P.P.C. as mentioned earlier is also identically worded to Section 84 of the Indian Penal Code 1860 and as such the Indian Courts interpretation of the section may also be of some assistance.

2. Thus, having come to a determination of what, in our humble opinion, is most likely to amount to an "unsound mind" for the purposes of Section 84 P.P.C. we need to consider whether the petitioner's husband was of unsound mind at the time of the commission of the offense.

3. If, as in this case, the accused through an application raises the plea under Section 84 P.P.C. of being of an unsound mind then the procedure to be followed by the Court is set out under Section 465, Cr.P.C. which provides as under;

S. 465. Procedure in case of person (sent for trial) before Court of Session or High Court being lunatic. [(1) If any person before a Court of Session or a High Court appears to the Court at his trial to be of unsound mind and consequently incapable of making his defence, the Court shall, in the first instance, try the fact of such unsoundness and incapacity, and if the Court is satisfied of the fact, it shall record a finding to that effect and shall postpone further proceedings in the case.]

(2) The trial of the fact of the unsoundness of mind and incapacity of the accused shall be deemed to be part of his trial before the Court."

1. At the outset we would make it clear that having reviewed the record we are satisfied that the trial Court fully complied with Section 465, Cr.P.C. and in effect held a trial to see if the petitioner's husband could satisfy the Court that he was of unsound mind at the time of commission of the offense or was of unsound mind now so that he was incapable of making his defense. For example, an expert medical board was constituted which produced an expert medical report on the petitioners husband's mental condition (including past history) which was considered and the Chairman of that medical board was examined by the Court and cross-examined by the petitioners husband's counsel as well as counsel for the NAB in order to assist the trial Court in reaching the decision of whether the petitioners husband was of unsound mind at the time of committing the offense that found through the impugned order, which is a well reasoned and speaking order and is now under challenge, that the petitioner's husband was of sound mind at the time when the offense was committed and was capable of making his defense. Thus, the requirements as set out in Fauqual Bashar v. State (1997 SCMR 239) and Khan Baig v. State (PLD 1984 Lah. 434) were fully satisfied.

2. In our view in making this determination of whether the petitioners husband was of unsound mind at the time of committing the offense we must consider (a) any medical evidence supporting the contention of the petitioner's Husband at the time when the offense was committed and (b) the conduct of the petitioner at the time when the offense was committed i.e. it is obvious/deducible from his behavior, demeanor, attitude and general conduct that he was of unsound mind bearing in mind the possibility that the petitioner's husband may be feigning his illness in order to avoid his criminal liability as alluded to in the case of Nasir Mehmood v. State (2017 PCr.LJ 255 SC AJK)).

3. As alluded to above, it is for the concerned judge to decide whether the petitioner's husband was of unsound mind and the following criteria may of be assistance in this regard as was held in Nasir Mehmood v. State (2017 P.Cr.LJ 255 (SCAJ&K) as under at P.265

"The provisions of section 465, Cr.P.C. are mandatory in nature and omission to observe the provisions thereof would vitiate the conclusion and the result reached thereon. There may be the cases where the accused may feign to be insane. The section confers the power upon the Court by using the words "appears to the Court" for determining the fact that the accused is of unsound mind. The question of unsoundness of mind of an accused is to be decided by the Court from the attending circumstances, attitude, behavior of the accused and the medical record if any, and if from the attending circumstances, the accused appears to the Court to be of unsound mind and consequently incapable of making his defense, the Court in the first instance shall try such fact of unsoundness of mind and incapability to defend the case and determination of such fact shall proceed in the matter.(bold added)

1. However in cases such as this where a past history of mental illness exists in our view it is incumbent upon the Court to constitute a medical board consisting of experts in the relevant field to pine through detailed reasoning whether the accused is of unsound mind and whilst not being bound by such report use it in assisting it to reach its determination on this issue. In this respect reliance is placed on State of Rajasthan v. Shera Ram (2012 SCMR 1768) which held as under at P.1776 Para's 19 and 20:

"19. To commit a criminal offence, mens rea is generally taken to be an essential element of crime. It is said furiost nulla voluntaus est. In other words, a person who is suffering from a mental disorder cannot be said to have committed a crime as he does not know what he is doing. For committing a crime, the intention and act both are taken to be the constituents of the crime, actus non facit ream nisi mens sit rea, Every normal and sane human being is expected to possess some degree of reason to be responsible for his/her conduct and acts unless contrary is proved. But a person of unsound mind or a person suffering from mental disorder cannot be said to possess this basic norm of human behavior. In the case of Surendra Mishra v. State of Jharkhand (2011) 3 SCC (Cr1) 232; (AIR 2011 SC 627)], the Court was dealing with a case where the accused was charged for an offence under section 302, I.P.C. and section 27 of the Arms Act. While denying the protection of section 84 of the I.P.C. to the accused, the Court held as under:--

"9. In our opinion, an accused who seeks exoneration from liability of an act under Section 84 of the Indian Penal Code is to prove legal insanity and not medical insanity. Expression "unsoundness of mind" has not been defined in the Indian Penal Code and it has mainly been treated as equivalent to insanity. But the term insanity carries different meaning in different contexts and describes varying degrees of mental disorder. Every person who is suffering from mental disease is not ipso facto exempted from criminal liability. The mere fact that the accused is conceited, odd, irascible and his brain is not quite all right, or that the physical and mental ailments from which he suffered had rendered his intellect weak and affected his emotions or indulges in certain unusual acts, or had fits of insanity at short intervals or that he was subject to epileptic fits and there was abnormal behavior or the behavior is queer are not sufficient to attract the application of section 84 of the Indian Penal Code.

1. From the above-stated principles, it is clear that a person alleged to be suffering from any mental disorder cannot be exempted from criminal liability ipso facto. The onus would be on the accused to prove by expert evidence that he is suffering from such a mental disorder or mental condition that he could not be expected to be aware of the consequences of his act." (bold added)

2. In essence the petitioners husband's case is that he was suffering from the mental illness/disease of Biopolar at the time when he committed the offense and as such was incapable of knowing the nature of the act, or that what he was doing was either wrong or contrary to law due to this mental impairment.

3. In support of his contention learned counsel for the petitioner's husband placed reliance on a Report of under trial prisoner Fawad Ahmed (the petitioner's husband) dated 01-04-2010 by Prof Syed Haroon Ahmed which in essence stated that the petitioner's husband had been suffering from mental illness since 1979 and in 1991 was tentatively diagnosed as suffering from, "Biopolar Disorder and OCD with suicidal ideation" He was prescribed appropriate medication for his illness and followed up in 1991, 1992, fewer visits in 1993 and more visits in 1994. He was next seen in 2001 approximately 7 years later and then in 2007 approximately 6 years later and lastly in 2009 after the petitioner's husband was arrested by NAB. It was largely on the basis of this report that the petitioner's husband was granted bail on medical grounds by this Court as referred to earlier in this order.

4. The medical report of Prof Syed Haroon Ahmed is set out in below in full for ease of reference.

PSYCHO-SOCIAL CENTRE

Prof. Syed Haroon Ahmed MD. FRC Psych. (Lond) DPM (Eng)

CONFIDENTIAL April, 2010

Report of under trial prisoner Mr. Fawad Ahmed (our ref # K-756) Referred by Hon. High Court Sindh

Mr. Fawad Ahmed was examined in detail by me and psychometric test were introduced by our psychologist today. He was first seen on 17th November 1991 with history of depression and obsessive compulsive disorder from 1979. Earlier he has had three major depressive episodes and in 1987 a manic attack for the first time. He was tentatively diagnosed as suffering from "Bipolar Disorder and OCD with suicidal ideation".

The presenting symptoms on first intake were profound depression (crying) irritability, dryness of mouth, impulse to tear off clothes and pessimistic thought, guilt about past and fear from future.

He was treated with a mood stabilizer (lithium carbonate) and anti-depressant (Clomfranil).

He was regularly followed up in 1991 and 1992, fewer visits in 1993 but more frequent in 1994. At this stage he was maintained on mood stabilizer (Lithium) and anti-depressant Prozac (Fluoxentine). Regular tests for serum lithium level, kidney function (creatinine) and thyroid function (T3, T4, TSH) were carried out.

He was seen after a gap of several years on 31st August 2001 and last time on 6th March 2007 when he was taking medicine rather erratically. Besides depression he was a serious suicidal risk. Admission was advised but they disappeared.

It was 6th July, 2009 when Mrs. Fawad approached and complained her husband was arrested by NAB and he is severally depressed.

Mr. Fawad is 3rd in birth order of four siblings. After graduation he joined Habib Bank, married with children and positive family history of depression.

He was also evaluated by our psychologist and conclusion is as under:

"Mr. Fawad Ahmed Batra is a 52 years old married male, come with the Court order from jail.

After detail background history SA-45 was administered. His overall level of psychological distress or disturbance was found significant. Significant elevation (T> 60) were noted on Depression, Anxiety, Phobia, OCD, Somatization and Psychoticism scales.

The evaluation was consistent with clinical presumption (Major Depression Disorder)".

On current mental state examination he was found to be anxious, speaking incessantly about his depression, insomnia, negative rumination and restlessness. He complained of having several black outs. Suicidal impulses were much more severe than reported earlier.

Mr. Fawad was also very upset about the delay in trial and that he does not foresee any in near future. Hopelessness was profound.

A diagnosis of Bipolar Depressive Disorder currently in Major Depressive phase with Suicidal ideation was made. In his current mental state, and separation from family, the hopelessness is likely to damage his personality. (bold added)

Sd/- 21.4.2010

Prof. S. Haroon Ahmed M.D.

1. The trial Court also constituted a medical board consisting of five eminent doctors in the relevant field (Chaired by Prof Mohammed Iqbal Afridi (Head of Dept of Psychiatry JPMC) which also included Prof Syed Haroon Ahmed (who had previously treated the petitioner's husband as noted above) to examine the petitioners husband medical condition as at 18-04-2015 which was when the board was held. The board in essence opined that the petitioner's husband had mental impairment (unsound mind) which will hinder his capability to plead before the Court.

2. The Report of the Medical Board is set out in full below for ease of reference

Medical Board of accused Fawad Ahmed Batra Reference No. 09 of 2009.

A meeting of the Medical Board accused Fawad Ahmed Batra was held on 18.4.2015 at 12.30 pm in the committee Room No. 1 Administration Block, JPMC, Karachi. The following consultants attended the meeting.

Prof. Muhammad Iqbal Afridi.

Head of Department Psychiarty. Chairman.

Prof. S. Haroon Ahmed M.D.

Hilal-e-Ahmer Clifton, Karachi. Member.

Prof. S. Masroor Ahmed

Incharge Department of Medicine

W-7. Member.

Dr. Khalid Sher.

Incharge Department of Neurology

W-28. Member

Dr. S. Zafar Haider.

Associate Prof. Department of

Psychiatry. Member/Secretary.

57 years Mr. Fawad Ahmed Batra smoker, non diabetic, obese was examined by the Board. He was accompanied by his wife, came with history of weeping spells, ideas of suspiciousness, decreased, attention and concentration, there is history of his previous Psychiatric treatment. There is also history of loud noises during sleep and recurrent day time attacks of sleep. There is also previous history of Alcohol use, which he left in 2006. On General examination he was found with morbid obesity, his height was 5 feet 7 inches, weight 150 kg. and his BP 160/100. There was piting edema both lower limbs, pigmentation was found around the neck. Ophthalmoscopy was unremarkable. There was Bilateral frozen shoulders. On chest examination he was having bilateral polymorphic wheezes. On Mental State Examination mood was depressed and there was ideas of suspiciousness against wife. He has been diagnosed as case of Bipolar Affective Disorder currently Depressed with Psychotic feature. Hypertension, sleep apnea, frozen shoulders and decreased concentration.

Board has the opinion that the person is having mental impairment (unsound mind) which will hinder his capability to plead before the Court. (bold added)

| | | | --- | --- | | Sd/- | Sd/- | | Prof. Muhammad Iqbal Afridi | Prof. S. Haroon Ahmed | | Chairman | Member. | | Sd/- | Sd/- | | Prof. S. Masroor Ahmed | Dr. Khalid Sher | | Member | Member |

Sd/- Dr. S. Zafar Haider Member/ Secretary

1. Prof Mohammed Iqbal Afridi who chaired the Medical Board gave evidence as a Court witness in connection with the Report of the Medical Board who confirmed the contents of the Board's medical report and its unanimous opinion.

2. During his cross-examination by the learned counsel for the NAB he stated in relevant part as under;

"It is correct to suggest that accused Fawad Ahmed Batra was patient of Bipolar Affective Disorder from 1979 till 18.4.2015. It is correct to suggest that the medical board diagnoses the accused as patient of Bipolar Affective Disorder whereas Prof. Syed Haroon Ahmed in his report (Exh. 18/2) diagnoses him as patient of Bipolar Depressive Disorder. Vol. says that in our report the diagnoses were with psychotic feature. It is correct to suggest that no time duration can be fixed for the cure of Bipolar Affective Disorder and Bipolar Depressive Disorder. It is possible that the accused Fawad Ahmed Batra would be out of symptoms of Bipolar Affective Disorder at the time of this incident. Vol. says that can be a temporarily phase. It is incorrect to suggest that Bipolar Affective Disorder or Bipolar Depressive Disorder are not curable. Vol. says that it can be controlled by treatment. It is correct to suggest that according to the previous history of accused his disease is not completely curable but it was controlled by treatment. It is correct to suggest that Bipolar Affective Disorder is not caused by germs, bacteria and fungus of brain. It is incorrect to suggest that Bipolar Affective Disorder is caused if a person faces or receives any sudden difficulty or problem. Vol. says that this is not the only cause, this disease is also linked to the genetic factors and other environmental factors. It is correct to suggest that Bipolar Affective Disorder is a hereditary disease. It is correct to suggest that no test of parents of accused was brought before us to determine that such disease was also found in his parent. It is incorrect to suggest that Bipolar Affective Disorder is a minor disease. Vol. says that Bipolar Affective Disorder is a major disease of mind. It is correct to suggest that no treatment of Electro Conversive Therapy. Anti-psychotic Depot injection and psycho surgery were detected in the previous history of accused. It is correct to suggest that the psycho patient of major disease can be provided these treatment. It is correct to suggest that the patient of Bipolar Affective Disorder can live normal life with proper treatment. It is correct to suggest that the treatment of Bipolar Affective Disorder is the same which is mentioned in Ex.18/ 2. There is possibility that a patient after taking these medicines/treatment can understand the matters and participate in other activities. It is incorrect to suggest that we opined falsely that accused Fawad Ahmed Batra is a patient of Bipolar Affective Disorder. It is incorrect to suggest that I have not attached the notes of Members of the Board with the opinion produced at Ex.18/1 malafidely. It is correct to suggest that we have not performed the forensic psychiatric assessment test of accused.It is incorrect to suggest that our report is false and baseless"(bold added).

1. During cross-examination by learned counsel for the petitioner he stated in relevant part as under;

"It is correct to suggest that without proper treatment people with Hypomania may develop severe Mania or Depression. It is correct to suggest that Simon test is the test to check intelligence of a person. Vol. says that I have never carried out such test in my department. It is correct to suggest that the Bipolar Affective Disorder is a chronic disease and continued till death. It is correct to suggest that Lunacy Act 1925 has been repealed by Mental Health Ordinance 2001. It is correct to suggest that word "lunatic" has been repealed by the Mental Health Ordinance 2001. It is correct to suggest that Mental Health Ordinance 2001 is broader in approach to the comprehension toward the mental illness. It is incorrect to suggest that Hallucination, loss of memory and loss of self-control are the symptoms of Bipolar Affective Disorder. Vol. says that some of them can be the symptoms of Bipolar Affective Disorder. It is correct to suggest that the Board formed an opinion that the person (accused Fawad Ahmed Batra) having mental impairment, unsound mind which will hinder his capability to plead before the Court. Vol. says that keeping in mind the many disease of accused such as bipolar affective disorder with psychiatric feature, hypertension, sleep apnea, obesity frozen shoulder and deceased concentration can lead to mental impairment. I cannot give opinion that at the time of offence what sort of mental conditions he had as we have given the opinion on examination of accused and on the basis of history and current condition. A person with Bipolar Affective Disorder can have change of motion in his emotional and mental status depending on the treatment he is receiving. There are possibilities that a patient of Bipolar Affective Disorder can decide wrongly. It is correct that there are possibilities that a patient of Bipolar Affective Disorder continues doing an act which comes in his mind or instructed by any other person during the phase of bipolar affective disorder."(bold added)

1. Apart from the above referred reports and Court witness no other evidence or material was placed before the trial Court whilst determining the question of whether the petitioner's husband was of unsound mind at the time of commission of the offense.

2. The petitioner's husband joined Habib Bank Limited (HBL) after graduation which means since he is 57 years of age as of 2015 he has been working for HBL for at least 25 years over which period he also received achievement awards. According to Dr. Haroon's report the petitioner's husband had been suffering from mental health issues, sometimes severe in nature, including tentatively a diagnosis of Biopolar Disorder (not Biopolar Affective disorder), from 1979 and was receiving appropriate medication in respect of the same right up to his arrest by the NAB and even in his after arrest report he is found by Dr.Haroon as suffering from Biopolar depressive disorder and not Biopolar Affective disorder.

3. There is no evidence that during his approximately 25 years service at HBL that the petitioner's husband was either hospitalized or took considerable time off work during his service at the HBL on account of his mental health problems. In fact he received performance awards and rose to the position of branch manager at HBL Garden where the offense for which he has been charged was committed. No material was produced that during his career at HBL he had acted in an unusual, bizarre or weird manner or had been warned of any late coming or early leaving which may be attributed to the effect of medication which he was taking. Even Prof. Mohammed Iqbal Afridi has admitted in his cross-examination that a person having the same mental condition can lead a normal life if they are receiving the appropriate medication and treatment. It appears from Dr.Haroon's report that the petitioner's husband was receiving the appropriate medication and treatment around the time the offense was committed and that throughout his illness he was regularly attending work and carrying out his required functions and was in effect for all intents and purposes leading a normal life. Furthermore, Prof. Afridi in his cross-examination stated that, "I cannot give opinion that at the time of offence what sort of mental conditions he had as we have given the opinion on examination of accused and on the basis of history and current condition." (bold added) and

"It is possible that the accused Fawad Ahmed Batra would be out of symptoms of Bipolar Affective Disorder at the time of this incident. Vol. says that can be a temporarily phase. It is incorrect to suggest that Bipolar Affective Disorder or Bipolar Depressive Disorder are not curable. Vol. says that it can be controlled by treatment. It is correct to suggest that according to the previous history of accused his disease is not completely curable but it was controlled by treatment". (bold added)

1. It is also relevant in our view that the petitioner's husband was involved in a complex financial fraud which caused a loss of millions of rupees over a period of time involving parallel banking and over 60 accounts which in our view tends to suggest that this was a planned and calculated act motivated by greed and he was not of unsound mind at the time of commission of the offense in 2005 at HBL where he continued working for another 4 years without any noticeable mental health problems (which indicates that his mental health problems were being kept under control through his medication and treatment) until this scam was uncovered and he was arrested by the NAB. Even a brief peep at some of the evidence recorded indicates that he was arranging with other co-accused to pay back the embezzled money and thus prima facie must have known that his acts were illegal especially as he was a seasoned banker and the fraud could not have taken place without his active involvement over a period of time.

2. Thus, taking into account the medical reports and the evidence of Prof. Mohammed Iqbal Afridi with great respect to Prof. Mohammed Iqbal Afridi, despite him being an expert falling under Article 59 of the Qanun-e-Shahadat Order 1984, we do not see how it was possible for him or the medical board to independently conclude (especially as the petitioner's husband appears to have been examined by the Medical board on only one occasion and then only for a period of approximately 1 hour and 30 minutes without any long term observation or forensic psychiatric assessment or production of notes taken at the time which seems to us a very casual approach by Dr's of such eminence bearing in mind the potential importance and significance of their opinion) that the petitioner's husband had been suffering from Biopolar affective disorder since 1979 to date since this opinion was not in the report of Prof. Haroon dated 01-04-2010 and there is no other evidence on record to support this contention (medical or otherwise).Thus, there is no evidence on record to prove that at the time of commission of the offense the petitioner's husband by reason of unsound mind was incapable of knowing the nature of his act or that what he was doing was either wrong or contrary to law.

3. In this respect the case of Irfan Ul Haq v. The State (2012 PCr.LJ P.1328) is relevant at P.1330 Paras 5 and 6 which held as under;

4. "The learned trial Court had called for the report and according to Consultant Psychiatrist, the petitioner is suffering from "Bipolar affective disorder". This ailment connotes two different conditions of the patient. In one condition, he is a normal person but in the other, when he is under fit, loses control over his mind and may become dangerous for himself and others. Such person under fit cannot defend himself but once he is out of it, he behaves normally and rationally. In this condition he becomes conscious of his gains and losses. May be at the time of examination, he was in manic phase but his statement dated 04.11.2011 before the learned Magistrate clearly reveals that he was mentally fit and fully understood the nature of the statement made by him. He had categorically stated that with the intervention of the respectable of the locality, the matter has been patched up and he has forgiven the accused persons of the private complaint in the name of Allah Almighty. The contention of the learned counsel for the petitioner that this statement was got recorded by the wife of the petitioner from him has no force and appears to be a lame excuse tailored to avoid the impact of the same. Under section 465 Cr. P.C. the opinion of the trial Court has its own significance and it is required to try the fact of unsoundness or incapacity only if it arrives at the conclusion that the accused is of unsound mind and is incapable of making his defence.

5. The learned Additional Sessions Judge after observing the accused in the Court has made observations, which cannot be brushed aside merely due to the fact that the Psychiatrist had given a different opinion as the opinion of the learned trial Court is confirmed from the sane and rational statement made by the accused. In these circumstances, the impugned order does not suffer from any illegality or infirmity. The revision petition is without merits and the same is hereby dismissed. However, if the learned trial Court at any stage of the trial is satisfied that due to recurrence of the ailment, the accused has become incapable to make his defence, it may refer him to the Punjab Institute of Mental Health, Lahore for examination by a competent board and then decide the matter afresh".(bold added)

6. It was also found in the case of Noor uddin v. State (2014 PCr.LJ 113) which was a case involving schizophrenia that the initial burden of proof of the defense of insanity fell on the defense in the following terms at P.120 Para 11 which is set out as under;

"It is true that the onus of proof always remains on the prosecution and the accused is only required to show that there is a reasonable possibility of his case falling within the exception clause and the standard of proof of a plea bringing the case of an accused within the exception clause need not be similar to the degree of proof as expected of the prosecution, yet, it is equally true that if an accused raises a defence falling within the exceptions, the burden of proving the existence of the Pakistan Penal Code is upon him and the Court shall presume the absence, of such circumstances, as contemplated under Article 121 of the Qanun-e-Shahadat Order, 1984. Reference can also be made to the above noted citation i.e. in the case of Khizar Hayat v. The State 2006 SCMR 1755, wherein it was observed as under:--

"It is settled maxim in law, until the, contrary is proved every man is presumed to be sane and possessed of a sufficient decree of reasons to be responsible for his actions. This clearly following from Article 121 of the Qanun-e-Shahadat Order, 1984 which provides that the burden of proving that the case, of an accused person falls within an exception is on him"

1. Medical and legal standards of sanity are not identical. From the medical point of view, it is probably correct to say that act of murder by itself denotes an unhealthy and abnormal state of mind of the murderer, but from the legal point of view, he is sane as long as he can understand that his act is contrary to law. The mere fact that at the time of examining the appellant, the Medical Standing Board found the appellant suffering from Paranoid Schizophrenia, is not sufficient to hold the appellant of unsound mind within the meaning of section 465 of the, Cr.P.C. or under section 84 of the P.P.C., because queerness above is not sufficient to hold the appellant of unsound mind and incapable of making defence. In this regard, reference can be made to the case of Aurangzeb v. the State 1971 PCr.LJ 1285, wherein it was held as under:-

"If benefit was to be had from section 84, P.P.C. it was necessary for the appellant to establish legal insanity in the context of reasonable doubt at the time of committing the offence. There is no material on record to establish that by reason of unsoundness of mind he was incapable of knowing the nature of his own acts or that what he had done was either wrong or contrary to law. All that appears on record is queer behavior before the occurrence. This by itself; even if we were to accept that he acted in that manner, would not throw light on his mental imbalance at the time he had committed the offence in the context of legal insanity." (bold added)

1. Thus we find that there is no evidence that at the time of the commission of the offense the petitioner's husband was of unsound mind and as such we find that Section 84 P.P.C. will not be applicable to him and he will not stand acquitted on that count and in this respect the impugned order is upheld. Turning to the second issue as to whether the petitioner is now of unsound mind so that he is unable to understand the nature of the proceedings and thereby is incapable of making a defense.

2. It may be that at the time when the offense was committed the petitioner's husband was not of unsound mind as we have already found. However, the offense was committed in 2006 and it is now 2017 so it may well be possible that over a period of 11 years the petitioners husband's mental health may have deteriorated to the extent that he is now of an unsound mind and is unable to understand the nature of the proceedings and thereby is incapable of making a defense.

3. There are some mental illnesses such as advanced vascular dementia and advanced Alzheimer's disease which are permanent and incurable and where the accused/patient's condition gets progressively worse over the passage of time not with standing treatment and the best medication available so that the accused/patient would not be able to understand the nature of the proceedings and/or plead his defense. In such cases on a positive report to this effect from a medical board consisting of experts in the relevant field it may be that the tria1 needs to be postponed on account of the patient not being able to make a defense.

4. There are also cases such as this where the mental illness i.e. Biopolar Affective disorder may be permanent but may also be treated with proper medication so that the effects of the illness/disease can be controlled so that a person can lead a normal life and would be in a position at some stage of being capable of making a defense. As stated by Prof Afridi in cross examination.

"It is correct to suggest that the patient of Bipolar Affective Disorder can live normal life with proper treatment. It is correct to suggest that the treatment of Bipolar Affective Disorder is the same which is mentioned in Ex.18/2. There is possibility that a patient after taking these medicines/treatment can understand the matters and participate in other activities"

1. Even in the recent case recent case of Mst. Safia Bano v. Home Department Government of Punjab (PLD 2017 SC 18) although concerning a stay of execution so that a person convicted of murder who was suffering from Schizophrenia could write his will the Hon'ble Supreme Court dismissed the petition, which was considered in the light of Mental Health Ordinance 2001 and held as under at P.28 Para 12

"12. In the light of above discussion, we have again perused the material placed on record, which reveals that indeed right from the stage of trial lmdad Ali, husband of the petitioner, took such plea in defence, but all the Courts discarded his plea of mental illness of the nature, which could be made basis to term him as Lunatic. Even the medical record produced before us reveals that husband of the petitioner was all along considered as psychiatric patient suffering from paranoid schizophrenia. Learned Division Bench in its impugned order has aptly taken into account all these relevant facts and circumstances in the light of Prison Rules, 1978 and thus rightly rejected the plea of petitioner and dismissed her petition".(bold added)

1. Indeed, in our view as was significantly mentioned in Mst. Safia Bano's case (Supra) much would depend on the "extent" of the mental illness bearing in mind, in this case, the ability of the petitioners husband's to understand the nature of the proceedings and his capability of making his defense especially keeping in view the fact that the petitioner's husband's mental state/condition can be managed through appropriate medication and treatment.

2. In this particular case, on the one hand we have a categorical report from 5 renowned experts in the relevant field which has opined that that the petitioner's husband had mental impairment (unsound mind) which will hinder his capability to plead before the Court as of 18-04-2015 and a background of mental illness of the petitioner's husband stretching back to 1979. Whilst on the other hand we have evidence under oath from the Chairman of the Medical Board that a person with the mental disorder which the petitioner's husband is suffering from can lead a normal life if he is provided with the appropriate treatment and medication and there is a possibility that a patient after taking these medicines/treatment can understand the matters and participate in other activities. We also note that the petitioner's husband appears from a fleeting glance of the evidence to be well represented by his counsel at trial. The impugned order also indicates that on 26-10-2010 the petitioner's husband entered his plea and was present and personally instructed his counsel from time to time whilst the first 4 PW's gave evidence and is still regularly attending the proceedings and is not causing any concern/disturbance to the trial Court in connection with his conduct (and he is not being kept in a psychiatric hospital) which tends to indicate that the petitioners husband at least at that time i.e. 26-10-2010) (7 years ago) and even now was not, and is not at this point in time, of an unsound mind and was/is capable of making his defense. Thus, even if we take into account the broader approach to the definition of mental illness as set out in Mehran alias Muna (Supra) the severity of the petitioners husband's illness which appears to be a fluctuating condition may not prevent him from making a defense

3. We are also mindful of A.10 (A) of the Constitution, which in essence provides the right to a fair trial and is reproduced as under for ease of reference, and the need for Section 465 and 466 only being pressed into service in genuine cases and not on account of feigned illnesses in order to avoid criminal liability as alleged by the prosecution in this case.

"A.10 (A). Right to fair trial. For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process."

1. Whilst fully appreciating that it is the decision of the trial Court based on the medical reports and conduct and demeanor of the accused in Court to make the final determination as to whether the accused is of unsound mind and understands the nature of the proceedings against him and is capable of making a defense we also note that the words used by the medical board are, "will hinder his capability to plead" rather than, "will prevent his capability to plead." And that Prof. Afridi in his cross-examination has conceded that if a person takes the appropriate medication for an illness such as the petitioner's husband he can lead a normal life and understand matters and participate in other activities.

2. In the Concise Oxford English Dictionary (12th Ed) "hinder" is defined as under;

"make it difficult for (someone) to do something or for something to happen" (bold added)

1. In Blacks Dictionary (6th Ed) "hinder" is defined as;

"to obstruct or impede"

1. Thus, in terms of the "nature and extent" of the petitioner's husband illness in our view, and keeping in mind the findings in Irfan ul Haq's case (Supra) which also concerned Biopolar Affective disorder and the fact that the petitioner is not presently confined as a patient in a psychiatric Hospital on account of his illness and is in fact on the contrary regularly attending the trial proceedings and as per the trial judge seems to be understanding the nature of those proceedings, at this point in time since the petitioner's illness is being controlled through medication it has not reached the extent that it will prevent him from understanding the nature of the proceedings

or prevent him from being incapable of making his defense which is a requirement of Section 465, Cr.P.C. Thus taking into account the discussion in this order from para 48 onwards this aspect of the impugned order is also upheld. Namely, that at this point in time the petitioner's husband is not of such an unsound mind so as to make it incapable for him to make his defense.

1. Thus, this petition stands dismissed however it is made clear that if in the opinion of the trial Court the petitioner's husband is becoming incapable of making his defense due to a deterioration in his medical condition or another application to this effect is made to the trial Court by the petitioner the trial Court may consider seeking a medical boards opinion on whether the medical condition of the petitioner at the relevant time is preventing him from having the capability of making his defense. In addition since the trial of the petitioner's husband appears to be at an advanced stage with only a few witnesses left and the petitioner's husband is now the only accused we hereby direct the trial Court to decide this matter within 3 months of the date of this order. A copy of this order shall be sent to the concerned trial Court for compliance.

2. The petition stands disposed of in the above terms.

(K.Q.B) Petition dismissed

PLJ 2019 Karachi 154

Present : Muhammad Ali Mazhar, J.

M/s. SYMMETRY DIGITAL (PVT.) LIMITED through Secretary--Petitioner

versus

SECURITIES AND EXCHANGE COMMISSION OF PAKISTAN--Respondent

J.C.M. No. 33 of 2014, decided on 14.9. 2018.

Companies Ordinance, 1984 (XLVII of 1984)--

----Ss. 96, 97--Petitioner was a private limited company--Reduction of issuance of shares--Advertisement for convening of extra ordinary general meeting--No objection to shareholders for reduction scheme--Necessary formalities--Statement of no objection by SECP--Capital restructuring--Extent and amount of reduction is a domestic matter and so long as there is no injustice to the creditors or the shareholders, the Court is not concerned with the precise amount of reduction of capital--All necessary formalities have been complied with--The S.E.C.P after checking and ensuring all necessary formalities, filed a statement of no objection--After considering the pros and cons, I have reached to the conclusion that the petitioner has complied with all requisite formalities--There is no impediment to grant this petition--For the foregoing reasons the resolution passed for capital restructuring through reduction of share capital is approved--Condition of the words "and reduced" required to be added with the name of company is dispensed with keeping in view the facts and circumstances of the case--Petition was allowed.

[Pp. 159 & 162] A, B, C & D

2013 CLD 2156 rel.

[1951] 1 All ER 881; [1894] A.C. 399 and Guide to the Co`mpanies Act, 17th Edition 2010 ref.

Mr. Muhammad Ishaq Ali, Advocate for Petitioner.

M/s. Saad Abbasi and Syed Hafiz Ebad, Law Officers of SECP for Respondents.

Date of hearing : 24.4.2018.

Order

This petition under Section 97 of the Companies Ordinance, 1984 has been brought for reduction of share capital with the following prayers:--

(1) Under Section 101 of the Companies Ordinance 1984 the reduction in the share capital of the petitioner to be effected in the manner resolved by the Ordinary and Special Resolution set out in the above Paragraph No. 10 of this petition.

(2) Under Section 98 of the Companies Ordinance, 1984 directing that notwithstanding the reduction aforesaid in the issued and paid up share capital of the petitioner, the use of the words 'and reduced' in relation to the name of the petitioner shall be dispensed with.

(3) Under Section 102 of the Companies Ordinance 1984 confirming the minute as set forth in the above paragraph of this petition and directing that the notice of the registration of such minutes shall be published in at least one issue of a daily newspaper in the English language and a daily newspaper in the Urdu language having circulation in the Province of Sindh.

1. The petitioner is a private company limited by shares and registered with the respondent under the Companies Ordinance 1984 on 31.8.2009 at Karachi with the paid up capital of 100 million divided into 10 million ordinary shares. The financial statement ended on 30.6.2010 though demonstrate the authorized capital of 100 million divided into 10 million share each of Rs.10 but the business of the petitioner company never exceeded from 10 million. According to the income tax return for the financial year 2010 also it is evident that the total assets and the liabilities never exceeded from Rs.10 million.

2. In the above circumstances the shareholders, directors and the management has decided to reduce the authorized paid up capital from 100 million to 10 million since the actual shares subscribed by the shareholders is of Rs.10 million divided into 1 million shares for Rs.10 each and for the purpose of reduction in the paid up share capital, an extra ordinary general meeting was convened on 23.6.2014 through a notice published in the newspapers. In the extra ordinary meeting, special resolution was unanimously passed by all the shareholders whereby it was resolved that the reduction of share capital of the company to the extent of 10 million be reduced to 1 million share of Rs.10 each. Under section 96 of the Ordinance and in pursuance of the powers in that behalf contained in the memorandum of association and article of association of the petitioner, the members of the petitioner approved the reduction in share capital of the petitioner through ordinary and special resolution passed in the Extra Ordinary General Meeting of the members of the petitioner on 23.6.2014 as under:

EXTRACT MINUTES OF THE EXTRA ORDINARY GENERAL MEETING HELD AT REGISTERED OFFICE AT 17-C, 12TH COMMERCIAL STREET, PHASE-II (EXT), DEFENCE OFFICERS HOUSING AUTHORITY, KARACHI ON 23-06-2014

The Extraordinary Meeting of Symmetry Digital Private Limited held at 11:00 a.m., on 23-06-2014, at 17-C, 12th Commercial Street, Phase-II (Ext), Defence Officers Housing Authority, Karachi, in order to consider and approve capital restructuring through Reduction of the Share Capital of the Company and Issuance of Right Shares and to pass the following resolutions:

IT IS RESOLVED THAT the reduction of the share capital of the Company, to the extent of PKR 10,000,000/- and to file a Petition under Section 96 of the Companies Ordinance, 1984, before the High Court of Sindh at Karachi in this respect be and is hereby approved;

IT IS FURTHER RESOLVED THAT the issuance of shares at PKR 10 per share amounting to PKR 10,000,000/- by way of right issue under Section 86 of the Companies Ordinance, 1984 be and is hereby approved.

FURTHER RESOLVED THAT the Company Secretary and Chief Executive Officer of the Company be, and are hereby jointly and/or severally authorized to take all necessary steps, ancillary and incidental for the (i) reduction in capital of the Company and (ii) issuance of right shares of the Company, including but not limited to obtaining all requisite regulatory approvals; filing of all the requisite statutory forms and all other documents as may be required to be filed with the Securities and Exchange Commission of Pakistan, submitting all such documents as may be required with the State Bank of Pakistan, executing all such certificates, applications, notices, reports, letters and any other documents or instruments including any amendment or substitution to any of the foregoing as may be required in respect of the reduction in capital under Section 96 of the Companies Ordinance, 1984 and issue of right shares under Section 86 of the Companies Ordinance, 1984 and all other matters incidental or ancillary thereto.

RESOLVED THAT the Company Secretary or Chief Executive Officer of the Company, be jointly and/or severally further authorized to file a Petition under section 96 of the Companies Ordinance, 1984 before the High Court of Sindh at Karachi in respect of reduction in capital of the Company including but not limited to engaging of legal counsel, filing of affidavits and applications.

By Order of the Board.

Karachi: Sd-

Dated.23.6.14 M. Raghib Saeed

Company Secretary

1. The reduction of share capital involves the decrease of 9,000,000 shares of the petitioner. It was further averred that this reduction will not affect the financial position of the petitioner and no liability exists beyond the limit of 10,000,000 shares. By reduction of authorized paid up capital there will be no loss to any shareholder or any person from public. The company is a private limited company and all the shareholders have given their no objection to the scheme of reduction which is fair and equitable. The petitioner has also prayed that in the above circumstances, it would be reasonable not to require the petitioner to add the words "and reduced" and this condition may be dispensed with.

2. The SECP had filed their comments and sought directions to cure some objections by the petitioner but after sometime they filed another statement on 24.4.2018 in the following terms:--

"STATEMENT

It is respectfully submitted on behalf of the Securities and Exchange Commission of Pakistan as under:

1. That the petitioner company filed above petition under Section 97 of the Companies Ordinance 1984 and prayed that this Hon'ble Court may please pass an order for confirming Reduction of Paid up Capital.

2. That in response to the observation made by the Securities and Exchange Commission of Pakistan in its comments/reply to the Petition in respect of charges of Bank Al-Habib against the petitioner company as registered with SECP and that petitioner is required to file Form-26 after passing of a Special Resolution for reduction in paid up capital, the Petitioner Company vide its statements dated 15.12.2014 and 10.02.2018 has filed Form-26 (Special Resolution), Form-17 dated 18.04.2017 for satisfaction of charge and 'No Dues Certificate' of Bank Al-Habib dated 27.02.2017.

3. Since the charge registered against the company has been satisfied, the SECP has no objection if petition is allowed.

Submitted accordingly.

Karachi.

Dated: 24.4.2018.

Sd./- Muhammad Naeem Khan Additional Registrar of Companies In-Charge Company Registration Office, Karachi Securities and Exchange Commission of Pakistan"

1. The meticulousness and niceties for approving the reduction in share capital have been conscientiously cogitated and mull over by me in the case reported in 2013 CLD 2156 [Sindh]. In the likewise matters, the Court has to be satisfied first that the creditors if any objected to the reduction or not? Whether their consent to the reduction has been obtained or their debts or claims have been discharged or settled? The Court generally require the company to use the words "and reduced" as part of their name and to publish in newspapers for the sake of public knowledge of the reasons for the reduction but such condition may be dispensed with if the reduction does not involve diminution of any liability in respect of up-paid share capital or payment of any share holder of any paid-up share capital. The extent and amount of reduction is a domestic matter and so long as there is no injustice to the creditors or the shareholders, the Court is not concerned with the precise amount of reduction of capital as decided in the case of Westburn Sugar Refineries Ltd., [1951] 1 All ER 881. The power conferred on the Court in order to enable it to protect the interests of dissenting shareholders and even those who do not appear. In making its order the Court approves a minute and embodying minute in a confirmatory order is a sufficient approval. The minute is designed to show the altered structure of the company capital, the amount of remaining share capital, the number of shares into which it is to be divided, the amount of each share if any at the date of registration of minute deemed to be paid-up on each share. Whether to approve the reduction of capital or not, the Court will consider the factors whether shareholders have been treated equitably, whether the reduction proposals have been properly explained, whether creditors or third party interests have been prejudiced and whether the reduction has a discernible purpose. (Ref: Palmer's Company Law, Vol: 1 25th Edn.). In British and American Corporation. V. Couper case reported in [1894] A.C. 399, Lord Herschell L.C said "it will be observed that neither all these statutes prescribed the manner in which the reduction of capital is to be effected nor is there any limitation of the power of the Court to confirm the reduction, except that it must first be satisfied that all the creditors entitled to object to the reduction have either consented or being paid or secured.

2. In the various foreign judgments quoted in the Guide to the Companies Act, 17th Edition 2010 authored by A. Ramaiya, at pages 1407 to 1409, the following instances are mentioned for reduction of share capital which are commonly adopted:--

(1) Reduction of excess capital. North Regent Securities Ltd., (No. 00811 of 1953); Re, Blackburn Coal Stores Pty. Ltd., (1939) VLR 351.

(2) The cancellation of all the share capital as part of a scheme of arrangement. (1937) 81 SJ 922.

(3) Reduction to rectify an irregular repayment or purchase of shares by the directors. Re, Scottish Queensland Mortgage Co., (1908) 46 SLR 22; Re, York Glass Co. Ltd., (1889) 60 LT 744.

(4) Paying off part of the shares out of capital in excess of wants so as to enable the holders of the remaining shares in effect to acquire the interest of those paid off and become the only shareholders.

(5) Cancelling shares of two members by agreement to repay the company the loss resulting from misappropriation of funds by an official. Re, Banknock Coal Co. Ltd., (1897) 24 R 476. Cancelling shares surrendered, or the holders of which consent to cancellation. Re, Llynvi, etc. Iron Co., (1877) 26 WR 55; Re, Vivian 86 Co., (1886) 54 LT 384; Poole v. National Bank of China Ltd., (1907) AC 229. In Randesia Base Mineral Mining and Development Co. (Pty) Ltd., (1939) WLD 291, a reduction was confirmed to rectify the payment of a dividend out of capital.

(6) Paying off or returning paid-up capital not wanted for the purposes of the company. Re, Less Brook Spinning Co., (1906) 2 Ch 394; Re, Artisans Land and Mortgage Corpn., (1904) 1 Ch 796; Re, Piercy Whithwham v. Piercy, (1907) 1 Ch 289.

(7) Paying off unpaid-up capital by issuing debentures or debenture stock in satisfaction Re, De La Rue and Co. Ltd, and Reduced, (1911) 2 Ch 361. This will not be sanctioned where it would result in the company becoming wholly insolvent: Re, Clark, (1921) NZLR 533 or where a company is satisfied that it can finance its requirements to the extent of capital repaid by raising money or loan or borrowing from its bankers.

(8) Paying off and cancelling preference shares, in pursuance of a contract in the memorandum and articles binding on both preference and ordinary shareholders, by applying for the purpose a portion of the profits of the company. See Re, Dicido Pier Co., (1891) 2 Ch 354.

(9) Reducing the liability of shareholders in respect of uncalled or unpaid capital.

(10) Reduction in excess of the wants of the company satisfied by the distribution of investments of greater value than the amount of the reduction. Re, Westburn Sugar Refineries Ltd., (1951) 1 All ER 881.

(11) Lost capital. Cancelling capital which has been lost or is unrepresented by available assets. In such case where a company has lost part of its capital, nothing, as SIR GEORGE JESSEL said in Ebbw Vale Steel etc. Co., (1877) 4 Ch D 827 can be more beneficial to the company than to admit the loss, and to write it off, e.g., to reduce its £1 shares to 10s., and thus place itself in a position to resume payment of dividends, or raise further capital.

(12) Reduction to reduce all shares of a company which has lost its register of members and cancel all shares the holders of which do not signify their wish to continue as members. Re, Kasudan Holdings Ltd., (No. 0063 of 1956).

(13) Paying off paid-up capital on the footing that it may be called up again. Re, Fore Street, etc., Co., (1888) 59 LT 214; Re, Brown, Sons & Co., (1931) SC 701; Watson-Walker & Quickfall, (1898) WN 69; Re, Scottish Vulcanite Co, Ltd.,(1894) 21 R 752; Re, Stevenson, Anderson & Co. Ltd., 1951 SLT 235. Repaying capital to the holders of fully paid-up shares of a class on the footing that it can be called up again so as to bring them into line with the partly paid shares of the class. Neale v. City of Birmingham Tramways, (1910) 2 Ch 464.

(14) Where the amount unpaid on shares was cancelled and money was raised by the issue of new shares. Hoggan v. Tharsis Sulphur & Copper Co. Ltd: (1882) 9 R 1191. In Morrison (W) & Co. Ltd., (1892) 19 R 1049, the Court refused the reduction where the nominal amount of the shares was unaffected but the paid-up amount was reduced.

(15) Writing off unpaid capital.---The company proposed to cancel shares which were allotted to public but which remained unpaid. A special resolution was passed for cancellation of such shares and reduction of capital accordingly. There was no opposition to the resolution. The minute of reduction as proposed by the company was confirmed by the Court. Vantech Industry Ltd. Re, (1999) 2 Comp LJ 47: (1999) 20 SCL 370 (AP).

(16) Reduction need not be qua all shareholders. The company proposed to reduce its issued and paid-up shared capital. The proposed resolution was to extinguish and cancel shares held by shareholders constituting 25% of the issued and paid-up capital. The capital was to be returned to the shareholders. The scheme was applicable to shareholders who either assented or did not object to it. The Court said that it was not necessary that a proposal of this kind should be applicable to every shareholder. A speculative variation in price of shares of the company could invalidate an otherwise valid resolution. The Court allowed the petition. Elpro International Ltd., Re., (2009) 149 Com Cases 646 (Bom): (2008) 86 CLA 47 (Bom).

1. The record shows that all necessary formalities have been complied with. The S.E.C.P after checking and ensuring all necessary formalities, filed a statement of no objection. After considering the pros and cons, I have reached to the conclusion that the petitioner has complied with all requisite formalities. There is no impediment to grant this petition.

2. For the foregoing reasons the resolution passed for capital restructuring through reduction of share capital is approved and the petition is allowed. However, the condition of the words "and reduced" required to be added with the name of company is dispensed with keeping in view the facts and circumstances of the case. Let all the formalities concerning to the registration of order and minute of reduction be complied with in accordance with the law.

(Y.A) Petition allowed

PLJ 2019 Karachi 163 (DB)

Present: Muhammad Ali Mazhar & Omar Sial, JJ.

Syed TAHIR HUSSAIN SHAH and others--Petitioners

versus

ELECTION COMMISSION OF PAKISTAN and others--Respondents

C.P.Nos. D-3836, 3989, 3927, 3990, 4030, 4031 & 4032 of 2018, decided on 6.7.2018.

Constitution of Pakistan, 1973--

----Art. 199--Election Act, 2017, S. 20--Election Rules, 2017, R. 10(5)--Filling of representation--Delimitation of constituencies--Allegation of gerrymandering--Delimitation order--Principles of delimitation--Challenge to--Basic principles of delimitation such as distribution of population in geographically compact areas, physical features, existing boundaries of administrative units, facilities and contiguity--If at this stage, any TC is broken which is otherwise not permissible under law then it will amount to change complexion of entire delimitation--Mere leveling of allegations cannot prove anything except some concrete and cogent reasons are placed on record to prove allegations of gerrymandering--Delimitation has been carried out by ECP which is an independent constitutional body--Without any proper details and substance in allegations of favoritism or biasness, we recuse ourselves to give any findings on this point--At stage of preliminary delimitation, a mechanism and course of action was laid down for aggrieved person to file proposals in form of a representation and on filing such representation, it turns out to be responsibility and obligation of ECP to decide it in accordance with law--Presentation given to us through maps makes it unequivocally translucent that all basic principles required to be cope with at time of delimitation have been adhered to and we do not find any justification to disturb or interfere in impugned order--Petitions dismissed. [Pp. 166, 167, 168 & 169] A, B, C, D & E

Mr. Asfandyar, Advocate for Petitioner (in C.P. No. D-3836 of 2018).

M/s. Ali Almani, Jam Zeeshan Ali and Sami-ur-Rehman Khan, Advocates for Petitioner (in C.P. No. D-3989 & 3990 of 2018 and intervener in C.P. No. D-3836 of 2018).

Mr. Abdul Jabbar Belai, Advocate for Petitioners (in CP. No. D-3927/2018).

Mr. Sikandar Ali Junejo, Advocate for Petitioner (in C.P. No. D-4030, 4031 & 4032 of 2018 and intervener in C.P. No. D-3836/2018).

Mr. Mukesh Kumar Karara, Advocate for the interveners (in C.P. No. D-3836, 3927, 4030, 4031 & 4032 of 2018).

Mr. Salahuddin Khan Gandapur, Advocate for Election Commission of Pakistan.

Mr. Shaikh Liaqat Hussain, DAG.

Mr. Jawwad Dero, Additional Advocate General

Ms. Rukhsana Mehnaz Durrani, State Counsel.

Imtiaz Ahmed Kalhoro, District Election Commissioner, Hyderabad.

Mr. Muhammad Yousuf, District Election Commissioner, Karachi Central/Member Delimitation Committee, Sindh.

Dates of hearing: 22 & 28.6.2018.

Order

Muhammad Ali Mazhar, J.--These Constitution Petitions have been brought to challenge the order dated 24.04.2018 passed by the learned Election Commission of Pakistan on the representations filed with regard to delimitation of constituencies-2018, Sukkur district. It appears from the impugned order that 14 individual representations were filed which were disposed of by ECP through a consolidated order. Keeping in mind some suggestions given by persons in their representations, certain modifications were made by ECP in the final delimitation order for NA-206 and NA-207 as well as in PS-22, PS-23 and PS-25.

1. Learned counsel for the petitioners in C.P. No. D-3836/2018 pointed out the representation and the name of petitioner which is appearing at Sr. No. 14 in the order. He placed some proposals in his representation for PS-22 and PS-25. Learned counsel argued that the impugned order on the face of it seems to be in violation of Section 20 of the Elections Act, 2017 and Rule 10(5) of Election Rules, 2017. He further argued that the exercise of delimitation was not started from the Northern end. It was further contended that in order to facilitate the communication and public convenience, TC Shahpur and Sadhuja should be shifted from PS-25 to PS-22. He further argued that delimitation of the constituencies should have been done impartially in order to avoid allegation of gerrymandering. A serious allegation has been leveled that ECP has completed the exercise of delimitation to strengthen the Pakistan People’s Party Parliamentarian. He further argued that in order to avoid the act of gerrymandering, ECP should be directed to shift T.C. Arkohar and Sangrar from PS-22 to PS-23 with further directions against Respondent No. 2 to merge T.C. Rohri and Municipal Committee Rohri in PS-25. He has further sought the directions against the Respondent No. 2 to restore the preliminary list of provincial constituencies for district Sukkur and conduct the elections on the basis of preliminary list of constituencies.

2. Mr. Sikandar Ali Junejo advocate appeared for the Interveners Muhammad Saleh (CMA No. 19357/2018) and Muhammad Saleem (CMA No. 19358/2018). Learned counsel argued that his interveners individually filed no proposal through representation to the ECP but they have directly approached this Court with fresh proposal through their interveners’ application even they did not bother to file their independent petition at principal seat, however, in the supporting affidavit of both the interveners, they admitted that they have filed petition at Sukkur Bench of this Court and also mentioned the number of petition i.e. 998/2018 which is pending according to them. The interveners should have pursued their remedy in their own petition rather than filing these interveners’ application not to oppose the present petitions but to place on record their own proposal in the constitutional jurisdiction without filing representation before ECP.

3. Mr. Mukesh Kumar Karara advocate appeared for interveners and filed applications under Order I Rule 10, C.P.C. Learned counsel argued that the petitioners did not file their objections to the preliminary delimitation conducted by the ECP. He fully supported the impugned order and argued that wherever some modification was required in the preliminary delimitation, the learned ECP has already taken due care and after proper consideration accepted the logical proposals. He concluded that there is no justification to interfere and disturb the ECP’s order.

4. M/s. Ali Almani and Jam Zeeshan Ali advocates appeared for the two interveners and filed CMA No. 18684/2018. Learned counsel argued that in the impugned order ECP shifted TC Shahpur from PS-22 to PS-25 in view of the representation filed by their interveners and if the impugned order is set aside with the order to shift Shahpur from PS-25 to PS-22 this will directly affect the interest of interveners. Despite their opposition to the main petition, learned counsel concluded that they are supporting the case of petitioner only for shifting of TC Arkohar and Sangrar from PS-22 to PS-23.

5. In C.P. No. D-3927/2018, the same order is under challenge. Mr. Abdul Jabbar Belai learned counsel for the petitioner adopted the arguments of the petitioner’s counsel in C.P. No. D-3836/2018.

6. In C.P. No. D-3989/2018 learned counsel for the petitioner did not challenge the order as a whole but confined his arguments to the extent that the inclusion of TC Rohri in PS-23, TC Arkohar and TC Sangrar in PS-22 is unlawful. They have further sought the directions against the respondents to include TC Naureja and TC Hingoro in PS-22, TC Arkohar and Sangrar in PS-23 and TC Rohri in PS-25 and then notify the final delimitation of provincial assemblies of district Sukkur. The same learned counsel also appeared in C.P. No. D-3990/2018. The facts and the grounds pleaded in this petition are almost same as pleaded in C.P. No. D-3989/2018. Learned counsel articulated the same arguments in this C.P.

7. In C.P Nos. D-4030, 4031 & 4032 of 2018 Mr. Sikandar Ali Junejo advocate appeared for the petitioners. All the petitioners in their separate petitions challenged the one and the same order dated 24.04.2018 passed by the ECP in connection with the delimitation of constituencies-2018, district Sukkur. Learned counsel argued that while carrying out the exercise of delimitation the prime consideration and principles enunciated under Section 20 of the Elections Act, 2017 were not taken into consideration. The tenets of Rule 10(5) of Election Rules, 2017 have also been violated. Learned counsel made much emphasis to set aside the impugned order but at the same time he prayed to this Court to pass order for exclusion of Old Sukkur and Charge-I, Charge-II and Circle-1, 2, 3 and 4 to Charge-IV from PS-25 and same may be included in PS-24 due to their alleged administrative attachments. Learned counsel in all three petitions have submitted joint submissions as narrated above.

8. Heard the arguments. We have minutely examined the final delimitation order passed by ECP which is basically impugned in all petitions, however, some of the interveners supported the impugned order and their counsel argued for the dismissal of the aforesaid petitions. It is clearly reflecting from the impugned order that learned ECP provided an opportunity of hearing to the parties, perused the record and also thoroughly examined the maps produced by the petitioners and members of the Delimitation Committee. They were also mindful to the principles of delimitation provided under Section 20 of the Elections Act, 2017 and Rule 10(5) of the Election Rules, 2017 and after taking in view the basic principles of delimitation such as distribution of population in geographically compact areas, physical features, existing boundaries of administrative units, facilities and contiguity, they accepted some proposals hence TC Sadhuja, Nindapur and Shahpur of STC Pannu Aqil were excluded from NA-206 and included in NA-207 as well as TC Rohri was excluded from NA-207 and included in NA-206. As far as Provincial Assemblies constituencies are concerned, TC Sadhuja, Nindapur and Shahpur of STC Pannu Aqil were excluded from PS-22 and included in PS-25. Similarly TC Rhori was excluded from PS-25 and included in PS-23, whereas TC Arkohar and Sangrar were excluded from PS-23 and included in PS-22. The ECP officials made presentation through maps in presence of learned counsel for the petitioners and according to them, no TC was broken and law does not prohibit to make changes in case TC and Municipal Committee both have the same name. We have also noted the total population in different PS constituencies. The population in PS-22 is 3,61,272, PS-23 3,81,484, PS-24 3,88,260 and PS-25 3,56,871. On the face of it, there is no violation of population variation in all PS seats. So for all intents and purposes, we are satisfied that the threshold of 10% variation in the population has been strictly followed. The population of Arkohar is 19245, whereas the population of Sangrar is 30,074 but the petitioners want that these two areas should be excluded from PS-22 and be included in PS-23. According to the map produced before us it does not seem to be possible that only these two TCs alone could be shifted in PS-23 but in order to shift them a large area should have required to be included in PS-23 without which their merger was not possible in PS-23. If it is done naturally it will upset the entire criteria of population and threshold of 10% variation could not be maintained. Petitioners also want that the Noureja and Hingoro are presently in PS-25 be shifted in PS-22 Sukkur-I. The population of Noureja is 14195, whereas the population of Hingoro is 33002 which makes the total population 47197 if such a huge population is again carved out from PS-25 and shifted to PS-22 then again it will affect the some more areas which should be included in PS-22. The ECP cannot shift any particular area through jumping from one area to another but the boundaries of adjoining areas are also to be kept in mind. If at this stage, any TC is broken which is otherwise not permissible under the law then it will amount to change the complexion of entire delimitation. If we see in totality, the petitioners want changes in the delimitation at a large scale and shuffling of different areas from one PS to another PS which will drastically affect the entire delimitation of PS-22, PS-23, PS-24 & PS-25. The ECP in their final delimitation order have already considered various aspects. The logical proposals were given due weightage and as far as found possible and practicable, ECP has already modified the preliminary delimitation. So far as the allegation raised by the petitioners collectively that ECP has made some changes to favour a particular political party to commit gerrymandering. In this regard, we would like to observe here that mere leveling of allegations cannot prove anything except some concrete and cogent reasons are placed on record to prove the allegations of gerrymandering. The delimitation has been carried out by the ECP which is an independent constitutional body. Without any proper details and substance in the allegations of favoritism or biasness, we recuse ourselves to give any findings on this point.

9. No doubt according to the principles of delimitation laid down under Section 20 of the Elections Act, 2017, a mandate has been given for delimitation keeping in mind the rudimentary components encompassing the distribution of population in geographically compact areas, physical features, existing boundaries of administrative units, facilities of communication, public convenience and other cognate factors to ensure homogeneity in the creation of constituencies with a rider that as far as possible, variation in population of constituencies of an Assembly shall not ordinarily exceed 10 percent and if the limit of 10 percent is exceeded in an exceptional case, the Commission has to record reasons in the delimitation order. Much emphasis have been made by the learned counsel for the petitioners while signifying sub-Rule (5) of Rule 10 of the Election Rules, 2017 that as far as possible, the delimitation should start from the Northern end of the district and proceed clock-wise in zigzag manner keeping in view the population so that the constituencies shall remain as close as may be practicable to the quota. According to first proviso attached to sub-Rule (5), the quota shall be determined by dividing total population of the district or the agency with number of seats allocated to that district or agency. It is sine qua non under the tenets of second proviso that variation in population between two or more constituencies should not ordinarily exceed 10 percent and if in exceptional circumstances the variation has to exceed the limit then the Delimitation Committee has to record the reasons.

10. At the stage of preliminary delimitation, a mechanism and course of action was laid down for the aggrieved person to file proposals in the form of a representation and on filing such representation, it turns out to be responsibility and obligation of ECP to decide it in accordance with law. Putting down a proposal to ECP by any voter or objector from any constituency may be considered an instrument to call attention of ECP to cogitate and dwell on the defects and shortcomings of preliminary delimitation if any. In unison, we are also sanguine that the letters of law does not reflect any such exposition that whatever proposal placed by the voter or objector should be accepted by ECP in the letter and spirit in all circumstances as a vested right. To contest the elections and right of franchise is a fundamental right but to contest the elections on the basis of delimitation at one’s own philosophy and aspiration is not a fundamental right. The learned counsel for the petitioners referred to the case of M.Q.M. and others vs. Province of Sindh, reported in 2014 CLC 335 and Arshad Mehmood vs. Commissioner-Delimitation Authority, Gujranawala and others, reported in PLD 2014 Lahore 221. It is obviously distinguishable that in both cases, elections of local governments and some delimitation issues including amendments made by provincial governments in the local government laws were under challenge. Prior to these judgments, no powers were vested in the ECP for the delimitation of boundaries/UCs in local government elections but here the position is altogether different as not only for the forthcoming general elections, the Elections Act, 2017 is already in force/vogue but the Elections Rules, 2017 have also been framed to deal with inter alia the issues of delimitation and in the present scenario the exercise of delimitation has been carried out by ECP as an independent Constitutional body and not by ruling parties as done in the case of local governments elections which action was under challenge in the above judgments.

11. The petitioners want that entire delimitation should be set aside and matter be remanded to ECP to decide afresh. If the proposals are accepted in its entirety, it will alter the entire complexion and facial appearance of all the constituencies. Here we would also like to express that the presentation given to us through maps makes it unequivocally translucent that all basic principles required to be cope with at the time of delimitation have been adhered to and we do not find any justification to disturb or interfere in the impugned order. At this juncture, we would like to refer to the judgment of apex Court rendered in the case of Federation of Pakistan and others vs. Haji Muhammad Saifullah Khan, reported in PLD 1989 S.C. 166 in which the apex agreed that the grounds contained in the President’s Order dated 29th May, 1988, dissolving the National Assembly and dismissing the Federal Cabinet had no nexus with the preconditions prescribed by Article 58(2)(b) of the Constitution but was not inclined to grant the reliefs to restore the National Assembly and reinstate the dissolved Federal Cabinet despite this finding. The reasons for so doing were stated thus:

“But we are not unmindful of the fact that the whole nation is geared up for elections and we do not propose to do anything which makes confusion worst confounded and creates a greater state of chaos which would be the result if the vital process of elections is interrupted at this juncture.

The Courts always keep in view the higher interest of Pakistan while resolving matters of national importance in accordance with the Constitution and law. National interests must take precedence over private interests and individual rights. The forthcoming elections are at hand and the people of Pakistan must be allowed to choose their

representatives for the National Assembly on party basis, a right which is guaranteed to them under the Constitution.

The writ jurisdiction is discretionary in nature and even if the Court finds that a party has a good case, it may refrain from giving him the relief if greater harm is likely to be caused thereby than the one sought to be remedied. It is well settled that individual interest must be subordinated to the collective good. Therefore, we refrain from granting consequential reliefs, inter alia, the restoration of the National Assembly and the dissolved Federal Cabinet.”

1. As a result of above discussion, the aforesaid petitions are dismissed.

(Y.A.) Petition dismissed

PLJ 2019 Karachi 170 (DB)

Present: Salahuddin Panhwar and Adnan Iqbal Chaudhary, JJ.

Syed ZAFAR ALI SHAH and another--Petitioners

versus

CHIEF MINISTER, SECRETARY & I.G. SINDH--Respondent

C.P. No. D-1661 of 2016 and C.M.As. No. 18204 of 2014, 19050 of 2015, 6112 of 2018, decided on 28.6.2018.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Shortage of water for Kharif season--Stealing of water--Illegally drawing water--Depriving of tail end--Direction to--An illegality or multiplicity thereof and even duration of continuity of such an illegality would never be an excuse to let it continue--Irrigation system, no where, permits one to make disposal of drainage into any running/flowing water course, minor etc hence such would also fall within meaning of an illegality/violation--We would not hesitate in saying that such act by any person and omission by any official of irrigation department shall equally expose them to legal actions--Continuity of an illegality/violation in ‘irrigation system’ in present situation (serious scarcity of water), if allowed to continue, shall be nothing but ‘more injustice’ and serious threat to guaranteed rights of khatedars as well general people begging rather crying nothing but for ‘due amount of water’--Since remedy is available (created by law itself) hence needs no hammering in existence of such clear provision--However, it is hoped that Magistrate(s) concern on having any such information relating to way, river, channel, water-course and inspection path shall show more concern and action in ensuring removal as well stopping/preventing of any illegality--Petition was disposed of. [Pp. 179 & 180] A, B, C & D

2015 SCMR 338, ref.

Mr. Aftab Ahmed Shar, Advocate for Petitioners.

Mr. Ahmed Ali Shahani, Assistant Advocate General Sindh along with Muhammad Younis Domki, XEN, Irrigation, Division, Khairpur.

Date of hearing: 28.6.2018

Order

Salahuddin Panhwar, J.--At the outset, learned counsel for petitioners contends that this Court had decided identical petition No. D-1043 of 2018 re: Khadim Hussain Aradin v. P.O. Sindh and others, hence he would be satisfied if this petition is decided within spirit of paragraph-19 of the said judgment.

1. On the other hand, learned Assistant A.G extends his no objection and seeks disposal in the same terms, as stated above.

2. Precisely relevant facts, as set out in the petition, are that since 2010 the petitioners are facing non-availability/shortage of irrigation water in the entire kharif season in Faiz Ganj canal tail of Khairpur circle, Sangi Minor tail, Gul Minor tail, Nau Abad minor tail, Moria minor tail, Khush minor tail, Khanwahan minor tail, Budka minor tail, Dali minor tail of Rohri canal circle; due to stealing of water by breaking of water courses, putting illegal pipes, tampering and running illegal outlets from canals, cutting of canal and stopping/blocking of main canal/minor/distributaries by upper riparians, the irrigation water, available at the head, does not reach at the tail ends, of canals/minors/ distributaries thereby deprive the petitioners of their legal share of irrigation water; and this is being done by beneficiary khatedars in connivance with the officials/subordinate of Respondent No. 2. It is further averred in the petition that petitioners continuously requested the officials of Respondent No. 2 as well as peaceful protested; as such officials/ subordinates of Respondent No. 2 visited the aforesaid canals/minors/ distributaries alongwith petitioners” representatives and noted the broken/tampered watercourses, illegal lifting of water through motor pumps, tractors/numerous illegal pipes and outlets running from canals, taking water by cutting of canal bank and stopping/blocking of main canals/minors/distributaries. It is also stated in the petition that after visiting the site the officials of Respondent No. 2 assured the respondents that will remove all illegalities from the aforesaid canals/minors/distributaries and ensure that irrigation water will reach the tail ends and that they will take coercive action against the culprits who are involved in this heinous crime. On 2.5.2014, Assistant Executive Engineer, Irrigation Sub-Division Faiz Gaj at Pacca Chang addressed letter to the SHO, P.S, Faiz Ganj that Khatedars are illegally drawing water by lift machines depriving tail and khatedars due to which irrigation water is not reaching lower riparians, therefore, they are complaining. In the said letter AEN asked the SHO to provide police force to accompany irrigation staff on patrolling in order to seize illegal lift machines and take legal action against the culprits for the supremacy of law, but no action was taken till date. Despite assurance, officials/subordinates of Respondent No. 2 miserably failed to remove any illegalities from the aforesaid canals/minors/distributaries and the irrigation water could not reach at the tail ends and no coercive action so far has been taken against the culprits who are involved in this heinous act; that petitioners after running from pillar to post of the officials of Respondent No. 2 for redressing their grievance, but after getting no response from the said officials/subordinates. Petitioners filed complaint to the respondents No. 1&2 on 30.5.2014, which also bore no fruit; that on 2.6.2014, Assistant Executive Engineer, Irrigation Sub-Division, Faiz Ganj at Pacca Chang addressed letters to SHO, P.S, Faiz Ganj that khatedars are illegally drawing water by lift machines depriving tail end khatedars due to which FIR be lodged against the persons nominated in the letters, but it also went in vain; that it is pertinent to mention here that 115 number of watercourses/outlets approved/sanctioned in Faiz ganj canal as per outlet register, whereas, much higher number of illegal water course/outlets are existing in the said canal under the supervision/protection of the officers/subordinates of Respondent No. 2; that in view of above, petitioners and hundreds of people protested peacefully against Respondent No. 2 for giving false hopes and not taking any legal action against the criminals neither providing irrigation water to the tail end khatedars of the aforesaid canal/minors/ distributaries, but rather protecting, helping and safeguarding those criminals in theft of irrigation water, the news of peaceful protest was reported in the print and electronic media.

3. Respondents filed comments contending therein that irregularities have been removed, tampered modules over watercourses have been rectified as per their design and dimension and also unauthorized lifting of water from canals have been stopped by the Executive Engineer and petitioners are cultivating their lands beyond prescribed limits.

4. At this juncture, it would be conducive to refer paragraph-19 of above referred judgment, which reads as under:

“19. Since, the Article 190 of the Constitution is quite clear that:-

“Article 190. Action in aid of Supreme Court—All Executive and Judicial Authorities, throughout Pakistan, shall act in aid of the Supreme Court”.

Hence, not only this Court but even District Judiciary is expected to act in aid so as to ensure complete satisfaction of directions of honourable Apex Court. Since, it prima facie stood proved that despite a categorical undertaking by Chief Engineer Irrigation that no violation of Act shall go un-noticed but the things remained otherwise therefore, same opens a room of involvement of all judicial authorities to play their roles not only to get compliance of observation of honourable Apex Court but also to protect fundamental rights, as was insisted in referred case. Thus, under these circumstances, judicial propriety demands that Chief Secretary, with consultation of Secretary Irrigation, shall constitute five members committee comprising on three Irrigation Officers (retire/serving), not below the rank of superintendent engineer and two irrigation experts working in private sector who shall visit Nara Canal, examine the sanctioned private lift machines approved by Chief Minster and Secretary Irrigation as well use thereof as per specification or otherwise, and submit report whether such approval is against the interest of tail-end khatedars and whether same is justified or otherwise?. The committee shall also point out any violation/breach of the Act as well negligence of irrigation officials of concerned point. The committee would also ensure getting such violation/tampering with module etc repaired (restored at its sanctioned design) by seeking assistance of local police and irrigation officials. Committee shall examine the period of huge increasein command area; approval of lift machines up-to Mundh Jamrao and legality thereof. Chief Secretary shall issue such notification in above terms within seven days with compliance report through A.R of this Court and Committee shall complete this assignment within two months such report shall be submitted for action with the secretary irrigation chief secretary within two months, as well as shall be filed before this Court.

(i) On such proposal, Chief Secretary and Secretary Irrigation shall take action within one month. Needless to mention that due notice shall be provided to all the concerned parties. Every officer/ authority would be bound to co-operate with committee.

(ii) Secretary Irrigation and Managing Director Sindh Irrigation and Drainage Authority (SIDA) shall ensure immediate removal of 256 unauthorized lift machines on Nara Canal as well as lift machines on government Channels up-to Mundh Jamrao and lodgment of criminal cases against all beneficiaries. Removal of all illegal and unauthorized machines be ensured regardless of their placement/use at private area or government channel even on wheels; IGP Sindh shall direct all SSPs to provide complete force to finalize this task. This exercise shall be completed within ten days.

(iii) Secretary Irrigation and Managing Director Sindh Irrigation and Drainage Authority (SIDA) shall conduct open kachehris at the tail-end area of Mithrao, Jamrao and Thar Canal on every six weeks in the months of March to October. Needless to mention that they shall ensure presence of the Judicial Magistrates/Civil Judges, of the respective areas in their open kachehris. Judicial Magistrates/Civil Judges would be competent to supervise and ensure that every common citizen has access in that open kachehris.

(iv) Learned District & Sessions Judges, Sukkur, Khairpur, Sanghar, Umerkot and Mirpurkhas shall depute Magistrates who shall make surprise visits as per their convenience without disturbing their judicial works and ensure that no one is getting water illegally in their respective areas and all illegal lift machines, modules, pipes, are removed within their respective areas as well shall point out any violation of the Act couple with negligence of concerned official/officials. The learned District & Sessions Judges would refer the matter to quarter concerned for appropriate actions. The quarter concerned however shall deal with such reference as per law and rules but would report disposal of such reference to concerned District & Sessions Judge, within reasonable time, else District judges would be competent to call respective authority for compliance.

(v) SSPs, Sukkur, Khairpur, Sanghar, Umerkot and Mirpurkhas shall ensure that at least DSP and other police escort shall be available with the Magistrates and with the Engineers in respect of removal of illegal lift machines, pipes, modules, etc from the Nara Canal and it all branches, including minors. Any negligence or failure in attending the complaint of irrigation official in this regard shall expose the concerned police official to legal action which is not limited but includes contempt proceedings.

(vi) Secretary Irrigation shall ensure website of Irrigation Department on same pattern as Punjab Province is working and survey of underground and surface water and its environmental and other effects for the lands as well for human beings. Such survey and reports shall be published every year and shall be flashed on website. As well as toll free number shall be provided in similar fashion as Province of Punjab is doing with regard to complaints, and rescue centers shall be established.

(vii) Chief Secretary Sindh and IGP Sindh shall ensure that Police Department along with Irrigation and agriculture Department shall establish rescue centers who shall hear the complaints. In every District Headquarter and in Taluka Headquarter of tail-end areas, there must be a rescue center; concerned Magistrates of respective area, would be competent to make surprise visit and ensure that tail-end khatedars are receiving their share of water as well citizens are getting drinking water per sanctioned.

(viii) CEO of SEPCO shall ensure that no one is allowed to use electricity for private unauthorized lift machines over Nara Canal and its channels. All the illegal electric connections, being used for purpose other than its sanction, shall immediately be disconnected, for which request is already made. In case of failure, they will be booked in criminal cases. Executive Engineers of respective areas are hereby directed to point out those places. This exercise shall be completed within one month, with compliance report.

(ix) Even in case of shortage of water, if sanctioned ratio as per available discharge from main source (Indus River) is not received at Mundh Jamrao, Superintending Engineer and Executive Engineer Nara canal would be responsible for that shortage and Secretary Irrigation shall take action against them because it is their obligation to ensure reach of due discharge to next canal.

(x) Besides Chief Secretary Sindh, to curb this menace, shall seek assistance of Rangers with the help of Federation and ensure complete monitoring over water distribution system on all canals including Nara Canal and Rohri Canal particularly from the period of March to August, every year.

Since a challenge in petition was made with reference to water rotation programme for which it would suffice to say that since the application of Section 28 of the Act is available with the Irrigation authority hence petition seems to have found its answer. Further, it is added that such exercise (toater-rotation Programme) may be continued, if circumstances, so demands. However, this shall not be exercised at the cost of rights of other khatedars. A proper publication of water rotation programme shall however be made in advance.

While parting, toe feel it proper that the farmers/zamindars also be made aware of Part-V in the Act with title ‘of the Award of Compensation’ which cannot be expected from lay-men therefore, while holding first open kachehri the holder thereof shall ensure a briefing thereof and a good publication of complete mechanism. Office shall communicate this order to all concerned for compliance. The petition is disposed of.

1. Since this petition pertains to Rohri Canal and learned counsel for petitioners and learned AAG are agreed that same directions would serve the purpose, however, learned counsel for petitioners has submitted additional aspects which are:

“1. To visit the retaining walls/waterfalls and face heads of the all canals, minors and water courses with technical team comprising upon reputable officers to verify the accuracy and level and level permitted under the law.

1. To demolish/remove self-created retaining walls/waterfalls constructed by powerful landholders and ensure the reconstruction of legal restraining walls/ Dikkas, removed by Irrigation Authorities for facilitating the influential landlords.

2. To enquire into the construction of new public or private bridges constructed over the canals and minors for which technical assistance and legal permission was not obtained from Irrigation Department. Their designed may be revisited along with effects thereof over smooth floor water.

3. To remove the hidden illegal pipes and lift machines by Banana growers or any powerful growers.

4. To ban on private de-slitting by private tail growers as they dug the minors, canals by crane machines and put the mud on inspection paths which practice has made the condition of the inspection paths and design of the canals and minors from worse to worst hence to ensure the cleaning of the inspection paths of canals and minors by removing all the obstacles and make it in same position as these were few decades back. As non-functioning of inspection paths creates hurdles for proper visit and inspection of the canals, minors and heads of the water courses by the Irrigation Authorities and even by law enforcement agencies; because of that sad back the canals, minors became exclusive property of the powerful persons as there is no access for the site inspection of Irrigation system and total system is under the control of Beldars and Darogos of their respective beats, high rank officers are not in position to visit the canals as they cannot use inspection path from head to tail. The lower staff is associated with the powerful Khatedars and facilitate their needs in lieu of their personal gains, whereas the high officers are sitting in the offices by making huge embezzlement of the funds. Major portion of the inspection paths and banks of the canals and minors is occupied by the private powerful persons and such occupation also accommodates the Zamindars to use lift machines, pipes and theft of the Irrigation water. The prime need of time is to make inspection paths clean and clear from head to tail by the irrigation authorities as soon as possible and not more than six months. Further the old trees of Shisum and other were cut down by the Irrigation Officials and such acts had put worst impact upon the atmosphere and so also the design of the canals and minors. Therefore the authorities may be directed for plantation of trees on both sides of the canals.

5. To inquire about all the outlets which are entered into the record by tampering and giving duplicate and triplicate number of water courses, which were not available in the record or on field ten years ago.

If any new water course or any outlet has been sanctioned then the Irrigation department is bound to redesign the main canal by adding surplus water taken by any fresh outlet or watercourse, unfortunately the outlet/discharge design of the major canals is same, as it was at the time of its construction, whereas the large number of water courses and outlet were sanctioned without re-redesigning and assessment.

1. To direct the Irrigation authorities and so also Govt. of Sindh to ensure and introduce the uniform policy for crops by growers from head to tail, as the head Khatedars use to cultivate their 100% land which is illegal more-so-over they use to cultivate the crops which need more Irrigation water rather than regular crops, this aspect also made the situation worst for the tail Khatedars, which are not in position to cultivate single crop of wheat or grains, the constitution of Pakistan provides equal treatment to all citizens and this discriminatory situation make tail Khatedar poorer to poorest and head Khtedars weather to wealthiest.

2. Constructing/contracting authorities of the Irrigation department shall be directed to call pre-qualification tenders for remodeling and Paka construction of the canals and minors because the influenced and lower grade contractors made the situation worst by using low grade material and level structure. This process should be monitored strictly in accordance with law.

3. To direct the NAB authorities to probe into funds, released to Irrigation department, and weather the funds have been properly utilized or not if any corruption or embezzlement has taken place, the legal action should be taken against the persons involved.

4. To direct the Sessions Judges/Director Human right Justice to entertain the oral or written complaints regarding the redressal of grievance by any Khatedar. Further Magistrate being empowered under Section 133 be directed to ensure for removal of hurdles from inspection paths of canals and minors by using their powers.

5. It needs not be mentioned that directions, contained in case of Khadim Hussain not only intend to ensure removal of all illegalities but also any violation of the Act. The violation of the Act shall always include any negligence or departure from a commandment of law, rules and procedure. The irrigation law, no where, permits addition or reduction into command area of watercourse/minor etc without redesigning thereof hence any departure would be nothing short of a violation. An illegality or multiplicity thereof and even duration of continuity of such an illegality would never be an excuse to let it continue. We would also add that irrigation system, no where, permits one to make disposal of drainage into any running/flowing water course, minor etc hence such would also fall within meaning of an illegality/violation. We would not hesitate in saying that such act by any person and omission by any official of irrigation department shall equally expose them to legal actions. Therefore, it is needless to say that Authorities and all concerned (irrigation officials) shall ensure that no illegality (violation) continues even if it is in practice/use since considerable time which action, however, would be subject to an explanation/hearing. Needless to add that an exception to provide an opportunity of hearing may well be taken in certain cases i.e where such process is likely to result in ‘more injustice than justice’ or infringing ‘public interest’. Reference may well be made to the case, reported as 2015 SCMR 338, wherein binding principle of law has been made as:--

Art. 10A. Whenever adverse action was being contemplated against a person a notice and/or opportunity of hearing was to be given to such person—Said principle was a fundamental right under Art. 10A in the Constitution. However, both the requirements of a notice and providing an opportunity of a hearing may also be dispensed with in certain type of cases e.g. where such requirement would cause ‘more injustice than justice’ or it was not in the ‘public interest’.

1. Worth to add that since continuity of an illegality/violation in ‘irrigation system’ in present situation (serious scarcity of water), if allowed to continue, shall be nothing but ‘more injustice’ and serious threat to guaranteed rights of khatedars as well general people begging rather crying nothing but for ‘due amount of water’. Accordingly, all concerned, so highlighted in the case of Khadim Hussain supra shall keep this in view and a prompt and immediate action is expected.

2. Further, the provision of Section 133 of the Code (Cr.P.C.) itself is clear in duties of Magistrate which includes ‘removal of any unlawful obstruction or nuisance from any way, river or channel as well:

“the construction of any building, or the disposal of any substance, as likely to occasion configuration or explosion, should be prevented or stopped.”

therefore, any damage to inspection-path would be actionable within meaning of Section 133 of the Code as such inspection path can also be used by general public of the area. The exercise of jurisdiction under Section 133 of the Code is not necessarily confined to a police report but may well be exercised on other information and evidence. The purpose and object of open katchery by Irrigation officers and visits by judicial officers is meant to provide a mechanism that no genuine complaint goes unnoticed. However, we would say that since the remedy is available (created by law itself) hence needs no hammering in existence of such clear provision. However, it is hoped that Magistrate (s) concern on having any such information relating to way, river, channel, water-course and inspection path shall show more concern and action in ensuring removal as well stopping/preventing of any illegality. All these aspects were well within view while passing the observations in case of Khadim Hussain supra, however, concern, shown by counsel for present petitioners, made it necessary to make things more clear and brighter.

1. With above explanations, instant petition is disposed of with directions to the Managing Director, SIDA, Secretary, Irrigation Department, Chief Engineer, Irrigation, Chief Secretary and IGP, Sindh that on Rohri Canal all the directions given in the case of Khadim Hussain Aradin, shall be followed for grievance of present petitioners as well District & Sessions Judges having territorial jurisdictions of Rohri Canal, particularly in the tail-end areas, such as Districts Naushehro Feroze, Shaheed Benazirabad (Nawabshah), Hyderabad, Matiari, Tando Muhammad Khan, Badin and Tando Allahyar would be competent to proceed within the spirit of case of Khadim Hussain Aradin and with further directions that all the designs of watercourses, bed levels of canals and minors shall be re-examined and restoration of lawfully sanctioned design/modules shall be ensured which otherwise is one of the basic requirement of Act. Services of highly skilled consultants shall be hired. Chief Secretary and Sindh and Secretary, Irrigation shall issue Notification with regard to committee for examining the veracity of direct outlets of Nara Canal and its linked canals which shall point out any illegal and unlawful direct outlet to Secretary, Irrigation who shall proceed further according to commandment of law. Needless to mention that due notice shall be given to all the necessary parties of province of Sindh. Chief Secretary and Secretary, Irrigation shall ensure that recommendations of that committee are followed in its letter and spirit.

Let the copy of this order be circulated to all those, addressed in case of Khadim Hussain supra, being explanatory.

(Y.A.) Petition disposed of

PLJ 2019 Karachi 181 (DB)

Present:Muhammad Ali Mazhar and Agha Faisal, JJ.

BAQAI MEDICAL UNIVERSITY through authorized Representative and another--Petitioners

versus

GOVERNMENT OF PAKISTAN through Secretary, Ministry of National Health Services, Islamabad and 2 others--Respondents

C.P. No. D-243 of 2019, decided on 18.2.2019.

PakistanMedical and Dental Council Ordinance, 2019--

----Ss. 23, 32, 34, 35 & 39--Suspension of admission of students--First inspection--Issuance of letter for certain deficiencies--Decision of Executive Committee for fresh inspection--Filling of reply--Non-functioning of medical tribunal--Role of Court--Opportunity of hearing--Challenge to--Imposing of restrictions--Direction to--No Medical Tribunal has been constituted--Since Medical Tribunal is neither constituted nor functional at moment, therefore, we cannot non-suit petitioners on this ground unless and until Medical Tribunal is constituted and starts functioning--It is an admitted position that on receiving letter of PMDC on 21.12.2018, petitioner sent their response within a week to Ms. Sara Rubab Nasir, In charge Inspection, PM&DC on 28.12.2018 but before considering their reply, PMDC on 27.12.2018, imposed restrictions not to admit/intake students for Session 2018-19--This constitutional reassurance envisaged and envisioned both procedural standards that courts must uphold in order to protect peoples’ personal liberty and a range of liberty interests that statutes and regulations must not infringe--Right to a fair trial means that general public and commonalities can be sure that process will be fair and certain which is finest method of detaching and disengaging a guilty from an innocent thereby protecting against injustice--If PMDC wanted to take unilateral action without affording opportunity to defend petitioners, then there was no purpose of calling upon petitioners to submit reply--This is quite obvious that no inspection can be carried out at this stage due to non-availability of new council but at one fell swoop, on this administrative ground and inability of respondents, petitioners cannot be oppressed--As a result of above discussion, we dispose of this petition with directions to petitioners to apply to PMDC for inspection within three months from date hereof and said inspection shall be conducted by PMDC in accordance with law and in due consideration of submissions of petitioners--In meanwhile admitting University is directed to send list of merits for admission in petitioner No.2 college in line with its entitlement thereto prior to Impugned Letter--Petition was disposed of. [Pp. 188, 189, 191 & 192] A, B, C, D, E, F & G

Mr. Afnan Saiduzzaman Siddiqui Advocatefor Petitioners along with Mr. Iftikhar Ahmed, Principal of Baqai Medical College.

Mr. Sohail H.K. Rana, Advocatefor Respondent No. 2 (Pakistan Medical and Dental Council).

Mr. Ishrat Zahid Alavi, Assistant Attorney General.

Dr. Abdul Rahman Rajput, Deputy Director, Admission Cell, Jinnah Sindh Medical University, Karachi.

Date of hearing: 18.2.2019.

Order

Muhammad Ali Mazhar, J.--The petitioners have challenged the decision of Pakistan Medical and Dental Council (PM&DC) dated 27.12.2018, whereby the admission/intake of the students in the Petitioner No.2 Institution for the Session 2018-19 was suspended with further directions to the Admitting University of the Sindh, (JSMU) not to forward the list of students.

1. The controversy initially arose when the first inspection was carried out on 10th April, 2018 and in pursuance of that inspection, the petitioners were informed certain deficiencies vide letter dated 14.5.2018 which are reproduced as under:--

2. Baqai teaching hospital at present needs a lot for making it worth teaching status.

3. Number of beds in Fatima Hospital needs increase with improvement of facilities

4. Moreover it needs to be patient friendly and student facilitator.

5. Specialties are required in Fatima Medical Hospital.

6. Physiology department lack faculty for so long.

7. The response to above letter was sent by the petitioners on 18.5.2018 which is available on record at page 245. However, after submitting this reply the petitioners were informed by PM&DC on 13.7.2018 that though the comprehensive inspection of the college was conducted on 10th April, 2018, however the matter was placed before the Executive Committee of the Council in its meeting held on 19.5.2018 which decided that the fresh inspection will be carried after two months. The text of the decision of the Council was also reproduced in the same letter which reads as under:

“The Executive Committee after having deliberate discussion upon perusing the inspection recommendation made by the inspection team and considering complete merits of the case unanimously decided that the college will be re-inspected after two months to verify if the college has rectified the deficiencies”.

1. Again on 19th December, 2018, inspection was carried out and the outcome was intimated to the petitioners vide letter dated 21st December, 2018 in which various deficiencies were revealed and the petitioner was called upon to submit their reply within a week for consideration of Executive Committee/Council. The petitioner submitted their reply on 28.12.2018 and addressed each deficiency para wise for consideration but before considering the reply, the PM&DC sent the Impugned Letter on 27.12.2018, whereby reference of inspection conducted on 19.12.2018 was allude to and the decision of the Executive Committee was intimated to the petitioners. For the ease of convenience, the relevant text of the letter is reproduced as under:

“Keeping in view complete merits of the case, after perusing the matter and having deliberate discussion unanimously decided that the admission/intake of the College for session 2018-19 shall remain suspended/ stopped and Admitting University of Sindh Province (Jinnah Sindh Medical University, Karachi) will informed not to admit students. The Executive Committee further decided that the college will intimate the PMDC regarding fulfillment of deficiencies. The college shall apply to PMDC for inspection for next year admissions. The inspection of the college will be carried out on new purple proforma 2018.”

1. After receiving this letter, the petitioners presented this Constitutional Petition on 14.01.2019 and pleaded that the Impugned Letter had been served without consideration of their reply. It was further asserted that in the reply, the petitioners expressly demonstrated that the deficiencies identified had been virtually addressed and rectified. During pendency of this petition they again submitted current status/ progress for the consideration of this Court. The statement reflects in pointers, the deficiencies indicated by PMDC on the strength of second inspection and the rejoinder of the petitioner with the current status. The statement dated 01.02.2019 sought to demonstrate the improvements and efforts made for rectifying the shortcomings and flaws by the petitioners which were also narrated by the petitioners in the reply dated 28.12.2018 to the PMDC.

2. The learned counsel for the petitioners argued that in the inspection the petitioners secured 641.85 marks. He further argued that the petitioner Institution is operating for last 32 years and various batches of students have been passed out from the same college. The principal of college with the permission of the Court addressed that so far as the deficiencies pointed out in the hospital, all deficiencies have been cured and alleviated. Some new equipment have also been purchased i.e. 04, Anesthesia Machines with Ventilators, 05, Electro Cautery Machines, Lapro Scope Tower, TURP equipment, 05, new surgical sets and the hospital is also equipped with the capacity of more than 500 beds which is located in the vicinity of college. He further informed us that 09, new incubator units have been purchased and 01, Psychiatric Ward has also been established. So far deficiency pointed out in the Anatomy Department, the principal of the Petitioner No.2 submitted that the Mortuary Refrigerator has been repaired and it was creating problem due to low voltage and as a backup they have also installed Formalin Tank which caters the requirement. The principal of the Petitioner No.2 further informed us that for physiology and pharmacology departments, more than 15 applications for Associate Professors and Assistant Professors have been sent to PM&DC for according their registration. He further informed us that the total marks for the said professors comes to 239 but due to pendency of their applications with PM&DC for registration, only 181 marks have been given to the Institution in this realm and range. Had the registration of all Associate Professors and Assistant Professors accorded by PMDC within time, approximately 60 more marks could have added in the total marks/score of the Petitioner No. 2. So far as the shortage of 02, Professors in the department of Pharmacology and Radiology, the principal submitted that they are making all best efforts to remove this deficiency also and he was very confident that vacant positions will be filled soon. He further pointed out that in Surgery Department there was deficiency of 02, Assistant Professors which deficiency has also been put to rest. He further stated that the matter of Pathology Department has already been referred to PM&DC for registration and so far as ENT Department is concerned 02, Assistant Professors are already there without any deficiency. With regard to the deficiency of 04, Resident Medical Officers (RMOs) is concerned, the Principal replied that three RMOs are already performing their duties and 02 more have been appointed. The Inspection Committee asked for their registration with PM&DC but according to Principal of the Petitioner No.2, PM&DC has not prescribed any procedure for registration of RMOs, however, the principal agreed to comply with this condition also if PM&DC will provide Application Form for their registration.

3. The learned counsel for the petitioner further argued that all best possible efforts have been made for removal of deficiencies in accordance with instructions and guidelines of the PM&DC and at present nothing is lacking. He suggested that PMDC may be directed to carry out fresh inspection so that the petitioners may demonstrate the removal of all deficiencies, he also made a request that in the meanwhile, the petitioners may be allowed to admit students for the Session 2018-2019 and the Admitting University may be directed to send the list of students who have applied for admission on merits. In order to safeguard and protect the interest of the students, he pointed out that the Petitioner No.2 has also submitted an affidavit duly signed by its Principal. Paragraph 5 and 6 of the affidavit are reproduced as under:

“5. That the Petitioner No.2 through this Affidavit submits that all of the above stated position as also elucidated through a detailed reply which was furnished on the 28th December, 2018 to the Respondent No.2, by the Principal of Petitioner No.2, is true and not contrary to any of the officially stated positions taken before the PM&DC or before this Honourable Court.

1. The Petitioner No.2 submits that they are in conformity with the requirements of the PM&DC Ordinance and if the requirements are not fulfilled the Respondent No.2 can revoke the admissions which in accordance with the 2019 Ordinance is the purview of the Ministry. Nevertheless, PM&DC in accordance with the 1969 Ordinance if it subsists can revoke the admissions of 2018-19 of the Respondent No. 2 and the fees can be refunded to the students’ subject to the exclusion of non-refundable fees under the University rules”.

2. The learned counsel for the PM&DC argued that earlier inspections were carried out in terms of Medical Council Ordinance, 1962, however, on 08.01.2019, Pakistan Medical and Dental Council Ordinance, 2019 has been promulgated which has repealed the 1962 Ordinance. He further argued that the Council has not been constituted so far under the new law by the Prime Minister of Pakistan. Learned counsel also referred to Section 34 of the Ordinance, 2019 which provides that the Prime Minister of Pakistan by Notification shall establish Medical Tribunal which shall exercise jurisdiction under this Ordinance. Under Section 35 of the Ordinance, 2019 the jurisdiction and power of Medical Tribunal is provided which includes the powers to try the cases of all contravention punishable under Section 32 as well as the cases of any person aggrieved by an act cognizable under this ordinance who may file a complaint to the Medical Tribunal. He further referred to Section 39 of the Ordinance, 2019 and argued that on promulgation of this Ordinance, all matters are abated which are within the jurisdiction of Medical Tribunal, therefore, this petition is liable to be abated. He further argued whether the deficiencies exposed in last inspection report have been removed or not? This can only be examined by the Council which is a regulatory body and no fresh inspection can be carried out unless Council is constituted by the Prime Minster of Pakistan.

3. The learned Assistant Attorney General endorsed the arguments of learned counsel for the PM&DC that the Council has not been constituted by the Prime Minister in the new law therefore, the inspectors cannot be appointed. He also conceded that Medical Tribunal is not functional.

4. Heard the arguments. Under Section 21 of the Medical Council Ordinance, 1962, the Executive Committee could appoint such number of medical or dental inspectors as it may deem requisite to attend at any or all of the examinations held by medical or dental institutions in Pakistan for the purpose of granting recognized medical or additional medical, or dental, qualifications or in respect of which recognition has been sought. According to sub-section (2), the inspectors appointed in this section required to form a comprehensive report about the facilities for training in the institution and under sub-section (3), it was provided that the Executive Committee shall forward a copy of any such report to the medical or dental institution concerned and shall also forward a copy with the remarks of such medical or dental institutions thereon to the Council. However, under Section 22 of Medical and Dental Council Ordinance, 1962, the power of withdrawal of recognition was vested in the Federal Government on the recommendation of Council but the Council could have stopped the further intake of the students and forward a summary of its findings to the medical or dental institution with an intimation of the period within which the medical or dental institution may submit its explanation to the Council, however, if the council is not satisfied with the explanation it could have recommended to the Federal Government for closure of institution. On 05.01.2019, the Pakistan Medical and Dental Council Ordinance, 2019 has been promulgated. In Section 22 of the new law also, the Council may approve the list of inspectors to inspect the facilities for training available at the medical or dental institution. The inspector appointed under this section shall form a comprehensive report on the prescribed format about the facilities for training in the institution, however, the President shall forward a copy of report to the medical or dental institution for its remarks and shall forward a copy with the remarks of such medical or dental institution thereon along with its recommendations to the Council. The withdrawal of recognition is provided under Section 23 of Pakistan Medical and Dental Council Ordinance, 2019 wherein it is provided that if the Council is not satisfied with the explanation or where no explanation is submitted within the stipulated time, then on expiry of that period, it shall recommend to the ministry for closure of the institution subject to the conditions that students who are enrolled in such medical or dental institution during the period it was recognized by the Council shall not suffer any loss in terms of the period of education already undertaken and remaining period to be undertaken by them.

5. We also asked the learned counsel for the PMDC whether the Medical Tribunal has been constituted or not? He frankly conceded that no Medical Tribunal has been constituted. Since Medical Tribunal is neither constituted nor functional at the moment, therefore, we cannot non-suit the petitioners on this ground unless and until the Medical Tribunal is constituted and starts functioning. Learned counsel for the PMDC also articulated that the Regulatory Authority has already conducted an inspection and unless the new inspection is carried out it could not be possible to ascertain whether all the deficiencies as stated by the Principal of the petitioner and learned counsel for the petitioner have been rectified or not. He has also referred to the judgment of the apex Court in the case of Pakistan Medical and Dental Council and others v. Ziauddin Medical University (PLD 2007 SC 323) to amplify his contention that PMDC is the authorized regulatory body. He further submits that once the Executive Council is constituted by the Prime Minister of Pakistan, the Inspectors will be appointed for the purposes of inspection and then fresh inspection will be carried out by the Council in view of the provisions contained in Ordinance, 2019.

6. It is an admitted position that on receiving the letter of PMDC on 21.12.2018, the petitioner sent their response within a week to Ms. Sara Rubab Nasir, In charge Inspection, PM&DC on 28.12.2018 but before considering their reply, the PMDC on 27.12.2018, imposed the restrictions not to admit/intake the students for the Session 2018-19. No doubt, the PMDC is a Regulatory Authority in the case in hand both in old and new law but due process is also prerequisite that needs to be respected at all stratums. In our Constitution, right to fair trial is a fundamental right. This constitutional reassurance envisaged and envisioned both procedural standards that courts must uphold in order to protect peoples’ personal liberty and a range of liberty interests that statutes and regulations must not infringe. On insertion of this fundamental right in our Constitution, we ought to analyze and survey the laws and the rules/regulations framed thereunder to comprehend whether this indispensable right is accessible or deprived of? In case of stringency and rigidity in affording this right, it is the function rather a responsibility of court to protect this right so that no injustice and unfairness should be done to anybody. The proactive role of the Court must alone prove that this right is not confined only within the precincts of the Constitutions but in actuality and for all practicality it exists to do good to the people. The right to a fair hearing and or trial necessitates that no one should be penalized by the decision upsetting and afflicting his right or legitimate expectations unless he is given prior notice of the case, a fair chance to answer it and a fair opportunity to explicate/ present the case. The right to a fair trial means that general public and commonalities can be sure that process will be fair and certain which is the finest method of detaching and disengaging a guilty from an innocent thereby protecting against injustice. Ref: M/s. Inbox Business Technologies Ltd. v. Pakistan and others (2018 PTD 621). The honourable Supreme Court in the case of Warid Telecom (Pvt.) Limited v. Pakistan Telecommunication Authority (2015 SCMR 338) held as under:

“b. Constitution of Pakistan.Article 10A. Fundamental Rights. Whenever adverse action was being contemplated against a person a notice and/or opportunity of hearing was to be given to such person. Said principle was a fundamental right under Article 10-A in the Constitution. However, both the requirements of a notice and providing an opportunity of a hearing may also be dispensed with in certain type of cases e.g. where such requirement would cause “more injustice than justice” or it was not in the “public interest”.

“The Indian Supreme Court in the case of Karnataka Public Service Commission v. B. M. Vijaya Shankar (AIR 1992 Supreme Court 952) stated that, when meeting the requirement of notice and providing an opportunity of hearing will cause “more injustice than justice” or it is not in the “public interest” the same may be withheld. It will be useful to reproduce the following portion from the said judgment:--

(4) Was natural justice violated? Natural justice is a concept which has succeeded in keeping the arbitrary action within limits and preserving the rule of law. But with all the religious rigidity with which it should be observed; since it is ultimately weighed in balance of fairness, the courts have been circumspect in extending it to situations where it would cause more injustice than justice. Even though the procedure of affording hearing is as important as decision on merits yet urgency of the matter, or public interest at times require, flexibility in application of the rule as the circumstances of the case and the nature of the matter required to be dealt may serve interest of justice better by denying opportunity of hearing and permitting the person concerned to challenge the order itself on merits not for lack of hearing to establish bona fide or innocence but for being otherwise arbitrary or against rules. Present is a case which, in our opinion, can safely be placed in a category where natural justice before taking any action stood excluded as it did not involve any misconduct or punishment.”

Another case from the India in a similar vein is the case of Union of India v. J. N. Sinha (AIR 1971 Supreme Court 40) where it was held, that:--

“As observed by this Court in Kraipak v. Union of India AIR 1970 SC 150,” the aim of rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law but supplement it.” It is true that if a statutory provision can be read consistently with the principles of natural justice, the Courts should do so because it must be presumed that the legislatures and the statutory authorities intend to act in accordance with the principles of natural justice. But, if on the other hand, a statutory provision either specifically or by necessary implication excludes the application of any or all the rules of principles of natural justice then the Court cannot ignore the mandate of the legislature or the statutory authority and read into the concerned provision the principles of natural justice. Whether the exercise of a power conferred should be made in accordance with any of the principles of natural justice or not depends upon the express words of the provision conferring the power, the nature of the power conferred, the purpose for which it is conferred and the effect of the exercise of that power.”

1. The Principal of the Petitioner No.2 pointed out that various deficiencies have already been rectified which are already mentioned supra. He further stated that the letters for registration of the faculty members have already been submitted to PM&DC for their registration which are awaited without any justification. He further stated that various equipments have been replaced with new setup. The petitioners have also submitted an affidavit in which they have assured that if they fail to fulfill the requirements or any lapses are found in the next inspection they will be liable to refund the fee of the students. Further in the Ordinance, 2019, Section 23 fully covers the situation wherein it is clearly provided that for protecting the rights of the students the Council may approve the scheme which may include management of the medical or dental institution being handed over to an interim committee, administrator or persons appointed by the Council with the approval of the Ministry and in the event of closure, the students who are enrolled in such medical or dental institution during the period it was recognized by the Council shall not suffer any loss in terms of the period of education already undertaken and remaining period to be undertaken by them.

2. It is manifest from the Impugned Letter that it was issued without considering the reply of the petitioners. If PMDC wanted to take unilateral action without affording opportunity to defend the petitioners, then there was no purpose of calling upon the petitioners to submit the reply. In the absence of having considered the submissions of the petitioner and or verification thereof the Impugned Letter appears to be pre-mature. It is also ground reality that there are merely 1,800 seats for medical education available in the Province of Sindh for which thousands of the students sat in the assessment tests for the period under consideration. The cavalier manner in which the Impugned Letter was issued has the effect of reducing the already diminutive space. Being a Regulatory Authority even in old law it was the responsibility and onerous duty of PMDC to provide fair opportunity to defend before taking such a drastic action of suspending the intake of new students for the first MBBS professional this year. The learned counsel for the PMDC averred that post dissolution of the old council and prior to the constitution of the new council, PMDC is unable to inspect the petitioner to verify whether the improvements demonstrated from the record are fact. This is quite obvious that no inspection can be carried out at this stage due to non-availability of new council but at one fell swoop, on this administrative ground and inability of respondents, the petitioners cannot be oppressed.

3. The learned counsel for PMDC reffered to the case of PakistanMedical and Dental Council v. Ziauddin Medical University and others (PLD 2007 Supreme Court 323). No such issue involved herein. This case is quite distinguishable to the facts of the case in hand which is somewhat obvious from the issues dilated upon by the apex court in the above case such as (i) What is the nature and import of the concept of recognition of a medical qualification as contemplated in Section 11 of the Pakistan Medical and Dental Council Ordinance, 1962? (ii) What is the nature of ‘consultation’ with the Council by the Federal Government, which the law requires the latter to have before passing an order under various provisions of the Ordinance? (iii) Whether every Chartered University having a medical faculty is entitled to representation in the Pakistan Medical and Dental Council in terms of Section 3 of the Ordinance? (iv) Whether the teaching staff of each Medical and Dental Institution in Pakistan is entitled to representation in accord with Section 3(f) of the Ordinance? (v) Whether the Pakistan Medical and Dental is empowered to ask for information, make queries, issue directions and take other steps prescribed in law to carry out the purposes of the Ordinance?

4. As a result of above discussion, we dispose of this petition with the directions to the petitioners to apply to the PMDC for inspection within three months from the date hereof and the said inspection shall be conducted by PMDC in accordance with the law and in due consideration of the submissions of the petitioners. In the meanwhile the admitting University is directed to send the list of merits for admission in Petitioner No.2 college in line with its entitlement thereto prior to the Impugned Letter.

5. In the event that the petitioner is found fail in complying with the prescribed requirements that off course be evaluated by PMDC, then the Petitioner No. 2 shall be responsible to refund the entire fees of all students and the PMDC may have recourse in terms of Section 23 of the Ordinance, 2019 for the purpose of protecting the rights of existing students. The petition is disposed of accordingly.

(Y.A.) Order accordingly

PLJ 2019 Lahore 1

Present: Ch. Muhammad Masood Jahangir, J.

T.M.A., etc.--Petitioners

versus

KHALID RAFIQUE AHMAD--Respondent

Civil Revision No. 1681 of 2016, heard on 5.3.2018.

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

----S. 42--Suit for declaration--Civil Procedure Code, (V of 1908), O. XXXIX, Rr. 1 & 2--Application for grant of temporary injunction--Allowed Appeal--Allowed--Application for approval of map to renovation of hospital--Notice for deposit of conversion fee--Constitution of hospital in residential area--Question of--Whether after paying conversion fee, a hospital or any commercial building could be allowed to be created in residential area--Challenge to--It was a simple case to extent of refusal of temporary injunction, as respondent failed to make out a prima facie arguable case, who at most was to face loss in terms of coins, which could not consider to be an irreparable loss, hence all three elements did not tilt in favour of respondent, but both Courts below without adverting thereto passed impugned orders--There is no cavil to admit that use of property is a recognized right, but it has to remain subject to reasonable restriction and no one can be allowed to construct or use his premises in whatever manner he likes, even at cost of discomposure and nuisance to others breathing in immediate neighborhood or exactly in vicinity thereof--Departments of State especially Municipalities, Local Government and Cantonment Boards are functioning to mint money or raise their revenue without sensing problems to be faced by citizens for whom comfort/ease they were established and for that reason each of residential area has changed its character--Plans of commercial buildings without examining its suitability or considering its backdrop are being approved on whims and desires of persons, who are either financially sound or have some influential personality at their back--Civil revision was allowed. [Pp. 3 & 4] A, B, C & D

Mr. Tasawar Hussain Gondal, Advocate for Petitioners.

M/s. Shaigan Ijaz and Ihsan Ahmad Bhindar, Advocates for Respondent.

Date of hearing: 5.3.2018

Judgment

By filing the instant Civil Revision, the petitioners have assailed order as well as judgment of the two Courts below whereby application for grant of temporary injunction made by respondent/plaintiff in his declaratory suit was concurrently allowed.

1. As per facts disclosed in the plaint, the respondent claimed himself to be the owner of property measuring 07½ marlas and in January, 2010 he approached the petitioners for the approval of map to renovate the hospital already constructed at site and on its receipt the petitioners through notice dated 01.08.2011 required deposit of conversion fee amounting to Rs. 9,00,000/-, but subsequently through notice dated 05.09.2011, half of the said amount was demanded and the vires of these notices were assailed through institution of declaratory suit accompanied by an application under Order XXXIX Rules 1 & 2 of the Code of Civil Procedure, 1908 for restraining the petitioners/defendants to act upon the impugned notices. The suit as well as application was contested with the defence that respondent/plaintiff as per the Punjab Land Use (Classification, Restrictions and Redevelopment) Rules, 2009 was under obligation to pay the fee, and that without paying the fee, neither nature of a property could be allowed to be converted nor its site-plan would be sanctioned. The application for grant of temporary injunction was concurrently allowed vide orders referred in para 1 ante, hence the instant Civil Revision.

2. Arguments heard. Record perused.

3. It was not denied by the learned counsel for the respondent/plaintiff that the latter submitted the site-plan for its approval to construct hospital in the residential area. The original record was brought by the learned counsel for the petitioners and recital of application made by the respondent to the former was reflective of the fact that he was eager to raise a new commercial building having three floors up to the height of 35 feet. No doubt adjacent to it, a hospital had already been approved and constructed over a residential plot titled by father of the respondent and it appeared that for the extension thereof, the plan was submitted by respondent. It was a simple case to the extent of refusal of temporary injunction, as the respondent failed to make out a prima facie arguable case, who at the most was to face the loss in terms of coins, which could not consider to be an irreparable loss, hence all the three elements did not tilt in favour of the respondent, but both the Courts below without adverting thereto passed the impugned orders.

4. Consequently, this Civil Revision is allowed, the impugned order as well as judgment passed by the learned Courts below is hereby set aside and application moved under Order XXXIX Rules 1 & 2 of the Code ibid stands dismissed. However, it is clarified that the above findings being based on tentative assessment of the material on record are not meant to prejudice the case of either party at the time of final adjudication, which will be dealt with on the basis of the evidence likely to be adduced by the parties during the trial.

5. Before parting with this judgment, to this Court, most apposite and imperative question would be; whether after paying the conversion fee, a hospital or any commercial building could be allowed to be erected in residential area. There is no cavil to admit that use of property is a recognized right, but it has to remain subject to reasonable restriction and no one can be allowed to construct or use his premises in whatever manner he likes, even at the cost of discomposure and nuisance to the others breathing in the immediate neighborhood or exactly in the vicinity thereof. I must add here that although some Rules/Regulations are in field to countenance any such conversion amounting to distract the peace, coziness, health, greenery/flora, smooth flow of traffic and most significantly in violation of master plan approved for the domiciliary region, but the Rules/Regulations are envisioned to homogenize the associations inter se neighbourers as well as among State and the Nationals, which neither can be supported nor perpetuated and there is no other axiom that every organ of the State including Federal and Provincial Governments as well as Local Government besides Cantonment Boards is bound to follow the law to perform its obligations and none can claim exception to it. A master plan for a Housing Scheme without reserving independent plots for academic institutions, hospital, commercial areas/shops/malls, mosque, playgrounds or banquet halls having independent areas for parking cannot be approved. The departments of the State especially Municipalities, Local Government and Cantonment Boards are functioning to mint money or raise their revenue without sensing the problems to be faced by the citizens for whom comfort/ease they were established and for that reason each of the residential area has changed its character. The schools, hospitals, clinics, marriage halls, gymnasiums, snooker clubs, saloons, shopping malls, shops hotels, guest rooms and offices have rapidly been erected in our residential areas without realizing that its outcome will be nuisance, pollution, congestion, discomfort, injury to privacy and hurdle to flow of traffic. We have ruined our civilization and no heed is being paid on behalf of the concerned State organs or the authorities including Local Government Bodies to overcome these problems. The plans of the commercial buildings without examining its suitability or considering its backdrop are being approved on the whims and desires of the persons, who are either financially sound or have some influential personality at their back. Practically plans for raising most of the commercial buildings are being sanctioned without comprehending that parking area was reserved or not, but even if at the time of sanction, it was shown therein, then after construction same starts utilizing for commercial activities and the officials of building wings of the concerned authorities/ Local Bodies are benefitted thereof, whereas traffic hurdles are to be faced by the citizens and the command of the traffic police ceased its effect to restore the flow of traffic. To adjudge civilization of a society, traffic discipline may be one of its indicators and we have been flopped so far to achieve any respect to this extent. Much water has flown under the bridges and there left no much time to save our society from further destruction. It is high time for the awakening of individuals as well as organs of the State to remove the infirmities wherever those are and to advance forward while realizing that every step has to be taken as per law and law only, hence any Rules/Regulations, if are made and still in field, may not be applied to militate the master plan of a scheme, even at the cost of generating revenue cannot be enforced, but have to be revisited at appropriate forums. Let a copy of this judgment be forwarded to the Chief Secretary, Secretary Local Bodies, Government of Punjab, Lahore, Attorney General of Pakistan, Islamabad and Advocate General, Punjab, Lahore to examine the relevant law/rules on the subject for conversion of residential area to commercial one and make/ propose necessary amendments/improvements to eliminate the hurdles created thereby for maintaining beautification of the vicinity as per its original plan. They are also required to look that in future no residential building will be allowed to be converted into another class to cause nuisance for the other inhabitants and on commercial areas/roads no commercial building to be approved without reserving adequate area/spot for parking of vehicles and also ensure that the same is not used except for the said purpose as well. The relevant Authorities are also obliged to take action for the shifting of commercial activities going on in the residential areas to restore its original position as well as peace and also revisit the earlier approved plans of the commercial buildings available on commercial zones/roads and if anyone is found short of basic necessities, it should be given a notice to get rid of the inadequacies within maximum period of four months and even then if they fail, stringent action for the stoppage of their proscribed and irrational activities triggering problems for the others shall be commenced and unless the deficiencies are made good, no such commercial buildings, which are providing big source for blocking traffic in our main cities, will be allowed to exist.

(Y.A.) Civil revision allowed

PLJ 2019 Lahore 6

Present: Shujaat Ali Khan, J.

MUHAMMAD QAMURDIN--Petitioner

versus

FEDERATION OF PAKISTAN etc.--Respondents

W.P. No. 28225 of 2016, decided on 8.6.2018.

Pakistan Telecommunication Corporation (Re-Organization) Act, 1996 (XVIII of 1996)--

----Ss. 8, 35, 36(2) & 59(2)--Pakistan Telecommunication Corporation Act, 1991, Ss. 9, 12 & 20--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Appointment as telephone supervisor--Terms and conditions of service--Restoration of service and payment of arrears of pension--Principle of laches--Maintainability--Induction in service--Principle of master and servant--Inconsistency on part of petitioner--Direction to--I am of view that as non-payment of salary/pension according to revised rates introduced by Federal Government from time to time provides fresh cause of action to retirees each month, thus, question of laches is of little importance in these matters--Just intervention of Establishment Division in recruitment without any support from relevant law did not render status of employee as civil servant rather same was to be determined according to applicable service rules/regulations--That after induction in service terms & conditions of employees who were recruited by Corporation were governed under non-statutory service rules/regulations framed by Corporation, thus, they were governed under principle of master and servant--Inconsistency on part of petitioners is manifest from fact that on one hand they took plea that as service regulations were framed by Corporation in year 1996 same could not be used to disinterest of employees of Corporation who joined it prior to framing of said rules/regulations and on other have placed reliance on certain provisions of Act, 1996 which did not provide protection to service rules/regulations framed by Corporation--That petitioners, who were initially appointed in T&T department, have competently filed writ petitions and they are entitled to same perks & privileges as admissible to other employees of Federal Government alongwith periodical increases; hence respondents are directed to pay their emoluments accordingly--That Writ Petitions, filed by those who joined Corporation after 01.01.1991, are not maintainable and in case of any grievance they can resort to appropriate proceedings--That petitioners who opted for VSS are not entitled to pensionary benefits as admissible to ordinary retirees--Petitions were disposed of.

[Pp. 24, 26, 27 & 29] A, B, C, D & E

2016 SCMR 1362 & PLD 2011 SC 132 ref.

Mr. Ishtiaq A. Chaudhary, Advocate for Petitioner in this petition.

Mr. Muhammad Almas, Assistant Attorney General.

Mirza Amer Baig, Advocate for PTCL in this petition.

For attendance in connected petitions see Schedule-A, B & C.

Date of hearing: 23.4.2018.

Order

Through this single order, I intend to decide this petition as well as those mentioned in Schedule-A, B & C having commonality of law and facts inasmuch as in the Writ Petitions enumerated in Schedule-A the petitioners have inter-alia sought a direction restraining the respondents to alter their basic pay scales and to increase their salary according to the revision introduced by the Federal Government from time to time whereas in the petitions mentioned in Schedule-B the petitioners have inter-alia prayed for restoration of their pension from the date of their retirement and payment of arrears of pension on the basis of restored pension in view of the judgment of the Apex Court of the country reported as Masood Ahmed Bhatti and others v. Federation of Pakistan through Secretary, M/O Information Technology and Telecommunication and others (2012 SCMR 152) while Schedule-C comprises of petitions filed by the employees who retired from service under VSS wherein they have inter-alia prayed for payment of pensionary benefits as admissible to ordinary retirees.

1. Mr. Khalid Ismail, Advocate representing the petitioners in certain petitions submits that the petitioners were appointed by the Pakistan Telecommunication Corporation (hereinafter to be referred as ‘the Corporation’) and according to Section 35 of the Pakistan Telecommunication (Re-organization) Act, 1996 (hereinafter to be referred as ‘the Act, 1996’) their terms & conditions of service were fully protected; that as the regulations framed by the Corporation were adopted by the Pakistan Telecommunication Company Limited (hereinafter to be referred as ‘the PTCL’) at the time of transfer of the petitioners to the PTCL, their existing terms & conditions were protected; that according to Section 20 of the Pakistan Telecommunication Corporation Act, 1991 (hereinafter to be referred as ‘the Act, 1991’) till the framing of service rules/regulations by the Corporation, the rules/regulations applicable to the employees transferred from Telephone & Telegraph Department (hereinafter to be referred as T&T Department) were applicable to the employees of the Corporation and that PTCL sought legal opinion/advice from the Ministry of Information & Technology (I.T. & Telecom Division) regarding the terms & conditions of the transferred employees whereupon it was opined that they were entitled to the same terms & conditions prevalent at the time of their transfer from the Corporation to PTCL.

2. Hafiz Tariq Nasim, Advocate representing the petitioner in W.P. No. 168790/2018 (Schedule-A) argues that the petitioner was appointed as Telephone Supervisor upon recommendations by the Establishment Division, his terms & conditions were at par with those of the civil servants; that according to clause 16.2 of the Share Agreement between the Government of Pakistan and Etisalat International Pakistan, all the transferred employees irrespective of their induction by the T&T department or the Corporation were held entitled to the statutory protection regarding their terms & conditions of service. In support of his arguments, learned counsel has referred to Paras No. 13, 14 & 18 of the judgment reported as Masood Ahmed Bhatti and others v. Federation of Pakistan through Secretary, M/O Information Technology and Telecommunication and others (2012 SCMR 152), Paras No. 8 & 23 of the judgment reported as P.T.C.L. and others v. Masood Ahmed Bhatti and others (2016 SCMR 1362), Zarai Taraqiati Bank Limited v. Said Rehman and others (2013 SCMR 642) and Muhammad Riaz v. Federation of Pakistan through Secretary, Ministry of Information Technology, Government of Pakistan, Islamabad and others (2015 SCMR 1783).

3. Mr. Ishtiaq A. Chaudhary, Advocate representing the petitioners in most of the petitions, in addition to adopting the arguments advanced by M/s Khalid Ismail and Hafiz Tariq Nasim, Advocates submits that the employees who were transferred firstly to the Corporation and then to the PTCL are entitled to the same perks & privileges as admissible to the civil servants; that since the Act, 1991 did not repeal the rules applicable to the employees of T&T department, they were also applicable to the employees of the Corporation; that none of the petitioners, being represented by him, are either contract or work charge employee, thus, their terms & conditions cannot be altered or varied by the PTCL to their disadvantage; that the service regulations which were framed by the Corporation in the year 1996 could not be made applicable retrospectively to the disinterest of the employees of the Corporation who joined prior to the year 1996; that prior to the promulgation of the Act, 1996, the Telecommunication Ordinance, 1995 was enforced on 07.03.1995 and according to Section 12 thereof all the employees, irrespective of the fact whether recruited by the Corporation or became employees of the Corporation under Section 9 of the Act, 1991, were transferred to the PTCL on the same terms & conditions which were applicable to them immediately prior to their transfer; that the Apex Court of the country in the case of Masood Ahmed Bhatti and others (Supra) has already held that the employees who were in service, prior to 01.01.1996, were governed under the statutory service regulations and the benefits given by the Federal Government to its employees from time to time were/are admissible to them, thus, they are entitled to revised pay as determined by the Federal Government. Relies on P.T.C.L. and others v. Masood Ahmed Bhatti and others (2016 SCMR 1362), Muhammad Riaz v. Federation of Pakistan through Secretary, Ministry of Information Technology, Government of Pakistan, Islamabad and others (2015 SCMR 1783), Pakistan Telecommunication Employees Trust (PTET) through M.D., Islamabad and others v. Muhammad Arif and others (2015 SCMR 1472), Zarai Taraqiati Bank Limited v. Said Rehman and others (2013 SCMR 642), Masood Ahmed Bhatti and others v. Federation of Pakistan through Secretary, M/O Information Technology and Telecommunication and others (2012 SCMR 152), Pakistan Telecommunication Company Limited through General Manager and another v. Muhammad Zahid and 29 others (2010 SCMR 253), Pakistan Telecommunication Company Limited v. Province of N.-W.F.P. through Secretary, Excise and Taxation, Peshawar and others (PLD 2005 SC 670), Order, dated 09.01.2017, passed by the Apex Court of the country in Crl. Org. Petition No. 63 of 2015 in Civil Petition No. 797 of 2015 titled Muhammad Riaz v. Walid Irshaid, Order, dated 19.02.2016 passed by the Apex Court of the country in Civil Review Petition Nos. 247-249 of 2011 in Civil Appeals No. 239 to 241 of 2011 titled P.T.C.L. etc. and others v. Masood Ahmed Bhatti etc., Judgment, dated 23.08.2013, rendered by the Apex Court of the country in Civil Petitions No. 717 and 718 of 2013 titled The President PTCL and others v. Faiz-ur-Rehman, Order, dated 06.12.2013, passed by the Hon’ble Supreme Court of Pakistan in Civil Review Petitions No. 253-254 of 2013 in Civil Petitions No. 718-718 of 2013 titled President PTCL, Islamabad and others v. Faiz-ur-Rehman and others and order, dated 19.11.2012, passed by the Apex Court of the country in Civil Petition Nos. 613 and 614 of 2012 titled Pakistan Telecommunication Company Limited through its President v. Muhammad Samiullah and others, Pakistan Telecommunication Company Limited v. Mohammad Dilpazeer Abbasi and others (2016 PLC 367), Hassan Muhammad Rana v. P.T.CL. through President and another (2012 PLC 386), Atique Hussain and another v. Federation of Pakistan through Secretary, Ministry of Communication and 2 others (2005 CLC 1931), Order, dated 21.04.2015, passed by this Court in W.P. No. 10380/2012 titled Asghar Ali v. PTCL through its President etc, Judgment, dated 25.01.2016, passed by this Court in ICA No. 861/2015, titled PTCL vs. Asghar Ali, Judgment, dated 16.11.2015, passed by this Court in W.P. No. 19546/2012 titled Ch. Basharat Ali v. Pakistan Telecommunication Company Limited and another, Judgment, dated 03.05.2016, rendered by this Court in ICA No. 1772/2015, titled Pakistan Telecommunication Company Ltd. and another v. Ch. Basharat Ali, Order, dated 15.03.2011, passed by the Islamabad High Court, Islamabad in W.P. No. 4853/2012, titled Muhammad Ashraf etc. v. Pakistan Telecommunication Company Limited etc. and Judgment, dated 21.03.2012, rendered by the Peshawar High Court, D.I. Khan Bench, in W.P. No. 19-D/2012 titled Muhammad Samiullah v. Pakistan Telecommunication Company Limited through its President etc.

4. Mian Jaafer Hussain, Advocate representing the petitioners in W.P. No. 23575/2016 (Schedule-A) has adopted the arguments advanced by Hafiz Tariq Nasim, Advocate.

5. Mr. Muhammad Imran Chohan, Advocate representing the petitioners in certain petitions states that some of the petitioners being represented by him having already retired from service have filed their representations for redressal of their grievances regarding provision of pay and pensionary benefits according to the revised rate and that the petitioners who are still serving the PTCL are being penalized while re-designating their posts just to bring them out of the mainstream with a view to deprive them from service benefits to be given by the Federal Government from time to time.

6. Learned Assistant Attorney General states that as no relief has been claimed against the Federation rather the plea of the petitioners is that as the Federal Government is guarantor towards the protection of terms & conditions of the petitioners, prevalent at the time of their transfer to the Corporation or to the PTCL, the real contest is between the petitioners and PTCL.

7. Mr. Shahid Anwar Bajwa, Advocate representing PTCL in some of the cases argues that as a matter of fact the employees who were in service prior to 01.01.1991 were governed under statutory service rules but the said rules are not applicable to the employees who were inducted in service by the Corporation after 01.01.1991; that in none of the judgments, referred by the counsel for the petitioners, it has been held that the employees who joined the Corporation after 1991 were governed under statutory rules; that Section 9 of the Act, 1991 empowered the Corporation to frame rules without the intervention of the government, thus, the rules framed under the said Act were non-statutory in nature; that as per Section 59(2) of the Act, 1996 only existing terms & conditions of service of transferred employees which were applicable at the time of their transfer to the PTCL were protected but the said fact cannot be used to declare the Service Regulations framed by the Corporation as statutory, thus, the writ petitions filed on behalf of the transferred employees, who joined the Corporation after 01.01.1991, are not maintainable; that the Apex Court of the country has already decided in Pakistan Telecommunication Co. Ltd. through Chairman v. Iqbal Nasir and others (PLD 2011 SC 132) that the employees who severed their relation with the department under VSS were not entitled to pensionary benefits admissible to the ordinary retirees; that the latest judgment on the subject passed by a Five Member Bench has been reported as P.T.C.L. and others v. Masood Ahmed Bhatti and others (2016 SCMR 1362) whereby the earlier judgments passed in the cases of Muhammad Shahid and Muhammad Riaz (Supra) have been revisited by the Apex Court of the country, thus, they cannot be quoted as precedent; that all the employees of T&T department were not civil servants as according to Section 2(b)(iii) of the Civil Servants Act, 1973 the workmen have been ousted from the definition of civil servant which fact has further been affirmed under clause 9 of Second Schedule to Workmen Compensation Act, 1923 according to which the persons related with establishment of telephone industry etc. are workmen, thus, these petitions are not maintainable; that according to the plain language of Act, 1991 and the Act, 1996 the employees were entitled to pay protection which was admissible at the time of their transfer but the said fact cannot be used to compel the PTCL to pay salaries to the transferred employees according to the rates revised by the Federal Government from time to time; that the judgment of the Apex Court of the country in the case of Zarai Taraqiati Bank Limited (Supra) is not applicable to these petitions inasmuch under Section 6 of the Agricultural Development Bank of Pakistan (Re-organization & Conversion) Ordinance, 2002 the rules and regulations prevalent in the erstwhile Agricultural Development Bank of Pakistan were protected whereas at the time of promulgation of the Act, 1996 though certain legislative pieces and actions taken under the said enactments were protected under Section 59(2) of the Act, 1996 but the rules and regulations framed by the Corporation were not given such protection apparently for the reason that they were not applicable to the employees of the Corporation upon their transfer to the PTCL; that as the Share Agreement was executed between the PTCL and Etisalat International Pakistan it has nothing to do with the terms & conditions of the employees who were transferred from Corporation to the PTCL thus the same cannot be used to establish that they were governed under statutory service rules; that in the year 1993 it was administratively decided that all appointments in Federal departments shall be made through the Establishment Division, thus, the recommendation of the petitioner in W.P. No. 168790/2018 by said Division does not render his status as civil servant; that though the employees of the T&T department were civil servants but they were bound to follow the changed terms & conditions of their service firstly upon their transfer in the Corporation and then in the PTCL. In support of his contentions, learned counsel has relied upon the cases reported as (Muhammad Zaman and others v. Government of Pakistan through Secretary, Finance Division (Regulation Wing), Islamabad and others (2017 SCMR 571), P.T.C.L. and others v. Masood Ahmed Bhatti and others (2016 SCMR 1362), Muhammad Riaz v. Federation of Pakistan through Secretary, Ministry of Information Technology, Government of Pakistan, Islamabad and others (2015 SCMR 1783), State Bank of Pakistan through Governor and another v. Imtiaz Ali Khan and others (2012 PLC (C.S.) 218), Pakistan Telecommunication Co. Ltd. through Chairman v. Iqbal Nasir and others (PLD 2011 SC 132), Divisional Engineer Phones, Phones Division, Sukkur and another v. Muhammad Shahid and others (1999 SCMR 1526), Pakistan Telecommunication Corporation and another v. Riaz Ahmad and 6 others (PLD 1996 SC 222), Ahmad Khan Niazi v. Town Municipal Administration, Lahore through Town Municipal Officer and 2 others (PLD 2009 Lahore 657), Muhammad Din v. Nazar Muhammad Khan and others (PLD 1966 (W.P.) Lahore 780); Order, dated 17.05.2017, passed by the Hon’ble Supreme Court of Pakistan in Cr.R.P. No. 86/2015 titled Pakistan Telecommunication Employees Trust v. Federation of Pakistan through Secretary, M/o Information Technology, Judgment, dated 27.05.2016, rendered by this Court in W.P. No. 5978/2011, titled S.M. Talib Naqvi etc. v. President/CEO PTCL etc., Judgment, dated 21.04.2016, rendered by the Islamabad High Court, Islamabad in W.P. No. 3381 of 2012 titled Syed Imran Hussain v. Federation of Pakistan etc. and Judgment, dated 6.5.2013, passed by the Islamabad High Court, Islamabad in W.P. No. 1350/2012, titled Ammad Ul Hassan Qureshi v. Pakistan Telecommunication Co. Ltd. and 3 others.

8. M/s Sheikh Aftab Ahmad and Mirza Aamir Baig, Advocates appearing on behalf of PTCL in some of the petitions have adopted the arguments advanced by Mr. Shahid Anwar Bajwa, Advocate.

9. While exercising his right of rebuttal, Mr. Ishtiaq A. Chaudhary, Advocate submits that dozen of persons who joined the Corporation after 01.01.1991 filed their Writ Petitions before Islamabad High Court which were accepted through order, dated 08.03.2011, passed in W.P. No. 4853/2010 against which CPLA filed by the PTCL was also dismissed, thus, these petitions are maintainable; that after pronouncement by the Apex Court of the country that Section 2(1) of the Civil Servants Act, 1973 is not applicable to the employees of the PTCL said provision cannot be referred to establish that the petitioners falls within the definition of workmen; that as Section 8 of the Act, 1996 relates to consultants, engineers etc. same are not applicable to the petitioners; that as according to Section 36(2) of the Act, 1996 the existing terms & conditions of service of the employees who were transferred to PTCL were protected, the rules and regulations applicable to them were automatically protected; that the judgments referred by Mr. Shahid Anwar Bajwa, Advocate from the jurisdiction of Islamabad High Court and Peshawar High Court are per in curium for the reason that while deciding the matters the earlier judgments of the Hon’ble Supreme Court of Pakistan on the subject were not discussed by the said Courts; that the judgment in Iqbal Nasir’s case has already been disbelieved by the Apex Court of the country while deciding Review Petition through judgment reported as P.T.C.L. and others v. Masood Ahmed Bhatti and others (2016 SCMR 1362) and that according to Section 39(2) of the Act, 1996 the operation of Etisalat International Pakistan is going to end in the year 2021 and as a result the PTCL would again be under the control of the Federal Government.

10. Mr. Khalid Ismail, Advocate while exercising his right of rebuttal, submits that as existing terms & conditions of service of the employees who were transferred to PTCL were protected through the statutory intervention these petitions are maintainable as the petitioners have agitated their grievance against violation of their terms & conditions of service which were protected under Section 36(2) ibid.

11. Mian Jaffer Hussain Advocate, in rebuttal, submits that the Apex Court of the country while deciding the cases reported as P.T.C.L. and others v. Masood Ahmed Bhatti and others (2016 SCMR 1362), Masood Ahmed Bhatti and others v. Federation of Pakistan through Secretary, M/O Information Technology and Telecommunication and others (2012 SCMR 152) has held that Writ Petition by the employees of the Corporation are maintainable, thus, no exception can be taken against the maintainability of these petitions.

12. I have heard learned counsel for the parties at considerable length and have also gone through the documents, annexed with these petitions, as well as the case-law cited at the bar.

13. Firstly, taking up the plea of the petitioners, who joined the Corporation after 01.01.1991, that in view of the judgment reported as Masood Ahmed Bhatti and others (Supra) the employees who were serving in the Corporation prior to 01.01.1996 were covered under statutory rules, thus, their writ petitions are maintainable, I am of the humble opinion that with a view to appreciate the said contention a perusal of the referred judgment is of paramount consideration, opening lines whereof read as under:--

“These appeals have been filed by three individual appellants who admittedly were civil servants employed by the Federation in the Telephone and Telegraph (‘T&T’) Department prior to the enactment of the Pakistan Telecommunication Corporation Act, 1991 (the ‘PTC Act’) …… (emphasis provided).

The afore-quoted portion from the judgment of the august Supreme Court of Pakistan leaves no ambiguity that all the three petitioners before the Apex Court of the country in the referred case were those who were employed by the Federal Government in T&T department. Subsequently, after promulgation of the Act, 1991, they were transferred to the Corporation. Further, after enforcement of the Act, 1996 they were then transferred to the PTCL. In this scenario, the assertion of learned counsel for the petitioners that the employees who were in service prior to 01.01.1996 were governed under statutory rules, has no substance.

Moreover, the Apex Court of the country in the case of Divisional Engineer Phones, Phones Division, Sukkur and another (Supra) while dealing with the nature of service regulations, framed by the Corporation, regarding terms & conditions of its employees has inter-alia held as under:--

“In cases of Corporation created by the Government through statutory instruments if existing employees are transferred to the Corporation, in the absence of any provision to the contrary, the transferred employees continue to remain in the service of Corporation on the same terms and conditions under which they were working before their transfer to the Corporation. Therefore, if an employee of the Corporation before his transfer to the Corporation was a civil servant, he continues to be a civil servant. In all other cases, where an employee is appointed in the service of the Corporation after the Corporation is established, his service is governed by the service rules of the Corporation. If such rules are not statutory, the principle of master and servant governed the relationship between the employee and Corporation. (emphasis provided)

Further, the said issue also came under discussion before the Apex Court of the country in the case reported as Pakistan Telecommunication Co. Ltd. through Chairman v. Iqbal Nasir and others (PLD 2011 SC 132) wherein the status of the employees, who joined the Corporation after 1.1.1991, was adjudged in the following manner:

“24. However, this Court, in the case of Principal Cadet Collage Kohat v. Muhammad Shoaib Qureshi (PLD 1984 SC 170), while dealing with the question, as to whether in absence of any breach of statutory provision the employees of a corporation can maintain an action for reinstatement, held that where the conditions of service of an employee of a statutory body were governed by statutory rules, any action prejudicial taken against him in derogation or in violation of the said rules could be set aside by a writ petition; however, where his terms and conditions were not governed by statutory rules but only by regulations, instructions or directions, which the institution or body, in which he was employed, had issued for its internal use, any violation thereof would not, normally, be enforced through a writ petition. Recently, this Court in Tanweer-ur-Rehman’s case (supra), while dealing with the issue of invoking of jurisdiction of the High Court under Article 199 of the Constitution by the employees of the PIAC, held that although the appellant-Corporation was performing functions in connection with the affairs of the Federation, but since the services of the respondent-employees were governed by the contracts executed by them with the employer, and not by the statutory rules framed under Section 30 of the Pakistan International Airlines Corporation Act, 1956 with the prior approval of the Federal Government, therefore, they would be governed by the principle of ‘Master and Servant’. On the question whether in absence of any breach of statutory provision, the employees of appellant-Corporation could maintain an action for reinstatement etc., it was observed that the said question needed no further discussion in view of the fact that this Court was not of the opinion that if a Corporation was performing its functions in connection with the affairs of the Federation, the aggrieved persons could approach the High Court by invoking its constitutional jurisdiction. But as far as the cases of the employees regarding their individual grievances were concerned, it was held that they were to be decided on their own merits, namely, if any adverse action was taken by the employer in violation of the statutory rules, only then such action would be amenable to the writ jurisdiction. Therefore, in absence of statutory rules, the principle of ‘Master and Servant’ would be applicable and such employees would be entitled to seek remedy permissible before the Court of competent jurisdiction. Similarly, in M. Tufail Hashmi (supra), after discussing the aforesaid two judgments in detail, it was held that the employees of those organizations, which were performing functions in connection with the affairs of Federation, were eligible to approach the High Court under Article 199 of the Constitution if their services were governed by statutory rules. It was further held that since the employees of AIOU, SME Bank and Pakistan Steel Mills, who approached the Service Tribunal for redressal of their grievances, were not enjoying the protection of statutory rules, therefore, the Service Tribunal had no jurisdiction to adjudicate upon such matters and they would be governed by the principle of ‘Master and Servant’.” (emphasis provided).

A survey of the afore-quoted judgments renders it crystal clear that the employees who were transferred from T&T department to the Corporation and then to the PTCL were governed under statutory service rules, prevalent at the time of their transfer to the Corporation, whereas the employees recruited by the Corporation were governed under non-statutory service rules/regulations in respect of their terms & conditions of service and in case of grievance of an individual against violation of the regulations framed by the Corporation under Section 20 of the Act, 1991 the constitutional petition was not maintainable, however, as the Corporation fell within the definition of person as defined under Article 199(5) of the Constitution of Islamic Republic of Pakistan, 1973 in respect of other matters it was amenable to writ jurisdiction of this Court.

1. In support of their contentions that the writ petitions filed by the employees who joined after 01.01.1991 are maintainable, learned counsel for the petitioners have also referred to the judgment of Zarai Taraqiati Bank Limited v. Said Rehman and others (2013 SCMR 642). In my humble opinion, the referred case is not applicable to the facts and circumstances of the petitions filed by the employees who joined the Corporation after 01.01.1991 inasmuch as according to Section 6 of the Agricultural Development Bank of Pakistan (Re- organization & Conversion) Ordinance, 2002 the service rules and regulations applicable to the employees of the Bank at the time of their transfer to the Company were saved whereas in the matters of the employees of the Corporation who were transferred to PTCL through certain enactments and the actions taken there-under were protected but the service rules and regulations framed by the Corporation were not given any protection. Reference in this regard can be made to Section 59 of the Act, 1996 which for convenience of reference is reproduced herein below:--

“59. Repeal and Savings.—

(1) The Pakistan Telecommunication Corporations Act, 1991(XVIII of 1991), The Pakistan Telecommunication (Re-Organization) Ordinance, 1996 (LXXVII of 1996), and the Ministry of Communications, Government of Pakistan, Notifications numbering 5(4)/95-PTC, dated the 7th August, 1995, are hereby repealed.

(2) Notwithstanding anything contained hereinbefore, all orders made, actions taken, vesting orders or notifications issued, property, assets and liabilities of the Corporation vested or transferred and the employees of the Corporation transferred to the Pakistan Telecommunication Authority, Frequency Allocation Board, Pakistan Telecommunication Company Limited, National Telecommunication Corporation or Pakistan Telecommunication Employees Trust, under any of the powers conferred or vested under the Pakistan Telecommunication (Re-Organization) Ordinance, 1995 (CXV of 1995), the Pakistan Telecommunication (Re-Organization) Ordinance, 1996 (XXX of 1996), the Pakistan Telecommunication (Re-Organization) Ordinance, 1996 (LXXVII of 1996) shall be deemed always to have been lawfully and validly made, taken, issued, vested or transferred under the provisions of this Act and shall continue to be in force unless amended, varied, withdrawn, rescinded or annulled by a person or authority competent to do so under this Act.”

A cursory glance over the afore-quoted provision shows that though certain actions taken under the repealed enactments were saved but the service regulations framed by the Corporation were not specifically given such protection, thus, it cannot be presumed that they were intact even after repeal of the Act, 1991.

It is added that when the parent statute viz. the Act, 1991 was repealed, how the rules framed by the relevant authority while exercising its powers under the said Act could remain in field especially when they were not saved under the repealing/saving clause of the Act, 1996.

1. Learned counsel for the petitioners, being swayed with the observation of the august Supreme Court of Pakistan that the Corporation falls within the definition of person in terms of Article 199(5) of the Constitution of Islamic Republic of Pakistan, 1973 have argued that the writ petitions filed by the employees, who joined the Corporation after 1.1.1991, are maintainable. Perhaps, learned counsel for the petitioners has contended so in oblivion of the fact that maintainability of a writ petition by the employees is determined on the basis of the relevant service rules/regulations. So far as the cases filed by the employees, who joined the Corporation after 01.01.1991, are concerned, admittedly, prior to their transfer to the PTCL they were governed under non-statutory service rules framed by the Corporation without intervention of the Federal Government, thus, the writ petitions by such employees are not maintainable.

2. While opposing the submissions made by learned counsel for the petitioners, who were initially appointed in T&T department, that they are entitled to same benefits introduced by the Federal Government from time to time, Mr. Shahid Anwar Bajwa, representing the PTCL has argued that pay protection does not mean payment of salary by the Corporation or the PTCL according to the rates revised by the Federal Government from time to time. In this regard, I disagree with learned counsel for the PTCL for the reason that in the case of P.T.C.L. and others v. Masood Ahmed Bhatti and others (2016 SCMR 1362) while clinching the issue, under discussion, the Apex Court of the country has inter-alia observed as under:--

“6. Before we appreciate arguments addressed at the bar, it would be rather necessary to refer to Section 9 of the Act of 1991 and Sections 35 and 36 of the Act of 1996 which read as under:-

“9. Transfer of departmental employees to the Corporation.---

(1) Notwithstanding anything contained in any law, contract or agreement, or in the conditions of services, all departmental employees shall, on the establishment of the Corporation, stand transferred to, and become employees of the Corporation, on the same terms and conditions to which they were entitled immediately before such transfer, provided that the Corporation shall be competent to take disciplinary action against any such employee.

(2) The terms and conditions of service of any such person as is referred to in sub-section (1) shall not be varied by the Corporation to his disadvantages.

(3) Notwithstanding anything contained in any law for time being in force, no person who stands transferred to the Corporation by virtue of sub-section (1) shall be entitled to any compensation because of such transfer.”

‘35. Vesting of the rights, property and liabilities of the Corporation.---

(1) The Federal Government may, by orders, direct that all or any property, rights and liabilities to which the Corporation was entitled or subject to immediately before such orders, and identified therein, shall, on such terms and conditions as the Federal Government may determine, vest in

(a) the PTCL;

(b) the National Telecommunications;

(c) the Authority;

(d) the Trust; or

(e) the Board through Federal Government, and become the property, rights and liabilities of the respective entity.

(2) An order issued under sub-section (1) shall specify the employees of the Corporation who shall, as from the effective date of the order, be transferred to and become employees of the entity referred to in the order:

Provided that such order shall not vary the terms and conditions of service of such employees to their disadvantage.

(3) An order issued under sub-section (1) in favour of the PTCL shall provide for--

(a) the continuation by the PTCL of the operations and undertaking of the Corporation on the same basis as were carried on immediately prior to the date of the order save in respect of the operations and undertakings to be carried on by the National Telecommunication Corporation pursuant to Section 41; and

(b) the dissolution of Corporation as from the effective date of the order.

(4) In consideration of the vesting in the company of the property of the Corporation, the PTCL shall issue such securities in the name of the President of the Islamic Republic of Pakistan as the Federal Government may direct.

(5) Unless an order so directs the property vested under sub-section (1) shall be free from any charge, burden, hypothecation or encumbrances to which it may be subject at the effective date of the order.

(6) If any property of the Corporation vests in the PTCL subject to any charge, burden hypothecation or encumbrances the same shall be deemed to be on the assets of the company and the provisions of Section 121 of the Companies Ordinance, 1984 (XLVII of 1984), shall apply to such charges, burden, hypothecation or encumbrances as if it had been created on the assets of the PTCL on the effective date for the PTCL.

(7) If any property of the Corporation vests in the National Telecommunication Corporation, the Authority or the Trust subject to any charge, burden, hyphenation or encumbrance, the same shall be the first charge by way of hypothecation in favour of the creditor.

(8) In this section, “property” includes assets, rights and entitlements of every description and nature wherever situated and “liabilities” includes duties, obligations, loans encumbrance, claims and charges of every description and nature (actual or contingent), whether or not they are capable, under any law of Pakistan or of any other State or under any agreement or otherwise, or being vested, transferred or assigned by the Corporation.

(9) No stamp duty shall be payable under any law for the time being in force on or in relation to the transfer or vesting of property of the Corporation under any order issued under sub-section (1).

1. Terms and Conditions of service of employees.—

(1) No person transferred to the PTCL pursuant to sub-section (2) of Section 35, hereinafter referred to as “Transferred Employee”, shall be entitled to any compensation as a consequence of transfer to the PTCL:

Provided that the Federal Government shall guarantee the existing terms and conditions of service and rights, including Pensionary benefits of the Transferred Employees.

(2) Subject to sub-section (3), the terms and conditions of service of any Transferred Employee shall not be altered adversely be he Company except in accordance with the laws of Pakistan or with the consent of the transferred Employees and the award of appropriate compensation.

(3) At any time within one year from the effective date of order vesting property of the Corporation in the PTCL, the Federal Government may, with the prior written agreement of a Transferred Employee, require him to be transferred to or revert him back and be employed by the Authority, National Telecommunication Corporation, Trust or the Federal Government on the same terms and conditions to which he was entitled immediately before such transfer.

(4) Subject to proviso to sub-section (1) of Section 45 on transfer of a Transferred Employee under sub-section (3), the Federal Government shall assume responsibility for his Pensionary benefits without recourse to be Pension Fund referred to in that section.

(5) Under the order vesting property of, the Corporation in the PTCL, the Federal Government shall require the PTCL to assume the responsibility of Pensionary benefits of the telecommunication employees and the PTCL shall not alter such Pensionary benefits without the consent of the individuals concerned and the award of appropriate compensation.’

A fleeting glance at the provisions quoted above would reveal that the departmental employees on their transfer to the Corporation became employees of the Corporation under Section 9 of the Act of 1991 and then of the PTCL under Section 35 of the Act of 1996. Their terms and conditions of service were fully protected under Section 9(2) of the Act of 1991 and 35(2) of the Act of 1996. None of the terms and conditions could be varied to their disadvantage as is provided by the Sections reproduced above. Not only that the legislature also bound the Federal Government to guarantee the existing terms and conditions of service and rights including pensionary benefits of the transferred employees. Since they by virtue of the aforesaid provisions became employees of the Corporation in the first instance and then the PTCL, they did not remain Civil Servants any more. But the terms and conditions of their service provided by Sections 3 to 22 of the Civil Servants Act and protected by Section 9(2) of the Act of 1991 and Sections 35(2), 36(a) and (b) of the Act of 1996 are essentially statutory. Violation of any of them would thus be amenable to the constitutional jurisdiction of the High Court.”(emphasis provided)

Further, Mr. Shahid Anwar Bajwa, Advocate while appearing in Crl. Org. Petitions No. 53 & 54 of 2015 before the Apex Court of the country gave undertaking that the PTCL would give pension to the petitioners except VSS optees alongwith the increase announced by the Federal Government from time to time. Though learned counsel representing the PTCL has argued that his statement was confined only to the petitioners in the said contempt petitions but the said fact suggests that the transferred employees who were initially appointed in T&T department are entitled to the same perks & privileges announced by the Federal Government from time to time for its employees. In this backdrop, the respondents cannot be allowed to treat the similarly placed persons distinctly especially when the Apex Court of the country has already concluded that the employees who were transferred from T&T department, despite losing their status as civil servants, were entitled to pay protection including pension alongwith periodical increase, no other interpretation is permissible.

1. While opposing the writ petitions filed by the employees who initially were appointed by the Federal Government in T&T department, Mr. Shahid Anwar Bajwa, Advocate has argued that after establishment of the PTCL it cannot be compelled to pay pensionary emoluments to the retirees. Perhaps, learned counsel for PTCL has raised such plea in oblivion of the fact that the pension to the transferred employees was to be paid from the Pension Fund, established under Section 45 of the Act, 1996. There is no denying the fact that the PTCL has obligation towards contribution in the said Fund but the said fact cannot be used to argue that the burden of pension is to be borne exclusively by the PTCL.

2. Mr. Shahid Anwar Bajwa, Advocate while arguing that the Apex Court of the country has allowed the respondents to raise all objections before the forums where proceedings are pending, has referred to order, dated 17.05.2017, passed by the Hon’ble Supreme Court of Pakistan in Cr.R.P. No. 86/2015 titled Pakistan Telecommunication Employees Trust v. Federation of Pakistan through Secretary, M/o Information Technology relevant portion whereof reads as under:--

“2. Mr. Khalid Anwar has also pointed out that some cases by way of constitutional petitions are pending before the High Courts, which have been filed subsequent to the two judgments of the High Court impugned before this in C.P.No. 565 of 2014, etc. and decided by judgment under review, and that the PTCL/review petitioners may be permitted to raise all grounds of law and fact apart from the one that has been decided by the judgment under review.

1. Learned counsels appearing for the review petitioners in connected Review Petitions as well as Muhammad Waqar Rana, learned Additional Attorney General for Pakistan, have also made the similar submission.

2. Learned counsel appearing for the Respondents have expressed reservation qua disposal of these petitions in the manner, noted above. We note that the reservation expressed is unnecessary and uncalled for.

3. In the circumstances, submission made by Mr. Khalid Anwar, learned Sr.ASC for the Review Petitions and adopted by counsel for other review petitioners, as noted above, prima facie seem to be fair and reasonable and without expressing ourselves on any of the points involved in the matter, we feel that cause of justice will be met if all these Review Petitions are disposed of accordingly.

4. Consequently, the listed Review Petitions are disposed of and the PTCL/Review Petitioners to the extent as noted above may avail remedy under Section 12(2), CPCwhich shall be decided by the concerned Court in accordance with law. At the same time, the PTCL/Review Petitioners may urge all points available to them in other cases pending before the High Courts in accordance with law. Disposed of.”

A cursory glance over the afore-quoted judgment of the Apex Court of the country makes it abundantly clear that the judgment under review in the said matter was not set aside rather the department was permitted to file application under Section 12(2), CPCin the matters wherein the employees succeeded to get orders in their favour while playing fraud with the Court. Further, they were also allowed to raise all the objections in the pending cases, however, the said observation cannot be used to reopen a point before this Court which has already been put to rest by the Apex Court of the country. Reference in this regard can be made to the case reported as Pakistan International Airlines Corporation v. Aziz-ur-Rehman Chaudhry and another (2016 SCMR 14).

1. Now taking up the question relating to the applicability of the principle of laches, raised by Mr. Shahid Anwar Bajwa, Advocate, I am of the view that as non-payment of salary/pension according to revised rates introduced by the Federal Government from time to time provides fresh cause of action to the retirees each month, thus, the question of laches is of little importance in these matters.

2. Mr. Shahid Anwar Bajwa, Advocate, during the course of arguments, tried to establish that as the petitioners fell within the definition of workmen in view of clause 9 of Second Schedule attached with the Workmen Compensation Act, 1923, they were estopped to approach this Court. The said query has already been responded by the Apex Court of the country in the case of P.T.C.L. and others v. Masood Ahmed Bhatti and others (2016 SCMR 1362) inter-alia with the following observations:--

“8. The argument that where Pakistan Telecommunication Corporation Limited was not under the control of the Federal Government it cannot be construed as a person in terms of Article 199(5) of the Constitution is also misconceived as this question has been set at rest by this Court in the same by holding as under:--

The question whether the PTCL was a ‘person’ performing functions in connection with the affairs of the Federation within the contemplation of Article 199(5) of the Constitution was first dilated upon by this Court at great length in Muhammad Zahid’s case in which the plethora of case law was gone into and it was held that the employees of the erstwhile T&T Department transferred to the Corporation [PTC] under the relevant provisions of the Act of 1991 and later/on succeeded by the PTCL, discharging their functions and duties in the International Gateway Exchange as Operators were inducted permanently or regularized subsequently under the rules necessarily related to one of the affairs of the Federation within the purview of provisions of Article 199 of the Constitution; hence similar duties and functions in the International Gateway Exchange being discharged by the private respondents as Operators could not be distinguished to say that the same did not relate to the affairs of the Federation though conferred upon the Corporation [PTC], and finally upon the PTCL. It was further held that the Telecommunication undisputedly was the subject which pertained to one of the important affairs of the Federation dischargeable now through the PTCL; hence such entity involved in the same exercise of the sovereign powers, essentially fell within the connotations of the word ‘person’ as defined in clause (5) of the Article 199 of the Constitution; accordingly, the grievance of the private respondents was amenable to the writ jurisdiction of the High Court. However, it was observed that the status of the private respondents, be that of a ‘worker’ or a ‘civil servant’ or a ‘contract employee’ had no nexus to the maintainability of the writ petition on the ground of discrimination meted out to them.” (emphasis provided)

1. Mr. Ishtiaq Ahmad Chaudhary, Advocate in support of his plea that after transfer of the employees from the Corporation to PTCL there was no distinction amongst the employees who were transferred from T&T department or those who joined the Corporation after 01.01.1991 has referred to section12 of the Telecommunication Ordinance, 1995. It is of common knowledge that an Ordinance without its validation by the Parliament dies its natural death on expiry of 120 days. Moreover, when the Telecommunication Ordinance, 1995 was replaced with the Act, 1996 under which the employees of the Corporation were transferred to PTCL, the emphasis of the learned counsel on Section 12 of the Telecommunication Ordinance, 1995 is misconceived.

2. Now taking up the plea of Hafiz Tariq Nasim, Advocate that as the petitioner, being represented by him, was appointed in the Corporation on the recommendations of the Establishment Division he falls within the category of civil servant. I am unable to subscribe to the view point of the learned counsel for the reason that just intervention of Establishment Division in the recruitment without any support from the relevant law did not render the status of the employee as civil servant rather the same was to be determined according to the applicable service rules/regulations. Insofar as the case under discussion is concerned, suffice it to note that after induction in service the terms & conditions of the employees who were recruited by the Corporation were governed under the non-statutory service rules/regulations framed by the Corporation, thus, they were governed under the principle of master and servant.

3. Now taking up communication, dated 05.04.2013, addressed by the Section Officer (Coordination), Govt. of Pakistan, Ministry of Information & Technology (I.T. & Telecom Division) to the President/CEO PTCL Headquarters, Islamabad, I am of the view that there is no cavil with the proposition that the transferred employees were entitled to same perks & privileges admissible to them at the time of their transfer but the moot question before this Court is the maintainability of the writ petitions by the employees who joined the Corporation after 01.01.1991. They might have a genuine grievance but they are/were supposed to approach the forum concerned.

4. The mainstay of the arguments advanced by the learned counsel for the petitioners is Section 8 of the Act, 1996. There is no cavil with the proposition that under Section 8 ibid the power to issue policy directives lies with the Federal Government but the said power cannot be used to render the status of the service rules/regulations, framed by the Corporation without intervention of the government, as statutory. Further, the point pressed into service by learned counsel for the petitioners that as the employees of the Corporation were transferred to PTCL due to statutory intervention their terms & conditions are statutory in nature does not appeal to reason because the service rules and regulations prevalent at the time of their transfer being non-statutory the enactment of the Act, 1996, by virtue of which PTCL was established, cannot be used to change the nature of said service regulations. Moreover, inconsistency on the part of the petitioners is manifest from the fact that on the one hand they took the plea that as the service regulations were framed by the Corporation in the year 1996 same could not be used to the disinterest of the employees of the Corporation who joined it prior to framing of said rules/regulations and on the other have placed reliance on certain provisions of the Act, 1996 which did not provide protection to the service rules/regulations framed by the Corporation.

5. With a view to establish that the petitioners are entitled to the revised pay and pension, learned counsel for the petitioners has referred to the undertaking given by Mr. Shahid Anwar Bajwa, Advocate, on 15.02.2018, during the course of hearing of Criminal Original Petitions No. 53 & 54 of 2015. According to my understanding the said statement can be helpful for the employees who were initially appointed in T&T department but the same cannot be used in the cases of the employees who were recruited by the Corporation after 01.01.1991 for the reason that the petitioners in the contempt petitions, referred Supra, are those who initially were transferred from T&T department to the Corporation and then from the Corporation to the PTCL.

6. As far as reliance of Mr. Khalid Ismail, Advocate on the Shareholders Agreement between the Government of Pakistan and Etisalat International Pakistan is concerned, suffice it to note that though clause 16 of the said agreement relates to the transferred employees but it has nowhere been mentioned that the PTCL was divested to frame rules/regulations regarding terms & conditions of its employees. The only condition precedent for exercise of such powers is that terms & conditions of the employees transferred from the Corporation to PTCL would not be changed to their disadvantage.

7. In some of the petitions, the employees who opted for VSS have also prayed for grant of pensionary benefits admissible to the ordinary retirees. Since the petitioners in such cases availed special incentive, they were not entitled to benefits of an ordinary retiree. The said question came under discussion before the Hon’ble Supreme Court of Pakistan in the case of State Bank of Pakistan through Governor and another v. Imtiaz Ali Khan and others (2012 PLC (C.S.) 218) which was responded in the following words:--

“28. Since the respondent-employees have not retired from service of the appellant-Bank by application of the Regulations, 1980 nor under the Staff Regulations, 1993 but they have left the service of the appellant-Bank at their own by exercising their own right of option by accepting the Scheme, therefore, their cases are squarely governed and controlled under the terms and conditions as was clearly spelt out in the Scheme itself As no reference can be made as to how and against whom the respondents were differently treated in a discriminatory manner, we have failed to understand as to how there was any violation of Article 25 of the Constitution.”

If the cases of the employees who opted for VSS are considered on the touchstone of the afore-quoted judgment of the Apex Court of the country there remains no ambiguity that no discrimination has been meted out to them while paying pension according to VSS.

1. At the cost of repetition, it is clarified that the transferred employees are entitled to same terms & conditions which were prevalent at the time of their transfer from the Corporation to PTCL in view of Section 36(2) of the Act, 1996 but the question again is the maintainability of the petitions on behalf of the employees whose terms & conditions prior to their transfer in PTCL were governed under non-statutory service rules/regulations. If any act is being done by the PTCL in violation of the provisions of the Act, 1996 the aggrieved persons can resort to appropriate proceedings.

2. Now coming to the case-law referred by learned counsel for the petitioners I am of the view that the same is not applicable to the facts and circumstances of the petitions filed by the employees who were recruited by the Corporation after 01.01.1991 as in none of the cases it has been held that the writ petitions on behalf of the employees of the Corporation whose terms & conditions were governed under non-statutory service rules/regulations were maintainable. Further, when the Apex Court of the country in the cases, discussed above, has held that the employees of the Corporation could not approach this Court while invoking its Constitutional jurisdiction vested under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitions filed by such employees cannot be held maintainable.

3. Mr. Ishtiaq A. Chaudhary Advocate has argued that since the agreement between the Government of Pakistan and Etisalat International Pakistan is going to expire in the year 2021, the control of PTCL shall again be held by the Government of Pakistan, thus, the present administration cannot be allowed to introduce any scheme prejudicial to the service benefits of the transferred employees. In this regard, I am of the view that these petitions are to be decided on the basis of law applicable at this particular point and by no stretch of imagination they can be decided on the basis of any future happening.

4. Mr. Ishtiaq A. Chaudhary Advocate has repeatedly argued that as the judgment in Iqbal Nasir’s case has been revisited by the Apex Court of the country the same cannot be used to the disadvantage of the petitioners. A perusal of the judgment, reported as P.T.C.L. and others v. Masood Ahmed Bhatti and others (2016 SCMR 1362) affirms that though the judgment in Iqbal Nasir’s case has been distinguished on the ground that the employees initially appointed in T&T department are amenable to writ jurisdiction in respect of violation of their terms & conditions of service but neither the view taken in the said case has been reviewed nor it has specifically been held that the writ petitions filed by the persons who joined the Corporation after 01.01.1991 are maintainable.

5. As a necessary corollary to the discussion made in the foregoing paragraphs I have reached the following irresistible conclusions;--

i. That the petitioners, who were initially appointed in T&T department, have competently filed writ petitions and they are entitled to same perks & privileges as admissible to other employees of the Federal Government alongwith periodical increases; hence respondents are directed to pay their emoluments accordingly.

ii. That the Writ Petitions, filed by those who joined the Corporation after 01.01.1991, are not maintainable and in case of any grievance they can resort to appropriate proceedings.

iii. That the petitioners who opted for VSS are not entitled to the pensionary benefits as admissible to the ordinary retirees.

Consequently, all these petitions are disposed of in the above terms.

1. Before parting with this order, it is observed that in some of the cases it is not clear as to when the petitioners joined, in case of any ambiguity their status shall be adjudged on the basis of the record of the department.

(Y.A.) Petitions disposed of

PLJ 2019 Lahore 30

Present: Ch. Muhammad Masood Jahangir, J.

MUHAMMAD AZAM--Petitioner

versus

ADDITIONAL DISTRICT JUDGE, etc.--Respondents

W.P. No. 26983 of 2012, heard on 23.5.2018.

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

----O. V--Oral exchange mutation--Application for decision of case on basis of special oath during suit proceedings--Accepted--Resiling from solumn offer--Civil Revision before session Judge--Allowed--Challenge to--Application for decision of suit on special oath of Holy Quran was filed through a counsel, who happened to be Hafiz of that Holy Book and might be well acquainted with import and veneration of such an oath than any other ordinary lawyer--Such like offer is made on behalf of a party on supposition that adversary, who will accept it is not only conscious of trust of this Holy Book, but has a dynamic belief therein and while making affirmation thereon, shall deem itself to be before its maker and certainly deposed truth on account of fear of wrath and antagonism of Him--It was authoritatively laid down that settlement to decide matter on oath constituted a valid agreement from which parties could not conveniently wriggle out until contract was ex facie shown to be void or incapable of implementation, which is not case of present petitioner--As such this Court is of view that learned Addl. District Judge was justified in refusing to permit petitioner to resile from his offer, but he was to abide by same--Petitioners was dismissed. [Pp. 32 & 33] A & C

Substantial Evidence--

----Discretion of Court--Substantial evidence--Facts of case in hand as discussed hereinabove compelled me to exercise my discretion in favour of respondent, who had an important witness of impugned mutation along with him, which being substantial evidence was enough to splinter genuineness of mutation. [P. 33] B

M/s. Sh. Naveed Shehryar and Humaira Bashir Ch., Advocates for Petitioner.

M/s. Arshad Jhangir Jhojha, Iftikhar Chohan and Imtiaz Hussain Rehan, Advocates for Respondents No. 3.

Mr. Muhammad Arif Yaqoob Khan, Addl. A.G. for Respondent No. 4.

Date of hearing: 23.5.2018

Judgment

This litigation runs between two real brothers. Muhammad Sohna Respondent No. 3 brought a suit against the petitioner and Province of the Punjab to assail vires of oral exchange mutation No. 4645 dated 29.07.1992. In due course of proceedings, on 08.05.2012 the present petitioner/defendant filed an application for the decision of case on special oath to be administered by Respondent No. 3/plaintiff and the matter was adjourned to 11.05.2012 for latter’s reply, who showed his willingness to administer the oath, but at the same time, petitioner tabled a written request to resile from the offer earlier made by him. The request of petitioner was accorded by learned Civil Judge and case was fixed for further proceedings on merit. Respondent No. 3 challenged it by filing a Civil Revision before the learned District Court, which was allowed on 10.10.2012 compelling the petitioner to approach this Court by means of Writ Petition in hand, but during its pendency, the statement on special oath of the Holy Quran was administered by Respondent No. 3 and as a result thereof, his suit was decreed on 30.11.2012. Although it was assailed in Appeal, but without any success when it was dismissed by learned Addl. District Jude on 03.07.2014, which forced the petitioner to approach this Court through connected Civil Revision No. 3112 of 2014. As common questions of law and facts are involved in both the lis, which have arisen out of a single suit instituted by Respondent No. 3, I intend to dispose of the same jointly through this single judgment.

1. Arguments heard and record perused.

2. Before commenting upon issue involved in the case in hand, it would be advantageous to use up the headway as well as situation of the suit proceedings, which constrained the petitioner/defendant to table an application for the resolution of suit through special oath of the Holy Quran and thereafter to make an effort to retract therefrom.

The suit was instituted by respondent/plaintiff on 20.10.2007, but despite observance of prescribed modes provided under Order V of the Code, 1908, the petitioner/defendant did not turn up and ultimately was proceeded against ex parte on 28.02.2008. Pursuant thereto, in ex parte evidence Muhammad Rasheed (DW2), one of the marginal witnesses of the impugned exchange mutation was examined, who explicitly worded in his statement that neither he had appeared in the public gathering for the attestation of mutation nor he signed it. This statement being uncontroverted by any corner forced the Civil Court to pass an ex parte decree in favour of respondent on 26.09.2008. Thereafter, petitioner turned up with an application for its setting aside, which was granted on 07.12.2011. The respondent did not assail it any further and opted for the decision of his suit after its full-fledged trial. Nevertheless, not only the suit was invigorated, but after settlement of issues, it was also fixed for 08.05.2012, when partial evidence of the respondent was available and Muhammad Rasheed, the marginal witness of the impugned mutation, would again be there that the application for decision of suit on special oath of the Holy Quran was filed through a counsel, who happened to be Hafiz of that Holy Book and might be well acquainted with the import and veneration of such an oath than any other ordinary lawyer. Such like offer is made on behalf of a party on the supposition that the adversary, who will accept it is not only conscious of the trust of this Holy Book, but has a dynamic belief therein and while making the affirmation thereon, shall deem itself to be before its maker and certainly deposed the truth on account of fear of wrath and antagonism of Him. This offer was not made in haste, rather the petitioner was confident that one of the witnesses to the suit mutation had already deposed against him and was going to repeat it. The Court was also not in hurry to record the reply of the respondent on the same day, rather proceedings were postponed for next three days and on 11.05.2012, the respondent came prepared to administer the special oath, then application was filed by the petitioner to claim right of resiling from the solemn offer, which had already been accepted, constituting a valid contract. Had there been a denial on the part of respondent, there would be no occasion to make a request for resiling from the offer. In this regard, the contents of application are very much relevant narrating therein that he learnt from the people of village that the respondent would make a false statement on oath. Had it been so, there were two clear days available to the petitioner in between the preceding and forthcoming date of hearing, who might have approached the Court with his request in those two days or on the day of hearing, the moment Judicial Officer appeared in the Court, this application would have been tabled, but the petitioner kept on waiting till the offer was accepted by the adversary, thereafter moved the application when much water had already flown through the bridge while accruing vested right to the other party.

1. Sh. Naveed Shehryar, Advocate for the petitioner by and large while relying upon the dicta laid down in Mst. Asifa Sultana vs. Honest Traders, Lahore and another (PLD 1970 Supreme Court 331) accentuated with great concern that a party offering to abide by a statement on oath can resile from such offer prior to administration of oath. I have meticulously scanned this illustrious judgment and come to the conclusion that it was left upon the discretion of the Court dealing with such proposition to decide it on the facts and circumstances of each case. The facts of the case in hand as discussed

hereinabove compelled me to exercise my discretion in favour of the respondent, who had an important witness of the impugned mutation along with him, which being substantial evidence was enough to splinter the genuineness of the mutation. As per reported judgments of the apex Court delivered in the following cases:--

(i) Saleem Ahmad vs. Khushi Muhammad (1974 SCMR 224)

(ii) Muhammad Ali vs. Major Muhammad Aslam and others (PLD 1990 SC 841)

(iii) Muhammad Mansha and 7 others vs. Abdul Sattar and 4 others (1995 SCMR 795)

(iv) Nasrullah Jan vs. Rastabaz Khan (1996 SCMR 108)

It was authoritatively laid down that settlement to decide the matter on oath constituted a valid agreement from which parties could not conveniently wriggle out until contract was ex facie shown to be void or incapable of implementation, which is not the case of present petitioner. As such this Court is of the view that learned Addl. District Judge was justified in refusing to permit the petitioner to resile from his offer, but he was to abide by the same.

1. The ultimate result of the discussion is failure of the connected matters, hence, while maintaining the impugned order/judgments/decrees, instant Writ Petition and connected Civil Revision No. 3112-2014 having no force are dismissed.

(Y.A.) Civil revision dismissed

PLJ 2019 Lahore 33 (DB) [Multan Bench Multan]

Present: Qazi Muhammad Amin Ahmed and Ch. Mushtaq Ahmed, JJ.

ALLAH DITTA--Petitioner

versus

STATE and 7 others--Respondents

W.P. No. 8414 of 2017, decided on 2.5.2018.

Pakistan Penal Code, 1860 (XLV of 1860)--

----S. 302(b)--Anti-Terrorism Act, (XXV of 1997), S. 7--Sentenced to death--Compromise--Terrorism case--Occurrence committed in a Court room in backdrop of personal vendetta--Indicted for homicide read with Section 7 of ATA--Conviction was upheld till Supreme Court--Conviction could not be impliedly construed to be under Section 7 of ATA, merely on basis of forum of trial or joinder of charges under threat, thus, there was no occasion of learned judge, ATC to decline acceptance of request merely on this ground alone--Impugned order set aside--Petitioner’s plea for acceptance of compromise shall be deemed pending before learned judge, ATC for decision in accordance with law, after due verification--Petition was allowed. [Pp. 35 & 36] A & B

Malik Muhammad Saleem, Advocate for Petitioner.

Malik Riaz Ahmad Saghla, D.P.G for State.

Date of hearing: 2.5.2018.

Order

Abdul Karim, accused in a case of homicide was gunned down while appearing in the Court of learned Sessions Judge Rajanpur; Allah Ditta, petitioner herein, assigned fatal shot, was arrested red handed alongwith weapon of offence. Tried by a learned Judge, Anti-Terrorism Court, Dera Ghazi Khan; he was convicted under Section 302(b) of the Pakistan Penal Code, 1860 read with Section 7 Anti-Terrorism Act, 1997, henceforth referred to as the Act, and sentenced to death vide judgment dated 1-10-2007; his appeal met with no better fate; death penalty awarded by the learned trial Court was confirmed on 14-09-2011 and leave to appeal declined by the Supreme Court of Pakistan on 27-3-2012. Bracing the gallows, the petitioner managed to successfully persuade the legal heirs of Abdul Karim, deceased to compound the offence; in pursuance whereto, his execution scheduled for 16-12-2015 at 6:30 a.m was stayed by a learned Division Benchvide order dated 15-12-2015 in W.P. No. 18809 of 2015, with a direction to the learned trial Court to verify the factum of composition, if any. It was in this backdrop, that the learned trial Judge confirmed composition vide report dated 22.12.2015. Through another Constitutional Petition No. 9463 of 2016, petitioner sought to approach the learned trial Court for acceptance of compromise, while withdrawing W.P. No. 18809 of 2015 and thus, the issue came up before the learned Judge, Anti­Terrorism Court, for acceptance of compromise, the learned trial Judge confirmed the genuineness of compromise, however, declined to bless it with approval on the ground that petitioner’s conviction alongside Section 7 of the Act stood in impediment to his acquittal, latter charge being non­compoundable.

1. Learned counsel for the petitioner contends that although the petitioner was tried by a Court constituted under the Act, nonetheless, he was not independently indicted under Section 7 of the Act and, thus, he could not be burdened with consequences thereof inasmuch as the venue of the crime brought his case before the Anti-Terrorism Court in view of enlistment in the Third Schedule to the Act. The bottom line is that the petitioner was never convicted under Section 7 of the Act as the substantive charge was that of homicide alone. Reliance is placed in the case of Irfan & another vs. Muhammad Yousaf & another (2016 SCMR 1190). The learned Law Officer has contested the plea, however, not with much enthusiasm.

2. Heard. Record Perused.

3. Petitioner was tried by the learned Anti-Terrorism Court for committing murder in a Court Room in the backdrop of a personal vendetta, however, having regard to the venue selected by him, he was indicted for homicide read with Section 7 of the Act in view of the Third Schedule to the Act; he was convicted for homicide alone as is evident from trial Court’s judgment dated 1-10-2007, upheld by this Court as well as the Supreme Court of Pakistan and, thus, he incurred no penal consequences under the Act so as to reflect upon the possibility of a composition, same view has been taken in the case of Amjad Ali & others vs. The State (PLD 2017 SC 661) wherein conviction recorded and sentence consequent thereupon under Section 7 of the Act ibid, in the backdrop of an incident, that partly occurred in a mosque, involving loss of three lives, has been set-aside; relevant portion is advantageously reproduced below:

“The last aspect of this case highlighted in the leave granting order is as to whether the Courts below were justified in convicting and sentencing the appellants for an offence under Section 7(a) of the Anti-Terrorism Act, 1997 or not. We note in that context that a mere firing at one’s personal enemy in the backdrop of a private vendetta or design does not ipso facto bring the case within the purview of Section 6 of the Anti-Terrorism Act, 1997 so as to brand the action as terrorism. There was no ‘design’ or ‘object’ contemplated by Section 6 of the Anti­Terrorism Act, 1997 involved in the case in hand. We further note that by virtue of Item No. 4 (ii) of the third Schedule to the Anti-Terrorism Act, 1997 a case becomes triable by an Anti-Terrorism Court if use of fire-arms or explosives, etc. in a mosque, imambargh, church, temple or any other place of worship is involved in the case. That entry in the Third Schedule only makes such a case triable by an Anti-Terrorism Court but such a case does not ipso facto become a case of terrorism for the purposes of recording convictions and sentences under Section 6 read with Section 7 of the Anti-

Terrorism Act, 1997. The case in hand had, thus, rightly been tried by an Anti­Terrorism Court but the said Court could not have convicted and sentenced the appellants for an offence under Section 7(a ) of the Anti-Terrorism Act, 1997 as it had separately convicted and sentenced the appellants for the offences of murder, etc committed as ordinary crimes.”

In view of the law declared in the supra case, we confidently hold that petitioner’s conviction could not be impliedly construed to be under Section 7 of the Act merely on the basis of forum of trial or joinder of charges under the Act, thus, there was no occasion for the learned Judge, Anti-Terrorism Court, to decline acceptance of request merely on this ground alone, if otherwise, he was satisfied about the genuineness thereof. Consequently, W.P. No. 8414 of 2017 is allowed and impugned order dated 1.6.2017 is set-aside; Petitioner’s plea for acceptance of compromise shall be deemed as pending before the learned Judge, Anti­Terrorism Court for decision in accordance with law, after due verification.

(K.Q.B.) Petition allowed

PLJ 2019 Lahore 36 [Multan Bench, Multan]

Present:Ibad-ur-Rehman Lodhi, J.

MUHAMMAD YOUSAF and others--Petitioners

versus

FALAK SHER KHAN and others--Respondents

W.P. No. 3289 of 2018, heard on 9.4.2018.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Punjab Rented Premises Act, 2009, Ss. 19(4), 22(3) & 34--Ejectment petition--Leave to contest--Closure of evidence order--Obligation eviction of tenant--Challenge to--Unlike a regular civil suit, in trial of a petition filed under Section 19 of Act, a landlord seeking eviction of tenant is under an obligation in view of Section 19(4) of Act to submit his own affidavit in support of application, as also affidavits of not more than two witnesses alongwith eviction application--In similar manner, a respondent in ejectment petition, who is required to file a petition for leave to contest, is also under an obligation to file his own affidavit and if desired, affidavits of not more than two witnesses in view of Section 22(3) of Act--There is no concept of closure of evidence of any party for reasons that evidence in shape of affidavits is already available before such Tribunal either with application filed by a landlord under Section 19 or with a petition for leave to contest filed under Section 22 of Act and also that Section 34 of Act bars applicability of provisions of, C.P.C. to proceedings under Act before a Rent Tribunal--After treating such affidavits as ‘evidence’, Rent Tribunal of its own motion is required to order attendance of deponent for cross-examination on such referred affidavits or at request of a party direct production of deponent for same purposes--It is directed that learned Rent Tribunal may, of its own motion, call deponents and if it is requested by a party, then mandatorily direct production of deponents of affidavits for purposes of cross-examination--Petition was allowed. [Pp. 38 & 39] A, B & C

Mr. Khalid Masood Ghani, Advocate for Petitioners.

Mr. Sagheer Ahmad Bhatti, Advocate for Respondents.

Date of hearing: 9.4.2018.

Judgment

With the consent of learned counsel for the parties, the hearing of this petition is being treated as pacca one.

1. The present petitioners were respondents in an ejectment petition filed against them by the respondents herein before the learned Special Judge (Rent) at Burewala. The petitioners were granted leave to contest the ejectment petition and thereafter, trial in the ejectment petition proceeded further. On 30.1.2018, the learned Special Judge (Rent) passed the following order:--

1. Learned counsel for the petitioners has submitted that since already alongwith the petition for leave to contest the ejectment petition, the present petitioners in addition to their own affidavits in evidence have also produced the affidavits of their witnesses, which were made part of record of the learned Special Judge (Rent), therefore, there was no occasion with the learned Rent Tribunal to order the closure of evidence of the petitioners, which even otherwise was not a recognized phenomenon in scheme of law as introduced through The Punjab Rented Premises Act, 2009 (hereinafter to be referred as Act).

2. Learned counsel for the respondents herein has not seriously opposed the petition by simply making usual statement to provide one opportunity to the petitioners for production of their complete evidence.

3. Provision of one opportunity to produce evidence is not a sufficient and relevant answer to the proposition raised in this petition. It in fact requires some detailed probe.

Unlike a regular civil suit, in trial of a petition filed under Section 19 of the Act, a landlord seeking eviction of the tenant is under an obligation in view of Section 19(4) of the Act to submit his own affidavit in support of the application, as also affidavits of not more than two witnesses alongwith the eviction application. In the similar manner, a respondent in the ejectment petition, who is required to file a petition for leave to contest, is also under an obligation to file his own affidavit and if desired, affidavits of not more than two witnesses in view of Section 22(3) of the Act.

Provisions of Section 25(2) of the Act further provide that the Rent Tribunal shall treat an affidavit filed by a party as “evidence” and after treating such affidavit as evidence, may, of its own motion, order the attendance of deponent for cross-examination and shall, if so requested by a party, direct production of the deponent for cross-examination.

Such procedure of recording of evidence provided in the Act is altogether different than one provided in The Code of Civil Procedure, 1908 for trial of a regular civil suit. In view of provision of Order XVII Rule 3, C.P.C., 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. Such process is not available to a Rent Tribunal performing functions under the Act particularly in presence of Section 34 of the Act, which provides that the provisions of Qanun-e-Shahadat Order, 1984 and the Code of Civil Procedure, 1908 shall not apply to the proceedings under this Act before a Rent Tribunal.

After reading the above provisions of law jointly, what emerges is that in proceedings to be conducted by the Rent Tribunal under the

Act, there is no concept of closure of evidence of any party for the reasons that evidence in the shape of affidavits is already available before such Tribunal either with the application filed by a landlord under Section 19 or with a petition for leave to contest filed under Section 22 of the Act and also that Section 34 of the Act bars the applicability of the provisions of, C.P.C. to the proceedings under the Act before a Rent Tribunal. After treating such affidavits as ‘evidence’, the Rent Tribunal of its own motion is required to order the attendance of deponent for cross-examination on such referred affidavits or at the request of a party direct production of the deponent for the same purposes.

1. In the present case, the learned Special Judge Rent has proceeded to close the right of the petitioners to produce evidence, which is an alien subject to the scheme of law provided under the Act and thus, the order impugned herein is an order, which has no legal sanction and thus is not sustainable and is set aside as such.

2. Resultantly, by allowing this Constitutional petition, it is directed that the learned Rent Tribunal may, of its own motion, call the deponents and if it is requested by a party, then mandatorily direct the production of deponents of the affidavits for the purposes of cross-examination.

(Y.A.) Petition allowed

PLJ 2019 Lahore 39 [Multan Bench Multan]

Present: Asjad Javaid Ghural, J.

HajiALLAH DITTA--Petitioner

versus

ADDITIONAL DISTRICT JUDGE, MIAN CHANNU, DISTRICT KHANEWAL and 4 others--Respondents

W.P. No. 3875 of 2014, decided on 21.5.2018.

Constitution of Pakistan, 1973--

----Art. 199--Criminal Procedure Code, (V of 1898), Ss. 516-A, 550--Vehicle was taken into possession by police--Application for superdari--Accepted--Revision petition--Dismissed--Appeal--Allowed--Bona fide purchaser--Appropriate remedy--Challenge to--Factual controversy as to ownership of car in issue can only be determined by learned Civil Court after recording evidence--At present, car in issue has validly been transferred in name of present petitioner and he is entitled to get same on Spurdari as an interim arrangement--If any of parties has any dispute with regard to documents of car in issue, he may approach learned Civil Court--Petition was allowed. [P. 41] A & B

Syed Muhammad Jaffar Tayyar Bokhari, Advocate for Petitioner.

Mr. Hamayun Said Rasool, Advocate for Respondent No. 3.

Mirza Muhammad Saleem Baig, AAG for Respondents.

Date of hearing: 21.5.2018.

Order

Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, petitioner Haji Allah Ditta has challenged the legality and propriety of order dated 21.03.2014 passed by the learned Additional Sessions Judge, Mian Channu whereby revision petition filed by Respondent No. 3 against orders dated 27.04.2012 and 16.05.2012 passed by the learned Judicial Magistrate was allowed and the custody of car Toyota bearing registration No. 1528/LE-10 was handed over to him subject to his furnishing indemnity bonds in the sum of Rs. 10,000,000/­ with one surety.

1. Tersely, the facts of the case are that Respondent No. 3 was arrested on suspicion by the police vide rapt No. 11 dated 23.04.2012 when he was carrying pistol in a car Toyota XLI, bearing Registration No. 1528/LE-10. The said vehicle was taken into possession under Section 550, Cr.P.C. Thereafter, Respondent No. 3 made an application for handing over the possession of aforesaid car before the learned Area Magistrate, who after perusing the ownership documents, handed over the possession of the car to the petitioner subject to furnishing surety bonds vide order dated 27.04.2012. Feeling aggrieved, Respondent No. 3 filed a review petition claiming that one Khalil Ahmad, head-constable alongwith others had snatched the aforesaid vehicle from him on gun-point from the main-gate of Mian Channu Katchery, he reported the matter to the police and also filed a petition before the learned Additional Sessions Judge. It was further asserted that earlier he had lodged Rapt No. 9 dated 12.04.2012 regarding missing of the documents of the aforesaid vehicle. Respondent No. 3, in connivance with the officials of Motor Registering Authority, prepared forged and fictitious documents and got transferred the car in his name. Learned Magistrate, after hearing the parties, proceeded to dismissed the review petition vide order dated 16.05.2012. Respondent No. 3 assailed both the aforesaid orders before the learned Additional Sessions Judge, Mian Channu, which was allowed vide impugned order dated 21.03.2014. Hence, this writ petition.

2. Learned counsel for the petitioner submits that the petitioner being bona fide purchaser and having valid documents with regard to the ownership of the vehicle in question, is entitled to its possession and if Respondent No. 3 had any grievance that the ownership documents of the car in issue are forged, he has an appropriate remedy to approach either the Motor Registering Authority or the Civil Court for the redressal of his grievance.

3. Conversely, learned counsel for Respondent No. 3 submits that the vehicle in issue was lastly possessed by Respondent No. 3 at the time of its captivity by the police under Section 550, Cr.P.C. and thus, he being last possessor, is entitled to its custody as directed by the learned Revisional Court.

4. I have heard learned counsel for the parties, learned Additional Advocate General appearing for the State and have perused the available record with their able assistance.

5. Admittedly, the car in issue stood transferred in the name of the present petitioner on 19.04.2012, four days to its capture by the police under Section 550, Cr.P.C. on 23.04.2012 and on the basis of said document, the Spurdari of the vehicle was handed over to him by the learned Judicial Magistrate vide order dated 27.04.2012. On the other hand, the claim of Respondent No. 3 was that he being last possessor, was entitled to the custody of the car and the police officials had no locus standi to inquire about the documents of the said car rather the police officials, in connivance with Respondent No. 3, had made a plan to capture the vehicle from him and its handing over to the present petitioner. During the course of arguments, it has been pointed out that the present petitioner is son-in-law of the respondent and had good relations prior to the capture of the vehicle by the police. The factual controversy as to the ownership of the car in issue can only be determined by the learned Civil Court after recording the evidence. At present, the car in issue has validly been transferred in the name of present petitioner and he is entitled to get the same on Spurdari as an interim arrangement. Yes, the car was taken into possession lastly from Respondent No. 3 but the question remains that he has no document or any proof of its ownership or possession in any capacity whatsoever and in absence of any such proof, the better course for the Court is to hand it over to the person having prima facie its valid documents as a rule of caution and, thus, the petitioner is entitled to retain the interim possession of the car in issue. However, if any of the parties has any dispute with regard to the documents of the car in issue, he may approach the learned Civil Court.

6-A. Considering the aforesaid facts and circumstances of the case, the petition in hand is allowed and the impugned order dated 21.3.2014 stands set aside.

(Y.A.) Petition allowed

PLJ 2019 Lahore 42 [Multan Bench Multan]

Present: Muzamil Akhtar Shabir, J.

MAHAM JAHANGIR--Petitioner

versus

GOVERNMENT OF PUNJAB through Secretary Health and 6 others--Respondents

W.P. No. 16829 of 2017, decided on 17.1.2018.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional Petition--Application for admission in MBBS on open merit--Quota for under develop district--Notification of merit list on basis of open merit as well as quota--Determination of admission policy--It is by now settled that educational institution is best judge to determine policy upon which admissions are to be provided to candidates--Said decision cannot be set aside by this Court unless same was found to be mala fide, perverse or against any provision of law--No such ground has been pointed out by petitioners, therefore, said provision cannot be set at naught.

[P. 49] A

Constitution of Pakistan, 1973--

----Art. 37--Promotion of social justice--Discrimination--Although article 37 of constitution of Pakistan, 1973 which provides for promotion of social justice and eradication of social evils provides that State shall promote, with special care, educational and economic interests of backward classes or areas but it does not provide that for providing education similarly placed persons would be discriminated against--Even otherwise, respondents have a complete freedom to adopt any policy for admission of students to medical colleges and Courts cannot lightly interfere in same--Idea behind fixing quota seems to be that at least a minimum number of candidates from under developed Districts be admitted to medical colleges with further added condition that they would serve in their districts for a fixed number of years so that people of said area are benefitted from their services--If interpretation, as is asserted by counsel for petitioners, is adopted, same would be tantamount to discouraging candidates who have obtained higher marks and have been placed higher on merit and depriving them of their earned right just to accommodate persons lower of merit, which could not be intention of law or policy--Candidates having obtained more marks have availed said quota and they would be bound by conditions attached thereto--No ground to interfere is made out--Petition was dismissed. [Pp. 50, 52 & 53] B, C & D

2013 SCMR 1687, ref.

Sahibzada Muhammad Nadeem Farid, Advocate for Petitioner (in W.P. No. 16829/2017).

M/s. Haji Tariq Aziz Khokhar and Khadam Hussain Khosa, Advocates for Petitioner in connected petition (W.P. No. 17048/2017).

Mr. Muhammad Aurangzeb Khan, Assistant Advocate General, Punjab.

Mr. M. A. Hayat Haraj, Advocate for Respondent No. 2/ University of Health Sciences.

Date of hearing: 17.1.2018.

Order

This consolidated order shall decide the titled constitutional petition along with the connected constitutional petition i.e. W.P. No. 17048/17 titled “Birrah Ijaz v. Govt. of Punjab through Secretary Health, Lahore, etc.” as similar question of facts and law is involved in both the petitions.

1. Brief facts of the case are that the petitioners in both the petitions are the residents of Rajanpur, District Dera Ghazi Khan. They applied for admission in MBBS on open merit as well as on the basis of quota reserved for candidates from under-developed Districts. Rajanpur was allocated 7-seats in MBBS and 2-seats in BDS. The candidates from the under-developed Districts are entitled to seek admission on open merit as well as under-developed Districts quota. The Respondent No. 2 notified the merit list on the basis of open merit as well as quota on 29.11.2017 and Respondents No. 3 to 7 have been admitted in Nishtar Medical University, Quaid-e-Azam Medical College, Sheikh Zayed Medical College and de ‘Montmorency College of Dentistry against seats reserved for under-developed Districts. The petitioners claim that Respondents No. 3 to 7 were also qualified to be admitted on open merit and had they been given admission on the basis of open merit, the reserved quota for under­ developed Districts would have been allocated to those candidates whose names had not appeared in the open merit list and thus the petitioners would also have been admitted and seek appropriate direction to Respondent No. 1 and 2 to give admission to petitioners against the seats reserved for under-developed Districts quota for Rajanpur in the Medical College.

2. The learned Assistant Advocate General as well as legal advisor for Respondent No. 2 have argued that the candidate from under-developed Districts had been given option to apply simultaneously on the basis of open merit as well as the quota fixed for the said Districts for which separate merit lists were prepared and the candidate if selected on the basis of both such lists was to be allocated seat higher in order of preference provided by the said candidate.

3. Heard, record perused.

4. The petitioners are candidates who are seeking admission the Medical Colleges. The real controversy revolves around the seats in the Medical Colleges reserved for under-developed Districts in which the criteria laid down in Rules and Regulations for various categories of seats available (hereinafter referred to as Rules and Regulations). This includes seats reserved in quota for the Under-Developed Districts, which is as under:

“iii) Under-Developed Districts’ Seats:

| | | | | | | | | | | | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | | Sr. No. | District | NMU | QAMC | FMU | SZMC | DCD | NID | Total | | | MMBBS | BBDS | | 1. | D.G. Khan | 6 (03 for Tribal Area) | 1 | -- | 4 (02 for Tribal Area) | 1 | 1 (for Tribal Area) | 11 | 2 | | 2. | Muzaffar Garh | 4 | 1 | -- | 3 | 1 | 1 | 8 | 2 | | 3. | Rajanpur | 4 (02 for Tribal Area) | 1 | -- | 2 (1 for Tribal Area) | 1 | 1 (for Tribal Area) | 7 | 2 | | 4. | Lodhran | 4 | 1 | -- | 2 | 1 | 1 | 7 | 2 | | 5. | Bhakkar | - | 1 | 5 | 2 | 1 | 1 | 8 | 2 | | 6. | Layyah | - | 1 | 5 | 2 | 1 | 1 | 8 | 2 | | Total | | 18 | 6 | 10 | 15 | 6 | 6 | 49 | 12 | | Grant Total | | | | | | | | | 61 |

1. The candidate must have a domicile of the same District Area.

2. The candidate must have studied, from class one to twelve, from the same district. He/she shall have to submit original certificate from Head Masters/ Principals of the concerned institutions where he/she has studied from class one to twelve. These certificates should be duly verified by the concerned EDO (Education) and DEO (Colleges), and countersigned by the District Co-ordination Officer (DCO) of the same district.

3. Candidates belonging to those tribal areas where there are no high schools or colleges available or the facility for teaching science subjects does not exist, they must have obtained their education from Class-1 to Class-12 from the district in which their respective tribal area falls and have passed their SSC and HSSC examinations from the relevant Board of Intermediate and Secondary Education.

4. The candidates from these areas can also apply against open merit seats. These reserved seats will be in addition to any number of candidates being admitted on open merit from these districts. The candidates from each of the above six districts, admitted or not admitted on open merit, can compete within their districts for reserved seats.

5. The merit list of candidates of under-developed districts will be displayed on district basis after ascertaining merit from amongst the candidates of the specific district subject to fulfillment of all other requirements and after verification of their documents from the concerned authorities.

6. The candidates eligible for admission against both open merit as well as reserved seats can avail only one seat. The Admission Board will allocate a seat to such a candidate purely on merit in a college of his/her choice listed higher as per his/her order of preference in his/her admission form. For example, if a candidate is being admitted, according to his/her order of preference, in college number 10 on Open Merit, and in college number 8 on Under-Developed Districts’ Seats, his admission will be finalized in the latter category. No application against the decision of the Admission Board shall be entertained afterwards.

7. Students admitted against these reserved seats from under­developed districts will be required to submit a Surety Bond on stamp paper (Annex-II of the Prospectus), duly attested for amount of Rs. 500,000/- and with an undertaking that he/she shall serve in his/ her district of domicile for at least five years or in default thereof pay Rs. Five Lac in lump sum to the Government of the Punjab.”

8. Six Districts have been declared as under developed as per policy. These are D.G.Khan, Muzaffar Garh, Rajanpur, Lodhran, Bhakkar and Layyah. From the perusal of clause 4 above, it is seen that all the candidates from the under-developed Districts are entitled to apply for admission in MBBS on the basis of open merit and he may be admitted on merit. However, the merit lists for open merit and reserved seats are maintained separately. The candidate belonging to the under-developed Districts is entitled to simultaneously apply for admission on the basis of open merit as well as reserved quota. In the admission process under consideration, 7-seats had been reserved for MBBS and 2-seats for BDS for quota of under-developed Districts in District Rajanpur. The Respondents No. 3 to 7/selected candidates applied at the same time for selection on open merit as well as quota and retained quota seats as the same entitled them to be admitted to Medical Colleges higher in their lists of preference. The clause 4 of Rules and Regulations relating to under-developed Districts seats reproduced above, provides that “these reserved seats will be in addition to any number of candidates being admitted on open merit from these district”. Furthermore, it has been provided that “The candidates from each of the above six districts, admitted or not admitted on open merit, can compete within their districts for reserved seats”. The clause 6 of the Rules and Regulations provides that “The candidates eligible for admission against both open merit as well as reserved seats can avail only one seat.” The said seat is to be allocated by the Admission Board purely on merit in a college of choice of the candidate listed higher as per his/ her order of preference in his/her admission form. It has categorically been provided that “if a candidate is being admitted, according to his/her order of preference, in college number 10 on Open Merit, and in college number 8 on Under-Developed Districts Seats, his admission will be finalized in the latter category.” This show that the Medical College higher in the preference list of a candidate would be imposed on him if he was eligible to be selected on the basis of both merit lists. The Respondents No. 3 to 7, who were higher in merit than the present petitioners, were allocated seats in Medical Colleges in order of their preference, reserved on the basis quota for the under-developed Districts. Resultantly, the seats that could have been admitted to on open merit were not occupied by them as the said seats were lower in their choice of preference of Medical colleges.

9. In view of the afore-referred position, the petitioners seek two-fold orders of this Court i.e. either to direct the respondent to adjust-the said candidates/Respondents No. 3 to 7 on seats of open merit on which they would have been selected and adjust the petitioner on the seats reserved for quota or in the alternate, if the said candidates are to retain the seats on quota basis then the seats in college where the said candidates would have been selected on open merit be allocated to the petitioner. These prayers are based on the assumption that the purpose of allocation of quota is to encourage the candidate from under-developed Districts for admission in medical colleges for higher study as sufficient opportunities are not available to them at their own district level.

10. During the course of arguments, the learned counsel for the Respondent No. 2 has placed on record copy of order dated 7.10.2010 passed by a learned Division Bench of this Court in W.P. No. 1432/2010 titled “Tahira Zaib v. Vice-Chancellor/ Chairman Admission Board, etc.” wherein the admission to the category of special seats came up for consideration and the question requiring determination was “whether the condition laid. down in Rule-ii(3) of the prospectus (Page 25) of the University of Health Sciences, Lahore regarding reserved seats for under developed districts authorizes the Respondent No. 1 to treat the 14 preferences of Medical and Dental Colleges given by an applicant on the admission form to constitute an indivisible set of options which must be exhausted before moving the consideration of the applicant’s case from the open merit list to the reserved quota competition for under developed districts.” The said Rule ibid is reproduced as under:

“3. The seats will be in addition to any number of candidates being admitted on open merit from these districts. The candidates from each of the above six districts not admitted on open merit will compete within their districts for reserved seats. This is subject to the condition of having passed F.Sc. (Pre Medical with minimum 65 % marks) and Entrance Test (Minimum 40 marks) and meeting the minimum required criteria stipulated in the prospectus.”

1. The learned Division Bench of this Court decided the matter in the following terms:

“We have carefully perused Rule ii(3) ibid and do not find any prohibition therein against the simultaneous consideration of an applicant for admission to a college on open merit as well as on the reserved quota seats. Thus the applicant with the highest merit on the reserved seats may reach one of his preferred medical or dental colleges although he may have failed to do so in the open merit competition for that college. According to the procedure adopted by the Respondent No. 1, the applicant with the highest merit on the reserved seats is denied admission to a preferred college because he succeeds on open merit to get admission in a college that is lower on his option list. This is precisely the fate of the petitioner. As a result, admissions on reserved seats may be made contrary to the true merit list for the quota of such seats because she stands admitted to a lower preference dental college.

1. To the mind of the Court, Rule ii(3) ibid is being applied inequitably and wrongly by the Respondent No. 1 because the selection made ignores merit and fairness. It is accordingly directed to Respondent No. 1 shall correct its method of assessment of applicants who are eligible for admission on the reserved seats to be given simultaneous consideration both in the open merit list and the reserved seats list for admission to medical and dental colleges. By such means the petitioner shall have the right to chose the college in which she gets admission on merit against either of the said lists. Writ petition allowed with no order as to costs.”

2. On the basis of afore-referred decision, the candidates of under-developed Districts were provided choice for simultaneous consideration both in the open merit list and the reserved seats for admission to medical and dental colleges. In view of the said decision the new policy provides the amended provision for admission, which has been provided in the policy and prospectus and has been reproduced as under:

“6. The candidates eligible for admission against both open merit as well as reserved seats can avail only one seat. The Admission Board will allocate a seat to such a candidate purely on merit in a college of his/her choice listed higher as per his/her order of preference in his/her admission form. For example, if a candidate is being admitted, according to his/her order of preference, in college number 10 on Open Merit, and in college number 8 on Under-Developed Districts’ Seats, his admission will be finalized in the latter category. No application against the decision of the Admission Board shall be entertained afterwards.”

1. The petitioners had applied for admission on the basis of the afore-referred provision. Such provision in a prospectus or policy of an education institution on the basis of which the candidate seeks admission, is the base or policy of the institution and it is by now settled that educational institution is the best judge to determine the policy upon which the admissions are to be provided to the candidates. The said decision cannot be set aside by this Court unless the same was found to be mala fide, perverse or against any provision of law. No such ground has been pointed out by the petitioners, therefore, the said provision cannot be set at naught.

2. The learned counsel for petitioners have tried to argue that the allocation of quota to the candidate likely to be selected on merit is the negation of right provided to them in view of Article 37 of the Constitution of the Islamic Republic of Pakistan, 1973 which provides as under:

“37. Promotion of social justice and eradication of social evils.--The State shall--

(a) promote, with special care, the educational and economic interests of backward classes or areas;

(b) remove illiteracy and provide free and compulsory secondary education within minimum possible period;

(c) make technical and professional education generally available and higher education equally accessible to all on the basis of merit;

(d) ensure inexpensive and expeditious justice;

(e) make provision for securing just and humane conditions of work, ensuring that children and women are not employed in vocations unsuited to their age or sex, and for maternity benefits for women in employment;

(f) enable the people of different areas, through education, training, agricultural and industrial development and other methods, to participate fully in all forms of national activities, including employment in the service of Pakistan;

(g) prevent prostitution, gambling and taking of injurious drugs, printing, publication, circulation and display of obscene literature and advertisements;

(h) prevent the consumption of alcoholic liquor otherwise than for medicinal and, in the case of non-Muslims, religious purposes; and

(i) decentralize the Government administration so as to facilitate expeditious disposal of its business to meet the convenience and requirements of the public. “

1. The afore-said argument of the learned counsel for petitioners when taken into consideration appears to be that candidates whose names figured on open merit list could not seek admission on the quota basis because the said seats would have to be allocated to the candidates who did not qualify on the open merit list at all. This does not seem to be the intention fixing the quota for the reason that the candidate whose names figured on open merit list but belonged to the under-developed Districts despite having succeeded to obtain more marks than the candidates who had obtained less marks would be selected for medical and dental college lower in category of their preference than the candidate from the under-developed Districts who has obtain lower marks on merit but succeeds still to obtain admission in a medical college higher in category of preference than the candidate selected on merit list, therefore, allowing this interpretation would be discrimination to the candidate of under-developed Districts who has succeeded to obtain more marks and was also entitled to be selected on merit which would be violative of their fundamental right not to be discriminated as provided under Article 25 of the Constitution. Thus, there is no force in the afore-said argument of the petitioners.

2. The alternate argument of the learned counsel for petitioners that the open merit seat vacated by the candidate selected on under-developed Districts quota be allocated to them as they were lower in the order of preference of the said candidates and the petitioners would be satisfied for being admitted against the said quota. This argument of the learned counsel for the petitioners is also not in accordance with the enrolment policy because the seat on open merit if not joined by the said candidate is to be allocated to the candidate next in the line on merit on the open merit list and cannot be allocated by leaving aside that list for adjusting the candidate from under-developed Districts against the same for the reason that said arrangement would cause prejudice to the rights of the candidates selected on open merit. Resultantly, the said candidate of the selected on open merit would be disturbed despite having achieved more marks, which would also be against their fundamental right provided under Article 25 of the Constitution.

3. Although the Article 37 of the constitution of Pakistan, 1973 which provides for promotion of social justice and eradication of social evils provides that the State shall promote, with special care, the educational and economic interests of backward classes or areas but it does not provide that for providing education similarly placed persons would be discriminated against. The policy framed by the respondents rather appears to be in consonance with and not against the Article 37 sub-Article (a) reproduced above with an added protection that while promoting the educational interests of backward classes the people of the said area are not discriminated against inter se by ignoring the persons higher on merit to accommodate persons lower or merit. Rather an attempt has been made by the respondents to accommodate the persons higher on merit in preference to persons lower than them in merit list. This type of reasonable classification based on intelligible differentia having rational nexus to object sought to be achieved is permissible in law and is justified therefore, no exception can be taken to the same. Reliance in this behalf may be placed on Secretary Economic Affairs Division, Islamabad and others v. Anwarul Haq Ahmed and others (2013 SCMR 1687), the relevant portion of which is reproduced below:

“22. With regard to the arguments of the learned counsel for the respondents-students that the charging of fee/endowment funds at higher rates from the students of SFS as compared to other students is discriminatory as well as violative of Article 9 read with Article 25 of the Constitution, it is to be noted that Article 25 provides that all citizen are equal before law and are entitled to equal protection of law and that there shall be no discrimination on the basis of sex. However, by now it is well settled that equality clause does not prohibit classification for those differently circumstanced provided a rational standard is laid down. The doctrine of reasonable classification is founded on the assumption that the State has to perform multifarious activities and deal with a vast number of problems. The protection of Article 25 of the Constitution can be denied in peculiar circumstances of the case on basis of reasonable classification founded on an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out. The differentia, however, must have rational nexus to the object sought to be achieved by such classification. Reference in this behalf may be made to the case of I.A. Sharwani v. Government of Pakistan (1991 SCMR 1041) wherein the issue has been dealt with in detail. In the case of Tariq Aziz ud Din and others (Human Rights cases Nos.8340 of 2009, etc.) (2010 SCMR 130) it was held as under:--

1. ...... We are also conscious of the provision of Article 25 of the Constitution, which guarantees equality of citizens. However, denying such protection in peculiar circumstances of the case on basis of reasonable classification founded on an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out. The differentia, however, must have rational nexus to the object sought to be achieved by such classification [Dr. Mobashir Hassan v. Federation of Pakistan and others PLD 2010 SC 265]. ... ...”.

2. Besides, the afore-referred policy made by the government included in the rules and regulations and forms part of the prospectus is within the policy making domain of the respondents and a policy made by the competent authority cannot be set aside unless it is found to be illegal, arbitrary or mala fide. Reliance in this behalf may be placed on M/s Dassani Travels Pvt. Ltd. and other v. M/s Travel Shop (Pvt.) Ltd. and others (PLD 2014 SC 1). In the present case no illegality, arbitrariness or mala fide is apparent on the record, rather an attempt has been made to accommodate students securing more marks in preference to others.

3. Even otherwise, the respondents have a complete freedom to adopt any policy for the admission of students to medical colleges and the Courts cannot lightly interfere in the same. Reliance is placed on Secretary Economic Affair Division, Islamabad and others v. Anwarul Haq Ahmed and others (2013 SCMR 1687), Wherein it is provided as under:

“20. Before dilating upon the arguments of the parties, it is considered appropriate to note that educational institutions are independent to follow policy for admission including affairs relating to changing conditions for endowment funds or fee, either under the policy given by the government or adopted by the college, and interference in the policy by the Court is possible only in exceptional circumstances. Reference may be made to the case of Chairman Joint Admission Commission v. Raza Hassan (1999 SCMR 965) wherein it was held that the universities in Pakistan enjoy complete freedom to take decision in their own matters and interference by the Courts in such matters would be the least desirable, except for exceptional circumstances. In another case namely Mian Muhammad Afzal v. Province of Punjab (2004 SCMR 1570) this Court declined to interfere in the matter relating to the admission in the medical college, on the ground that it was of administrative nature relating to policy. In the case of Shazia Irshad Bokhari v. Government of Punjab (PLD 2005 Lahore 428), the learned Lahore High Court held that the Court, under its Constitutional jurisdiction would not enter into policy making domain of the State or question the wisdom of the legislature; it would not normally interfere or strike down a policy made by the Government unless the same was proved mala fide or made

in a colourable exercise of authority, etc. It was further held that the classification in terms of equal treatment was legally permissible. Reference may also be made the case of Waqas Zafar v. Baha ud Din Zakriya University (2010 CLC 999).”

1. The idea behind fixing the quota seems to be that at least a minimum number of candidates from the under developed Districts be admitted to medical colleges with further added condition that they would serve in their districts for a fixed number of years so that the people of the said area are benefitted from their services. If the interpretation, as is asserted by the counsel for the petitioners, is adopted, the same would be tantamount to discouraging the candidates who have obtained higher marks and have been placed higher on merit and depriving them of their earned right just to accommodate persons lower of merit, which could not be intention of the law or the policy. The candidates having obtained more marks have availed the said quota and they would be bound by the conditions attached thereto. No ground to interfere is made out.

2. For what has been discussed above, there is no merit in both the constitutional petitions, therefore, the same are dismissed.

(Y.A.) Petition dismissed

PLJ 2019 Lahore 53 (DB)

Present: Abid Aziz Sheikh and Jawad Hassan, JJ.

GOVERNMENT OF PUNJAB through Secretary Health Department, Lahore and another--Appellants

versus

SyedMOHSIN ALI--Respondent

ICA No. 32 of 2014 in W.P. No. 10070 of 2012, heard on 19.4.2017.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional Petition--Direction was issued to consider respondent’s case for regularization--Appellants did not regularize services of respondent on ground that this certificate of passing middle class was found bogus--Only question requires determination is whether respondent passed his middle class exam. Or not--Executive District Officer (EDO) vide his letter verified school leaving certificate of respondent according to which he passed his 8th class examination--Further controller of examination letter also confirmed that respondent appeared in 9th class examination against Roll No--No illegality or infirmity--Appeal dismissed. [Pp. 54 & 55] A & B

Mr. Aziz-ur-Rehman Khan, AAG for Appellants.

Syed Riaz-ul-Hassan Gillani, Advocate for Respondent.

Date of hearing: 19.4.2017.

Order

Through this appeal, the appellants have challenged the order dated 23.12.2013, whereby constitutional petition filed by respondent was allowed and direction was issued to consider respondent’s case for regularization.

1. Brief facts are that respondent appointed on daily wages w.e.f. 1.11.2007 as Security Guard. In pursuance to Government Policy, respondent alongwith other employees applied for his regularization, however, his case was not considered. The respondent being aggrieved filed Writ Petition No. 13073/2010 in which direction was issued to regularize his services. In appeal i.e. ICA No. 09/2011 filed by department, the learned Division Bench of this Court again issued direction to regularize those employees, who fulfill qualification and also within prescribe age limit. The appellants however did not regularize the services of the respondent on the ground that his certificate of passing middle class was found bogus. The respondent being aggrieved again filed Writ Petition No. 10070/2012 which was allowed through impugned order dated 23.12.2013, hence this appeal.

2. Learned counsel for the appellants argued that certificate of respondent to pass middle class was found bogus through verification letter dated 12.01.2012, therefore, he could not be regularized. Submits that aforesaid aspect of the matter was not properly appreciated.

3. Learned counsel for the respondent submits that recently school leaving certificate of the appellant was again verified by EDO Education on 24.8.2015 and same was found to be correct. He further submits that letter dated 11.6.2013 issued by Controller Examination also verified this fact that respondent appeared in 09th class exams, which proves that he passed 08th class exams as well.

4. We have heard learned counsel for the parties and perused the record. The only question requires determination is whether respondent passed his middle class exam or not. The Executive District Officer (EDO) Multanvide his letter dated 24.08.2015 verified the school leaving certificate of the respondent according to which he passed his 8th class examination. Further Controller of Examination

letter dated 11.06.2013 also confirmed that respondent appeared in 09th class examination against Roll No. 180283 hence there is valid presumption that he passed 08th class examination before appearing for 9th class examination.

1. In view of above discussion, no illegality or infirmity is found in the impugned order passed by learned Single Bench, therefore, this appeal has no merit which is accordingly dismissed.

(K.Q.B.) Appeal dismissed

PLJ 2019 Lahore 55 [Multan Bench, Multan]

Present: Ibad-ur-Rehman Lodhi, J.

GHULAM MUSTAFA and others--Petitioners

versus

ADDITIONAL DISTRICT JUDGE and others--Respondents

Writ Petition No. 11801 of 2016, decided on 9.5.2018.

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

----O. XVI, R. 1(2)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Omission of names of witnesses in list--Trial Court was allowed to inclusion names of witnesses--Revision petition--Dismissed--Mandatory provisions--Grant of special leave--Inclusion of names of witnesses, which either to be called or to be produced by party concerned, in required list is mandatory--However, exception to such mandatory provision is provided in said rule in manner that Court, in case, a good cause has been shown for omission of mentioning of names of witnesses in list, would grant special leave by recording reasons for so doing to allow recording of statement of such witness, whose name was omitted in referred list--Names of Muhammad Akbar and Munir Ahmad, who were allowed by learned trial Court to be examined as witnesses, were not included in list of witnesses, as such, they were not persons competent to be treated as witnesses either to be called or to be produced in such capacity and impugned orders to extent of such two persons Muhammad Akbar and Munir Ahmad are set aside--Petition was allowed. [Pp. 57 & 59] A & B

Rao Ubaid Ali Bahadur, Advocate for Petitioners.

Mr. Muhammad Qasim Awan, Advocate for Respondents No. 3 to 5.

Date of hearing: 9.5.2018

Order

The petitioners are aggrieved of dismissal of their revision petition by the learned Additional District Judge, Shujabad on 22.07.2016, which was filed by the petitioners against order dated 16.01.2016 passed by the learned trial Court allowing the plaintiffs of the suit to get statements of Muhammad Akbar, Munir Ahmad and one of the plaintiffs Mst. Noor Jahan, recorded, who were present before the Court, but their names were not included in the list of witnesses filed by the plaintiffs within the requirement of Order XVI, C.P.C.

1. Learned counsel for the petitioners is of the view that in view of amendment by Lahore High Court in Order XVI Rule 1 sub-rule (2), C.P.C., whereby word “or produce” in between the words “call” and “witnesses” were added on 02.10.2001, the plaintiffs were not at liberty to ask the trial Court to get statements of the persons present in the Court recorded irrespective of the fact that their names were not enlisted in the list of witnesses filed within seven days after framing of issues.

Contrary thereto, learned counsel for the respondents/ plaintiffs has submitted that notwithstanding the amendment in Order XVI Rule 1(2), C.P.C., the persons present before the Court can still be claimed to be the witnesses for the reason that provisions contained in Order XVIII Rules 2 and 4, C.P.C. are still un-amended.

1. The effect of amendment by this Court in sub-rule (2) of Rule 1 of Order XVI, C.P.C. was examined by a learned Single Judge in Chambers by this Court in case of “Haji Muhammad Tufail versus Muhammad Iqbal” reported as 2005 MLD 688 and it was held that even after Lahore High Court’s amendment, whereby word “produce” has been inserted in Order XVI Rule 1, C.P.C. without amending the provisions of Order XVIII Rules 2 and 4, the situation would remain the same and the persons present before the Court could validly be asked to be recorded as witnesses.

To examine the referred provision of law, it would be beneficial to better understand to reproduce the provisions of Order XVI Rule 1(2) as amended up-to date and Order XVIII Rules 2 and 4, C.P.C.

Order XVI Rule 1(2), C.P.C.

“A party shall not be permitted to call or produce witnesses other than those contained in the said list, except with the permission of the Court and after showing good cause for the omission of the said witnesses from the list; and if the Court grants such permission, it shall record reasons for so doing.”

Order XVIII Rule 2, C.P.C.

“(1) On the day fixed for the hearing of the suit or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he bound to prove.

(2) The other party shall then state his case and produce his evidence (if any) and may then address the Court generally on the whole case.

(3) The party beginning may then reply generally on the whole case.”

Order XVIII Rule 4, C.P.C.

“The evidence of the witnesses in attendance shall be taken orally in open Court in the presence and under the personal direction and superintendence of the Judge.”

Order XVI, C.P.C. deals with the procedure provided for “summoning and attendance of witnesses”, whereas Order XVIII, C.P.C. provides the manner in which “hearing of the suit and examination of witnesses” is to be conducted. Calling or producing the witnesses is thus subject matter of Order XVI, C.P.C. and after the amendment of 2001, at least in the Courts subordinate to Lahore High Court, inclusion of names of the witnesses, which either to be called or to be produced by the party concerned, in the required list is mandatory. However, exception to such mandatory provision is provided in the said rule in the manner that the Court, in case, a good cause has been shown for the omission of mentioning of names of the witnesses in the list, would grant special leave by recording reasons for so doing to allow recording of statement of such witness, whose name was omitted in the referred list.

The words used in Rule 4 of Order XVIII, C.P.C. i.e. “witnesses in attendance”, have been taken in case of Haji Muhammad Tufail versus Muhammad Iqbal supra as the persons present before the Court, but in my humble view, such view must be result of some lack of proper assistance provided to the Bench in the referred case. “Witnesses in attendance” as is provided in Rule 4 of Order XVIII, C.P.C. is in fact referable to the witnesses “called” or “produced” in the manner, as has been provided in Order XVI Rule 1(2), C.P.C. and while holding so, the delicate distinction in between “summoning” and “calling” of witnesses, which is subject matter of Order XVI, C.P.C. and “examination of witnesses”, which is subject matter of Order XVIII, C.P.C., is to be kept in view. This is also to be taken into consideration that even in Rule 4 of Order XVIII, C.P.C., the witnesses in attendance is the term used, which is definitely different from the term of persons in presence. As such, the view taken in Haji Muhammad Tufail’s case is distinguished and it is held that after amendment of 2001 in Rule 1(2) of Order XVI, C.P.C., there was no requirement to amend the provisions of Order XVIII Rules 2 and 4, C.P.C. and in presence of referred rules, the amendment in Order XVI Rule 1(2), C.P.C. would be having prevailing effect and at the time of examination of witness, the list of witnesses filed under Order XVI, C.P.C. is to be kept in view and no person present before the Court would be competent to be produced as a witness.

Even earlier to amendment in 2001, the Hon’ble Supreme Court of Pakistan in case titled “Mst. Musarrat Bibi and 2 others versus Tariq Mahmood Tariq” (1999 SCMR 799) has authoritatively held that in case either the witnesses are to be called or to be produced by the party concerned, it would be mandatory upon such party to include the names of such witnesses in the list to be filed under Order XVI, C.P.C.

In another case titled “Muhammad Anwar and others versus Mst. Ilyas Begum and others” (PLD 2013 Supreme Court 255), the Apex Court has held that the object of presenting list of witnesses was that no one should be taken by surprise in the course of trial and the parties, before commencement of trial, must be conscious, aware and fully prepared as to what kind of evidence was expected to be given by the witnesses of the opposite side, so that they could make necessary preparations for cross-examination etc. and secondly to prevent the concoction and fabrication of the evidence and to make up blatant omissions made by the litigants during the course of the trial. It has been further held the object of such exercise was to bind the parties to such genuine evidence which was available to them at the time of the start of the trial, so that they should not subsequently avail stock and fudge evidence to make up their cases and the deficiencies.

1. In the impugned order alongwith two persons Muhammad Akbar and Munir Ahmad, one of the plaintiffs i.e. Plaintiff No. 3 Mst. Noor Jahan was also allowed to be examined as a witnesses. The party to a litigation is otherwise entitled to get his/her statement recorded as a witnesses irrespective of the fact that the list of witnesses filed under Order XVI, C.P.C. contained her name as a witness or not.

2. Before announcement of order, learned counsel for the petitioners submits that to the extent of Mst. Noor Jahan-Plaintiff No. 3, he will not press this petition, as such, this petition to the extent of Mst. Noor Jahan-Plaintiff No. 3 is dismissed. However, since the names of Muhammad Akbar and Munir Ahmad, who were allowed by

the learned trial Court to be examined as witnesses, were not included in the list of witnesses, as such, they were not persons competent to be treated as witnesses either to be called or to be produced in such capacity and the impugned orders to the extent of such two persons Muhammad Akbar and Munir Ahmad are set aside and to that extent, this petition is allowed.

(Y.A.) Petition allowed.

PLJ 2019 Lahore 59 [Multan Bench, Multan]

Present: Tariq Saleem Sheikh, J.

ABDUL REHMAN--Petitioner

versus

JUSTICE OF PEACE/LEARNED ADDITIONAL SESSIONS JUDGE, MUZAFFARGARH and 2 others--Respondents

Writ Petition No. 84 of 2016, heard on 25.10.2017.

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

----S. 22-A--Direction for registration of criminal case--Issuance of cheque by petitioner to Bank (ZTBL) against recovery of bank loan, which was dishonoured--Seeking direction to SHO which was allowed--Petitioner issued cheque to ZTBL and allegedly issued a bad cheque for repayment of a finance or fulfillment of an obligation towards a financial institution--Under Financial Institutions (Recovery of Finances) Ordinance 2001, it could only be tried by Banking Courts--Petition accepted and Respondent would be at liberty to file a complaint before banking Court under Ordinance, 2001. [Pp. 60 & 64] A & B

2017 SCMR 1218 ref.

Mr. Fakhar Raza Ajmal, Advocate for Petitioner.

Sardar Riaz Karim, Advocate for Respondent No. 3.

Mr. Muhammad Adnan Latif, DDPP for State.

Date of hearing: 25.10.2017

Judgment

This constitutional petition is directed against Order dated 04.01.2016 passed by the learned Ex-officio Justice of Peace, Muzaffargarh.

1. Brief facts necessary for our present purposes are that the Petitioner obtained finance from the Zarai Tarqiati Bank Limited, Khangarh Branch (the “ZTBL”), which was inter alia secured against the mortgage of an agricultural land. The Petitioner continued to avail that facility for four years and then defaulted. Respondent No. 3, who is the Branch Manager of ZTBL, approached the Petitioner for recovery of the bank’s dues. The Petitioner issued Cheque No. 4671462 dated 26-03-2015 for Rs. 698,000/- to him but the same was dishonoured. In the circumstances, Respondent No. 3 moved an application under Section 22-A, Cr.P.C. before the learned Ex-officio Justice of Peace seeking a direction to the Respondent SHO for registration of FIR against the Petitioner which was allowed vide impugned order dated 04-01-2016. Hence, this petition.

2. The learned counsel for the Petitioner contended that the learned Ex-officio Justice of Peace had passed the impugned order mechanically without due application of mind. The offence alleged against the Petitioner attracted the provisions of Section 20 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (the “Ordinance”), which was a special law. The offence was bailable, non-cognizable and compoundable. Only a Banking Court established under Section 5 of the Ordinance could take cognizance thereof upon a written complaint of ZTBL. Section 489-F, PPC was a general law and was not applicable to the facts and circumstances of the case. The impugned order was thus without jurisdiction.

3. The learned Law Officer agreed with the aforementioned contentions while the learned counsel for ZTBL controverted them. The latter argued that the impugned order was lawful and no exception could be taken thereto.

4. I have heard the learned counsel at length. While going through the record it is observed that when Respondent No. 3 filed the aforesaid application under Section 22-A, Cr.P.C. the learned Ex-officio Justice of Peace called report from the Respondent SHO who stated that although the Petitioner had issued the cheque in question to ZTBL and the same was bounced, he subsequently liquidated his entire liability owing to which Respondent No. 3 did not want to prosecute him. The learned Ex-officio Justice of Peace has passed the impugned order without considering that report. He did not even make any attempt to verify its authenticity.

5. In “Mureed Hussain v. Additional Sessions Judge/Justice of Peace Jampur and 3 others” (2014 P.Cr.LJ 1146) this Court held that the learned Ex-officio Justice of Peace was not bound to seek report from the police in each and every case and was fully competent to decide an application under Section 22-A, Cr.P.C. and pass an order thereon without it. However, in an earlier case which is cited as “Khizar Hayat and others v. Inspector General of Police (Punjab) and others” (PLD 2005 Lah. 470), this Court observed that it was prudent and advisable for him to call for it so that he may know the reasons why the police had refused registration of a case. The Court said:

“It is prudent and advisable for an Ex-officio Justice of Peace to call for comments of the officer incharge of the relevant police station in respect of complaints of this nature before taking any decision of his own in that regard so that he may be apprised of the reasons why the local police have not registered a criminal case in respect of the complainant’s allegations. It may well be that the complainant has been economizing with the truth and the comments of the local police may help in completing the picture and making the situation clearer for the Ex-officio Justice of Peace facilitating him in issuing a just and correct direction, if any.”

1. The Hon’ble Supreme Court of Pakistan has authoritatively ruled in the case of “Younas Abbas and others v. Additional Sessions Judge, Chakwal and others” (PLD 2016 SC 581) that the functions performed by the learned Ex-officio Justice of Peace under Section 22-A(6) are quasi-judicial in nature. Further, before issuing any direction on a complaint for non-registration of a criminal case he must satisfy himself that sufficient material is available on the record to justify such a command. It follows that he cannot issue a direction blindfoldedly or mechanically. He must address himself to the facts of the case and where he disagrees with the police report he should give reasons for his disagreement. He cannot haughtily ignore it.

2. It is by now well settled that whether it is the Court or an authority performing judicial or quasi-judicial functions or a public functionary exercising executive powers it must act reasonably, justly and fairly. Further, it must give reasons in support of its order. In “Union of India v. M.L. Capoor and others” (AIR 1974 SC 87), the Supreme Court of India observed that “reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject-matter for a decision. They should reveal a rational nexus between the facts considered and the conclusions reached. Only in this way can opinions or decisions recorded be shown to be manifestly just and reasonable”.

3. The rule requiring reasons to be given in support of an order is founded on the principles of natural justice. It must be followed in its true spirit and a mere pretence would not satisfy the legal requirement. In “Basit Ali v. Additional Chief Secretary and 3 others” (2005 YLR 1719), it was noted that disclosure of reasons is necessary because:--

(i) The party aggrieved has the opportunity to demonstrate before the appellate or revisional forum that the reasons which persuaded the authority to reject his case were erroneous;

(ii) The obligation to record reasons operates as a deterrent against possible arbitrary action; and

(iii) It gives satisfaction to the party against whom the order is made.

1. In Pakistan, so far as the judicial orders are concerned, most of the statutes contain a specific provision which requires the Court to pinpoint the controversy involved and to give reasons for its decision while deciding the same. By way of example reference may usefully be made to Section 367(1) of the Code of Criminal Procedure, 1898, and Order XX Rule 4(2) and Order XLI Rule 31 of the Code of Civil Procedure, 1908. Besides, the Hon’ble Supreme Court of Pakistan has always insisted that the judicial orders must be “speaking orders” and should manifest that there has been due application of mind to the resolution of the issue involved. Attention in this regard is invited to “Gouranga Mohan Sikdar v. The Controller of Import and Export and 2 others” (PLD 1970 SC 158) and “Mollah Ejahar Ali v. Government of East Pakistan and others” (PLD 1970 SC 173). Subsequently this principle was also applied to authorities performing quasi-judicial functions. In “Dost Muhammad Cotton Mills Ltd., Karachi v. Pakistan and 3 others” (PLD 1976 Kar. 1078), it was held that the Central Board of Revenue exercises quasi-judicial functions and was obliged to state reasons while passing an adverse order. Lately, with the insertion of Section 24-A in the General Clauses Act, 1897, the above principle has become all-encompassing and the public functionaries have also come under its sway. They are also enjoined to decide the representations of the citizens with reasons. This obligation on their part was reiterated by the Hon’ble Supreme Court of Pakistan in the cases of “Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others” (1998 SCMR 2268) and “Zain Yar Khan v. The Chief Engineer, C.R.B.C., WAPDA D.I. Khan and another” (1998 SCMR 2419).

2. A learned Single Judge of this Court summarized the law relating to “speaking orders” in the case reported as “Shahzada Zahir Shah and 6 others v. Muhammad Usman Ghani and 3 others” (2005 YLR 1394). An excerpt therefrom is reproduced hereunder:--

(1) Where a statute requires recording of reasons in support of the order, it imposes an obligation on the adjudicating authority and the reasons must be recorded by the authority.

(2) Even when the statute does not lay down expressly the requirement of recording reasons, the same can be inferred from the facts and circumstances of the case.

(3) Mere fact that the proceedings were treated as confidential does not dispense with the requirement of recording reasons.

(4) There is no prescribed form and the reasons recorded by the adjudicating authority need not be detailed or elaborate and the requirement of recording reasons will be satisfied if only relevant reasons are recorded.

(5) If the reasons recorded are totally irrelevant, the exercise of power would be bad and the order would be liable to be set aside.

(6) The validity of the order passed by the statutory authority must be judged by the reasons recorded therein and cannot be construed in the light of subsequent explanation given by the authority concerned or by filing an affidavit. Orders are not like old wine becoming better as they grow older.

(7) The duty to record reasons is a responsibility and cannot be discharged by the use of vague general words.

(8) If the reasons are not recorded, the Court cannot probe into reasoning of the order.

(9) The reasons recorded by the statutory authority are always subject to judicial scrutiny.

1. Reverting to the instant case, it is observed that the impugned order is bad in law as it is bereft of reasoning. I confronted the learned counsel for Respondent No. 3 with the report of the Respondent SHO which states that since the Petitioner has liquidated his liability ZTBL does not want to prosecute him. The learned counsel vehemently contradicted this report and termed it false and baseless. He submitted that ZTBL had filed a suit against the Petitioner for recovery of its dues in the Banking Court at Multan which was still pending. In the circumstances, the said report is rejected.

2. The question that finally requires determination by this Court is whether the learned Ex-officio Justice of Peace could lawfully make a direction for registration of FIR in the peculiar circumstances of this case where the Petitioner allegedly issued a bad cheque for repayment of a finance or fulfillment of an obligation towards a financial institution. In “Syed Mushahid Shah and others v. Federal Investment Agency and others” (2017 SCMR 1218), the cheques issued by certain customers to the financial institutions were dishonoured and FIRs were registered against the former under Section 489-F, PPC. The Hon’ble Supreme Court quashed the FIRs holding as under:

“In essence, whenever an offence is committed by a customer of a financial institution within the contemplation of the Ordinance, 2001 [Financial Institutions (Recovery of Finances) Ordinance, 2001)], it could only be tried by the Banking Courts constituted thereunder and no other forum. The Special Court under the ORBO [Offences in Respect of Banks (Special Courts) Ordinance, 1984], the ordinary criminal Courts under the Code (Criminal Procedure Code, 1898) …. would have no jurisdiction in the matter.”

1. In view of the dictum laid down by the august Supreme Court in Mushahid Shah case, it is held that the impugned order is without lawful authority and cannot, therefore, be sustained. Accordingly, this petition is accepted and the said order is set aside. Respondent No. 3 would, however, be at liberty to file a complaint before the Banking Court under the Ordinance.

(K.Q.B.) Petition accepted

PLJ 2019 Lahore 65[Multan Bench, Multan]

Present: Asjad Javaid Ghural, J.

MUHAMMAD AFZAL--Petitioner

versus

REGIONAL POLICE OFFICER, etc.--Respondents

W.P. No. 14257 of 2018, decided on 15.10.2018.

Constitution of Pakistan, 1973--

----Art. 199--Habeas Petition--Recovery of the alleged detenue from the police custody--Detenue was apprehended from his house by the official of CIA staff--A petition for his recovery was filed where Court had issued direction to the S.H.O. to get recover the alleged detenue and produced him before High Court--It was informed by the police that the alleged detenue was never arrested nor require in any criminal case but the report on behalf of DPO closed another picture, detenue was arrested in a afore said criminal case while deviating is previous sentence, with show the mala fide on the part of the police and his biasness--The detenue is on physical remand is set-aside and he is granted ad interim protective pre-arrest bail with the direction to approach the concern Court for the grant of ad-interim pre-arrest bail if so advise--Petition disposed of.

[Pp. 65 & 66] A

Mian Muhammad Babur Saleem, Advocate alongwith Petitioner.

Maher Nazar Abbas Chawan, A.A.G. for Respondents.

Date of hearing: 15.10.2018.

Order

Police officer, in attendance, has submitted a report on behalf of District Police Officer, Vehari/ Respondent No. 2 stating therein that Muhammad Amjad, the alleged detenue was confined in the lock up of Police Station Saddar Vehari in connection with case FIR No. 576, dated 03.10.2018 in respect of an offence under Section 381-A, PPC registered at Police Station Saddar Vehari and as per daily roznamcha, he was arrested vide Rapat No. 16 dated 10.10.2018 and at present he is on physical remand.

1. Learned counsel for the petitioner submits that the alleged detenue was apprehended from his house by the officials of CIA Staff on 28.09.2018 and then he filed a petition for his recovery whereinvide order dated 02.10.2018, this Court had issued direction to the Station House Officer Police Station Danewal to get recovered the alleged

detenue and produce him before this Court. On 04.10.2018, it was informed by the police that the alleged detenue was neither arrested nor required in any criminal case but the report, received on behalf of District Police Officer Vehari, is disclosing another picture that the petitioner was arrested on 10.10.2018 in aforesaid criminal case while deviating his previous stance, which shows the mala fide on the part of the police and his biasness.

1. Though the Muhammad Amjad/alleged detenue is on physical remand yet in view of the circumstances, his physical remand is set-aside and he is granted ad interim protective pre-arrest bail till 18.10.2018 with the direction to approach the concerned Court for the grant of ad-interim pre-arrest bail, if so advised. However, it is made clear that this order granting protective pre-arrest bail shall automatically elapse after Court hours on the said date.

2. This petition stands disposed of accordingly.

(M.A.A.) Petition disposed of

PLJ 2019 Lahore 66[Multan Bench Multan]

Present: Sardar Ahmed Naeem, J.

MUHAMMAD SHAHBAZ--Petitioner

versus

EX-OFFICIO JUSTICE OF PEACE/ASJ, MAILSI and 4 others--Respondents

W.P. No. 13475 of 2018, decided on 8.11.2018.

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

----Ss. 22-A & 22-B--Ex-officio justice of peace--Application of--Allegations--Ex- Officio Justice of Peace requisitioned a report from Ilaqa police which revealed that matter was enquired into vide rapat and Section 174, Cr.P.C. was resorted to--Medical officer could not determine exact cause of death--No enmity was found between parties by investigating agency--Ex-Officio Justice of Peace directed SHO to record version of respondent and then to proceed in due course of law--Police report apparently is not against petitioner and also not favourable to said respondent--S.H.O. directed to record version of petitioner and to proceed under the law, whichever is found correct--Petition disposed of.

[Pp. 67 & 68] A & C

Ex-officio justice of peace--

----Under law, Ex-Officio Justice of Peace is not bound to call for such a report and if report is requisitioned then it is either to .be relied upon or Ex-Officio Justice of Peace would mention reason to ignore said report. [P. 68] B

Mr. Khalid Naseem, Advocate for Petitioner.

Mian Adil Mushtaq, A.A.G. for Respondent.

Mr. Muhammad Qadeer Asif Toor, Advocate for Respondent No. 5.

Date of hearing: 8.11.2018.

Order

The petitioner challenges the order dated 12.9.2018 passed by Respondent No. 1 whereby Respondent No. 4 was directed to record statement of Respondent No. 5 and to proceed under the law.

1. Learned counsel for the petitioner submitted that the learned Ex-Officio Justice of Peace proceeded in haste and directed the SHO to record version of Respondent No. 5 and then to proceed, under the law. Concluding his arguments, learned counsel for the petitioner submitted that non cognizable offence was spelt out as earlier the matter was thoroughly probed/ enquired into by the Ilaqa police under Section 174, Cr.P.C. and now Respondent No. 5 making somersault and only to blackmail the petitioner filed the application moved under Section 22-A and 22-B, Cr.P.C. and that the order of the learned Ex-Officio Justice of Peace was liable to be set aside being violative of law on the subject.

2. Learned counsel for Respondent No. 5 maintained the validity of the impugned order.

3. Heard. Available record perused.

4. A review of the record demonstrates .that Respondent No. 5 moved an application under Sections 22-A and 22-B, Cr.P.C. to the learned Ex-Officio Justice of Peace on 25.6.2018. The allegations find mentioned in para-1 of the petition. Learned-Ex- Officio Justice of Peace requisitioned a report from the Ilaqa police which revealed that the matter was enquired into vide Rapat No. 20 dated 13.2.2018 and Section 174, Cr.P.C. was resorted to. The record further reflects that the medical officer could not determine the exact cause of death. No enmity was found between the parties by the investigating agency. The

learned Ex-Officio Justice of Peace directed the SHO to record version of the Respondent No. 5 and then to proceed in due course of law. The police report dated 07.9.2018 apparently is not against the petitioner and also not favourable to the said respondent.

1. Under the law, learned Ex-Officio Justice of Peace is not bound to call for such a report and if report is requisitioned then it is either to be relied upon or the Ex-Officio Justice of Peace would mention the reason to ignore the said report. As mentioned above, in this case the report is favourable to the petitioner.

2. In the circumstances, the SHO (Respondent No. 4) is directed also to record version of the petitioner and to proceed strictly under the law on the basis of version, whichever is found correct.

3. Disposed of, accordingly.

(A.A.K.) Petition disposed of

PLJ 2019 Lahore 68 [Multan Bench Multan]

Present: Shahid Bilal Hassan, J.

HajiABDUL MAJEED & CO. through Managing Partner--Petitioner

versus

ADDL. DISTRICT JUDGE, BUREWALA DISTRICT VEHARI and 10 others--Respondents

W.P. No. 16661 of 2018, decided on 12.11.2018

Constitution of Pakistan, 1973--

----Art. 199--An application for sending signatures of the respondent to the finger print expert for comparison, which was duly contested by the respondent/defendant the trial Court dismissed the said application-Report of hand writing expert on its own cannot be made basis to discord the direct evidence and when direct evidence is available, there is no need of expert opinion. [P. 69] A & B

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

----Art. 84--Power of Court--Signature or thumb-impression--Hand writing expert--Article 84 of the Qanun-e-Shahadat Order, 1984 empowers the Court to compare the signature or thumb-impression of any person and giving specific direction to the trial Court, no illegality and irregularity to have been committed by the learned Courts, below writing interference--Writ petition dismissed.

[P. 70] C & D

2012 SCMR 1258, 1980 SCMR 557, 1991 SCMR 970, PLD 2006 Lah. 738, 2015 SCMR 284 & 2016 YLR 251 ref.

Mr. Muhammad Masood Bilal, Advocate for Petitioner.

Date of hearing: 12.11.2018.

Order

During proceedings of a suit for specific performance instituted by the petitioner/plaintiff, the present petitioner filed an application for sending signatures of the Respondent No. 4 to the finger print expert for comparison, which was duly contested by the respondents/defendants. The learned trial Court vide impugned order dated 2.3.2018 dismissed the said application. The petitioner, being aggrieved of said order filed a civil revision before the learned Revisional Court, but the same was also disposed of with certain directions to the learned trial Court vide impugned order dated 17.09.2018. Feeling aggrieved by the impugned orders, now the instant writ petition has been filed by the petitioner.

1. The grounds urged in the writ petition have been reiterated during the course of arguments by the learned counsel for the petitioner and prayer for setting aside of the impugned orders while allowing the writ petition in hand has been made; it has further been prayed that application for comparison of the signatures of Respondent No. 4 may be accepted. Relies on Syed Sharif Ul Hassan through L.Rs. v. Hafiz Muhammad Amin and others (2012 SCMR 1258).

2. Heard.

3. Exercising extraordinary constitutional jurisdiction, the Court has only to see whether the lower Court has exercised jurisdiction vested in it in a proper way or not and when same is found to have been exercised in a proper way, without committing any illegality or irregularity, the order or judgment called into question needs not to be interfered with. In the present case, it appears that both the learned Courts below have exercised vested jurisdiction in a judicious way keeping in view law on the subject because it is settled principle of law that report of handwriting expert on its own cannot be made basis to discard the direct evidence and when direct evidence is available, there is no need of expert opinion, which otherwise is nothing but confirmatory and explanatory to direct evidence, as has been held in Qazi Abdul Ali and others v. Khawaja Aftab Ahmad (2015 SCMR 284). Moreover, the expert report is not binding upon the Court as has been held in Mrs. Perin J Dinshaw v. Mubarak Ali and another 2016 YLR 251-Lahore; the relevant extract is:

Even the report of Expert is an opinion under the law and it is not binding upon the Court. Undoubtedly, the opinion of Handwriting Exert is relevant but it does not amount to conclusive proof, as the opinion of Handwriting Expert is a very weak type of evidence and the Expert ‘s evidence is only confirmatory or explanatory of direct or circumstantial evidence and the confirmatory evidence cannot be given preference where confidence inspiring evidence is available. Light can be taken from the judgment of august Supreme Court of Pakistan reported as “2006 SCMR 193 (Mst. Saadat Sultan and others v. Muhammad Zahur Khan and others)”.

Apart from the above, it is evident from order of the learned Revisional Court that grievance of the petitioner has been redressed by observing that, ‘... ............ .....with the direction to the learned trial Court to consider the signatures of Defendant No. 2 who has denied the same over vouchers Mark-A and Cheque No. 8186289 bearing Account No. 1626 Exh.P5 and then decide the contention of the petitioner separately after recording its reasons on the basis of which the Court has considered the same as true or false as the case may be. Article 84 of the Qanun-e-Shahadat Order, 1984 empowers the Court to compare the signatures or thumb impression of any person and by giving specific direction to the learned trial Court, the learned Revisional Court has already protected the rights of the petitioner. Therefore, no illegality and irregularity to have been committed by the learned Courts below, warranting interference by this Court in exercise of extraordinary writ jurisdiction, is evident on record. Even the revisional order, in civil litigation, passed in exercise of jurisdiction vested in a Court, cannot be challenged in writ petition. In this regard reliance is placed on Mian Muhammad Hafiz. etc. vs. Aziz Ahmad, etc. 1980 SCMR 557, Muhammad Khan and 6 others vs. Mst. Ghulam Fatima and 12 others 1991 SCMR 970 and Muhammad Yousaf vs. Manzoor Ahmad and another PLD 2006 Lahore 738.

1. Case law relied upon by the learned counsel for the petitioner, with utmost respect, has no relevance to the peculiar facts and circumstances of the case in hand; therefore, it does not render any assistance or help to the petitioner’s case or enhance the cause of the petitioner.

2. For the foregoing reasons, the instant writ petition being without any force and substance stands dismissed in limine.

(M.A.A.) Petition dismissed

PLJ 2019 Lahore 71 (DB) [Multan Bench Multan]

Present: Mrs. Ayesha A. Malik and Muzamil Akhtar Shabbir, JJ.

IMRAN MAQBOOL, PRESIDENT, MCB BANK LIMITED--Petitioner

versus

FEDERATION OF PAKISTAN through Secretary Law, Justice and Human Rights Division, Islamabad etc.--Respondents

W.P. No. 71556 of 2017, heard on 6.9.2018.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Protection Against Harassment of Women at Workplace Act, (IV of 2010), S. 2(h)--Harassment of women at work place--Jurisdiction of Federal and Provincial ombudsman--Challenge to--Question of--Whether provincial ombudsman has concurrent jurisdiction with Federal ombudsman on account of woman harassment at work place--Determination--Provincial Ombudsman was competent to hear complaint--Opinion of Court is that Federal Ombudsman exercises jurisdiction only to extent of federal capital area and jurisdiction in all other situations vests with Provincial Ombudsman--Court concluded that federal law lost its federal character and stands converted into a provincial law after 18th Amendment--Jurisdiction of Federal Ombudsman is not limited to federal capital area, rather Federal Ombudsman has jurisdiction in relation to all employers, organizations, institutions and workplaces which have a federal character or are established under a federal law or are directly consequent to an international obligation under an international treaty or convention--Federal Ombudsman jurisdiction cannot be limited to federal capital area and can be exercised all over Pakistan over a federal employer, institution, organization or workplace--If employer or organization and its workplace falls strictly within territorial boundaries of Provincial Ombudsman, then jurisdiction vests with Provincial Ombudsman and where employer or organization transcends provincial boundaries such as in this case then jurisdiction vests with Federal Ombudsman--To clarify we add that for reasons stated herein we disagree with findings in Salim Javed Case that Federal Ombudsman jurisdiction is limited to federal capital area as Federal Ombudsman is competent to hear complaints related to trans-provincial organizations, institutions, employers and workplace--Federal Ombudsman (Justice (R) Yasmin Abbasey) showed no regard whatsoever to orders of this Court--Under circumstances all orders passed including final order are illegal and void, hence set aside. [Pp. 76, 81 & 82] A, E, F & G

Universal Declaration of Human Rights--

----Article 23 of UDHR declares right to work and right to favourable conditions of work as a human right. [P. 80] B

Elimination of all forum of Discrimination Against Women--

----Article 11 of CEDAW specifically requires States to ensure women have equal work opportunity and safe working conditions. [P. 80] C

Pakistan Penal Code, 1860 (XLV of 1860)--

----S. 509--Harassment Law aim to regulate behaviour and attitude--Criminal punishment as well as civil liability--Criminalizes behaviour conduced with intention of unreasonably interfering with an individual’s work performance or behaviour which creates an intimidating hostile or offensive work environment--Therefore subject of harassment at workplace being a crime under PPC means that Parliament and Provinces both are competent to make laws with respect to crime, procedure or evidence--Hence we find that subject of protection of women from harassment does not fall under ‘population, planning and welfare’of CLL, rather it falls under federal domain consequent to its international obligations and to extent that subject relates to criminal law--Petition was allowed.

[P. 80] D

Mr. Farooq Zaman Qureshi and Mr. Riaz Hussain Haleem, Advocates (in WP No. 71556/2017).

Mr. Parvez I. Mir, Advocate (in WP Nos.54146 and 60723 of 2017).

Mr. Nasar Ahmad, DAG along with Naveed Ahmad Goraya, Senior Law Officer in office of Respondent No. 1.

Mrs. Samia Khalid, Addl. AG and Mr. Anwaar Hussain, Addl. AG for Respondents.

Amna Tahir, Respondent No. 5 in person.

Date of hearing: 6.9.2018

Judgment

Mrs. Ayesha A. Malik J.--This Judgment decides upon the issues raised in the instant Petition along with connected WP Nos. 54146 and 60723 of 2017 whereby the Petitioners have challenged the jurisdiction of the Federal Ombudsman for Protection Against Harassment of Woman at the Work Place (“Federal Ombudsman”) while hearing a complaint filed by Respondent No. 5, Amna Tahir under the Protection Against Harassment of Women at the Workplace Act, 2010 (“2010 Act”).

Facts and arguments

1. The common facts are that Respondent No. 5 filed a complaint, before the Federal Ombudsman, against Saqib Rasheed, Petitioner in WP Nos. 54146 and 60723 of 2017 and Imran Maqbool, Petitioner in WP No. 71556/2017 along with five other officers of MCB Bank Limited on 23.6.2017 under the 2010 Act. The Petitioners along with others filed their replies before the Federal Ombudsman and raised an objection with respect to the jurisdiction of the Federal Ombudsman on two grounds; firstly, that the matter stood decided by the case cited at PLD 2016 Lahore 433 titled “Salim Javed and others v. Federal Ombudsman and others” (“Salim Javed Case”) in which it was stated that jurisdiction in such cases lies with the Provincial Ombudsman and secondly that Respondent No. 5 had also invoked the jurisdiction of the Provincial Ombudsman and therefore, could not seek remedy before both the Ombudsman at the same time.

2. Learned counsel for the Petitioners argued that Respondent No. 5 has never filed any complaint against the Petitioners before the Bank and that the entire proceeding before the Federal Ombudsman was filed with a view to damage their reputation and to blackmail and harass them. Learned counsel also argued that the Federal Ombudsman does not have jurisdiction in the matter and despite various different restraining orders from this Court she proceeded with the matter having no regard whatsoever of the orders of this Court. In another WP No. 54146/2017 filed by Saqib Rasheed, an interim order was passed on 24.07.2017 in which the Federal Ombudsman was restrained from proceeding with the matter yet despite issuance of the interim order, the orders of 4.8.2017 and 24.8.2017 were passed by the Federal Ombudsman. Learned counsel further argued that in the instant petition, repeated interim orders were passed by this Court, however, the Federal Ombudsman despite the warnings continued to proceed with the matter and ultimately passed judgment on 18.12.2017. Learned counsel argued that this is in total defiance of the orders of this Court which attitude was also displayed earlier by the same Federal Ombudsman in the Salim Javed Case. While relying on the said judgment, learned counsel argued that the question of jurisdiction has been decided, therefore the Federal Ombudsman could not proceed with the matter.

3. Respondent No. 5 in person argued her case. She stated that she filed a complaint before the Bank, however, they did not respond to her complaint. She then filed a complaint before the Provincial Ombudsman, however, subsequently withdrew it on 22.6.2017 believing it to be a matter for the Federal Ombudsman. She then filed a complaint before the Federal Ombudsman, who proceeded with the matter and at that time she had no knowledge of the Salim Javed Case. She argued that the Bank is a trans-provincial entity and as per the law is governed by Federal law, hence the Federal Ombudsman has jurisdiction in the matter. She also stated that this case is distinguishable from the Salim Javed Case, which was a case of an advocate whose offices are in Lahore, hence the Court concluded that in such cases jurisdiction vests with the Provincial Ombudsman.

4. On behalf of the Federal Government Mr. Nasar Ahmad, DAG argued that the Federal Ombudsman has jurisdiction to entertain all complaints which have a federal character including complaints of trans-provincial organizations. He explained that the Provincial Ombudsman cannot exercise jurisdiction over a federal organization or its officers as they transcend the provincial boundaries and can be transferred out of the Province at any time rendering the claim before the Provincial Ombudsman as redundant. Further explained that the Salim Javed Case did not take these factors into consideration as the issue was with a local advocate. He further argued that the Federal Legislative List, Item No. 13 provides for Federal Ombudsman, meaning thereby that if the subject matter in which a Federal Ombudsman is to be created falls within the domain of the Federal Government than the Federal Government is competent to make a Federal Ombudsman. In this case, the subject matter pertains to harassment at the work place for which the Federal Government has ratified several international conventions and treaties. Furthermore in terms of the dicta laid down by the august Supreme Court of Pakistan in Messrs Sui Southern Gas Company Ltd. and others v. Federation of Pakistan and others (2018 SCMR 802) (“NIRC case”), jurisdiction lies with the Federal Ombudsman.

5. The stance of the Province/Respondent No. 3 as submitted by Mrs. Samia Khalid, Additional Advocate General and Mr. Anwaar Hussain, Additional Advocate General is that jurisdiction vests with the Provincial as well as the Federal Ombudsman. It is argued that the complainant has a choice of forum based on convenience as well as cause of action. In the event that the organization is a federal organization, the Provincial Ombudsman can still hear the matter and present its recommendations to the federal government. Reliance is placed on Article 141 of the Constitution of Islamic Republic of Pakistan, 1973 (“Constitution") to urge the point that the Parliament can make laws for the whole or any part of Pakistan and that the Provincial Government shall ensure its compliance. Further argued that even after the Province adopted the 2010 Act in the year 2012, the 2010 Act still holds the field, meaning that jurisdiction continues to vest with both Ombudsman. It is also argued that both the Federal and Provincial laws are beneficial legislation, hence the doctrine of convenience is applicable and if considered necessary the place of occurrence can be the place where the complaint is filed.

The law and its purpose

1. The 2010 Act was promulgated as Act No. IV of 2010 and notified in the official gazette on 11.3.2010. In terms of its preamble it is an Act to make provisions for the protection against harassment of women at the workplace. Harassment is defined in Section 2(h) of the 2010 Act describing certain kinds of behaviour and attitude to be harassment because it causes interference with work performance or because it creates an intimidating, hostile or offensive work environment. The law is premised on the fundamental right of equal opportunity, for both men and women, to earn their livelihood and in furtherance of this right an obligation has been created on the employer at the workplace to create a safe working environment where both men and women can contribute and work efficiently and safely without discrimination and harassment.

2. The 2010 Act was passed in pursuance of Pakistan‟s obligation under the Universal Declaration of Human Rights (“UDHR”), the Convention on the Elimination of all forms of Discrimination Against Women (“CEDAW”), the International Labour Organization Convention 100 (“ILO 100”) which is the Convention for Equal Remuneration for Men and Women for Work and Convention 111 (“ILO 111”). Pakistan ratified all the above mentioned treaties and conventions which provide equal opportunity at the workplace and necessitate a safe work environment. The 2010 Act extends to the whole of Pakistan. It defines the term ‘Employer’ to mean an organization, a person or body of persons whether incorporated or not and includes an authority, office bearer or proprietor run by the Federal Government or Provincial Government. The word ‘Organization’ is defined to mean Federal or Provincial Government Ministry, Division or a Department, a corporation or any autonomous or semi-autonomous body and medical institutes and faculties established or controlled by the Federal or Provincial Government or the District Government or privately managed and includes private sector organization and institutions. The term ‘workplace’ defines the place of work or the premises where the activity of the organization or the employer are carried out and includes work at the premises or official activity outside the office. Hence the 2010 Act is applicable over the entire gambit of workplace, employer and organization including all employees, organization and workplace in the public and private sector. In terms of Section 7 of the 2010 Act, the respective Federal and Provincial Governments are to appoint an Ombudsperson at the Federal and Provincial level. On 5.1.2013 the Government of Punjab adopted this law which is called the Punjab Protection Against Harassment of Woman at the Work Place (Amendment) Act, 2012 (III of 2013). Effectively the Provincial Assembly adopted the federal law with some changes so as to make it functional at the provincial level. Hence there is a federal law and a provincial law on the subject of protection against harassment of women at the workplace.

3. The basic issue in these petitions is with respect to the jurisdiction of the Federal Ombudsman and the Provincial Ombudsman and in particular whether Respondent No. 5, Amna Tahir was to file her complaint before the Provincial Ombudsman or the Federal Ombudsman. In terms of the Salim Javed Case the Federal Ombudsman does not have jurisdiction to hear the complaint of Respondent No. 5 as the matter falls within the ambit of the Provincial Ombudsman. The facts of the Salim Javed Case are that a female advocate filed a complaint against advocate Salim Javed before the Federal Ombudsman. The respondent in that case objected to the assumption of jurisdiction by the Federal Ombudsman as it was his case that the cause of action arose in Lahore, hence the Provincial Ombudsman was competent to hear the complaint. The opinion of the Court is that the Federal Ombudsman exercises jurisdiction only to the extent of the federal capital area and jurisdiction in all other situations vests with the Provincial Ombudsman. The Court concluded that the federal law lost its federal character and stands converted into a provincial law after the 18th Amendment. For ease of reference relevant paragraphs are reproduced hereunder:

4. I have considered the arguments addressed at the bar and have examined the law. The fundamental constitutional cum legal question that requires determination by this Court is the scope of Article 270AA(6) of the Constitution and the effect of the omission of the Concurrent List on the nature and character of the existing federal law. In the present facts, the Court has to determine the extent of jurisdiction enjoyed by the Federal Ombudsman under the Federal Act. In other words, whether Federal Ombudsman, under the Protection Against Harassment of Women at the Workplace Act, 2010 can assume jurisdiction over a complaint in which the cause of action arose in Punjab or whether, in such like matters, the jurisdiction vests with the Provincial Ombudsperson under the Punjab Protection Against Harassment of Women at the Workplace Act, 2012 (“Provincial Act”) post 18th constitutional amendment.

5. The Federal Act was promulgated on 11.3.2010 with jurisdiction extending to the whole of Pakistan under Section 1(2) of the Federal Act. Constitution (Eighteenth Amendment) Act, 2010 was introduced on 20.4.2010. The said amendment omitted the Concurrent List from the Fourth Schedule to the Constitution, thereby enlarging and expanding the legislative domain of the provincial legislature and more importantly reinvigorating the constitutional theme of federalism and provincial autonomy. The preamble to the Amendment Act echoes the promise to establish “a Federal ... State wherein ... the Provinces have equitable share in the Federation.” Admittedly, the Federal Act drew its legislative competence form entry 25 i.e. social welfare, of the erstwhile Concurrent List. Post 18th Amendment, this area stands devolved onto the Provinces. Under Article 270AA(6) of the Constitution, the Federal Act remains in force ( as a Provincial Act, as discussed later) irrespective of the omission of the Concurrent List until such time that the Federal Act is altered, repealed or amended by the Competent Authority (legislature). Any such alteration or amendment in the law by the competent legislature does not affect its continuity and the law continues to be in force, albeit, as a provincial law, not because of the alteration or amendment but because of the constitutional declaration under the 18th amendment. It is only on repeal that the law comes to an end.

6. The Punjab Protection Against Harassment of Women at the Workplace (Amendment) Act, 2012 (Act III 2013) has amended and altered the Federal Act (interestingly retaining the same title). It is actually the constitutional declaration of devolution, the underlying constitutional theme of federalism and provincial autonomy under the 18th Amendment which has metamorphosed the Federal Act into a Provincial Act. Alteration and amendment by the competent provincial legislature is a legislative exercise to align the law according to the wishes of the provincial legislature and has no bearing on the character of the law which already stands transformed into provincial law by the constitutional declaration on the promulgation of the Amendment Act.

7. Considering it from another angle, if the federal law under Article 270AA(6) can only be subjected to alteration, amendment and repeal by the provincial legislature, it means that the Federal law has lost its federal character and stands transformed into a Provincial law. What if the appropriate legislature does not carry out any amendment or alteration in the federal law, it still automatically stands converted into provincial law and remains in force as such. This is also because with the omission of the Concurrent List, the federal legislature loses its legislative fiat and command over the areas in the Concurrent List to the provincial legislature and as a consequence the federal law is deprived of its federal character. It is important to underline, that with the legislative shift from federal to provincial, the executive authority, under Article 97 also gets realigned and changes hands from federal executive to the provincial executive.

8. The Amendment Act, as well as, the Punjab Protection Against Harassment or Women at the Workplace (Amendment) Act, 2012 constitutionally trims the Federal Act and restricts its jurisdiction to territories of Pakistan that fall outside the Provinces in terms of Article 1(2) of the Constitution. The continuance of the Federal Act in federal areas finds support under Article 142(d) of the Constitution that provides that the Federal Legislature has the exclusive power to make laws with respect to all matters pertaining to such areas in the Federation as are not included in any Province. The territorial jurisdiction of the Federal Act under Section 1(2) extends to the whole of Pakistan. This geographical extent has to be pruned according to the constitutional mandate under the 18th amendment. The best interpretational tool to apply is that of reading down. Reliance is placed on Messrs Chenone Stores Ltd. through Executive Director (Finance Accounts) Federal Board of Revenue through Chairman and 2 others (2012 PTD 1815) and Nadeem Asghar Nadeem and others v. Province of the Punjab and others (2015 CLC 1509). Therefore, in order to align the Federal Act with the constitutional scheme, section 1(2) of the Federal Act is read down thereby limiting the extent of the Federal Act to areas which do not form part of any province. Reliance is also placed on Syed Imran Ali Shah v. Government of Pakistan and 2 others (2013 PLC 143).

9. The complaint filed by Respondent No. 2 on 14.9.2015 is based on cause of action arising in Lahore, the alleged accused also reside in Lahore, therefore, the jurisdiction to entertain and hear the complaint of Respondent No. 2 is with the Provincial Ombudsperson under the Provincial Act and the Federal Ombudsman has no jurisdiction to entertain the said complaint. The impugned judgment dated 4.1.2016 passed by the Federal Ombudsman along with all the prior orders assuming jurisdiction in the matter are hereby declared to be unconstitutional, illegal and without lawful authority and therefore set aside. The complaint shall be deemed to have been returned to Respondent No. 2, who may file the same before the Provincial Ombudsperson, if so advised. Considering that the Federal Ombudsman has no jurisdiction to entertain the complaint, other grounds agitated by the petitioners need not be gone into.

10. The findings of the Court are based on the understanding that the subject of harassment against women has devolved onto the Provincial Government post 18th Amendment. The Court considered the subject matter of harassment against women to be covered under Item No. 25 of the Concurrent Legislative List (“CLL”) being Population, Planning and Social Welfare. As the CLL was abolished by way of the 18th Amendment on 20.4.2010 all areas provided for under the CLL devolved on to the Provinces. Consequently the Court concluded that jurisdiction vests with the Provincial Ombudsman and only to the extent of the federal capital territory, jurisdiction vests with the Federal Ombudsman. We have considered the reasoning advanced in the Salim Javed Case, however we are not persuaded by the same. Harassment, whether verbal or physical is a behavioral issue that adversely affects the work environment. It manifests itself in many different forms of unethical and unwelcomed behaviour which renders the workplace hostile or offensive. Hence it violates the right to a safe and healthy work environment. The right to work is a multifaceted right which is recognized under different international treaties and conventions for creating a safe work environment especially for women. Article 23 of UDHR declares the right to work and the right to favourable conditions of work as a human right. Article 11 of CEDAW specifically requires States to ensure women have equal work opportunity and safe working conditions. As Pakistan has ratified these treaties and conventions it is obligated to protect the right to work and to ensure a favourable work environment. Since the 2010 Act was promulgated pursuant to Pakistan obligations under the international treaties and conventions, the subject matter of protection of the workplace for women falls under Item 3 read with Item 32 of the Federal Legislative List of the Constitution which includes implementing international treaties and conventions. It is also noted that harassment laws aim to regulate behaviour and attitudes which can be subjected to criminal punishment as well as civil liability. Section 509 of the Pakistan Penal Code, 1860 (“PPC”) criminalizes behaviour conduced with the intention of unreasonably interfering with an individual’s work performance or behaviour which creates an intimidating hostile or offensive work environment. Therefore the subject of harassment at the workplace being a crime under the PPC means that Parliament and the Provinces both are competent to make laws with respect to the crime, procedure or evidence. Hence we find that the subject of protection of women from harassment does not fall under ‘population, planning and welfare’of the CLL, rather it falls under the federal domain consequent to its international obligations and to the extent that the subject relates to criminal law.

11. We also find that the Salim Javed Case is not applicable to this case because the issue of trans-provincial organization was not taken into consideration by the Court in that case. This issue was considered by the august Supreme Court of Pakistan in the NIRC case at great length. The term “trans-provincial organization” means an organization which operates at a trans-provincial level, that is they operate in more than one province. In terms of the NIRC case the federal legislature has extra territorial authority to legislate on matters which pertain to trans-provincial organizations. The Court relied on Item No. 13 in Part II of the Federal Legislative List of the Constitution which provides for inter-provincial matters and coordination, meaning that the Federation has to make laws relating to inter-provincial matters. Therefore in the NIRC case, the august Supreme Court of Pakistan concluded that the federal legislature has extra territorial authority to legislate, however the same authority does not lie with the provincial legislature. The august Supreme Court of Pakistan also held that in order to preserve and regulate a right which transcends provincial boundaries, only the Federation is competent to legislate on such matters and Item Nos. 58 and 59 of the Federal Legislative List provide the relevant entries to bring it in the federal domain. The Provincial legislature does not have extra territorial legislative competence, therefore it cannot legislate with regard to rights which transcend its provincial boundaries. In the NIRC judgment, the august Supreme Court of Pakistan held that the federal legislature is competent to legislate on all matters in order to discharge its obligations created under international treaties and conventions. In the case, the matter involved was with respect to trade unions and labour disputes, hence it was found that it was a federal obligation created under the International Labour Organization Convention, hence covered under Item No. 3 and 32 of the Federal Legislative List. In the case of a trans-provincial establishment, the august Supreme Court of Pakistan held that the Federation is competent to interfere in such matters because trans-provincial establishments transcend provincial boundaries. Therefore we are of the opinion that the wisdom enumerated in the NIRC case is applicable to the instant case. Where the organization is clearly a trans-provincial organization, as in this case as it is a bank with branches all over Pakistan, the Federal Ombudsman is competent to look into the complaint of Respondent No. 5. The jurisdiction of the Federal Ombudsman is not limited to the federal capital area, rather the Federal Ombudsman has jurisdiction in relation to all employers, organizations, institutions and workplaces which have a federal character or are established under a federal law or are directly consequent to an international obligation under an international treaty or convention. The Federal Ombudsman jurisdiction cannot be limited to the federal capital area and can be exercised all over Pakistan over a federal employer, institution, organization or workplace.

12. The question which needs consideration is whether the Provincial Ombudsman has concurrent jurisdiction with the Federal Ombudsman on account of the fact that the harassment committed or complainant reside in the province who sought to complain before the Provincial Ombudsman. Although Mrs. Samia Khalid, Additional Advocate General and Mr. Anwaar Hussain, Additional Advocate General argued that being beneficially both the Provincial and Federal Ombudsman have jurisdiction, however, we are of the opinion that the intent of the law is to create a forum where harassment can be reported, inquired and penalized. If both the Provincial and Federal Ombudsman are given jurisdiction then there may be instances where the Provincial Ombudsman will have to deal with a complaint against a trans-provincial organization, or where the employer or the organization is federal in character making it difficult for the Provincial Ombudsman to proceed with the complaint or to impose penalty on the employer or organization since it falls within the federal domain. Under the circumstances, we hold that if the employer or organization and its workplace falls strictly within the territorial boundaries of the Provincial Ombudsman, then jurisdiction vests with the Provincial Ombudsman and where the employer or organization transcends provincial boundaries such as in this case then jurisdiction vests with the Federal Ombudsman. To clarify we add that for the reasons stated herein we disagree with the findings in the Salim Javed Case that the Federal Ombudsman jurisdiction is limited to the federal capital area as the Federal Ombudsman is competent to hear complaints related to trans-provincial organizations, institutions, employers and workplace.

13. So far as the proceedings conducted by the Federal Ombudsman, we find that they were done in utter disregard of the orders of this Court. On 24.7.2017 an order was passed in WP No. 54146/17 directing that the proceedings before the Federal Ombudsman shall remain stayed. She ignored the order and proceeded with the matter. In another order dated 9.10.2017 passed in WP No. 71556/17 she was again restrained, however she proceeded with the case. Thereafter a series of orders were issued by the Federal Ombudsman including the final order on 18.12.2017 without any consideration of the orders of this Court. It was only when the Court restrained Respondent No. 5 from proceeding with the execution of the final order that the proceedings were stopped. We note that the Salim Javed Case categorically addressed the issue with reference to the Federal Ombudsman obligation and to obey the orders of the High Court. However, displaying the same attitude as was discussed in that case, the Federal Ombudsman (Justice (R) Yasmin Abbasey) showed no regard whatsoever to the orders of this Court. Under the circumstances all orders passed after 4.8.2017 including the final order dated 18.12.2017 are illegal and void, hence set aside. The complaint of Amna Tahir shall be treated as pending before the Federal Ombudsman who shall decide the same in accordance with law, expeditiously, after hearing all necessary parties.

14. In view of the aforesaid, WP Nos.71556/2017, 54146 and 60723 of 2017 are allowed to the extent that the impugned orders and the final order dated 18.12.2017 passed by the Federal Ombudsman are set aside. However, the parties are directed to appear before the Federal Ombudsman on 4.10.2018 so as to proceed with the compliant

on its merit. The Registrar of this Court is directed to inform the Registrar of the office of the Federal Ombudsman of the orders of this Court.

(M.M.R.) Petition allowed

PLJ 2019 Lahore 83 (DB)

Present: Mrs. Ayesha A. Malik and Masud Abid Naqvi, JJ.

FOZIA KHALID--Petitioner

versus

ELECTION APPELLATE TRIBUNAL, etc.--Respondents

W.P. No. 235025 of 2018, heard on 14.9.2018.

Punjab Local Government Act, 2013--

----S. 28(1)--Constitution of Pakistan, 1973, Art. 199--Election petition--Holding office of chairperson--Filing of nomination paper for Election of Provincial Assembly--Accepted--Respondent filed appeal before tribunal which was allowed and nomination paper rejected--Challenge to--Question of--Whether or not petitioner tendered her resignation before publication of list of contesting candidates--Determination--In order to prevent any influence over electoral process it is required that they resign from their office prior to contesting election--Petitioner has right to choose between either offices and cannot require entire process to bear burden of her ‘risk’--Time and again we have been informed by her counsel that she will resign if she can contest Bye-Elections. [Pp. 88 & 91] A & E

Election Act, 2017 (XXXIII of 2017)--

----Ss. 64, 65, 66, 67 & 68--Punjab Local Government Act, 2013, S. 28(1)--Candidate of General Election--Holding office of Chairperson--Principal--A contesting candidate for purpose of Elections Act is one who has not withdrawn his or her candidature, who is allotted an election symbol under Section 67 of Elections Act and is named in list of contesting candidates--Under Section 65 of Elections Act--Petitioner is required to file her nomination papers with all necessary declarations which will include her decision to resign from Chairperson, District Council--Returning Officer at stage of scrutiny must consider bar contained in Section 28 of PLGA because a Mayor, Deputy Mayor, Chairman and Vice-Chairman cannot participate in election process while retaining named office--Entire process of participating and contesting election is for benefit of voter and intent of Section 28 of PLGA is to create a level playing field to all candidates who participate in election--’Resign to run’ principal is premised on encouragement to run for public office and to make process of election more competitive. [Pp. 89 & 91] B, C & F

PLD 2008 Kar. 64, ref.

Election Act, 2017 (XXXIII of 2017)--

----S. 60--Constitutional of Pakistan, 1973, Arts. 62 & 63--Holding office of Chairperson--Contesting for a political office--Filing of Nomination paper--Qualification--In terms of Section 60 of Elections Act, a candidate shall file its nomination papers with a declaration that he fulfills qualifications specified in Article 62 and is not disqualified under Article 63 of Constitution for being elected as a member--Every nomination paper is delivered to Returning Officer who shall make nomination along with annexures open to inspection by public--Petition was dismissed. [Pp. 89 & 90] D

Mr. Muhammad Shahzad Shaukd, Mr. Tahir Munir Malik, Mr. Taha Asif and Rana Imran, Advocates for Petitioner.

Mian Sultan Tanvir Ahmad and Hafiz Mubshar Ullah, Advocates for Respondent No. 3.

Mr. Nasar Ahmad and Mr. M. Javaid Kasuri, DAGs.

Date of hearing: 14.9.2018

Judgment

Mrs. Ayesha A. Malik J.--Through this petition, the Petitioner has challenged order dated 12.9.2018 passed in Election Appeal No. 354-A of 2018. It may be noted that the instant petition is fixed as urgent, for today. Counsel for Respondent No. 3, Mian Sulan Tanvir Ahmad is present before the Court as are Mr. Nasar Ahmad and Mr. M. Javaid Kasuri, DAGs. Since the parties present before the Court have no objection to the request of the Petitioner to the case to be heard in its entirety, given the urgency in the matter, we proceed to decide the issues raised in this Petition.

1. The basic facts are that the Petitioner is the sitting Chairperson of District Council, Toba Tek Singh. While holding the office of Chairperson, she filed nomination papers for the Bye-Election of the Provincial Assembly in PP-118, Toba Tek Singh-I. Objections were filed by Respondent No. 3 against the nomination papers on the ground that she is barred under Section 28(1) of the Punjab Local Government Act, 2013 (“PLGA”) to contest the Bye-Election as she has not tendered her resignation from the post of Chairperson, District Council, Toba Tek Singh. The Returning Officer rejected the objections vide order dated 3.9.2018 on the ground that the matter has been decided in Election Appeal No. 6 of 2018 titled “Al-Haaj Azhar Iqbal Satti v. Returning Officers and others” and since scrutiny has to be conducted in terms of Articles 62 and 63 of the Constitution of Islamic Republic of Pakistan, 1973 (“Constitutions”) and Section 231 of the Elections Act, 2017 (“Elections Act”), the Petitioner is qualified and allowed to contest the Bye-Election. Against this order, Respondent No. 3 filed an Election Appeal before the Election Tribunal which was allowed and the order of 3.9.2018 was set aside. Consequently, the nomination papers filed by the Petitioner were rejected. Being aggrieved by the order dated 12.9.2018, the Petitioner is now before this Court essentially on the ground that Section 28 of the PLGA is not a precondition to the filing of nomination papers and that the Petitioner is not required to tender her resignation until the last date for withdrawal of candidature and publication of revised list of contesting candidates. As per the schedule provided for the Bye-Election, the last date of withdrawal of candidature is 15.9.2018, hence the urgency in the matter.

2. Mr. Muhammad Shahzad Shaukat, counsel for the Petitioner argued that the impugned order has treated Section 28 (1) of the PLGA as a precondition to the filing of the nomination papers. Learned counsel argued that in terms of Section 2 of the Elections Act a candidate is a person whose name is proposed and seconded for election to the Assembly or the Senate and a validly nominated candidate is a candidate whose nomination papers have been accepted. A contesting candidate is a validly nominated candidate who has not withdrawn his candidature. Learned counsel argued that in terms of these definitions, the Petitioner was a validly nominated candidate as her nomination papers were accepted and since she was not a contesting candidate, she had the right to withdraw her candidature on 15.9.2018 or tender her resignation as the case may be. Learned counsel argued that Section 28 (1) of the PLGA, allows a Mayor, Deputy Mayor, Chairman or Vice-Chairman to contest the election for any political office after resignation from the aforesaid office. The option of may contest means that the Petitioner has the right to contest elections once she becomes a contesting candidate. Therefore, in terms of Section 28 (1) of the PLGA she must tender her resignation before becoming a contesting candidate. It is the case of the Petitioner that she had the option to tender her resignation by or before 15.9.2018 being the last date for withdrawal of candidature meaning thereby that the order of the Returning Officer was in accordance with law and the Appellate Tribunal failed to appreciate this point. Learned counsel placed reliance on the judgment dated 25.6.2018 passed in Election Appeal No. 6/2018 titled “Al-Haaj Azhar Iqbal Satti v. Returning Officer and another”, judgment dated 12.9.2018 passed in WP No. 231135/2018 titled “Muhammad Riaz v. Appellate Authority” and “Rana Salman Mahmood Khan v. Returning Officer and another” (2008 CLC 316).

3. On behalf of Respondent No. 3, it is argued that the bar contained in Section 28 (1) of the PLGA is applicable at the time of filing nomination papers as the purpose of the bar is to prevent a person holding office of Chairman or Vice-Chairman, Mayor or Deputy Mayor from participating in the election and influencing the election on the basis of their being office holders of the local government. Learned counsel further argued that in such cases the office holder as mentioned in Section 28 (1) of the PLGA can exert influence over the electoral process, which will defeat the entire election process. He also argued that in this case, the Petitioner is travelling on official duty and the instant Petition has been filed by her husband and that she has not tendered her resignation to date whilst she seeks the opportunity to tender her resignation by 15.9.2018 without being present in person. Learned counsel argued that once the scrutiny process is over and the Petitioner being the Chairperson of District Council, Toba Tek Singh is declared fit to contest the election, there is no further mechanism under the Elections Act on the basis of which it can be determined whether or not the Petitioner tendered her resignation before publication of the list of contesting candidates. Consequently if the relief claimed by the Petitioner is allowed those who are barred under Section 28 of the PLGA may very easily contest the elections rendering the purpose of Section 28 (1) of the PLGA as redundant.

4. In rebuttal, learned counsel for the Petitioner explained that the Petitioner is out of the country on official duty and has issued a special power of attorney in favour of her husband to file the instant petition. The original special power of attorney was produced before the Court. He also showed a copy of the resignation prepared by the Petitioner, which he stated is being presented to the Court to show the bona fides of the Petitioner that in the event she is allowed to contest the election she will tender her resignation immediately. Learned counsel stated that he can also provide an undertaking before this Court that the Petitioner will tender her resignation, if the Court allows the instant petition.

5. Mr. Nasar Ahmad, DAG supports the contentions raised by the learned counsel for the Petitioner. He argued that the right to participate in elections is a fundamental right and the PLGA cannot curtail this right by reading the bar in Section 28 (1) of the PLGA as a precondition for filing nomination papers.

6. We have heard the learned counsel for the parties at length. The basic issue before the Court is the time frame within which a resignation should be tendered by the Mayor, Deputy Mayor, Chairman and Vice-Chairman in order to contest elections for any other political office, in terms of the bar contained in Section 28 (1) of the PLGA. For ease of reference Section 28 of the PLGA is reproduced below:--

7. Bar against dual membership. (1) A Mayor, a Deputy Mayor, a Chairman or a Vice-Chairman may contest election for any other political office after resigning from the office of the Mayor, Deputy Mayor, Chairman or Vice-Chairman.

(2) A member of a local government, other than the Chairman of a Union Council, may contest election for any other political office without resigning from the membership of the local government but any such member shall not simultaneously hold more than one office.

(3) If a member of a local government is elected to any other political office, on the notification of election of that political office, his seat as member of the local government shall become vacant.

(4) If a Chairman of a Union Council is elected as the Mayor or a Deputy Mayor, or as the Chairman or a Vice-Chairman of the District Council, he shall cease to be the Chairman of the Union Council and the seat of the Chairman of the Union Council shall stand vacated.

(5) Nothing in this section shall apply to bar a member of a local government to contest the election of Mayor, Deputy Mayor, Chairman or Vice-Chairman of a local government or a member of an Authority.

The Section calls for resignation by the names of the office in the local government scheme in the event that the holder of such office opts to contest elections of any other political office. The spirit behind the bar imposed on dual membership is that the holders of specific positions being Mayor, Deputy Mayor, Chairman and Vice-Chairman should not be allowed to contest for any other political office due to the nature of their post. They sit at the highest level in the local government and are in a position to use the resources from the mentioned offices, including their staff for campaigning purposes and can influence the election process. The mandate of Section 28 (1) of the PLGA is to prevent a single person from holding office whilst contesting for another political office as it is necessary to ensure that an office holder should dedicate his or her time to their official duties and not towards personal advancement. The bar ensures that office holders do not unfairly leverage their present position against other candidates or that they maintain public offices as a fall back.

1. In terms of the judgments relied upon by the learned counsel for the Petitioner, two of the judgments are by the Election Tribunal in which it is stated that the use of the expression „may contest election’ does not include the stage of filing of nomination papers and a person is considered to be contesting the election once they become a contesting candidate as defined under the law. In another case in WP No. 231135/2018, the Court considered the bar contained in Section 28 of the PLGA and while relying on 2008 CLC 316 (supra) the Court finds that mere filing of nomination paper is not sufficient for the purpose of being qualified to contest the election and it is only after the nomination papers are accepted that a validly nominated candidate, who has not withdrawn his candidature, is ready to contest the election. There is no cavil to the fact that every person has a right to contest elections and that this being a fundamental right can only be reasonably curtailed. The legislature was mindful of the fact that the named office holders in Section 28 of the PLGA exert power and influence at the local government level and have a large amount of resources available to them. Therefore, in order to prevent any influence over the electoral process it is required that they resign from their office prior to contesting the election. We find that the word contest is not a defined term in the PLGA and should therefore be given its plain meaning, which is to compete and engage in competition. In this case, the competition is the election process and to contest the election means to participate in the election process. The election schedule for the Bye-Election dated 17.8.2018 reveals that the election process started when public notice was issued by the Returning Officer on 27.8.2018 and ends on the polling day being 14.10.2018. The entire process as per the schedule is a step by step procedure towards the holding of the Bye-Election. For the purposes of a candidate the schedule reflects the stages at which the candidate will participate in order to contest the election. The august Supreme Court of Pakistan in “Muhammad Khan v. Obaidullah Jan Babat and others” (PLD 2016 SC 492) has already declared that elections stand for a step by step process towards a certain result and is a continued process consisting of a series of steps which are to be taken at different stages as per the schedule contained in the notification published in the official gazette. Hence as per the plain meaning a candidate who ‘may contest’ in the elections means that a candidate take part in the step by step process leading upto the polling date.

2. The Petitioner before the Court seeks interpretation of the word ‘may contest’ to be read in conjunction with the defined term contesting candidate under Section 2 (xiii) of the Elections Act. The meaning given to contesting candidate in the Elections Act is specifically for the purposes of giving meaning to the provisions of the Elections Act contained in Sections 64, 65, 66, 67 and 68 which set out the process where a validly nominated candidate can withdraw its candidature prior to his or her name being published in the list of contesting candidates. A contesting candidate for the purpose of Elections Act is one who has not withdrawn his or her candidature, who is allotted an election symbol under Section 67 of the Elections Act and is named in the list of contesting candidates. Therefore, the fact that a validly nominated candidate can withdraw its candidature under Section 65 of the Elections Act does not create a right in favour of the Petitioner to contest the election whilst holding office of Chairperson, District Council, Toba Tek Singh simply because she has the right to withdraw her candidature under Section 65 of the Elections Act. The Petitioner is required to file her nomination papers with all necessary declarations which will include her decision to resign from Chairperson, District Council, Toba Tek Singh. The Returning Officer at the stage of scrutiny must consider the bar contained in Section 28 of the PLGA because a Mayor, Deputy Mayor, Chairman and Vice-Chairman cannot participate in the election process while retaining the named office. The entire process of participating and contesting election is for the benefit of the voter and the intent of Section 28 of the PLGA is to create a level playing field to all candidates who participate in the election. In this regard, we are fortified by the view given in “Syed Sarfraz Hussain Shah v. Additional District and Sessions Judge/Returning Officer and 16 others” (PLD 2008 Karachi 64).

3. We are of the opinion that the bar contained in Section 28 (1) of the PLGA becomes applicable when a Mayor, Deputy Mayor, Chairman and Vice-Chairman decides to contest a political office, in this case being the Bye-Election, at the stage of filing the nomination papers. In terms of Section 60 of the Elections Act, a candidate shall file its nomination papers with a declaration that he fulfills the qualifications specified in Article 62 and is not disqualified under Article 63 of the Constitution for being elected as a member. Every nomination paper is delivered to the Returning Officer who shall make the nomination along with annexures open to inspection by the public. In terms of Section 62 of the Elections Act any voter of the constituency may file objections to the candidature at the time of scrutiny. The Returning Officer shall decide upon the objections raised and may either of his own motion or upon any such objection conduct a summary enquiry and reject the nomination papers if he is satisfied that a candidate is not qualified to be elected as a member. The purpose of the scrutiny process and the right of filing an objection is to give the voter the chance to participate and ensure that all candidates who participate in the election are qualified and have made full disclosure under the law. It ensures that the voter is informed at the time when the vote is cast and that all relevant information is available to help the voter make an informed decision. After the scrutiny process if a candidate’s nominations papers are accepted, there is no further scrutiny of the candidates as the name of the candidate is published in the list of contesting candidates, provided that the candidate has not withdrawn his or her nomination papers. Thereafter a candidate will be able to contest the election as the process is completed by allocation of election symbol and polling takes place on the polling date. If a candidate holding dual office is not required to resign at the time of filing nomination papers and it is left to choice that he or she may tender resignation once they become a contesting candidate, there is a very strong risk that such a candidate may contest the election without resigning. In such a scenario the candidate who happens to be Mayor, Deputy Mayor, Chairman or Vice-Chairman will effectively contest the election whilst holding office, which goes against the spirit of Section 28 of the PLGA. It also means that the factum of dual membership is left unchecked since a candidate will of its own vocation either tender resignation or not. The outcome is that not only does this complicate the election process and subject it to disputes and challenge but it also means that the purpose of the bar contained in Section 28 of the PLGA is totally defeated.

4. We also find that if the issue of dual membership is left unchecked prior to the elections and it is questioned after the elections it will render the candidate disqualified under the Elections Act. When confronted with this question, learned counsel for the Petitioner informed the Court that if, at all, such a situation arises then the objection can be taken post-election and the matter can be looked into at that point. However, we are not satisfied with this response as it means that a person, who could not have contested the election in the first case, contested the election without fulfilling the requirements of Section 28 of the PLGA. It also means that if any objection is made post-election on this issue, the candidate stands to be disqualified for holding dual membership. If dual membership is a disqualification in the post-election scenario it stands to reason that it is a disqualification in the pre-election scenario.

5. Another aspect of this issue is the burden placed on the election process and the voter, simply because the holder of the offices mentioned in Section 28 of the PLGA has to make a choice and where the decision involves the risk of loosing the present office. If the holders of the barred offices do not resign before filing nomination papers, they can be declared successful in the elections for the other political office. This means that the candidate is able to exercise his or her choice after going through the entire election process. If the candidate is successful they resign from the present office and if unsuccessful they go back to their present office. In all situations the issue is one of personal choice and the risk attached with such choices. A candidate cannot use the offices named in Section 28(1) of the PLGA as a fall back position in the event that he or she is not successful in the run for some other public office, in this case the Provincial Assembly. We are of the opinion that the Petitioner has the right to choose between either offices and cannot require the entire process to bear the burden of her ‘risk’. Time and again we have been informed by her counsel that she will resign if she can contest the Bye-Elections. In this regard, we are of the opinion that a wrong precedent cannot be set to comply with the wishes of one candidate.

6. The ‘resign to run’ principal is premised on encouragement to run for public office and to make the process of election more competitive. It creates a level playing field and ensures that a person holding public office does not divert its resources for personal advancement. It is also a check on those holding public office and ensures that they do their jobs and can account for the time spent in office. Public resources and functions are safeguarded and the sanctity of the election process is maintained.

7. In view of the aforesaid, we find no illegality in the impugned order. Petition stands dismissed in limine.

(M.M.R.) Petition dismissed

PLJ 2019 Lahore 92

Present: Mrs. Ayesha A. Malik, J.

NAZIA BIBI, etc.--Petitioners

versus

ADDITIONAL DISTRICT JUDGE, FEROZEWALA etc.--Respondents

W.P. No. 154537 of 2018, heard on 11.9.2018.

Constitution of Pakistan, 1973--

----Art. 199--Muslim Family Laws Ordinance, (VIII of 1961), S. 7--Suit for recovery maintenance--Allowance--Decreed--Application for enhancement of maintenance allowance--Rejected--Second application for enhancement of maintenance allowance--Dismissed--Appeal--Partially accepted--Injunctions of Islam--Determination of father’s income--It is settled law that an application for enhancement of minor’s maintenance allowance may be filed subsequent to a judgment and decree--In case of enhancement, Court must also determine as to what extent maintenance already fixed meets requirement and expenses of minor and for what purpose, further enhancement is required--At same time Court must determine income of father either through proper documentary evidence or on basis of social status and earning capacity of father--Judgment under challenge has failed to make any determination on requirement and need of minors and also on income of father--Under circumstances, impugned judgment passed by Respondent No. 1 has not considered evidence properly nor has any determination been made on income of father--Petition was accepted. [Pp. 95, 98 & 99] A, C & E

Family Courts Act, 1964 (XXXV of 1964)--

----S. 17-A(4)--Purpose for fixing of maintenance allowance--Determination of financial position of father--As per settled law, maintenance with respect to muslim children shall be governed by injunctions of Islam and in other cases as per applicable personal law--It is noted that Section 17(A) of West Pakistan Family Courts Act, 1964 specifically provides in sub-section 4 that for purposes of fixing maintenance, Court may summon relevant documentary evidence from any organization, body or authority to determine estate and resources of defendant--Purpose of this provision is to facilitate Court to determine financial position of father--Court therefore is not dependent on documents or information provided by father and can call for relevant documents or information be it from relevant department or organization or as case requires, in order to determine income of father. [Pp. 95 & 98] B & D

PDL 2013 SC 557 ref.

Chaudhary Aurangzeb Gujjar, Advocate for Petitioners (in WP No. 154537/18 and for Respondents No. 2 to 5 in WP No. 194641/2018).

Mr. Imran Muhammad Sarwar, Advocate for Respondent No. 3 (in WP No. 154537/18 and for Petitioner in WP No. 194641/2018).

Date of hearing: 11.9.2018

Judgment

This judgment decides upon the issues raised in WP Nos.154537/2018 and 194641/2018 as both the petitions raise common questions of law and facts arise out of the same impugned judgment dated 11.1.2018 passed by Respondent No. 1, Additional District Judge, Ferozewala.

1. Facts of the case are that Petitioner No. 1 filed a suit for recovery of maintenance allowance for herself as well as for three minors. The suit was decreed on 21.5.2014 such that each minor was given Rs.7000/- per month as maintenance along with 10% yearly increase. Subsequently, the Petitioner No. 1 filed an application for enhancement of maintenance of the minors on 14.6.2016 which was rejected vide order dated 17.3.2017 for the reason that it is not open to the applicant, decree holder now to contend that maintenance allowance has not been correctly assessed or determined. If it were permissible, there will be no end or finality to the judgment and decree dated 21.5.2014 which had become final. The Petitioner No. 1 then filed a second application seeking enhancement of maintenance allowance from Rs.7000/- to Rs.300,000/- per child per month, which was dismissed vide order dated 26.7.2017 for the reason that neither the petitioners assailed the judgment passed by learned trial Court nor challenged their earlier filed petition dismissed by learned transferor Court and now again despite availing efficacious, proper remedy filed the petition in hand which in no sense maintainable. On 25.9.2017 the Petitioner No. 1 filed an appeal before Respondent No. 1 against order dated 26.7.2017 who vide judgment dated 11.1.2018 partially accepted the appeal and enhanced the monthly maintenance of the minors from Rs.7000/- to Rs.12,000/- per head per month plus 10% yearly increase. The Petitioners are aggrieved by the fixation of maintenance of Rs.12000/- per month per minor. Hence this petition.

2. The case of the Petitioners is that Respondent No. 3 was capable of paying far more than Rs.12,000/- per month per child which is reflected from the documentary evidence produced with the application which included Respondent No. 3’s tax returns and property documents. It is their case that the Court should have given proper consideration to the evidence while fixing maintenance.

3. Respondent No. 3 who is the Petitioner in WP No. 194641/2018 is aggrieved by the impugned judgment on account of the fact that the same has been passed in a time barred appeal, which as per the contention of the learned counsel, Respondent No. 1 could not have condoned the delay. Learned counsel also argued that the conduct of the Petitioners by repeatedly filing enhancement applications shows that she did not have a genuine requirement of enhancement but only wants to harass Respondent No. 3. With respect to the amount fixed by the Court at Rs.12,000/- per child per month, learned counsel submitted that this amount is arbitrary, without due consideration of the relevant facts or record; that the Court did not take into consideration the monthly income of Respondent No. 3 nor did it take into consideration the fact that Respondent No. 3 is married and has six children, hence he is not able to pay Rs.12,000/- per month per child.

4. In terms of the impugned judgment dated 11.1.2018 passed by Respondent No. 1 on the question of condonation for delay, the Court accepted the contention of the Petitioner No. 1 that she was not aware that the District and Session Court was open in August, hence she did not file the appeal . The Court also found that since the real issue is with reference to the welfare of the minors and Respondent No. 3 is responsible to provide for the upbringing of his children. The Court condoned the delay and proceeded to hear the appeal against order dated 26.7.2017. In this regard, since the ultimate consideration is the welfare of the minors, there appears to be no reason to interfere with the discretion exercised by the Court while condoning the delay as the same was done with due consideration of the facts and the law.

5. The real issue in this case is the manner in which maintenance allowance to be paid by the father is fixed by the Court. The Petitioners prayed for enhancement of maintenance at the rate of Rs.300,000/- per month per child on account of the financial status of Respondent No. 3. In the reply, Respondent No. 3 explained that he was unable to pay the amount sought by the Petitioners as the demand is not justifiable. The Judge Family Court considered the application for enhancement of maintenance and dismissed the same on the ground that the suit was decreed on 21.5.2014 and it was never challenged by the Petitioners before any forum, hence the minors are not entitled to enhancement of maintenance. It is noted that this decision of the Judge Family Court is flawed and totally contrary to the law. It is settled law that an application for enhancement of minor’s maintenance allowance may be filed subsequent to a judgment and decree. Reliance is placed the case cited at Muhammad Iqbal v. Mst. Nasreen Akhtar (2012 CLC 1407) wherein the Court held that:

On the issue whether a suit for enhancement of maintenance is maintainable under the Schedule, the answer is that the same is maintainable. The Schedule provides for the matter over which the family Court should have jurisdiction. Maintenance is provided at serial No. 3. As such there is no bar on filing a suit for enhancement of maintenance. There are bound to be changes in the circumstances and changes in the requirements of the children. Naturally, as the children will grow their needs will also grow. Reliance is placed on a case titled Arab Mir Muhammad Vs Mst. Iram Iltimas and 4 others (1999 CLC 1668). It is noted that this is an unrealistic approach that the maintenance allowance should remain fixed throughout the growing period of the minor or that the 5% increase should be considered sufficient. A father is legally bound to maintain the minor in terms of the requirement of the minor and the cost of living.

Hence the Petitioners could claim enhancement of the decreed maintenance allowance. Notwithstanding the same, the Appellate Court while considering the appeal of the Petitioners enhanced the maintenance from Rs.7000/- to Rs.12,000/- per month per child, with 10% annual increase. The reason given was the financial status of Respondent No. 3 and the daily growing requirements of the minors. However there is no discussion on their enhanced requirements of the minors nor is there any discussion on the earning capacity of Respondent No. 3. A bare reading of the order shows that the Court assumed that Rs.12000/- per child was sufficient. There is no discussion on the ages of the minors, on the needs of the minors nor any finding on the enhanced claim for the minors.

1. As per settled law, maintenance with respect to the muslim children shall be governed by the injunctions of Islam and in other cases as per applicable personal law. The august Supreme Court of Pakistan has considered this issue in “Humayun Hassan v. Arslan Humayun and another” (PLD 2013 SC 557) and held as follows:

2. There can be no cavil with the proposition that the maintenance issue(s), in relation to Muslim relatives shall be governed and regulated by the principles/injunctions of Islam i.e. as per the personal law of the parties. In this context, according to Section 369 of the Muhammadan Law by D.F. Mullah, maintenance means and includes food, raiment and lodging. However, it may be observed that from the very language of the above section, such definition is neither conclusive nor exhaustive, and in our view it undoubtedly has a wider connotation and should be given an extended meaning, for the purposes of meeting and catering for the present days social, physical, mental growth, upbringing and well being of the minor, keeping in mind the status of the family, the norms of the society and his educational requirement, which has now attained utmost importance; but obviously corresponding to and commensurating with the means and the capacity of the father to pay. Anyhow, the same jurist in Section 370 of the book has elucidated the liability of the father to pay the maintenance to his children as follows:

“370. Maintenance of children and grandchildren.---(1) A father is bound to maintain his sons until they have attained the age of puberty. He is also bound to maintain his daughters until they are married. But he is not bound to maintain his adult sons unless they are disabled by infirmity or disease. The fact that the children are in the custody of their mother during their infancy (Section 352) does not relieve the father from the obligation of maintaining them. But the father is not bound to maintain a child who is capable of being maintained out of his or her own property.

(2) If the father is poor, and in capable of earning by his own labour, the mother, if she is in easy circumstances, is bound to maintain her children as the father would be.

(3) If the father is poor and infirm, and the mother also is poor, the obligation to maintain the children lies on the grandfather, provided he is in easy circumstances.”

Again in interpreting the word “maintenance” some reasonable standard must be adopted. Whilst it is not confined merely to food, clothing and lodging, it cannot, by any stretch of imagination, be extended to incorporate within it education at higher levels ad infinitum. What is necessary to decide in this connection is to find out as to what amount of education has to be attained by the child concerned, having regard to the status and other circumstances of his family, to enable it to earn a complete livelihood by honest and decent means. Thus it may not be sufficient to say that the child of a tradesman can maintain itself by working as coolly or by thieving. What is required is that the child must be maintained until it is in a position to earn its own livelihood, in an honest ad decent manner in keeping with its family status.

Hence a father is obligated to maintain his children and a reasonable standard must be assumed for determining quantum. It is seen that more often than not family Courts and appellate Courts while exercising jurisdiction in cases requiring determination of maintenance tend to fix the quantum of maintenance without discussing the factors considered or the reasons for concluding so. Hence one has to wonder on what basis did the Court formulate its opinion whilst fixing maintenance. It goes without saying that a judicial order must be a speaking order where the reasons are clearly stated by the Court. In this case the Appellate Court has not discussed the earning capacity of Respondent No. 3 nor the requirements of the minors, yet enhanced the maintenance from Rs.7000/- to Rs.12000/- per month.

1. It goes without saying that the Court while considering the quantum of maintenance will take into consideration the fundamentals being the minors education, status, general expenses as has been clearly set out in PLD 2013 SC 557 (supra). The Court must also take into consideration reasonable probability of obtaining education and the ability to take care of the minors in a stable, safe and healthy environment. Without due consideration of all these factors, the Court cannot conclude positively the quantum of maintenance. There is no hard and fast formula for determining quantum of maintenance and the main consideration for the Court is the ability of the father to maintain the minors. A father is obligated under the law to take care of his minor children and the quantum has to be determined as per his earning, financial and social status and the ability that he may have to take care of the minors. This way merely stating that he is jobless will not discharge him of his obligation. The basic objective for determining maintenance is to ensure that in all probability the minors are maintained by the father in dignified manner with reasonable comfort and that the mother of the child is not left to bear the burden of taking care of the minors.

2. Quantum of maintenance requires due consideration of all factors on the basis of which the Court can determine the actual need of the minor. In this regard, it is important for the Court to first determine the expenses incurred or likely to be incurred on the minors. For this purpose the Court must look into the living conditions of the minor and the manner and means by which the mother is maintaining the minors which will include factors like where they reside, whether the mother is dependent upon her family, if so what is the income on the basis of which the minor is also being cared whether she has a job and whether she has any source of independent income. Special needs of the minor which will include medical or physical needs or special educational needs should also be seen. Special needs will vary from case to case, if relevant, as it is unique to the situation and individual. Yet for the purpose of maintenance it is the obligation of the father to fulfill these special needs. In the case of enhancement, the Court must also determine as to what extent the maintenance already fixed meets the requirement and expenses of the minor and for what purpose, further enhancement is required. At the same time the Court must determine the income of the father either through proper documentary evidence or on the basis of the social status and earning capacity of the father. In order to ensure that proper information is before the Court, it may always require the father to produce documents such as his salary slips or any bank statement or property document on the basis of which he is able to show his monthly income or earning or his financial status. In this regard, the assets owned by the father are relevant as it contributes towards establishing the financial status of the father that has to be probed into by the Court and based on attending circumstances the Court can conclusively establish the means through which the father will be able to maintain the minors. It is also important to take into consideration any liability of the father, that is whether he is paying any bank loan or debt, whether he has remarried or has other children or whether his parents are dependent on him. In this way the Court can determine the manner in which the income of the father is spent and balance the income and capacity with the reasonable requirements of the minors seeking maintenance.

3. In this regard, it is noted that Section 17(A) of the West Pakistan Family Courts Act, 1964 specifically provides in sub-section (4) that for the purposes of fixing maintenance, the Court may summon the relevant documentary evidence from any organization, body or authority to determine the estate and resources of the defendant. The purpose of this provision is to facilitate the Court to determine the financial position of the father. The Court therefore is not dependent on documents or information provided by the father and can call for relevant documents or information be it from the relevant department or organization or as the case requires, in order to determine the income of the father. In “Khadeeja Bibi and others v. Abdul Raheem and others” (2012 SCMR 671) the august Supreme Court of Pakistan held that even on the question of determining the

annual increase in maintenance in the absence of any evidence on the point of annual increase the Court should refrain from imposing such annual increase in the payment of maintenance to the minor, which is not in co-relation to the income of the father and the capacity of the father with respect to income. Therefore where the Court is required to look into the future need of the minor that too must be done on the basis of reasonable and likely increase that can be made based on age, needs and on the maintenance that is being fixed for the present day.

1. The judgment under challenge has failed to make any determination on the requirement and need of the minors and also on the income of the father. Under the circumstances, impugned judgment dated 11.1.2018 passed by Respondent No. 1 has not considered the evidence properly nor has any determination been made on the income of the father. Under the circumstance, both the petitions are accepted, the impugned judgment dated 11.1.2018 to the extent of quantum of maintenance is set aside and the matter is remanded to the Appellate Court to consider all relevant facts and documents as prescribed in this judgment and make a proper determination with respect to fixation of the maintenance of the minors, after hearing both the parties and pass a speaking order in accordance with law.

(Y.A.) Petitions accepted

PLJ 2019 Lahore 99 [Multan Bench Multan]

Present: Muzamil Akhtar Shabir, J.

ABDUL SHAKOOR SHEIKH--Petitioner

versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Aviation, Civil Aviation Division, etc.--Respondents

W.P. Nos. 18389 of 2016, decided on 27.2.2018.

Constitution of Pakistan, 1973--

----Art. 199--Civil Aviation Authority Service Regulations, 2014, Regln. 3.67 & 3.101--Constitutional Petition--Appointment on contract basis--Extension in contract till completion of project--Non regularization--Corporate body--Discrimination--Alteration of terms and conditions--Jurisdiction--Question of whether service regulations of civil aviation authority were statutory or not--Challenge to--If contract employee cannot claim, relief of allowing him for performance of remaining period of contract by reinstatement, then on same analogy: a contract employee, who was appointed for a particular project, could not claim regularization or extension of service beyond period of completion of project--Case of petitioners for regularization was neither placed before cabinet sub-committee nor there is any approval available on record whereby it could be observed that their case was similar to that of Imran Naeem--Moreover, said Imran Naeem was regularized in service in year 2010 whereas petitioners did not agitate matter at relevant\ time and have now raised same after project has been completed--Therefore, case of discrimination has not been established--Besides petitioners seek a relief that would change their basic terms and conditions of service which if not permissible in eye of law because this Court in its Constitutional jurisdiction is not competent to provide said relief as it cannot alter terms and conditions of service of employees and could not renegotiate, alter and amend terms of regularization that were offered by authorities to its contractual employees for simple reason that this Court did not have jurisdiction to do so--Petitioners are held entitled to receive salaries and other benefits for period for which they have worked and rendered services with respondent Authority--Petition was dismissed. [Pp. 109, 113 & 115] B, C, D & E

2017 SCMR 1979, ref.

Civil Aviation Authority Ordinance, 1982--

----S. 12--Appointment--Section 12 Authorizes Authority to appoint officers, servants, experts and consultants as it may consider necessary for performance of its functions and authority may prescribe by regulations procedure for said appointments and terms and conditions thereof. [P. 103] A

Mr. Muhammad Bilal Butt, Mr. Waseem Shahab, Mr. Mumtaz Fazal Mirza, Mr. Bilal Mustafa Naqvi & Mr. Bilal Amin, Advocates for Petitioner.

Ch. Sagheer Ahmad, Mr. Mudassar Sagheer, Advocates Malik Kamran Nawaz, Legal Assistant MIAP Civil Aviation Authority in Person for Respondents.

Date of hearing: 30.11.2017.

Judgment

Through this single judgment, I intend to decide titled constitutional petition along with the connected petitions i.e. W.P. No. 7691/2015, W.P. No. 6129/2016, W.P. No. 7207/2016, W.P. No. 11758/2016, W.P. No. 18101/2016, Crl. Org.No. 1038-W/2015, Crl.Org. No. 143-W/2017 and Crl. Org. No. 144-W/2017 as common question of law and fact is involved in the same.

1. Brief facts of the case are that the Respondent/Civil Aviation Authority “CAA” advertised some posts for appointment of employees in different categories on contract basis. These included the posts of:

(i) General Manager Civil in pay Group 10 (PG 10), (ii) Corporate Manager Civil, Corporate Manager QC, Corporate Manager electrical, Corporate Manager HVAC in pay group 9 (PG9), (iii) Deputy Manager Civil, Deputy Manager Admin in pay group 8 (PG8), (iv) Asst. Manger Civil, Asst. Manager Electrical, Asst. Manager Mechanical, Asst. HVAC in pay group 7 (PG7), (v) Civil Supervisor, HVAC Supervisor, Civil Supervisor (CAD), Civil Supervisor/Draftsman in pay group 5 (PG5), and

(vi) QC Lab Assistant in pay group 4(PG4).

Besides independent of these posts some labourers were also appointed on work charge basis from time to time. The petitioners in these petitions applied for the said posts. The present petitioner was appointed as Assistant Manager Civil Pay Group 7 (hereinafter also referred as PG-07 for a period of one year (extendable) from time to time videletter/Ref No. HQCAA/2251/318/HRRS/1326 dated 13.08.2012 issued by Pakistan Civil Aviation Authority and he joined the duty. Similarly, the Petitioners in connected petitions were appointed on different posts, that have been discussed in the later part of this judgment. As facts in all these cases are similar, the facts in this constitutional petition only are provided briefly. The petitioner’s contract was lastly extended up to 30.06.2017 but the respondents-department again revised the contract till 31.12.2016. It is maintained that the authority did not process the case of the petitioner for regularization despite the fact that the Respondent No. 5-Project Manager recommended the petitioner for regularization in CAA on the basis of performance appraisal report dated 23.08.2015. It is claimed that the contentions of the petitioner are fortified by the act of the authorities when the respondent-department transferred the services of the petitioner against post of a permanent nature from Multan International Airport Project to Jinnah International Airport as Assistant Director (Civil) in Civil Division-I. It is maintained that according to the Civil Aviation Authority Service Regulation No. 3.101 every transfer and posting against a permanent post would amount to regularization of the appointment as has been done in the case of petitioner and as such the petitioner is entitled to become a regular employee of the respondent-authority. It is contended that in view of the orders dated 08.10.2009 passed by the Hon’ble Supreme Court of Pakistan in Human Rights’ cases No. 3423-K of 2007 and No. 7444 of 2009 and also in pursuance of the regularization policy issued by the Chief, Human Resource, HQ CAA Karachi on 09.05.2012, the petitioner’s service is liable to be regularized. The petitioners have addressed arguments in line with the afore-said submissions. It has been claimed that the petitioner be treated as a permanent employee and regularized in service. Similar relief has been claimed by the petitioners in the other constitutional petitions.

1. Notices were issued to the respondents. They have filed report and parawise comments in which they have contended that the petitioner was appointed on contract basis against temporary post, he accepted the offer and had also given the undertaking to this effect, therefore, now he cannot challenge the same on the basis of principle of estopple. Further asserted that the petitioner’s sole purpose is that he should be adjusted on permanent basis without fulfilling the codal formalities which could not be done as the petitioner was appointed against a project i.e. Up-gradation of Multan International Airport and his services were hired only for this project, therefore, after the completion of afore-referred project, the employee/petitioner is not entitled for claiming regularization or extension. It has also been claimed that the appointment was specific to the project under PC-1 and had no connection with the regular appointment in CAA nor could be considered for regularization being not covered under the CAA Service Regulations. The extension of period of service of contract employees till the completion of the project did not give them any right to claim regularization. Furthermore, the petitioner was employed for Multan Airport Project and keeping in view the completion of project activities and finalization of scope of work relating to job assignment of the petitioner, the competent authority decided to post the petitioner outside Multan as per clause II of the appointment offer and he was allowed to complete his remaining contract period in order to ensure his availability in CAA to resolve the issue pertaining to Multan Project closure. The CAA Service Regulation No. 3.67 and 3.101 as invoked by the petitioner pertain to CAA Service Regulations, 2000 which were superseded upon promulgation of CAA Service Regulations 2014, therefore, the above provisions are not applicable in the present case. Further stated that neither the regularization of service in CAA can take place automatically by the flux of time nor such regularization is covered in CSR-2014. The contract appointment of the petitioner was extended from time to time as per requirement of CAA till the completion of project. After the completion of project, the services are not required to the respondent-authority, therefore, the petitioner is not entitled to the claim sought by him and as such the titled constitutional petition is liable to be dismissed. The respondents have addressed arguments in the afore-said line and have sought dismissal of the constitutional petitions.

2. Heard, record perused.

3. The Civil Aviation Authority (CAA) has been established by the afore-referred name under Section 3 of the Civil Aviation Authority Ordinance, 1982, (hereinafter referred as Ordinance). The CAA is a body corporate, having perpetual succession and common seal with power, subject to the provision of the ordinance to acquire and hold property, both movable and immovable, and may sue and be sued by the afore-referred name. By virtue of Section 4 of the Ordinance, the Federal Government is authorized to issue directives to the Authority on matters of policy which are binding on the Authority. Section 5 declares that CAA is responsible for regulation and control of civil aviation activities in Pakistan. Section 7 provides that the general direction and administration of the Authority and its affairs shall vest in a Board, constituting of a Chairman and Members, which may exercise all powers, functions, acts and things that may be exercised, performed and done by the Authority. Through Section 8, an Executive Committee of the Authority has been constituted (consisting of the Director General as its head and four members), with administrative, executive, financial and technical powers as may be delegated by the Authority. Section 12 Authorizes the Authority to appoint officers, servants, experts and consultants as it may consider necessary for performance of its functions and the authority may prescribe by regulations the procedure for the said appointments and terms and conditions thereof. Section 13 provides that the Director-General, members, officers, servants, experts and consultants of the Authority shall, when acting or purporting to act in pursuance of any of the provisions of the Ordinance or the rules or regulations made thereunder, be deemed to be public servants within the meaning of Section 21 of the Pakistan Penal Code, 1860. Section 23 provides that the Industrial Relations Ordinance, 1969; shall not apply to or in relation to the Authority or any person in service of the Authority. Section 26 empowers the Federal government to make rules for carrying out the purpose of the Ordinance by notification in the Official Gazette. Section 27 empowers the Authority to make regulations, not inconsistent with the Ordinance and the rules made thereunder, to provide for all matters for which provision is necessary or expedient for carrying out the purposes of the Ordinance.

4. The CAA advertised posts for appointment of:

(i) General Manager Civil in pay Group 10(PG 10), (ii) Corporate Manager Civil, Corporate Manager QC, Corporate Manager electrical, Corporate Manager HVAC in pay group 9 (PG9), (iii) Deputy Manager Civil, Deputy Manager Admin in pay group 8(PG8), (vi) Asst. Manger Civil, Asst. Manager Electrical, Asst. Manager Mechanical, Asst. HVAC in pay group 7(PG7), (v) Civil Supervisor, HVAC Supervisor, Civil Supervisor (CAD), Civil Supervisor/Draftsman in pay group 5(PG5) and

(vi) QC Lab Assistant in pay group 4(PG4).

Besides these vacancies, some other persons were also required to be appointed from time to time on ‘work charge basis’ as Labour, etc. All the afore-said appointments were required to be made for the purpose of upgradation of Multan Airport and construction of new Airports for Gawadar and Thar. In the said advertisement it was provided that the CAA requires services of well qualified and experienced persons to fill vacant contract posts at Multan Airport project, New Gawadar International Airport project and New Thar Airport Projects. Jobs would be offered strictly on contract extendable on yearly basis depending on performance and project duration. The selected candidates may be required to serve at respective project site.

1. The petitioners in these petitions applied for jobs in response to the afore-referred advertisement for the project of upgradation of the Multan International Airport (MIAP) and were appointed.

2. The petitioner in W.P. No. 18101 of 2016 was appointed as Deputy Manager (Civil) (PG-08). The present petitioner was appointed as Assistant Manager Civil (PG-07). The petitioners in W.P. No. 7207 of 2016 and 6129 of 2016 were appointed as Assistant (HR) Officer (PG-07). The petitioner in WP No. 11758 of 2016 was appointed on work Charge Basis as Labourer for the project. The petitioners in W.P. No. 7691 of 2015 were appointed to various posts on work charge basis. All the afore-referred persons seek regularization of their services.

3. The petitioners claim for regularization of their services on the basis of Ordinance and service regulations of CAA. The question of status of employees of the Civil Aviation Authority and whether the service regulations of the Civil Aviation Authority (CAA) were statutory or not came up for hearing before the Honourable Supreme Court of Pakistan in the case of Muhammad Aslam Khan versus Federation of Pakistan and others (2013 SCMR 747), wherein the Supreme Court of Pakistan observed as under:

“The petitioner who has appeared in person has made reference of Article 7 of the Constitution read with Section 16(3) of Civil Aviation Authority, Ordinance, 1982 and argued that definition of State in terms of Article 7 (ibid) when examined in the context of Section 16(3) of the Ordinance, 1982 makes it abundantly clear that despite non-availability of statutory rules of the Civil Aviation Authority, its shall be deemed as a Government Department, and thus its employees shall have remedy before Federal Service Tribunal, regarding all grievances relating to terms and conditions of service.

1. After careful examination of all the documents placed on record qua language of Article 7 of the Constitution and Section 16(3) ibid, we are not impressed by these arguments of the petitioner. Admittedly Civil Aviation Authority has no statutory rules and the only legal aspect of the case, whether in such circumstances jurisdiction of Federal Service Tribunal could be invoked by the employees of Civil Aviation Authority has been elaborated discussed and decided in the case of Muhammad Nawaz v. Civil Aviation Authority and others (2011 SCMR 523). The dicta laid down by the Court is this case is clearly applicable to the facts and circumstances of the present petition and we have no reason to depart with this view.”

(emphasis supplied)

1. In the Case of Muhammad Nawaz versus Civil Aviation Authority and others (2011 SCMR 523), the Supreme Court while making reference to Sections 26 and 27 of the Ordinance dismissed the appeal of the employees against the order of the Services Tribunal whereby the appeal of the employees of the Civil Aviation Authority had been dismissed on the ground that the regulations framed by the respondents have no statutory backing and Service Tribunal had thus no jurisdiction to entertain the appeal.

By placing reliance on the afore referred judgments, conclusion is drawn that the service regulations of CAA are non-statutory.

1. There is another aspect of the matter that where the service rules and regulations are non-statutory then the Constitutional petition for the enforcement of the same would also not be maintainable. Reliance in this behalf may be placed on Pakistan Defence Officers Housing Authority versus Mrs. Itrat Sajjad Khan (2017 SCMR 2010) wherein it has been laid down as under:

“10. The next question for our consideration would be maintainability of a writ filed by employee of Authority a statutory corporation having non-statutory rules of service seeking enforcement of the terms and conditions of his service rules. Again this question was taken up and decided by a six member Bench of this Court in the case of Abdul Wahab and others v. HBL and others (2013 SCMR 1383) by holding that where a service grievance is agitated by a person / employee who is not governed by the statutory rules of service, before the High Court(s), in terms of Article 199 of the Constitution such petition shall not be maintainable. Relevant portion of para 7 of the cited judgment is reproduced as follows:--

“....It is settled law that, where a service grievance is agitated by a person employee who is not governed by statutory rules of service, before the High Court(s), in terms of Article 199 of the Constitution such petition shall not be maintainable; reference in this behalf can be made to PLD 2010 SC 676 (Pakistan International Airline Corporation v. Tanweer-ur-Rehman) and PLD 2011 SC 332 (Pakistan Telecommunication Co. Limited v. Iqbal Nasir) (note: the question however if that is possible in terms of Article 199(1)(c), we have deferred). But the plea that such law shall not prevent the Court while exercising its jurisdiction under Article 184(3); suffice it to say that while exercising the jurisdiction this Court is bound by the conditions of Article 184(3); and moreover by such rules which are laid down by this Court for regulating its jurisdiction, keeping in view the principles of restraint. We find that in the cases of contractual service, where the grievance agitated is against a private person, there is no reason that such restraint should not be resorted to by this Court and any exception should be taken to the law laid down in Tanweer ur Rehman case supra (note: even if it pertains to the writ jurisdiction of High Courts).”

In Paragraphs No. 14 and 15 of the afore referred judgment it was observed as under:

‘‘14. Likewise in the case of Muhammad Zaman and others v. Government of Pakistan (2017 SCMR 57), this Court has reiterated principle regarding in-competency of a writ petition by an employee of a body having non-statutory rule as non­statutory rules could not be enforced through a writ. The relevant portion of the cited judgment reads as under:--

“Thus the conclusion of the above discussion is that Regulation are basically instructions for the internal control or management of SBP and are therefore non statutory. Hence the appellants could not invoke the constitutional jurisdiction of the learned High Court which was correct in dismissing the writ petition”.

1. No doubt the employees of statutory corporation in absence of violation of law or any statutory rules of service cannot press into service constitutional jurisdiction of the High Court and after we have come to the conclusion that the service rules framed by the appellant were not statutory but for their internal guidance and, therefore, enforcement through writ jurisdiction does not appear to be in consonance with the law settled by this Court.”

2. Another aspect of the matter is that the petitioners were contract employees and had been appointed for the purpose of upgradation of Multan International Airport Project as evident from the advertisement for appointment mentioned above. Even in the appointment letter it is clearly mentioned that the employee is a contract employee for the project. For the purpose of brevity some extracts of the contract of Abdul Shakoor petitioner in Writ petition 18389 of 2016 are being referred to below:

“LETTER OF APPOINTMENT ON CONTRACT IN CAA MR. ABDUL SHAKOOR S/O ABDUL MAJEED FOR AIRPORT PROJECTS.

The Competent Authority is pleased to appoint you on contract as Assistant Manager Civil (Multan Project) (PG-07) in Civil Aviation Authority on the following terms and conditions:

| | | | --- | --- | | I. Post: | Assistant Manager Civil (PG-07). | | II. Place of Posting: | Multan Airport or any where as the Competent Authority may decide. | | III. Period of Contract: | 01 Year (Extendable) from the date of assumption of charge. | | VII. Seniority: | This contract appointment does not confer any right for being placed in the gradation/seniority list of the cadre/group to which the subject post belongs. | | X. Pension: | Service rendered under this contract shall not qualify for a pension or gratuity. | | XIV. Termination of contract: | The appointment during the period of contract shall be liable to termination on thirty days notice on either side or payment of basic pay in lieu thereof, without assigning any reason. |

1. The petitioners were appointed on contract basis for the Multan Project and had accepted the terms and conditions of appointment before joining the service. A project employee cannot claim employment beyond the period of the completion of the project. Reliance may be placed on Government of Khyber Pakhtunkhwa through Secretary Energy and Power Department Peshawar and others versus Ihsan Ullah and others (2017 SCMR 1201) wherein it has been held as under:

“7. Secondly, it is an undisputed fact that the Respondents were project employees. Their letters of appointment clearly state that their posts were ‘temporary project posts’ which would be ‘likely to continue till the completion of project’. The rationale for the 2005 amendment incorporating Section 19(2) in the Act, 1973 refutes the view that the new sub-section applies to project employees. .............

1. ...............The respondents are admittedly project employees in a semi-autonomous statutory body of the provincial government and the only question is whether such employment qualifies for regularization under Section 19(2) of the Act, 1973. We have already observed that the eligibility criterion for relief under Section 19(2) of the Act, 1973, namely, being member of a provincial service or holder of a civil post in the Provincial Government, is not met by the Respondents. The KPK (Regularization of Services) Act, 2009 also excludes project employees from its ambit, therefore, the Respondents are ineligible even on that scope.’’

2. Another aspect that may be taken into consideration is that a contract employee even if dismissed from service, instead of pressing for his reinstatement to serve for the leftover period can at best claim damages to the extent of unexpired period of his service. Reliance in this behalf is placed on Federation of Pakistan through Secretary Law, Justice and Parliamentary Affairs versus Muhammad Ashraf Chattha (2013 SCMR 120). The relevant portion is reproduced below:

“The question is that a person whose fate has been so determined, though he was a contract employee, had no legal entitlement to continue in contract employment because subject to holding him entitled to draw salary in lieu of the notice period he could not have agitated the matter in any manner. In addition to it, it is a cardinal principle of law that a contract employee instead of pressing for his reinstatement to serve for the leftover period can at best claim damages to the extent of unexpired period of his service.”

If the contract employee cannot claim, relief of allowing him for the performance of the remaining period of contract by reinstatement, then on the same analogy a contract employee, who was appointed for a particular project, could not claim regularization or extension of service beyond the period of completion of the project.

1. It has also been argued on behalf of the petitioners that the claim for regularization of service of the petitioners is fortified by the act of the authorities when the respondent department transferred the services of the petitioner against a post of permanent nature from Multan International Airport Project to Jinnah International Airport as Assistant Director (Civil) in Civil Division-I and according to Civil Aviation Authority Service Regulations 3.67 and 3.101 every transfer and posting against a permanent post would amount to regularization of appointment.

2. I am not inclined to agree with the afore-said arguments of the petitioner for the reasons that firstly, as already discussed above the afore-referred regulations are not statutory in nature and cannot be enforced by filing a constitutional petition, secondly, the letter of appointment of the petitioner as referred to above provided for a clause that the place of posting would be ‘Multan Airport or anywhere as the Competent Authority may decide’, thirdly, the appointment of the petitioner at Jinnah International Airport as Assistant Director (Civil) in Civil Division-I, has not been made on regular basis or by changing the previous terms and conditions of service of the petitioner, and anally, it is provided in reply filed by respondents that after the completion of project the petitioner was posted as per Clause II of the Appointment Offer to complete his remaining contract period in order to ensure his availability in CAA to resolve the issue pertaining to Multan Project closure, therefore, the afore-referred ground raised by the petitioners is of no help to them as the afore-referred posting is strictly in accordance with the terms and conditions of the contract under which the petitioner had been initially appointed and the same had been extended from time to time.

3. It has been argued that the Honourable Supreme Court of Pakistan in Human Right’s cases No. 3423-K of 2007 and 7444 of 2009 vide order dated 8.10.2009 has approved the regularization of services of 3763 employees of Civil Aviation Authority and the same relief may be allowed to the petitioners. The relevant portion of the afore-referred order is reproduced below:

“Learned counsel stated that the Civil Aviation Authority on its part has already regularized 3763 employees, leaving 467 who are not regularized. He further informed the Court that out leftover employees those who have completed 9 months service, their cases can separately be taken up for regularization by the Authority and after that there will be only 216 employees whose service is less than 9 months.

1. In order to ensure transparency and open merit in recruitment, in future no recruitment / appointment may be made without adhering to the policies and the judgment of this Court in the case of Abdul Jabbar Memon (1996 SCMR 1349). However, those who now have been recruited, be allowed to work till completion of 9 months of enabling service and thereafter their cases shall be take up by the Civil Aviation Authority for the purpose of Regularizing them or otherwise.”

From the perusal of the afore-referred order it is apparent that the said order is not applicable to the case of the petitioners for their regularization as firstly the petitioners had been appointed subsequent to passing of the said order, secondly, the said order did not mentioned that the same would also be applicable to project employees and finally the said order makes it clear that the respondents shall ensure transparency and open merit in future recruitments while adhering to the principles laid down in judgment reported as Abdul Jabbar Memon (1996 SCMR 1349) which provides for transparency in the matter and making appointments in accordance with law. Undeniably the petitioners have not been appointed against regular posts by following the procedure and codal formalities, therefore, the argument of the petitioners that relief of regularization be given to them on the basis of the afore-said order is misconceived and the petitioner are not entitled to the relief of regularization on the said account.

1. The learned counsel for the petitioners have also argued that the petitioners are entitled for regularization on the basis of policy issued by the Chief, Human Resource, HQ, CAA Karachi on 09.05.2012. The relevant portion of the said letter is reproduced below:

“Rawalpindi, the 9th May, 2012

Chief Human Rsources, HQ, CAA, Karachi.

Subject: REGULARIZATION OF CONTRACT BASIS / DAILY WAGES EMPLOYEES IN THE MINISTRIES / DIVISION/ ATTACHED DEPARTMENT/ AUTONOMOUS BODIES/ ORGANIZATIONS ETC.

I am directed to refer to this Division’s letter of even No. dated 19.04.2012 on the subject mentioned above and to forward herewith a copy of this Division’s note No. 2/2/D-18/2009 dated 25.04.2012 along with a copy of the Establishment Division Letter No. 3/5/2011-Admin-I, dated 19.04.2012. The sub­committee of the Cabinet has approved regularization of 66 employees of CAA working on contract internship basis subject to fulfillment of requirement criteria and availability of posts. Further, the employees up to the age of 58 years are eligible for regularization.

1. Foregoing in view, it is requested to take further action in the matter strictly in accordance with conditions contained in the decision.

-sd- (Amjad Fayyaz Qasim)Section Officer (CAA)

From the perusal of the said letter it is clear that the said policy has not been made applicable to the contract employees of the project, besides the said policy is not equivalent of a statutory rule or regulation for the enforcement of which constitutional petition may be invoked and it contains a pre-condition of approval by sub-committee of Cabinet, therefore, the said ground also fails.

1. Another ground that has been raised is that the contract of the petitioners provides that the provisions of Pakistan Essential Service (Maintenance) Act, 1952 would be applicable to them so their contract is liable to be regularized as they belong to essential services. This argument is without any substance and does not entitle the petitioners for regularization of services because the project for which they had been appointed is now complete.

2. The petitioners have also raised a ground that the project Manger had recommended to the competent authority to regularize the services of the petitioners as they were essentially required by the CAA, therefore, they are entitled to regularization. From the perusal of the record, it is seen that the recommendation of the Project Director have not been accepted by the competent authority. Therefore, the said recommendations do not constitute a right of regularization in favour of the petitioners.

3. The petitioners in WP No. 11758 of 2016 and 7691 of 2015 are work charge employees who were engaged as Labourers for the afore referred project and seek regularization of their services. The regularization of work charge employees came up for consideration before the Hon’ble Supreme Court in judgment reported as Tehsil Municipal Officer, TMA Kahuta and another vs. Gul Fraz Khan (2013 SCMR 13) wherein it is held as under:

“The record shows that the respondent was employed by the PHED on work charge basis on 1-7-2001 initially for a period of three months and his employment was extended at regular intervals for three months at a time until 31-3-2002. By Notification dated 22-5-2002 the Government of Punjab declared that the Executive Engineer (PHED) at District level shall cease to function by 30-6-2002 and that the TMA, Kahuta shall succeed to their assets, liabilities and offices. The respondent had placed on record the documents and receipts in order to show that he remained as Chowkidar in employment of the TMA, Kahuta after devolution till the year 2004. These documents, however, clearly indicate that his employment with the TMA, Kahuta was also on work charge basis and was paid for the work he performed. The respondent’s employment whether with the PHED or with the petitioners remained on work charge basis. He was never appointed as regular employee and his employment as work charge, whatever its length of period, would not accord him the status of regular employee .......

The Single Judge in Chambers as well as the Division Bench of the High Court had erred in holding the respondent as regular employee simply on account of failure of the petitioners to show that he was appointed on work charge or contractual basis. It was for the respondent to substantiate his claim of regular employment and the same cannot be deemed to have been established on failure of the petitioners to prove to the contrary."

(emphasis supplied)

1. While relying upon the dictum laid down in the afore referred judgment, the petitioners who were work charge employees of the project are not found entitled to regularization of their services.

2. It has also been argued that one Imran Naeem son of Muhammad Naeem who was working with the Project Manager, CAA, Multan and another Ms. Mahrukh Aslam D/o Muhammad Aslam have been regularized in service. From the appointment letter issued in favour of Mahrukh Aslam, it is seen that she was not employee of the Project rather she had been appointed by the CAA and employed at IT Branch, BBIAP, Islamabad whereafter her services had been confirmed by the competent authority i.e. DG, CAA pursuant to the decision taken by the Cabinet Secretariat, Establishment Division, Islamabad, therefore, her case is distinguishable from the facts of case of the petitioners. Although Imran Naeem was working with the Project Manager, CAA, Multan as work charge employee when he was initially appointed on 1.6.2009, thereafter his case for regularization was approved by the Cabinet whereafter the DG, CAA regularized his services with effect from 1.6.2009 vide letter dated 26.2.2010. The case of the petitioners for regularization was neither placed before the cabinet sub-committee nor there is any approval available on the record whereby it could be observed that their case was similar to that of Imran Naeem. Moreover, said Imran Naeem was regularized in service in the year 2010 whereas the petitioners did not agitate the matter at the relevant time and have now raised the same after the project has been completed. Therefore, the case of the discrimination has not been established.

3. Besides the petitioners seek a relief that would change their basic terms and conditions of service which is not permissible in the eye of law because this Court in its Constitutional jurisdiction is not competent to provide the said relief as it cannot alter the terms and conditions of service of the employees and could not renegotiate, alter and amend terms of regularization that were offered by the authorities to its contractual employees for the simple reason that this Court did not have the jurisdiction to do so. Reliance is placed on Chairman NADRA, Islamabad through Chairman, Islamabad and another v. Muhammad Ali Shah and others (2017 SCMR 1979) wherein it is held as under: --

“12. The referred to NADRA’s letter dated March 6, 2012, had enclosed “Option Form” which was required to be “filled by all eligible employees” and the Option Form was to be submitted “latest by 22nd March 2012”. The regularization process initiated by NADRA would proceed towards completion after the eligible contractual employees had submitted their Option Forms. However, before the submission of his/her Option Form a contractual employee would continue as such, that is remain a person who was employed on contract by NADRA. The private respondents herein, who were the petitioners before the High Court, however, challenged certain terms/components of NADRA’s letter dated March 6, 2012; in doing so they undermined their own status of becoming regular or permanent employees of NADRA. If they did not accept NADRA’s letter dated March 6, 2012, or any part thereof they would remain as contractual employees of NADRA. The High Court could not renegotiate alter and/or amend the terms of regularization that were offered by NADRA for the simple reason that the High Court did not have jurisdiction to do so. Therefore till such time that the employees were regularized they would continue to be governed by the terms and conditions of the contract which they had with NADRA. The writ or constitutional jurisdiction of the High Court under Article 199 of the Constitution could not be invoked by a contractual employee of a statutory organization, such as NADRA (see Pakistan Defence Officers’ Housing Authority v. Jawaid Ahmed reported as 2013 SCMR 1707, Pakistan Telecommunication Co. Ltd. v. Iqbal Nasir reported as PLD 2011 Supreme Court 132 and P.TC.L. v. Masood Ahmed Bhatti reported as 2016 SCMR 1362). It was only after the terms and conditions offered by NADRA had been accepted and the Option Form had been submitted that the status of a contractual employee would convert to that of a regular employee of NADRA. Before accepting the terms offered by NADRA and submitting the Option Form the status of a contractual employee would remain as such and he/she would not be able to seek recourse to the constitutional jurisdiction of the High Court."

(Emphasis supplied)

1. For what has been discussed above, this constitutional petition along with W.P. No. 7691/2015, W.P. No. 6129/2016, W.P. No.

7207/2016, W.P.No. 11758/2016 and W.P. No. 18101/2016 have no merit and are dismissed. As the constitutional petitions have been dismissed as a consequence the Crl.Org.No. 1038-W/2015, Crl.Org. No. 143-W/2017 and Crl. Org. No. 144-W/2017 are also dismissed. However, the petitioners are held entitled to receive the salaries and other benefits for the period for which they have worked and rendered services .with the respondent Authority.

(Y.A.) Petitions dismissed

PLJ 2019 Lahore 115 [Rawalpindi Bench Rawalpindi]

Present: Shakil ur Rehman Khan, J.

NAVEED AHMED--Petitioner

versus

Mst. MEHWISH RIAZ etc.--Respondents

W.P. No. 3263 of 2018, decided on 28.11.2018.

Muslim Family Law Ordinance, 1961 (VIII of 1961)--

----Ss. 9 & 10--Family Courts Act, 1964, Ss. 14(3) & 17-A--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Suit for recovery of dowery articles, Gold Ornaments, maintenance allowance--Suckling baby--Interim orders for maintenance allowance--Constitutional Jurisdiction--Challenge to--Rights of child over its parents: (a) Right of Razayat or being suckled; (b) Right of fosterage and being brought up; & (c) Right of being trained and educated--A special law for such children and for protection of breast feeding has been promulgated, titled as Protection of Breast-Feeding and Child Nutrition Ordinance, 2002--Modern science also recognizes that mother’s milk is best food for baby--In this view of matter impugned order, learned Family Court has rightly included interim maintenance for divorced mother of minor--Impugned order is only tentative in nature and amount of maintenance will finally be decided after recording of evidence, therefore, it is not liable to be interfered with at this stage, while exercising constitutional jurisdiction--Petition was dismissed.

[P. 120] A & B

2004 CLC 473, PLD 1988 FSC 100, 1996 SCMR 1165, 2014 SCMR 1365, ref.

Ch. Irfan Ahmed, Advocate for Petitioner.

Date of hearing: 28.11.2018.

Order

The relevant facts for the decision of the instant petition are that Naveed Ahmed, petitioner was married to Mst. Mehwish Riaz, Respondent No. 1 on 10-02-2017 and minor Abdullah, Respondent No. 2 was born on 16-11-2017. Unfortunately, the petitioner divorced her on 11-5-2018 and she filed a suit for recovery of dowry articles, gold ornaments and maintenance allowance at the rate of Rs. 20,000/- for herself as well as for their minor son as well as recovery of Rs. 5,00,000/- as per Column No. 19 of the Nikahnama. The petitioner filed a contesting written statement. Thereafter, as many as eight (8) issues were framed videorder dated 10-10-2018 and the learned Judge, Family Court also fixed the ad-interim maintenance allowance for Respondent Nos. 1 and 2 at the rate of Rs. 3,500/- per month for each. This order has been challenged to the extent of granting interim maintenance allowance to Respondent No. 1, by the petitioner through the instant constitutional petition.

1. Learned counsel for the petitioner argued that the petitioner is ready to pay the interim maintenance for minor Abdullah who is a suckling baby, however, Respondent No. 1 is not entitled for any such relief being a divorcee. He points out that it is the case of the lady, that Talaq was pronounced on 11.05.2018 and Talaq Nama was sent to her. He further argued that it is a matter of evidence that whether Abdullah, the minor son is being breast fed or not. However, he admits that this particular ground has not been taken in the instant writ petition but he hastened to add that this particular fact has not even been mentioned in the plaint filed by his ex-wife / Respondent No. 1. He has also relied upon Ayat No. 233 of Surah Al-Baqra from the Holy Qur’an.

2. Heard. Record perused.

3. I have gone through the pleadings of the parties as filed before learned Family Court as well as the instant writ petition. Learned counsel for the petitioner is correct in pointing out that the plaint does not state anything about minor Abdullah to the effect that he is a suckling baby. However, in ground (c) of the instant petition, it has been stated as follows:--

“c. That the Respondent No. 2 is a suckling baby and the learned trial Court awarded interim maintenance for him @ Rs. 3500/- and the petitioner is ready to pay the interim maintenance as per order of the Honourable Court, however the Respondent No. 1 is not entitled for any such relief being divorcee lady.”

In any case, the learned Family Court in Para No. 2 of the impugned order dated 10.10.2018 has held as follows:--

“2. Admittedly, Plaintiff No. 2 is issue of the parties who is in custody of Plaintiff No. 1. Father is duty bound to provide maintenance allowance to his children, therefore the interim maintenance allowance @ Rs. 3500/- per month for Plaintiff No. 2 is fixed till the disposal of suit in hand whereas admittedly the minor is below the age of two year who is in custody of Plaintiff No. 1, meaning thereby Plaintiff No. 2 is a suckling baby therefore Plaintiff No. 1 is also entitled for interim maintenance allowance @ Rs. 3500/- per month till the minor reaches the age about two years or the disposal of suit in hand which-ever is earlier. Interim maintenance allowance shall be paid by defendant on or before 14th of each month in case of any failure proceeding u/S. 17-A shall be initiated against him. Interim maintenance allowance shall be payable from the first date of appearance of defendant in the suit.”

In view of the above, it needs to be noted that the petitioner himself refers to his minor child Abdullah as “a suckling baby”, as such, in these circumstances the principle of approbate and reprobate is fully applicable in the case of the petitioner and the petitioner cannot blow hot and cold in the same breath. Reliance is placed on the cases reported as A.R. Khan vs. P.N. Boga through LR (PLD 1987 S.C. 107), M/s. Home Comforts vs. Mirza Rashid Baig and others (1992 S.C.M.R. 1290), Federation of Pakistan vs. Amir Hamza (2001 S.C.M.R. 1959), Noor Muhammad, Lambardar vs. Member (Revenue), Board of Revenue, Punjab, Lahore & others (2003 S.C.M.R. 708) and Overseas Pakistanis Foundation & others vs. Sqn. Ldr. (Retd.) Syed Mukhtar Ali Shah and another (2007 SCMR 569).

The above noted para from the impugned order shows that the learned Judge, Family Court completely understanding the wisdom and intention of the legislature in promulgating the Family Courts Act, 1964 exercised parental jurisdiction, while passing the impugned order dated 10-10-2018. Learned Family Court is a quasi-judicial forum and the impugned order is well within the four corners of the law.

1. Almighty Allah through various verses of the Holy Qur’an has laid down the basic rules on which the rights of the child are based, in the above-noted circumstances. The English translation as well as commentary of Ayat No. 233 of Surah Baqara by Mr. Abdullah Yusuf Ali in Volume-I (Two-Volume Edition – 1977) at page 93 is reproduced as follows:--

Translation:

“The mothers shall give suck to their offspring for two whole years, if the father desires, to complete the term. But he shall bear the cost of their food and clothing on equitable terms. No soul shall have a burden laid on it greater than it can bear. No mother shall be treated unfairly on account of her child, nor father on account of his child. An heir shall be chargeable in the same way if they both decide on weaning, by mutual consent, and after due consultation, there is no blame on them. If ye decide on a foster-mother for your offspring, there is no blame on you, provided ye pay (the mother) what ye offered, on equitable terms. But fear Allah and know that Allah sees well what ye do.”

Commentary:

“As this comes in the midst of the regulations on divorce, it applies primarily to cases of divorce, where some definite rule is necessary, as the father and mother would not, on account of the divorce, probably be on good terms, and the interests of the children must be safeguarded. As, however, the wording is perfectly general, it has been held that the principle applies equally to the father and mother in wedlock: each must fulfill his or her part in the fostering of the child. On the other hand, it is provided that the child shall not be used as an excuse for driving a hard bargain on either side. By mutual consent they can agree to some course that is reasonable and equitable, both as regards the period before weaning (the maximum being two years) and the engagement of a wet-nurse or (by analogy) for artificial feeding. But the mother’s privileges must not be curtailed simply because by mutual consent she does not nurse the baby. In a matter of this kind the ultimate appeal must be to godliness, for all legal remedies are imperfect and may be misused.”

The English translation as well as commentary of Ayat No. 6 of Surah Talaq by Mr. Abdullah Yusuf Ali in Volume-III at pages 1564 and 1565 (Three-Volume Edition – 1969) is reproduced as follows:--

Translation:

“Let the women live (In `iddat,) in the same style as ye live, according to your means: Annoy them not, so as to restrict them.5516 And if they carry (life in their wombs), then5517 spend (your substance) on them until they deliver their burden: and if they suckle your (offspring), give them their recompense: and take mutual counsel together, according to what is just and reasonable. And if ye find yourselves5518 in difficulties, let another woman suckle (the child) on the (father’s) behalf.5519”

Commentary:

“5517. If there is pregnancy, a sacred third life comes on the scene, for which there is added responsibility (perhaps added hope of reconciliation) for both parents. In any case no separation is possible until after the child is born. Even after birth, if no reconciliation between parents is possible, yet for the nursing of the child and for its welfare the care of the mother remains the duty of the father, and there must be mutual counsel between him and the mother in all truth and sincerity.

1. “If ye find yourselves in difficulties”: e.g., if the mother’s milk fails, or if her health fails, or if any circumstance arises which bars the natural course of the mother nursing her own child. There may be psychological difficulties also.

2. That is, the father must stand all expenses, without cutting down the reasonable allowance to which the mother is entitled in the circumstances.”

The above clearly shows that even the foster mother is to be paid for her services. The right of such a child is so intertwined with the mother that it is imperative for the mother to be duly supported, provided for and properly looked after for the period she feeds the child.

Keeping in view the above and the jurisprudence on the subject, the concepts of Razayat and Hazanat are well established. Every child has following rights over its parents:--

(a) Right of Razayat or being suckled;

(b) Right of fosterage and being brought up; &

(c) Right of being trained and educated.

It may not be out of place to mention here that a special law for such children and for protection of breast feeding has been promulgated, titled as the Protection of Breast-Feeding and Child Nutrition Ordinance, 2002. Modern science also recognizes that mother’s milk is the best food for the baby. In this view of the matter the impugned order dated 10-10-2018, the learned Family Court has rightly included the interim maintenance for the divorced mother of the minor. Reliance in this regard can safely be placed on the cases reported as Muhammad Aslam vs. Muhammad Usman and others (2004 CLC 473), Captain S.M. Aslam vs. Mst. Rubi Akhtar (1996 CLC 1) & Muhammad Ameen vs. Mst. Mehar un Nisa and others (PLD 1988 Federal Shariat Court 100).

1. It also needs to be noted that the impugned order has been passed under the provisions of Section 17-A of the said Act which provides for the interim maintenance. Moreover, sub-section (3) of the Section 14 of the said Act provides as follows:--

“14. Appeals.–(3) No appeal or revision shall lie against an interim order passed by a Family Court.”

In view of these statutory provisions and the below noted precedents, it is clear that the impugned order dated 10-10-2018 is only tentative in nature and the amount of maintenance will finally be decided after recording of evidence, therefore, it is not liable to be interfered with at this stage, while exercising constitutional jurisdiction. Reliance can be placed in this regard on cases reported as Syed Saghir Ahmad Naqvi vs. Province of Sindh through Chief Secretary, S&GAD, Karachi and another (1996 S.C.M.R. 1165), Muhammad Tabish Naeem Khan vs. Additional District Judge, Lahore and others (2014 S.C.M.R. 1365) and Amjad Iqbal vs. Mst. Nida Sohail and others (2015 S.C.M.R. 128) & Mst. Tahira and 4 others vs. Muhammad Irfan and another (2018 M.L.D. 407).

1. For what has been stated above, the instant writ petition being without any merits stands dismissed in limine.

2. Office is directed to send a copy of this order to Respondent No. 1 for information.

(Y.A.) Petition dismissed

PLJ 2019 Lahore 121 (DB) [Multan Bench Multan]

Present: Shahid Mubeen and Muzamil Akhtar Shabir, JJ.

Mian ASHIQ HUSSAIN and another--Appellants

versus

FAYSAL BANK LIMITED, BRANCH, MULTAN through Manager and another--Respondents

R.F.A. No. 8 of 2015, heard on 31.5.2018.

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

----S. 22--Suit for recovery of loan--Partially decreed--Application for leave to defend--Dismissed--Challenge to--Statements of accounts had been duly verified in terms of Banker’s Books Evidence Act and no discrepancy has been found in same--Therefore said statements have rightly been relied upon by banking Court--However banking Court while passing final judgment and decree has mentioned 30.4.2011 as expiry date whereas sanction advice as well as agreement between parties provides expiry date as 20.2.2011--Statements of account shows that principal amount of Rs. 44,91,323.37 and mark-up of Rs. 7,58,716.07 as outstanding against appellants as on 30.12.2010, date before expiry period, which could legally be changed--Mark-up beyond expiry date could not be changed or allowed by Banking Court--Therefore, amount of mark-up calculated after expiry date up to 30.4.2011 of Rs. 250,486/- allowed by Banking Court is declined by this Court--Consequently while up-holding decree to extent of principal amount of Rs. 44,91,323.37 and mark-up of Rs. 7,58,716.07 totaling Rs. 52,50,039.44 in favour of respondent/bank, claim of mark-up of Rs. 250,486/- allowed by Banking Court beyond expiry period is set-aside--Order accordingly. [Pp. 123 & 124] A & B

2017 CLD 1583 & 2014 CLD 1436, ref.

Mr. Muhammad Manzoor-ul-Haq, Advocate for Appellants.

Syed Waseem Haider, Advocate for Respondents.

Date of hearing: 31.5.2018

Judgment

Muzamil Akhtar Shabir, J.--Through this appeal under Section 22 of the Financial Institutions Recovery Ordinance, 2001, the appellants/judgments debtors have called in question judgment and decree dated 26.11.2014, passed by Banking Court No. 3 Multan whereby suit for recovery filed by the Respondent No. 1/bank against the appellants and Respondent No. 2 was partially decreed.

1. Brief facts of the case are that Respondent No. 1/Faysal Bank filed a recovery suit for an amount of Rs. 7,340,650.69 against the appellants and Respondent No. 2 by stating therein that appellants and Respondent No. 2 had obtained finance facility limit of Rs. 4.5 millions which was approved on 3.3.2008 for a period of three years against security of agricultural land for agricultural purposes on creating charge over property measuring 528 kanals 9 marlas agricultural land. The expiry date of the loan was 20.02.2011. The borrowers/customers defaulted in re-payment of finance and an amount of Rs. 7,340,650.69 was due and outstanding against customers/borrowers as principal and mark-up for the recovery of which suit was filed before the banking Court No. 3. The appellants filed an application for leave to defend the suit which was dismissed and the recovery suit was partially decreed for an amount of Rs. 55,00,525.44. The said judgment and decree is under challenge through this appeal.

2. It has been argued on behalf of the appellants that the suit had not been filed by a competent person. The statements of accounts have not been prepared in accordance with law. Mark­ up over mark-up has been charge and mark-up beyond the expiry date had also been charged.

3. Respondent No. 2 was proceeded against exparte vide order dated 6.12.2017.

4. Arguments heard. Record perused.

5. In this case obtaining of Finance Facility and execution of corresponding documents has not been denied. However, certain objections have been raised against the recovery suit. The first objection relates to the competency of the persons to file suit on behalf of the respondent/bank as the suit has not been filed by the Bank Manager, however, the legal position as provided in the Section 9 of the F.I.O, 2001, is that the Branch Manager or any other officer authorized by the bank may file recovery suit on behalf of the bank. For this purpose reliance is placed on 2011 CLC 461 (KSB Bank Limited vs. Mirza Ghulam Mujtaba) 2016 CLD 29 (Bank of Punjab through Branch Manager vs. Unique Developers PVT Limited) 2017 CLD 1711 (ABL vs. Fatima Enterprises Limited). In the present case Zafar Hussain Zafar, Area Manager and Muhammad Arhsad, Relationship Bank Manager of Faysal Bank Bosan Road Multan filed a suit by mentioning therein that they had duly been constituted general attorneys and authorized signatories on behalf of the plaintiff/bank and were well conversant with the facts of the suit. In view of the foregoing, the objection raised by the appellants that the said persons were not competent to file the suit is without any legal justification and consequently is declined .

6. The second objection raised by the appellants is that the statements of accounts have not been prepared in accordance with law. However from the perusal of statements of accounts it is seen that both the statements regarding principal amount and mark-up bear a certificate that the entries in the said statements of account are true copies of the entries contained in the books of bank/bank record and the same books are in safe custody of the bank and the statement of accounts is prepared as per Bankers’ Books Evidence Act, 1891. As the afore-referred certificate is available on both the statements relating to the principal and mark-up accounts and none of the entries in the statement has been challenged as incorrect, therefore, the objection raised by the appellants is without any substance and is accordingly repelled Reliance in this behalf may be placed on M/s. Ravi Medical Supplies (Pvt) Ltd through Chief Executive and 4 others Versus M/s. First Women Bank Limited through Branch Manager (2016 CLD 1726). The next objection raised by the learned counsel for the appellants relates to charge of mark-up over mark-up but no entry has been pointed out in these statements of accounts whereby the mark-up has been charged upon mark-up. Consequently this objection is without any substance and is over ruled. Another objection raised by the learned counsel for the appellants is that the mark­up has been charged upon the expiry period. For this purpose only calculations are required and the learned banking Court made calculation while passing the afore-referred judgment and decree, therefore no ground existed whereby the appellant had raised a substantial question of law and facts that was required to be determined by record of evidence, therefore the learned banking Court was justified to decline the application for leave to defend the suit. The next question relates to the calculation which could be made without granting leave to defend the suit. In the present case, as already observed, the statements of accounts had been duly verified in terms of Banker’s Books Evidence Act and no discrepancy has been found in the same. Therefore the said statements have rightly been relied upon by the banking Court. However the banking Court while passing the final judgment and decree has mentioned 30.4.2011 as expiry date whereas the sanction advice as well as the agreement between the parties provides the expiry date as 20.2.2011. The statements of account shows that principal amount of Rs. 44,91,323.37 and mark-up of Rs. 7,58,716.07 as outstanding against the appellants as on 30.12.2010, the date before

the expiry period, which could legally be changed. The mark-up beyond the expiry date could not be changed or allowed by the Banking Court. Reliance is placed on Habib Metroplitan Bank Limited vs. Faizan Ali and Company (Pvt.) Ltd. (2017 CLD 1583). The Banking Court in the present case has allowed mark-up up to 30.4.2011 by making the calculation up to the said date itself for an amount of Rs. 250,486/-. However, the said date was beyond the expiry date fixed as 20.2.2011. In such situation mark-up beyond expiry period cannot be allowed. For this reliance is placed on Pace Pesticide (Pvt.) Ltd. vs. Saudi Pak Commercial Bank Ltd. (2014 CLD 1436), where in the Court modified the decree by deducting mark-up beyond expiry period. Therefore, the amount of mark-up calculated after expiry date up to 30.4.2011 of Rs. 250,486/- allowed by the Banking Court is declined by this Court. Consequently while up-holding the decree to the extent of principal amount of Rs. 44,91,323.37 and mark-up of Rs. 7,58,716.07 totaling Rs. 52,50,039.44 in favour of the respondent/bank, the claim of mark-up of Rs. 250,486/- allowed by the Banking Court beyond the expiry period is set-aside. The decree is modified in above terms. The appellants and Respondent No. 2 are held jointly and severally liable to pay the said amount with costs and costs of funds which shall be calculated from 21.02.2011 till the date of realization.

(M.M.R.) Order accordingly

PLJ 2019 Lahore 124 [Multan Bench Multan]

Present: Mujahid Mustaqeem Ahmed, J.

MUHAMMAD HASSAN TAHIR--Petitioner

versus

GOVERNMENT OF PUNJAB, SERVICES AND GENERAL ADMINISTRATION DEPARTMENT through Chief Secretary and 4 others--Respondents

W.P. No. 11573 of 2018, decided on 15.8.2018.

Constitution of Pakistan, 1973--

----Arts. 199 & 212--Posting as AAGP--Show-cause notice--Compulsory retirement from service--Violation of Punjab Police Rules--Terms and conditions of service--Jurisdiction--Alternate remedy--Maintainability--Challenge to--Function of each Court or Tribunal has been well defined under Constitution and laws made under Constitution, which also specify subjects with which those Courts or Tribunals have to deal with--This multiple system has thus created certain limitations on their jurisdiction so that one Court or Tribunal could not encroach upon defined field or subject of other and each Court or Tribunal is required to exercise powers/ authority within its allotted sphere and not beyond that unless and until specifically permitted--Matter agitated before this Court relates to terms and conditions of service and in view of bar under Article 212 of Constitution of Islamic Republic of Pakistan, 1973, does not fall within jurisdiction and domain of this Court under Article 199 of Constitution--Petitioner has alternate remedy of filing departmental appeal and in case of failure to succeed in that appeal, by approaching Punjab Service Tribunal--Needless to mention that absence of adequate and efficacious remedy is condition precedent for issuing a writ--However, petitioner may avail alternate remedy before competent forum, in accordance with law. [Pp. 126, 127 & 128] A, B, C & D

2015 SCMR 456; 2016 SCMR 842 and 2005 SCMR 37 ref.

Mr. M. Sohail Iqbal Bhatti, Advocate for Petitioner.

Mr. Khalid Masood Ghani, AAG on Court’s Call.

Date of hearing: 15.8.2018

Order

By filing instant writ petition under Article 199 of The Constitution of the Islamic Republic of Pakistan, 1973, the petitioner, Inspector, Punjab Police, has assailed the legality and propriety of order dated 06.08.2018 passed by the Respondent No. 5/ Addl. Inspector General of Police, Regional Police Officer, Multan, by which the petitioner has been compulsory retired from service with immediate effect.

1. The main ground of attack taken by learned counsel for the petitioner is that the Respondent No. 5 (Competent Authority) was transferredvide notification dated 3rd August, 2018 with immediate effect and posted as Addl. Inspector General of Police, Investigation Branch, Lahore, whereas on 05.08.2018 the Authority has issued show-cause notice against the petitioner to submit reply, within seven days, but before lapse of that period and submission of reply of show-cause notice by petitioner,vide impugned order dated 06.08.2018, the petitioner stood compulsory retired from service. It has been further contended that the impugned order has been passed in violation of The Punjab Police (E & D) Rules, 1975 and as such the same is liable to be struck down. In support of this contention, learned counsel for the petitioner has relied on case “Suo Motu action regarding Violation of Public Procurement Rules, 2004 in procurement loss of billions of Rupees of excheguer caused by National Insurance Company Ltd.” (2012 PLC (C.S.) 394), Faisal Sultan VS. E.D.O. (Education) and others” (2011 PLC (C.S.) 419) & “Messrs Chenab Cement Product (Pvt.) Ltd. and others vs. Banking Tribunal, Lahore and others” (PLD 1996 Lahore 672).

2. Heard.

3. Part VII of the Constitution of Islamic Republic of Pakistan, 1973 provides “System of Judicature” in the country, headed by the Hon’ble Supreme Court as ultimate Court of appeal with other Courts and Tribunals constituting a principal forum for administrating justice by applying law in the settlement of disputes and controversies that are brought before them. Function of each Court or Tribunal has been well defined under the Constitution and the laws made under the Constitution, which also specify the subjects with which those Courts or Tribunals have to deal with. This multiple system has thus created certain limitations on their jurisdiction so that one Court or Tribunal could not encroach upon the defined field or subject of the other and each Court or Tribunal is required to exercise powers/ authority within its allotted sphere and not beyond that unless and until specifically permitted. Needless to mention that under Article 212 placed in Chapter 4 of Part-VII supra Special Courts and Tribunals have been created. At this juncture it would be advantageous to reproduce Article 212 of the Constitution which reads as under:--

‘‘212. Administrative Courts and Tribunals. (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;

(b) …….

(c) ………

(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 proceeding 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 able on such establishment.”

1. The matter agitated before this Court relates to the terms and conditions of service and in view of bar under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973, does not fall within the jurisdiction and domain of this Court under Article 199 of the Constitution. In case “Ali Azhar Khan Baloch and others vs. Province of Sindh and others” (2015 SCMR 456), following principle has been laid down:

“… We, after perusal of the aforesaid record in suits and H.C.A., are of the considered view that the issue raised by the parties relates to their terms and conditions of service and cannot be entertained by a High Court either in its Constitutional jurisdiction or in its Original Civil jurisdiction or in High Court Appeal, being barred under Article 212 of the Constitution …”

1. Moreover, the petitioner has alternate remedy of filing departmental appeal and in case of failure to succeed in that appeal, by approaching the Punjab Service Tribunal. Needless to mention that absence of adequate and efficacious remedy is condition precedent for issuing a writ. In case ‘‘Indus Trading and Contracting Company vs. Collector of Customs (Preventive) Karachi and others” (2016 SCMR 842), the Hon’ble Supreme Court of Pakistan has held as under:--

“...Ordinarily, the jurisdiction of the High Courts under Article 199 of the Constitution should not he invoked where alternative forum under a special law, duly empowered to decide the controversy is available and functioning. Where a special law provides legal remedy for the resolution of a dispute, the intention of the legislature in creating such remedy is that the disputes falling within the ambit of such forum be taken only before it for resolution. The very purpose of creating a special forum is that disputes should reach expeditious resolution headed by quasi judicial or judicial officers who with their specific knowledge, expertise and experience are well equipped to decide controversies relating to a particular subject in a shortest possible time. Therefore, in spite of such remedy being made available under the law, resorting to the provisions of Article 199(1) of the Constitution, as a matter of course, would not only demonstrate mistrust on the functioning of the special forum but it is painful to know that High Courts have been over-burdened with a very large number of such cases. This in turn results in delays in the resolution of the dispute as a large

numbers of cases get decided after several years. These cases ought to be taken to forum provided under the Special law instead of the High Courts. Such bypass of the proper forum is contrary to the intention of the provisions of Article 199 (1) of the Constitution which confers jurisdiction on the High Court only and only when there is no adequate remedy is available under any law. Where adequate forum is fully functional, the High Courts must deprecate such tendency at the very initial stage and relegate the parties to seek remedy before the special forum created under the special law to which the controversy relates ...” (emphasis supplied by me).

Similar view has been taken in case “Rai Asharaf and others versus Muhammad Saleem Bhatti and others” (PLD 2010 Supreme Court 691) and “Collector of Customs, Lahore and others vs. Universal Gateway Trading Corporation and another” (2005 SCMR 37).

1. As a sequel to the above discussions, the instant writ petition, being not maintainable, is dismissed in limine. However, the petitioner may avail alternate remedy before the competent forum, in accordance with law.

(M.M.R.) Petition dismissed

PLJ 2019 Lahore 128 [Multan Bench Multan]

Present: Mujahid Mustaqeem Ahmad, J.

MAZHAR HUSSAIN--Petitioner

versus

PRINCIPAL NISHTAR INSTITUTE OF DENTISTRY MULTAN and another--Respondents

W.P. No. 9594 of 2018, decided on 15.8.2018.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional Petition--Petitioner was serving as office attendant and transferred in admin branch of said institution--Challenge to--Authority has to decide request of any employee for leave as per leave rules; also taking into consideration urgency expressed by its employee, shortage of staff and number of employees already on leave--Though in ordinary course transfer is not expected to be made till completion of tenure for 3 years but department can make transfer in exigency of work before that period--Petitioner has failed to convince Court that by orders, impugned herein, his any right has been infringed--Of course, transfer and posting is part of service and it is for authority to see that where services of any staff member are required--If in such administrative matters, interference is made by Courts in routine, working of public Departments will be adversely affected and masses for whose welfare such Institutions have been established by spending huge amount of exchequer/tax-payers will be ultimate sufferers--Impugned orders have been passed by authority in exercise of delegated powers in best interest of department and plea of mala fide of Respondent No. 2 while passing impugned orders, raised by petitioner is devoid of any merits--As such, both writ petitions are dismissed. [Pp. 130, 131 & 132] A, B & C

PLD 1995 SC 530, 2009 PLC CS 320 & 2018 PLC (CS) 664, ref.

Mr. Sajjad Hussain Tangra, Advocate for Petitioner.

Mr. Khalid Masood Ghani, Assistant Advocate-General Punjab.

Mr. Mohammad Aslam Malik, Advocate for Private-Respondent.

Date of hearing: 15.8.2018.

Order

By this single order, I intend to dispose of the instant writ petition and connected W.P.No. 11358/2018 (Mazhar Hussain vs. Principal, Nishtar Institute of Dentistry, Multan & others), as both these matters have arisen between the same parties.

1. Facts of the case necessary for disposal of these petitions are that the petitioner was serving as Office Attendant in Dental Paramedical School, Nishtar Institute of Dentistry, Multan, and vide order dated 20.06.2018, passed by the Medical Superintendent, Nishtar Institute of Dentistry, Multan (hereinafter to be referred as “the Institute”), he has been transferred in Admin. Branch of the said Institute. The petitioner assailed this order by filing W.P. No. 9594/2018, mainly on the grounds of mala-fide and without jurisdiction.

2. Whereas, the petitioner by filing W.P.No. 11358/2018 has assailed the legality and propriety of order dated 23.06.2018, passed by Respondent No. 2, by which Amjad Abbas, Lab Attendant/Respondent No. 4 has been ordered to take-over the charge of Store of Dental Paramedical School.

3. The main contention of learned counsel for the petitioner is that the petitioner applied for earned leave, but the same was not accorded by the authority, and the petitioner filed W.P. No. 9098/2018 before this Court. As such, impugned orders have been passed to take revenge of approaching this Court. Moreover, under The Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, read with The Punjab Employees Efficiency, Discipline & Accountability Act, 2006, the Principal of the Institute is the competent authority to pass the transfer orders.

4. Whereas, learned Law Officer, by referring letter No. 10853-57, dated 13.11.2015, issued by the Principal, Nishtar Institute of Dentistry, Multan, has maintained that the Principal is holding the additional charge of the Office, who has delegated powers of transfer and posting of Gazetted and non-gazetted staff of the Department to the Medical Superintendent of the Institute and, as such, the orders impugned herein have been passed in exercise of delegated powers conferred on Respondent No. 2. It is further added that by the impugned orders, the petitioner will perform his duties in the same premises and, as such, the administrative order passed by the competent authority is not amenable to writ jurisdiction of this Court.

5. Contention heard.

6. The petitioner himself has placed on record copy of office Order No. 3033-36/NMC&H/Multan, dated 09.02.2015, indicating that the petitioner was initially working in Nishtar Institute of Dentistry, Multan. Whereas, vide impugned order dated 20.06.2018, the petitioner has been transferred in the same Institute [post against which he was already working in year 2015]. This transfer is not disadvantageous to the petitioner as he has been transferred against the same post/grade. There is no allegation of any political pressure against Respondent No. 2 while passing the impugned orders. Whereas, plea of mala fide of Respondent No. 2 is not supported by any tangible material. Of course, the authority has to decide the request of any employee for leave as per leave rules, also taking into consideration the urgency expressed by its employee, shortage of the staff and the number of employees already on leave. Though in ordinary course transfer is not expected to be made till completion of tenure for 3 years but the department can make transfer in the exigency of work before that period. The Hon’ble Supreme Court of Pakistan in case Zahid Akhtar vs. Government of Punjab (PLD 1995 SC 530) has observed that the transfer can be made in the following manner:--

(a) The transfer involves appointment to higher service or a post carrying higher emoluments.

(b) The transfer is being made to a post for which the officer has special aptitude, qualifications or experience.

(c) The officer has proved unsuitable in the post from which he is being transferred.

(d) The officer holding a lien on the post, has become available.

(e) Transfer is on compassionate grounds.

This Court in case Tahir Mehmood Abbasi and another vs. District Coordination Officer, Rawalpindi and another (2009 PLC (C.S.) 320) has held that transfer of government functionary/employee from one place of posting to another one was neither punishment nor violation of terms and conditions of service. The Authority had the prerogative to utilize services of its staff members at a place and against a position of its discretion keeping in view the administrative consideration confronting the authority. This Court in another case Tariq Mehmood Malik vs. Chief Executive Officer and others (2018 PLC (C.S.) 664) has held that the employee had no vested right to remain posted at a place of his own choice nor could he insist that he must be posted at one place or the other. Of course, the employee was liable to be transferred in the administrative exigencies from one place to another. The competent authority had prerogative to transfer any employee and as a general rule the Courts should refrain from interfering in posting and transfer matters, when there was no element of mala fide or such plea was taken without any substance.

1. As informed by the learned Law Officer, new place of posting of present petitioner is also in the same premises, as such the petitioner has failed to convince the Court that by the orders, impugned herein, his any right has been infringed. Of course, transfer and posting is part of service and it is for the authority to see that where services of any staff member are required. If in such administrative matters, interference is made by the Courts in routine, the working of the public Departments will be adversely affected and the masses for whose welfare such Institutions have been established by spending huge amount of exchequer/tax-payers will be the ultimate sufferers.

2. As noticed supra, Respondent No. 2 has exercised the delegated powers of the Principal of the Institute, therefore, the order impugned herein cannot be termed as without jurisdiction or without lawful authority.

3. For what has been discussed above, the impugned orders have been passed by the authority in exercise of delegated powers in best interest of the department and the plea of mala fide of Respondent No. 2 while passing the impugned orders, raised by the petitioner is devoid of any merits. As such, both the writ petitions are dismissed.

(M.M.R.) Petition dismissed.

PLJ 2019 Lahore 132 [Multan Bench Multan]

Present: Muzamil Akhtar Shabir, J.

BAQIR HAMEED and another--Petitioners

versus

GOVERNMENT OF PUNJAB through Secretary and 4 others--Respondents

W.P. No. 12396 of 2017, heard on 20.6.2018.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional Petition--Recruitment of educators--Clearance of NTS and interview--Petitioners were selected--Withdrawal of appointment letters--Non-issuance of show-cause notice--Recruitment policy 2016-17--Equivalence of Master Degress--Principle of locus poenitenciae--Question of whether LLB degree would be treated equal to Graduation or Master--Determination--In advertisement for appointment, LL.B is one of academic qualifications required for purpose of appointment, which is mentioned alongwith qualification of Master Degree and degrees equivalent to Master and Bachelor are also included in prescribed qualification--Higher Education Commission vide its letter dated July 27th 2017, has declared Bachelor of laws equal to Master Degree for purposes of academic qualification--In Policy and advertisement issued thereunder, LL.B Degree was specifically mentioned as a requisite academic qualification--Said Degree is higher than a Bachelor Degree. Bachelor Degree of 4 years has been treated as equal to Master Degree in Policy by calculating its marks as Graduation plus Master Degrees on basis of years of education--Higher Education Commission recognizes LL.B Degree equal to Master Degree also on basis of years of education--LL.M Degree being a higher Degree than LL.B is treated equal to Degree of M.Phil. There is nothing in Policy or advertisement providing that LL.B Degree would be treated as less than Master Degree--It is not case of respondents/department that petitioners had obtained appointment on basis of fraud and mis-representation, rather case is that petitioners were not entitled to marks of LL.B Degree which had been erroneously provided to them--Their appointments cannot be said to have been made in violation of rules or policy and consequently principle of locus poenitentiaewould not permit competent authority to undo same and remove incumbents from service. [P. 137, 138, 139 & 140] A, B, D & E

PLD 2010 SC 1089 & 2008 SCMR 598, ref.

Higher Education Commission Ordinance, 2002--

----S. 10(o)--Equivalence and recognition of Degrees--It abundant clear that Commission may determine equivalence and recognition of degrees, diplomas and certificates awarded not only by institutions within country but as well as institutions functioning abroad.

[P. 138] C

2007 SCMR 951, ref.

General Clauses Act, 1956 (VI of 1956)--

----S. 20--Powers of Authority--Withdrawal of vested right--Said power cannot be exercised when a vested right is created in favour of other party--Even otherwise, order of competent authority for awarding marks out of 15 to LL.B Degree holders on basis of percentage obtained in said examination by them, was not an illegal order rather it could only be treated an order based on interpretation of policy--Once having interpreted Policy in favour of petitioners and issuing them appointment letters, respondents/authority would be estopped and could not be allowed to later-on interpret said Policy differently especially in a manner that cannot co-exist with earlier interpretation just to deprive petitioners of vested rights already accrued in their favour--Besides authorities cannot be allowed to approbate and re-approbate by adopting contrary pleas in same breath in same matter to review their previous orders--Order passed by respondent whereby appointment letters of petitioners have been withdrawn, is declared to have been passed on basis of wrong interpretation of Policy, without lawful jurisdiction and of no legal effect and same is set-side--Petitioners shall be re-instated into service on position--Petition was allowed. [Pp. 140 & 141] F, G & H

1997 SCMR 15 & 2016 SCMR 460, ref.

Raja Naveed Azam, Advocate for Petitioners.

Mr. Muhammad Aurangzeb Khan, AAG with M. Akram Shahid, DEO (M-EE), Muzaffargarh for Respondents.

Date of hearing: 20.6.2018.

Judgment

Through this Constitutional petition, the petitioners have called in question the order dated 23.08.2017, passed by District Education Officer (M-EE) Muzaffargarh, whereby the appointment letters issued to the petitioners for the post of ESE (Science/Math) have been withdrawn.

1. Brief facts of the case are that the respondents advertised for recruitment of educators in District Muzaffargarh. The petitioners having academic qualification B.A, LL.B. applied for appointment to the posts of ESE (Science/Math). They cleared NTS test as well as the interview and were selected and appointed on 02.08.2017, where-after they joined their place of posting in respective schools, all of a sudden, the District Education Officer (M-EE) Muzaffargarh/Respondent No. 4 withdrew the appointment letters of the petitioners vide order dated 23.8.2017. The said order is under challenge through this Constitutional petition.

2. Learned counsel for the petitioners argued that the appointment letters of the petitioners have been withdrawn without issuing show-cause notices to the petitioners or providing them an opportunity of being heard. It is also claimed that the withdrawal order is mala fide and based on colourful exercise of jurisdiction. Furthermore, it is claimed that the Higher Education Commission (‘HEC’) recognizes the educational qualification of LL.B as equal to Master Degree therefore, the action of the respondents to deduct the marks awarded to the petitioners for qualification of Master Degree is without lawful authority and consequently the order dated 23.8.2017 of withdrawal of their appointments is liable to be struck down.

3. On the other hand, learned AAG has argued that the petitioners did not hold Master Degree and were not entitled to be granted marks for the same, hence claims that the marks for Master Degree were erroneously awarded and rightly deducted whereby the petitioners were not able to maintain their position in the merit list prepared for the said appointments and consequently their appointment letters have been rightly withdrawn.

4. Arguments heard. Record perused.

5. From the perusal of the Recruitment Policy 2016-2017 for School Specific Educators and SSE (Assistant Education Officers) “Policy” and the advertisement dated 19.10.2016 published in daily Nawa-i-Waqt issued by respondents for the purpose of appointment of educators, it is observed that the academic qualification prescribed for the appointments of teachers of ESE (Science/Math) BS-9 includes Master Degree, Bachelor Degree and LL.B, etc., at least in second division, which is reproduced below:

| | | | | --- | --- | --- | | Nomenclature of post | Academic Qualification (at least 2nd Division II | Professional Qualification (at least 2nd Division) | | ESE (Sci-Math) | MA/MSC/B.Sc/BA/BA(Hon)/BSc(Hon)/BBA/MCS/ BCS/M.Sc. (IT)/MIT/LLB/M Com/B.Com/MBA/BS (Hon)/ADE/MBIT/ BBA/TI/BS(TS 4 years)/ Master degree/Bachelor degree/DVM/Animal Husbandry/Doctor of Pharmacy/ Graduation in Engineering/Technology/ Agriculture/ Nursing/ Commerce in any Subject(s)/ Discipline/ Trade/ Technology OR Master Degree/ Bachelor Degree/ Bachelor Honor Degree/ ADE and intermediate with at least two major subjects out of Physic, Chemistry, Biology, Mathematics, Statistics and Computer Science OR MSEd/BSEd with at least two subjects out of Chemistry, Zoology, Botany, Physics Math-A Course, Math-B Course & Math. | |

1. The Policy provides the following ranking criteria for appointment of Educators:

| | | | --- | --- | | “RANKING CRITERIA FOR EDUCATORS. | | | Interview | 05 | | Professional Qualification | 05 | | Marks allocated for academic qualification | 58 | | Matric 13 marks | | | Intermediate 15 marks | | | Graduation 15 marks | | | Master Degree 15 marks | | | Local Residence | 12 | | Test | 20 | | Total Merit Marks | 100 |

Note:

(i) Merit marks to be calculated on the basis of percentage obtained in each examination.

(ii) ………………………….

(iii) The candidates of ESE of ESE (Sci-Math) having Master Degree in any subject are considered academic qualification. However, M.Ed/MA(Edu)/B.Ed degree shall be considered as professional qualification.

(iv) …………………………

(v) …………………………

(vi) …………………………

(vii) Merit marks for BA/BS(Hons 4-years), B.Sc (4-years) in Agriculture and B.Sc (4-years) in Engineering/Technology are calculated out of the qualification marks of Graduation plus Masters decree.

(viii) ………………………….

(ix) The candidates shall submit their certificates/result cards with application clearly indicating total marks, subject wise allocated marks and obtained marks issued by the concerned Controller of Board or recognized University. Further, a certificate issued by the concerned Controller of Board/University shall be attached with the application regarding conversion of CGPA into percentage marks, if applicable.”

1. From the perusal of ranking criteria, it is apparent that the candidates were to be awarded marks out of 58 allocated for the educational qualification, which were further sub-divided as Matric-13 marks, Intermediate-15 marks, Graduation-15 Marks and Master Degree-15 marks. The LL.B Degree has not been mentioned in the said ranking criteria although the said Degree is mentioned as one of the basic required academic qualifications for appointment to the said posts.

2. Now, the questions arise for determination are that Whether the LL.B Degree would be treated as equal to Graduation or Degree and Whether LL.B Degree holders are entitled to receive marks allocated for academic qualification of Master Degree for the purpose of appointment to the post of ESE (Science/Math). In this regard, it is observed that during the recruitment process, the respondents treated the LL.B qualification as equivalent to Master Degree and awarded marks on the basis of percentage obtained in the LL.B examinations and issued appointment letters to the petitioners but after they joined their services, all of sudden on 23.08.2017, their appointment letters were withdrawn on the ground that LL.B Degree holder candidates had erroneously been awarded marks for LL.B Degree by treating them as holders of Master Degree. The said action of the respondents was called in question in Constitutional petition (W.P.No. 5598/2017) titled Muhammad Saleem and 13 others, and the same was referred by this Court vide order dated 15.08.2017 to the Secretary SED Lahore/ Respondent No. 1 as a representation to decide the matter in accordance with law and policy applicable thereto. Thereafter the Respondent No. 1 rejected the claim of the petitioners for treating LL.B as equal to Master Degree and held that candidates having LL.B Degree were not eligible to claim 15 additional marks for their Degree by treating the same as equivalent Master Degree (M.A.). Consequently the orders of appointment issued to the petitioners were claimed by the respondents to have been rightly re­called.

3. In advertisement for appointment, LL.B is one of the academic qualifications required for the purpose of appointment, which is mentioned alongwith qualification of Master Degree and degrees equivalent to Master and Bachelor are also included in the prescribed qualification. However, it has not been mentioned Whether the LL.B Degree would be treated equal to Graduation or Master Degree. The LL.B Degree is a Degree higher than the Graduation/ Bachelor Degree and is obtained after completing study course comprising of 3-years after Graduation. In the Note No. (vii) attached to the Ranking Criteria (supra) it is mentioned that Merit marks for BA/BS(Hons 4-years), B.S (4-years) in Agriculture and B.Sc. (4-years) in Engineering/Technology are calculated out of the qualification marks of Graduation plus Master Degree. From the perusal of the afore-referred Note, it is observed that even a Bachelor Degree having duration of four years is treated as equal to Master Degree and its marks are to be calculated out of the qualification marks of Graduation plus Master Degree based on years of education although the same by its nomenclature is not a Master Degree. Therefore, on the basis of same criteria and analogy, the LL.B Degree cannot be equated with a Bachelor Degree only and is to be treated more than the same.

4. The Higher Education Commission vide its letter dated July 27th 2017, has declared the Bachelor of laws equal to Master Degree for the purposes of academic qualification, which letter is reproduced below:

“7. With reference to your application dated July 27th 2017 on the subject, it is informed that University of Sargodha is a chartered university in public sector. The Higher Education Commission recognizes Bachelor of Laws “Transcript” held by you from University of Sargodha after ‘B.A/14-years schooling as equivalent to corresponding Bachelor of Laws (LL.B) degree. On the basis of year of schooling, holder of Bachelor of Laws degree may apply for the posts where required qualification is Master’s degree in general stream involving 16-year of schooling. It may also be noted that admission in a university for further education and determination of suitability in relation to job requirement rest with the concerned university and employing agency, respectively and thus Commission has no role in such issues. This letter is being issued on provisional basis subject to submission of original LL.B degree.” (emphasis supplied).

1. The Higher Education Commission is authorized to declare equivalence of degrees and a degree not recognized by Higher Education Commission if worthless like a piece of paper and cannot be equated to that of a ‘Degree’ because such Degree is subject to recognition which provides sanctity to the Degree. Reliance is placed on Haji Nasir Mehmood v. Mian Imran Masood & others (PLD 2010 Supreme Court 1089). In the said judgment, while discussing the powers of HEC in Section 10(o) of the Higher Education Commission Ordinance, 2002 it has also been observed that Higher Education Commission may determine equivalence and recognition of Degrees, Diplomas and Certificates awarded not only by Institutions within the country but as well as the institutions functioning abroad. The relevant portion of the judgment has been reproduced below:

“11. A bare reading of Section 10(o) would make it abundant clear that the Commission may determine the equivalence and recognition of degrees, diplomas and certificates awarded not only by the institutions within the country but as well as the institutions functioning abroad. We are not impressed by the contention of Mr. Muhammad Akram Sheikh, learned Sr. Advocate Supreme Court that Higher Education Commission has nothing to do with such matters for the simple reason that Section 10(o) of the Higher Education Commission Ordinance, 2002 has been examined on various occasions and the contention as mentioned above was not considered at all and Commission was found competent to determine the equivalence and recognition of degrees and diplomas.”

1. Even otherwise, LL.M Degree which is higher than LL.B Degree has been declared equal to M.Phil. Reliance is placed on Shahid Hussain Abbasi, Assistant Professor of Law v. Secretary to the Government of N.W.F.P Education Department & others (2007 SCMR 951). The relevant portion is reproduced below:

“6. It is admitted fact that after joining education department as officiating lecturer appellant obtained LL.M. which is equal to M.Phil, therefore, we are of the opinion that he had improved his education, as such was fully entitled for incentive of advance increment. The assertion of the Tribunal that when he was inducted in service, he was not LL.M seems to be against the above policy, in view of the para, which is reproduced hereinabove. The benefit of such incentive goes to the employee who has obtained degree during the service but he was not possessing at the time of his induction in the service. It is an admitted fact that degree was obtained by the appellant on 29th December, 1988 when he was already into the service.”

1. In the Policy and advertisement issued thereunder, the LL.B Degree was specifically mentioned as a requisite academic qualification. The said Degree is higher than a Bachelor Degree. The Bachelor Degree of 4 years has been treated as equal to Master Degree in the Policy by calculating its marks as Graduation plus Master Degrees on the basis of years of education. The Higher Education Commission recognizes the LL.B Degree equal to Master Degree also on the basis of years of education. The LL.M Degree being a higher Degree than LL.B is treated equal to Degree of M.Phil. There is nothing in the Policy or the advertisement providing that LL.B Degree would be treated as less than the Master Degree. The petitioners were provided the benefit of the LL.B. qualification at the time of their appointments by providing 15 additional marks, therefore, the LL.B Degree for all intents and purposes on the basis of years of education already recognized by the Policy for 4-years Bachelor Degree is to be treated as Master Degree for the purpose of appointment under the Policy. It is not the case of the respondents that LL.B Degree was not a required academic qualification under the Policy and could not be considered for appointment. Moreover, there is no prohibition in the Policy wherein the qualification of LL.B has been declared not entitled to 15 marks for the purpose of appointment as ESE (Science/Math). What is not prohibited is permitted unless same specifically violates any law or rules. Reliance may be placed on Additional Collector-II, Sales Tax, Lahore v. M/s Abdullah Sugar Mills Ltd. and others (2003 SCMR 1026). Therefore, once having awarded the marks for LL.B Degree as equivalent to Master Degree, the respondents could not thereafter be allowed to deduct the said marks and withdraw the order of appointment of the petitioners, more so, for the reason that the said orders had been acted upon and the petitioners had joined the services and accordingly decisive steps had been taken on both sides where-after vested rights had been created in favour of the petitioners which cannot be lightly taken away on the basis or reasons mentioned by the respondents. It is not the case of the respondents/department that the petitioners had obtained the appointment on the basis of fraud and mis-representation, rather the case is that the petitioners were not entitled to the marks of LL.B Degree which had been erroneously provided to them. Their appointments cannot be said to have been made in violation of the rules or policy and consequently principle of locus poenitentiaewould not permit the competent authority to undo the same and remove the incumbents from the service. Reliance is placed on Mian Tariq Javaid vs. Province of Punjab etc. 2008 SCMR 598).

Although an authority that has passed an order has the authority to withdraw, vary or rescind the same under Section 20 of Punjab General Clauses Act, 1956 but the said power cannot be exercised when a vested right is created in the favour of the other party. Even otherwise, the order of the competent authority for awarding marks out of 15 to LL.B Degree holders on the basis of percentage obtained in the said examination by them, was not an illegal order rather it could only be treated an order based on interpretation of the policy. Once having interpreted the Policy in favour of petitioners and issuing them appointment letters, the respondents/authority would be estopped and could not be allowed to later-on interpret the said Policy differently especially in a manner that cannot co-exist with the earlier interpretation just to deprive the petitioners of vested rights already accrued in their favour. Reliance may be placed on Chairman Selection Board vs. Wasif Zameer(1997 SCMR 15) and Chairman Senate vs. Shaiq Ahmad Khan (2016 SCMR 460).

1. Besides authorities cannot be allowed to approbate and re-approbate by adopting contrary pleas in the same breath in the same

matter to review their previous orders. Reliance in this behalf is placed on Chairman Minimum Wage Board vs. Fayyaz Khan Khattock (1999 SCMR 1004). Consequently, the order passed by Respondent No. 4 dated 23.08.2017, whereby the appointment letters of the petitioners have been withdrawn, is declared to have been passed on the basis of wrong interpretation of the Policy, without lawful jurisdiction and of no legal effect and the same is set-side. The petitioners shall be re-instated into service on the position which was prevalent before passing the afore-referred order dated 23.08.2017.

1. For what has been discussed above, this petition is allowed in the above terms.

(M.M.R.) Petition allowed

PLJ 2019 Lahore 141 [Rawalpindi Bench Rawalpindi]

Present: Shakil-ur-Rehman Khan, J.

Mst. SAIRA IRAM--Petitioner

versus

CHIEF SECRETARY PUNJAB LAHORE and another--Respondents

W.P. No. 3322 of 2018, decided on 30.11.2018.

Punjab Employees Efficiency, Discipline and Accountability Act, 2006--

----S. 16--Constitution of Pakistan, 1973, Art. 199--Punjab Service Tribunals Act, 1974, S. 4--Constitutional petition--Application for leave without pay for one year--Reply was not received--Willful absent from duty--Issuance of show-cause notice--Personal hearing--Compulsory retirement--Pendency of appeal--Departmental appeal--Time barred--Challenge to--Petitioner was required to approach Service Tribunal within one month of expiry of 90 days, after having filed departmental appeal. Unfortunately, she has approached this Court in year 2018 and now seeks a direction to respondent, Chief Secretary Punjab to decide departmental appeal of petitioner which she had filed--Law clearly caters for situation at hand, i.e., that in cases where departmental appeals are not decided within stipulated time period, aggrieved civil servant can approach Service Tribunal after expiry of 90 days and maximum period within which said Tribunal can be approached is next thirty days. This case again does not help petitioner, as stance taken before competent authority by her was that she was not aware of procedure for long leave. It is also noted from record placed with instant petition that she willfully absented herself without obtaining prior leave. It is further noted that petition in hand, as is self-evident from record, that after October, 2014 she did not bother to contact anyone of relevant authorities, hence too, writ petition merits dismissal. [P. 147 & 148] A & B

2016 PLC (CS) 177, 2009 PLC (CS) 77 & 2018 PLC (CS) Note 52, ref.

Constitution of Pakistan, 1973--

----Art. 212--Term & Conditions of service--Appropriate forum--It is also noted that matter relates to terms and conditions of service for which Service Tribunal is appropriate forum. In such circumstances bar contained in Article 212 of Constitution of Islamic Republic of Pakistan, 1973 is also fully attracted. [P. 149] C

Constitution of Pakistan, 1973--

----Art. 174--Civil Procedure Code, 1908, S. 79--Used of--Petitioner has not sued Province of Punjab in accordance with provisions of Constitution of Islamic Republic of Pakistan, 1973 (Article 174) read with Code of Civil Procedure, 1908, (Section 79) hence too this petition merits dismissal. [P. 149] D

Mr. Moazzam Sajjad Kiani, Advocate for Petitioner.

Date of hearing: 30.11.2018

Order

The instant writ petition has been filed with the following prayer:--

“In view of the above submissions it is humbly prayed that the respondents may kindly be ordered / directed for decision of her departmental appeal as early as possible.”

1. The relevant facts of the case for the decision of the instant writ petition are that the petitioner was serving as a Charge Nurse at Benazir Bhutto Hospital, Rawalpindi. She applied leave for one year on 22.3.2013 to the Director General Nursing, without pay from 05-4-2013 to 05-4-2014. A show-cause notice dated 19-02-2014 was served upon her under. The Punjab Employees Efficiency, Discipline and Accountability Act, 2006 for being absent from duty w.e.f. 05-4-2013. She submitted a reply to the same on 14.4.2014 through which she explained that she had applied leave for one year; that the Director Finance, R.M.C./Allied Hospital issued leave entitlement as EOL without pay and that the Medical Superintendent, Benazir Bhutto Hospital, Rawalpindi, forwarded her leave application along with the leave certificate to the competent authority for its approval but the reply from the competent authority was not received. Moreover, she also claimed that the reminders were issued by the Medical Superintendent, Benazir Bhutto Hospital, Rawalpindi for sanctioning of the said leave. It is also noted that through this reply she had stated that she did not know the process of long leave. She requested that she be granted leave and sought permission to join her duty at Benazir Bhutto Hospital Rawalpindi w.e.f. 05-4-2014. In view of the above, she was given personal hearing on 12-6-2014. The competent authority noted that she could not give any plausible reason of her absence, therefore, she was compulsorily retired from the government service w.e.f. 05-4-2013, vide order dated 19-7-2014. The record appended with the instant writ petition shows that she filed a departmental appeal dated 12-9-2014. It needs to be noted that under Section 16 of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006 the departmental appeal has to be filed within thirty (30) days from the date of communication of the order. The said appeal as annexed with the petition does not say a word about the date on which the said order dated 19-7-2014 was communicated to the petitioner, therefore, it seems that the departmental appeal itself was time barred. In any case, thereafter, the petitioner applied to the Chief Minister’s Office, Punjab and a direction was issued by the said office on 31-10-2014, for appropriate action, as per the rules and policy.

2. The learned counsel for the petitioner stated that the appeal of the petitioner is still pending and that she cannot approach the Service Tribunal without the decision of her departmental appeal, therefore, Respondent No. 1 be directed to decide the same. In order to substantiate his arguments he relied upon the cases reported as:--

(i) S. H. M. Rizvi and 5 others versus Maqsood Ahmad and 6 others (PLJ 1982 S.C. 24) = S. H. M. Rizvi and 5 others versus Maqsood Ahmad and 6 others (PLD 1981 S.C. 612).

(ii) Abdul Bari Khadim versus Government of Balochistan through Chief Secretary and 3 others (2016 P.L.C. (C.S.) 177); &

(iii) Sultan Khan and others versus Public Functionaries (2009 P.L.C. (C.S.) 77).

1. He further contended that the show-cause notice was based on misconceived information, otherwise it is evident that she was on earned leave for one year which had been properly approved by the authority.

2. No other issue was raised / argued by the learned counsel for the petitioner. However, in view of the above, he prayed that a direction be issued to Respondent No. 1 for decision of the departmental appeal as early as possible, so that, the petitioner gets a final order in her hands and this will enable her to approach the Service Tribunal by way of filing an appeal under Section 4 of the Punjab Service Tribunals Act, 1974.

3. The learned counsel for the petitioner was confronted with the provisions of Section 4 of the Punjab Service Tribunals Act, 1974 to explain how constitutional jurisdiction could be exercised at this stage to rescue the petitioner from the time limit prescribed in the said Section for filing of an appeal before the said Tribunal. In response to the above noted issue, he referred to the above noted judgments wherein the Courts had either given directions for decision on departmental appeals or it was held that the relevant authorities should decide the cases pending before them.

4. Heard. Record perused.

5. In order to appreciate the issue at hand, it is imperative to consider the relevant provisions of the Punjab Service Tribunals Act, 1974:--

“4. Appeal to Tribunals.--(1) Any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service may, within thirty days of the communication of such order to him or within six months of the establishment of the appropriate Tribunal, whichever is latter prefer an appeal to the Tribunal--

Provided that--

(a) when an appeal, review or representation to a departmental authority is provided under the Punjab Civil Servants Act, 1974, or any rules against any such order no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or representation to such departmental authority and a period of ninety days has elapsed from the date on which such appeal, application or representation was so preferred;”

The above noted statutory provision clearly provides for the timeline that needs to be followed by an aggrieved civil servant in respect of any adverse order passed / made by a departmental authority, in respect of his terms and conditions of service.

1. Turning to the case law submitted by the learned counsel for the petitioner, it is clear that all these cases do not support the contentions of the learned counsel, as noted below:--

(i) S.H.M. RIZVI AND 5 OTHERS VERSUS MAQSOOD AHMAD AND 6 OTHERS (PLD 1981 S.C. 612) [THE SAME JUDGMENT HAS BEEN REPORTED AS PLJ 1982 S.C. 24].

It may be noted that there is a misprint in the citation regarding the page. The correct citation is PLJ 1982 Supreme Court 36.

In this case the issue before the Apex Court was that whether the appeal before the Service Tribunal had been pre-maturely filed or not. The Hon’ble Supreme Court of Pakistan after taking into consideration the facts and circumstances of the case, while setting aside the judgment of the Service Tribunal, dismissed the service appeal, finding it incompetent. That case related to a seniority list to which objections had been filed. The covering letter that circulated the seniority list clearly stated as follows:--

“The seniority list is circulated amongst the officers concerned, who are requested to acknowledge its receipt. Objection, any, may please be filed by the 8th May, 1976 at the latest. No objection shall be entertained if received after prescribed date.”

The respondent therein, filed an objection to the said list on 4-05-1976 and after waiting for ninety days he filed an appeal before the said Tribunal, treating the seniority list dated 21-4-1976 to be the final order within the meaning of Section 4 of the Service Tribunal Act. The Tribunal concluded that the said list had become final within the meaning of sub-section (1) of Section 4 of the Service Tribunals Act, 1974. The Honourable Supreme Court of Pakistan held that:--

“Right of appeal has been conferred by subsection (1) of Section 4 only against a “final order whether original or appellate”. A final order has the distinction of determining the rights of the parties. Where any further step is necessary to perfect an order, in this case the disposal of the objections received or finalization of the provisional seniority list, the order cannot be taken to be final. An order may be final, if it determines the rights of the parties, concludes the controversy so far as a particular authority or forum is concerned notwithstanding that such an order may be open to challenge in appeal etc. This aspect of the concept of the finality of an order has been taken care of by adding the words “whether original or appellate” in the enacted law itself.”

The Honourable Supreme Court of Pakistan further held that:--

“The proviso (a) to subsection (1) of Section 4 of the Service Tribunal Act relied upon by the learned counsel for the respondent has not the slightest effect of detracting from the finality of the order to be appealed against. What it accomplishes is that even a final order should not be brought before the Services Tribunal if a right of appeal, review or representation to a departmental authority is provided under the law, unless that right has been availed of and the specified number of 90 days has elapsed without a substitutive order. The object of it all appears to be to encourage, ensure and emphasize the redress of service grievances within the departmental hierarchy before ventilating them in the Service Tribunal. As there was no final order ever passed on the objection of the respondent nor was the seniority list finalized his appeal was not competent under Section 4 of the Service Tribunal Act.”

In view of the above noted circumstances the Honourable Supreme Court of Pakistan observed that:

“It is either a right of appeal or a right to make a representation. In cases where the departmental authorities procrastinate or contumaciously refuse to pass a final order, as appears to have happened on the objection of the respondent (for the objection filed in 1976 remains to date undisposed of and the provisional list that issued in 1976 is yet to be finalized) the remedy for the aggrieved civil servant is to represent to the next higher authority and after waiting for a reasonable time to seek Constitutional remedy for a direction to the departmental authority to perform a duty enjoined upon it by law. The Service Tribunal being a statutory forum with restricted jurisdiction cannot in the absence of a final order of departmental authority adjudicate on all legitimate grievances of civil servants.”

1. The above noted case does not support the contentions of the learned counsel for the petitioner for the reason that the petitioner in the instant case does have the original order with her and under the provisions of the Clause (a) of the proviso of sub-section (1) of Section 4 of the Punjab Service Tribunals Act, 1974 she was required to approach the Service Tribunal within one month of the expiry of 90 days, after having filed the departmental appeal. Unfortunately, she has approached this Court in the year 2018 and now seeks a direction to the respondent, Chief Secretary Punjab to decide the departmental appeal of the petitioner which she had filed on 12-9-2014. The Hon’ble Supreme Court of Pakistan in the above noted case had also observed that the aggrieved person is to wait for a reasonable time to seek constitutional remedy for a direction to the departmental authority to perform the duty enjoined upon it by law. It needs to be noted that this was so said by the Apex Court for the reason that there was no final order either “original” or “appellate” with the civil servants who were parties to that case.

(ii) ABDUL BARI KHADIM VERSUS GOVERNMENT BALOCHISTAN THROUGH CHIEF SECRETARY AND 3 OTHERS (2016 PLC (CS) 177)

In this case a direction was sought for the decision of the appeal filed by the petitioner so that he could approach the Balochistan Service Tribunal by filing a service appeal for recovery of his salary etc. The learned Balochistan High Court while allowing the petition directed the competent authority to decide the appeal of the petitioner, within one month and noted as follows:--

“6. The point of limitation though agitated by both the counsel for the petitioner and the Assistant Advocate-General, but as the only effective order prayed in the petition pertains to issuance of a direction to the concerned authority for making a decision on appeal pending before it, thus there is no need to go into merit of the case and record findings on maintainability of the petition with reference to the provisions containing the stipulated period for filing of an appeal before the Service Tribunal. This issue left for decision of the Service Tribunal, the relevant forum.”

I, very humbly and with all due respect to that learned Court, tend to disagree with the same for the reason that there would be no question of limitation left for the Tribunal to decide, as an aggrieved civil servant has to approach the Service Tribunal within the stipulated period of 30 days. Even if his appeal is not decided he has to approach the said Tribunal within the prescribed period. If such a direction is issued while exercising constitutional jurisdiction and in compliance thereof the competent authority decides the departmental appeal/representation / review, as the case may be, then a new lease of life is given to the civil servant, which would result into defiance of the statutory law. As a consequence of the direction issued by that Honourable Court, the Service Tribunal could only decide the case on merits and not on the issue of limitation. On the other hand, another consequence of such a direction having been given may result into multiplicity of litigation. In case of non-compliance by the departmental authority, in the face of such a direction, the petitioner may file a contempt petition. Confronted with such a situation, the Departmental authority will either have to comply with the direction or face the consequences under the law of contempt. On the other hand, it may challenge the same before the Apex Court. This clearly is not the intention of the governing law.

(iii) SULTAN KHAN AND OTHERS VERSUS PUBLIC FUNCTIONARIES (2009 PLC (CS) 77)

In this case the departmental appeal of the petitioners dated 12-4-2007 regarding their entitlement to “generation allowance” was pending before the respondent. Their claim before the constitutional Court was that the decision of the said appeals was being delayed without any reason. This writ petition was filed in 2008 and decided on 21-5-2008. The Honourable Court, in limine, issued a direction to the respondent for deciding the departmental appeals within one month.

I again very humbly and with utmost respect do not agree with the above noted judgment for the reason that the law clearly caters for the situation at hand, i.e., that in cases where the departmental appeals are not decided within the stipulated time period, the aggrieved civil servant can approach the Service Tribunal after the expiry of 90 days and the maximum period within which the said Tribunal can be approached is the next thirty days. This case again does not help the petitioner, as the stance taken before the competent authority by her was that she was not aware of the procedure for long leave. It is also noted from the record placed with the instant petition that she willfully absented herself without obtaining prior leave. It is further noted that the petition in hand, as is self-evident from the record, that after October, 2014 she did not bother to contact anyone of the relevant authorities, hence too, the writ petition merits dismissal.

Keeping in view the above noted conduct of the petitioner and the fact that she did not approach the Service Tribunal within the period provided for under the provisions of Section 4 of the Punjab Service Tribunals Act, 1974, the direction prayed for cannot be granted. In reaching this conclusion, I am fortified by the case reported as Muhammad Naeem vs. Director Public Instruction (SE), Punjab and another (2018 PLC (C.S.) Note 52).

1. It is also noted that the matter relates to the terms and conditions of service for which the Service Tribunal is the appropriate forum. In such circumstances the bar contained in the Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 is also fully attracted. It is further noted that certain other precedents have also been mentioned in various paragraphs of the writ petition but these were not referred to by the learned counsel for the petitioner and rightly so as they related to the merits of the case. It also needs to be noted that the petitioner has not sued the Province of Punjab in accordance with the provisions of the Constitution of the Islamic Republic of Pakistan, 1973 (Article 174) read with the Code of Civil Procedure, 1908, (Section 79) hence too this petition merits dismissal. Reference is made to cases reported as “Government of Balochistan VS. Nawabzada Mir Tariq Hussain Khan Magsi & Others 2010 SCMR 115 & Province of Punjab VS. Muhammad Hussain PLD 1993 SC 147. In the above background, I am afraid I cannot set the ball rolling for the petitioner particularly in view of the governing law, resultantly, this petition is dismissed in limine.

(M.M.R.) Petition dismissed

PLJ 2019 Lahore 149

Present: Jawad Hassan, J.

TAHIR PERVAIZ, DIRECTOR-GENERAL, LEGAL AFFAIRS, PAKISTAN RAILWAYS--Petitioner

versus

FEDERATION OF PAKISTAN and 6 others--Respondents

W.P. No. 243662 of 2018, heard on 8.1.2019.

Constitution of Pakistan, 1973--

----Art. 199--General Clauses Act, 1897, Ss. 16 & 21--Qanun-e-Shahadat Order, (10 of 1984), Art. 102--Constitutional petition--Contractual Employee--Termination of Contract by competent Authority--Term & Conditions of service--Locus standi--Jurisdiction Maintainability--Question of--Whether this petition is maintainable in contractual matters as petitioner was purely appointed on contract basis--Determination--Petitioner was made prior to expiry of his contract which is illegal--It is a settled principle of law as laid down by Honorable Supreme Court of Pakistan that a contractual employee cannot enforce terms of his contract in constitutional jurisdiction--It is an established principle that where employment is on contract, there is a relationship of master and servant and in such like cases Constitutional petition under Article 199 of Constitution is not maintainable--It is clear that competent authority to appoint Petitioner is Selection Board headed by Secretary of said Ministry/Division and not Prime Minister rather it is approving authority, as impugned order cannot be said to have been passed by incompetent authority--Petitioner being a contract employee has no locus standi to file instant petition--It is settled law that, where a service grievance is agitated by a person/employee who is not governed by statutory rules of service, constitutional petition before High Court, in terms of Article 199 of Constitution is not maintainable--It is a cardinal principle of law that a contract employee instead of pressing for his reinstatement to serve for leftover period can at best claim damages to extent of unexpired period of his service--It is needless to mention that contract employees are always governed by terms and conditions of contract and cannot ask for more than that--Therefore in this case, his contract was terminated under Clause-11 of contract--It is settled principle that where employee, after accepting terms and conditions of his contract employment had submitted his joining report, service of such employee could be terminated without assigning any reason--It is prerogative of competent authority either to dispense with services of such employee or continue with same by extending contract-- It is clear that competent authority to appoint Petitioner is Selection Board headed by Secretary of said Ministry/Division and not Prime Minister rather it is approving authority, as such impugned order cannot be said to have been passed by incompetent authority--No doubt approving authority of Petitioner is Prime Minister but it is noticeable here that word “prior” is never mentioned; meaning thereby that although “approval” of Prime Minister for appointment of Petitioner is essential yet “prior approval” is not necessary for appointment or termination of Petitioner. [Pp. 156, 157, 161, 164 & 165] A, B, C, F, G, H & I

2011 PLC (CS) 654 & 2005 PLC (CS) 1447, ref.

PLD 2019 Lahore 1 & 2013 SCMR 1383

Word & Phrases--

----Approval--Act of confirming, ratifying, assenting, sanctioning, or consenting to some act or thing done by another.” [P. 162] D

Black’s Law Dictionary (Fifth Edition).

Permission, approval, prior Approval--

----Approval to an act or decision can also be subsequent to act or decision--Because of jurisprudence developed across world, there is distinction between “permission”, “prior approval” and “approval”--Requirement that Management must obtain approval is distinguished from requirement that it must obtain permission--If words used were “with prior approval of Prime Minister”, impugned order could not be issued without first obtaining approval of Prime Minister--But since words used in procedure are “Approving Authority”, impugned order could be passed after obtaining approval of Prime Minster subsequently and in case Prime Minster did not grant approval subsequently, any action taken on basis of decision of Board would be invalid and not otherwise--Petition dismissed. [Pp. 162 & 163] E

M/s. Muhammad Shahzad Shaukat, Qalbe Hassan, Taha Asif, Talat Farooq Sheikh, Barrister Taha Shaukat and Muhammad Sharif Khokhar, Advocates for Petitioner.

Ch. Ishtiaq Ahmad Khan, Additional Attorney-General for Respondents.

Sadia Malik, Assistant Attorney-General.

Mr. Muhammad Zikriya Sheikh, on behalf of Pakistan Railways.

Mr. Salman Kazi, Osman Khan and Khurram Shahzad, Legal Consultants on behalf of the Pakistan Railways.

Mr. Umme Imara, Advocate/vice counsel for Mr. Azhar Siddique, Advocate for Respondent.

Rai Shahid Saleem Khan, Assistant Advocate-General.

Date of Decision: 8.1.2019

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 made the following prayer:

“It is, therefore, respectfully prayed that the instant writ petition may kindly be accepted, consequently impugned notice for termination of services dates 15.10.2018 may be declared void, quorum non judice, illegal unlawful, having been issued by an incompetent authority, as such having no legal effect in the interest of justice.”

(I) Brief Facts of the Writ

1. The facts tersely revealed from the petition are that in pursuance of advertisement in the year 2014, the Petitioner was appointed on contract basis as Director General/Legal Affairs (MP-II Scale) in Pakistan Railways for a period of two years (2014-2016) vide offer/appointment letter dated 05.06.2014 which was accepted by the Petitioner vide letter dated 06.06.2014. The contract of the Petitioner was extended from time to time and ultimately for one year w.e.f. 07.06.2018 vide notification dated 28.05.2018. But the contract of the Petitioner was terminated by the Respondents through the impugned termination letter dated 15.10.2018. Hence, this petition.

(II) Proceedings of the Court

1. When this petition was filed, this Court issued notices to the Respondents and granted interim relief to the Petitioner vide order dated 19.10.2018. Thereafter, report and parawise comments were filed on behalf of the Respondents separately, vehemently denying the allegations levelled in the petition and praying for dismissal of the same.

2. In view of the report and parawise comments, the Petitioner filed amended writ petition alongwith certain documents and prayed for acceptance of the petition as prayed for. The Respondents submitted additional written statement alongwith certain documents including order dated 29.12.2018 of the Hon’ble Supreme Court of Pakistan which reads as under:

“We requisitioned the file of the instant writ petition yesterday to consider the contents thereof and the various orders passed therein. After having heard the Petitioner, present in person and Sh. Rasheed Ahmed, Federal Minister for Railways, we direct the Registrar of the learned High Court to fix the instant petition for hearing on 31.12.2018 and are sanguine that keeping in view the importance of the matter, the same shall be decided within a period of one week.”

After that the case was taken up on 02.01.2019, 04.01.2019, 07.01.2019 and finally today i.e. 08.01.2019.

(III) Petitioner’s Submissions

1. Mr. Muhammad Shahzad Shaukat, learned counsel for the Petitioner inter alia contended that the impugned order is illegal and liable to be set aside on the grounds that the same has been issued by the incompetent authority; that the summary to the Prime Minister for the approval of the termination of the Petitioner is nothing but result of deliberation mere to fill the lacunae of prior approval of the competent authority; that the effect of the impugned order retrospectively is totally illegal; that although no reason has been given for termination of the Petitioner in the impugned letter yet in the summary serious allegations have been leveled, as such the same amounts to stigma on the dignity of the Petitioner, therefore, proper inquiry was required to be conducted in the matter; that it is settled principle of law that the contract can be terminated in an event of breach but the service of the Petitioner remained unblemished throughout and his extensions were made on the basis of good performance; that the impugned order has been passed on the basis of mala fide, arbitrariness and capricious exercise of authority; that the impugned termination letter has been issued without affording any opportunity of personal hearing to the Petitioner, as such the same has been issued in sheer violation of principle of natural justice; that the impugned letter has been issued in violation of Articles 10-A and 25 of the Constitution; that the termination of the Petitioner is pre- mature as the contract of the Petitioner was valid up to June 2019, therefore, the impugned letter cannot be considered to be issued in accordance with law. To fortify his contentions learned counsel for the Petitioner placed reliance on the case titled Yousaf Ali v. Muhammad Aslam Zia and 2 others (PLD 1958 Supreme Court (Pak.) 104), Nasir Said v.WAPDA through its Chairman and another (PLD 1987 Supreme Court 421), Khuda Baksh Khan v. Deputy Commissioner, Bahawalpur and others (1991 MLD 2020), Mst. Misbah Fatima v. Province of Punjab through Secretary and 4 others (2011 MLD 1994), Tariq Aziz ud Din and others (Human Rights Cases Nos.8340, 9504-G, 13936-G, 13635-G and 14306-G to 143309-G of 2009), Munir Ahmad v. Federation of Pakistan and others (2018 CLC 530 [Lahore]), Muhammad Ilyas Khokhar and 24 others v. Federation of Pakistan and others (2006 SCMR 1240), Muhammad Suleman Kanjiani and 3 others v. Dadex Eternit Ltd. Through Chief Executive and 4 others (2009 CLD 1687), Syed Sikandar Ali Shah v. Auditor General of Pakistan and others (2002 SCMR 1124), Noor Muhammad v. The Member Election Commission, Punjab and others (1985 SCMR 1178), Dr. Muhammad Abdul Latif v. The Province of East Pakistan and others (PLD 1964 Dacca 647), Javaid Iqbal v. Director General, T&T Corporation and 2 others (1993 PLC (C.S.) 1755), Muhammad Siddiq Javaid Chaudhary v. the government of West Pakistan (PLD 1974 Supreme Court 393), Syed Yaqoob Shah v. XEN, PESCO (WAPDA) Peshawar and another (PLD 2002 Supreme Court 667), Muhammad Amjad v. TheChief Engineer, WAPDA and another (1998 PSC 337 [Supreme Court of Pakistan]) and Mst. Mumtaz Bibi and 12 others v. Provincial Government of Khyber Pakhtunkhwa through Secretary Health Department and 11 others (2013 MLD 1412).

(IV) Respondents’ Submissions

1. Learned Law Officer as well as legal representatives appeared on behalf of the Respondents vehemently contested the arguments advanced by the learned counsel for the Petitioner and prayed for dismissal of the instant petition.

(i) On behalf of Federation of Pakistan/Respondent No. 1

Ch. Ishtiaq Ahmad Khan, Additional Attorney-General for Pakistan and Sadia Malik, Assistant Attorney-General for Pakistan firstly objected to the maintainability of the writ petition on the grounds that in contractual matters this Court cannot interfere and jurisdiction of this Court is barred. They also reiterated all the arguments advanced by Mr. Zikriya Sheikh on behalf of the Respondents No. 1 to 3. To fortify their contentions they relied upon the case titled Federation of Pakistan through Secretary Law, Justice and Parliamentary Affairs. v. Muhamamd Azam Chattha (2013 SCMR 120) and Chairman NADRA, Islamabad through Chairman Islamabad and another v. Muhammad Ali Shah and others (2017 SCMR 1979).

(ii) Pakistan Railways, Respondents No. 1 to 3

Mr. Muhammad Zikriya Sheikh, Advocate appeared on behalf of the Respondents No. 1 to 3 and contended that there was no need to obtain fresh approval of the Prime Minister at the time of Petitioner’s termination by invoking Clause-11 of the contract employment because at the time of issuance of appointment letter the permission for Petitioner‟s termination was also considered to be obtained under the said Clause i.e. 11; that infact the appointing and terminating authority of the Petitioner is the Secretary Railway Board (the “Board”) under the Rules; that the contract of the Petitioner has been terminated on the basis of terms and conditions of his contract employment; that the impugned letter has been issued with the approval of the competent authority i.e. Prime Minister; that the Petitioner’s contract was liable to be terminated on one month notice or one month’s basic pay in view of Clause-11 of the contract dated 05.06.2014; that the Petitioner was a contract employee and this petition is not maintainable against contractual matters; that the Petitioner was treated as per terms and conditions of his contract employment which he duly accepted at the time of appointment, therefore, now at this stage he cannot deviate from the same; that the Petitioner is estopped by Article 102 of the Qanoon-e-Shahadat Order, 1984. While relying upon the clauses 16 & 21 of the General Clauses Act, 1897 learned counsel submitted that the impugned order has rightly been passed; that it was infact a pleasure post and at any time could be terminated, therefore, the Petitioner has no locus standi to file this petition. In this regard the learned counsel has placed reliance on the judgment of this Court titled Malik Muhammad Bashir Lakhesar Assistant Advocate-General v. Government of Punjab etc. (PLD 2019 Lahore 1). He also placed reliance on the case titled Sheikh Muhammad Akhtar v. Shahab ud Din (2003 CLD 1284), Brig. Retd. Safdar Hussain Awan v. Government of Pakistan through Principal Secretary to the Prime Minister and others (2008 PLC (C.S.) 949), Fasih Azhar v. Federation of Pakistan through Secretary Ministry of Petroleum and Natural Resources, Government of Pakistan, Islamabad and 2 others (2012 PLC (C.S.) 377) and Federation of Pakistan through Secretary Law, Justice and Parliamentary Affairs v. Muhamamd Azam Chattha (2013 SCMR 120).

(iii) Establishment Division/Respondents No. 4 & 5

Report and parawise comments were also submitted on behalf of the Respondents No. 4 & 5- Establishment Division also submitted their report and parawise comments contending therein that the termination of the Petitioner was made by adopting all the legal procedure, as such no fundamental right of the Petitioner has been violated thus the petition is not maintainable and liable to be dismissed.

(iv) Finance and Cabinet Division/Respondents No. 6 & 7

Likewise, the Respondents No. 6 & 7 Finance Division and Cabinet Division respectively stating therein that they are proforma Respondents and has no concern whatsoever with the matter in hand and the Petitioner has not been effected by any of their orders, as such the petition be disposed of.

1. I have heard the arguments of both the sides and perused the record minutely.

(V) CONSTITUTIONAL MOOT POINTS

1. For the just determination of the case, keeping in view the facts, arguments of both the parties as well as the law on the point, this Court deems appropriate to frame constitutional moot points which are as under:--

i. Whether this petition is maintainable in contractual matters as the Petitioner was purely appointed on contract basis?

ii. Whether the Petitioner is estopped to challenge his termination in presence of Clause-11 of his appointment letter dated 05.06.2014 as well as Petitioner’s acceptance letter dated 06.06.2014?

iii. Whether the Board which appointed the Petitioner or the Prime Minister which approved his appointment is the competent authority?

1. To thrash out the above framed constitutional moot points, this Court has minutely examined the available record and also taken into consideration the anxious arguments advanced by both the sides and case law on the point.

(VI) Determination on Constitutional Moot Points by the Court

(i) First Moot Point

1. As far as first moot point is concerned; counsel appeared on behalf of the Respondents contended that the Petitioner was appointed purely on contract basis and therefore, in contractual matters this Court cannot interfere; at the most the Petitioner may claim damages to the extent of his unexpired period of service rather than invoking the jurisdiction of this Court. Contrary to that the learned counsel for the Petitioner argued that instant constitutional petition is maintainable as the termination of the Petitioner was made prior to expiry of his contract which is illegal. It is a settled principle of law as laid down by Honorable Supreme Court of Pakistan that a contractual employee cannot enforce terms of his contract in constitutional jurisdiction. Reliance is placed on Abdul Wahab and others v. HBL and others (2013 S C M R 1383) ratio was laid as under:

“7 … It is settled law that, where a service grievance is agitated by a person/employee who is not governed by the statutory rules of service, before the High Court(s), in terms of Article 199 of the Constitution such petition shall not be maintainable; reference in this behalf can be made to PLD 2010 SC 676 (Pakistan International Airline Corporation v. Tanweer-ur-Rehman) and PLD 2011 SC 132 (Pakistan Telecommunication Co. Limited v. Iqbal Nasir) .…….”

1. As for as objection of the Petitioner regarding termination of his contract before its expiry is concerned; reliance is placed on Chairman NADRA, Islamabad through Chairman Islamabad and another v. Muhammad Ali Shah and others (2017 SCMR 1979) & Federation of Pakistan through Secretary Law, Justice and Parliamentary Affairs. v. Muhamamd Azam Chattha (2013 SCMR 120) in which ratio was laid as under:

“In addition to it, it is a cardinal principle of law that a contract employee instead of pressing for his reinstatement to serve for the leftover period can at best claim damages to the extent of unexpired period of his service.”

1. In view of above stated case law, I am of the considered view that instant constitutional petition is not maintainable. Furthermore, the contention of Sadia Malik, Assistant Attorney-General for Pakistan is instructive that even if the impugned order is presumed to be passed without lawful authority then the main grievance of the Petitioner would be that he has been terminated prior to expiry of his contract period, which the Petitioner cannot claim as has been held above by the Hon’ble Supreme Court of Pakistan that the Petitioner at the best can claim damages to the extent of unexpired period of his service.

2. It is an established principle that where employment is on contract, there is a relationship of master and servant and in such like cases the Constitutional petition under Article 199 of the Constitution is not maintainable. Reliance in this regard can be placed on Lt. Col. Rtd. Aamir Rauf v. Federation of Pakistan through Secretary M/o Defence and 3 others (2011 PLC (CS) 654) and Nadeem Ahmed v. Pakistan State Oil Company Limited and another (2005 PLC (C.S.) 1447). In case titled Naweed Akhtar Cheema v. Chairperson, Teveta and others (2011 P L C (C.S.) 803) ratio was laid as under:

“10 … Relationship of the petitioner is contractual in nature and is not governed by any statutory rules of service. Therefore, the relationship of the petitioner with the respondent Authority is governed by the principle of master and servant for which remedy lies before the Civil Court of competent jurisdiction and not under the constitutional jurisdiction of this Court. Reliance is placed on Pakistan International Airline Corporation and others v. Tanweer-ur-Rehman and others PLD 2010 SC 676 and Chairman, State Life Insurance Corporation and others v. Hamayun Irfan and 2 others 2010 SCMR 1495 and Pakistan Telecommunication Co. Ltd. through Chairman v. Iqbal Nasir and others PLD 2011 SC 132.”

(ii) Second Moot Point

1. As far as second constitutional moot point is concerned; counsel for the Petitioner contended that he was appointed on contract basis initially for a period of two years and ultimately his contract period was extended w.e.f. 07.06.2018 and was to be expired in June 2019 but the same was terminated prior to the expiry of his contract period. Admittedly, the Petitioner was appointed on purely contract basis in the Respondent’s Department. The Petitioner after accepting all the terms and conditions of his contract employment submitted his joining report. In this regard I would like to refer Clause-11 of the contract employment of the Petitioner dated 05.06.2014 which specifically deals with the termination of contract (On one month’s notice on either side or payment of one month’s basic pay in lieu thereof). Meaning thereby; that the contract of the Petitioner was liable to be terminated on one month’s notice on either side or payment of one month’s basic pay in lieu thereof. The impugned letter explicitly reveals that the termination of the Petitioner’s services was made with immediate effect with one month’s basic pay in lieu of notice in accordance with Clause-11 of the offer of contract appointment. As such, the impugned letter has been issued strictly in accordance with the terms and conditions of contract employment duly accepted by the Petitioner at the time of joining.

2. The Respondents have invoked Clause-11 of the offer letter and terminated the services of the Petitioner with immediate effect entitling the Petitioner to receive one month’s pay in lieu of the quit service as per terms and conditions, therefore, assertions of the learned counsel for the Petitioner that the contract has been terminated prior to expiry and no notice has been served upon the Petitioner, cannot sustain. At the time of his joining the Petitioner accepted the above said terms of his contract employment and now at belated stage he cannot deviate from the same. The law on this point has been settled by the apex Court of the country in the cases of Government of Balochistan, Department of Health through Secretary, Civil Secretariat, Quetta vs. Dr. Zahida Kakar and 43 others (2005 SCMR 642) and Majoy (R) Nisar Ali vs. Pakistan Atomic Energy Commission and another (2004 PLC (C.S.) 758).

3. This Court in case titled Muhammad Mohsin Ismail v. Managing Director Punjab Daanish Schools and 2 others (2018 PLC (C.S.) 722) has also held as under:

“7. The main grievance of the Petitioner is that he was appointed on contract basis for a period of three years on 12.10.2015 but he was terminated prior to the expiry of his contract period i.e. till 12.10.2018. Admittedly, the Petitioner was appointed on purely contract basis in the Respondents/Department. The Petitioner after accepting the terms and conditions of his contract employment submitted his joining report. The specific terms in the employment contract, containing certain terms and conditions, are inserted which explicitly reveal that initially this offer of appointment is only for a period of three years whereas, the specific clause dealing with the controversy involved is Clause-4 which reflects that in case of gross misconduct or any other compliant, the Competent Authority can terminate this contract forthwith without any notice. Further, Clause-4(b) depicts that the contract can be terminated on one month’s notice from either side or on payment of one month’s salary in lieu thereof……

1. The Hon’ble Division Bench of this Court in case titled Dr. Abid Ali v. Chief Secretary, Government of Punjab and 3 others (2017 PLC (C.S.) 488) has held that the employee, after accepting terms and conditions of his contract employment had submitted his joining report. Service of such employee could be terminated without assigning any reason. Employee had no right to claim extension in his contract period as a vested right. Behaviour of employee remained unsatisfactory towards his superior which resulted into his termination. In Case titled Mubashar Majeed v. Province of Punjab and 3 others (2017 PLC (C.S.) 940) the Hon’ble Division Bench of this Court has also held that employee could not claim extension of the contract as a matter of right rather it was the prerogative of the competent authority either to dispense with services of such employee or continue with the same by tending the contract.”

2. Moreover, it has also been alleged by the Petitioner that the impugned letter has been issued on the basis of mala fide but the Petitioner has nothing appended with this petition in support of his this contention. Mere verbal allegation cannot be relied upon; a specific stance taken by any party should be proved with substantial material.

(iii) Third Moot Point

1. As far as the third constitutional moot point is concerned; that the impugned order has been passed by the incompetent authority. The learned counsel for the Petitioner has laid much stress on the point that the impugned letter has been issued by the incompetent authority and that too without necessary approval of the competent authority. Further that if any approval has been made that is ex-post facto approval which is not permissible under the law because an ex-post facto law is a law that retroactively changes the legal consequences of actions that were committed, as such the impugned order cannot be said to be passed with the approval of the competent authority i.e. the Prime Minister. The Respondents have also filed written submissions annexing therewith relevant documents including copy of approval of termination of contract passed by the Prime Minister of Pakistan (page-18 to 22). The bare reading of the same reflects that the Prime Minister has duly approved the proposal contained in para 5 read with para 8 of the summary moved for the termination of the Petitioner. Meaning thereby that the approval of the Prime Minister has been accorded but ex-post facto. Mr. Ishtiaq Ahmad Khan, the learned Additional Attorney-General for Pakistan for the Respondent No. 1 has submitted that originally the appointment of the Petitioner was made by the Board and the Prime Minister is mere the approving authority. He has placed reliance on Section 16 of the General Clauses Act, 1897 (the “Act”) which is reproduced hereunder for ready reference:

2. Power to appoint to include power to suspend or dismiss -Where, by any (Central Act) or Regulation, a power to make any appointment is conferred, then, unless a different intention appears, the authority having (for the time being) power to make the appointment shall also have power to suspend or dismiss any person appointed (whether by itself or any other authority ) in exercise of that power.

3. Furthermore, the learned counsel for the Respondents also taken the stance that at the time of appointment which was made by the approval of the Prime Minister, the approval for termination under Clause-11 was also accorded at that time by the Prime Minister and there was no need to obtain further approval by the Prime Minister and the said appointment letter was to be implemented by the Board itself, as such has been passed strictly in accordance with law. Basically, the appointing authority is the competent authority of the Petitioner’s appointment and i.e. the Board/Secretary who passed the impugned order.

4. In the Federal Rules of Business, 1973 (the “Rules”) the Pakistan Railways is a Division known as “Railways Division” which deals with all matters pertaining to Pakistan Railways. The Division is defined in the Rules as under:

(vi) “Division” means a self-contained administrative unit responsible for the conduct of business of the Federal Government in a distinct and specified sphere and declared as such by the Federal Government;”

It further reveals the Organization of Divisions as (1) Each Division shall consist of a Secretary to Government and of such other officials subordinate to him as the Government may determine:

Provided that the same person may be Secretary of more than one Division.

(2) The Secretary shall be the official head of the Division and shall be responsible for its efficient administration and discipline and for the proper conduct of business assigned to the Division under rule 3 (3) and for the due execution of the sanctioned policy.

1. From the above, it is clear that the competent authority to appoint the Petitioner is the Selection Board headed by the Secretary of the said Ministry/Division and not the Prime Minister rather it is the approving authority, as the impugned order cannot be said to have been passed by the incompetent authority.

2. Further, I have gone through the file and found that the Respondents appended with the written submissions, the copy of procedure showing the Petitioner’s appointment in Chapter-2 Recruitment/Appointment/Seniority and Promotion ESTA Code which is as follows:

| | | | | | --- | --- | --- | --- | | Sl. No. | Nature of Case | Selection Procedure | Approving Authority | | i. | Appointment of Chief Executive/Head of the Organization | Selection Board headed by the Minister Incharge to consider and recommend from a panel of three names for each vacancy. \Provided that, where the charge of a Ministry/Division is held by the Chief Executive\, the Selection Board shall be headed by the Secretary of the respective Ministry/Division | Prime Minister/ Chief Executive | | ii. (a) | Posting of government servants of BPS 21 and above. | To be processed through the Establishment Division | Prime Minister/ Chief Executive | | (b) | Posting of government servants of BPS 20 | -- | Establishment Secretary | | (c) | Posting of government servants of BPS 17 to 19 | To be processed in the Ministry/Division concerned. | Secretary of Ministry/Division concerned. | | (d) | Posting of government servants in BPS 16 and below. | To be processed by the Department concerned. | Heads of Departments. | | iii. (a) | Appointment to posts in Management Grades other than of a Finance Member/Director and those covered by (i) and (ii) above. | Selection Board headed by the Secretary of the Ministry/Division concerned to consider and recommend from a panel of three names for each vacancy. | Prime Minister/ Chief Executive | | \(b) | Appointments to posts carrying a minimum pay equal to the minimum of BPS 20 and above. | Selection Board headed by the Secretary of the Ministry/Division concerned to consider and recommend from a panel of three names for each vacancy. | Minister Incharge | | iv. | Appointment of Heads of Subsidiary Companies not included in Management Grade. | Selection Board headed by Secretary of the Ministry/Division concerned and recommend from a panel of three names for each vacancy. | Minister Incharge | | v. | Appointment to posts other than those mentioned above. | Through appropriate Selection Board set up in the Organization | \An Officer authorized by Head of the Organization concerned. |

1. It is very much clear from the above procedure/guidelines that no doubt the approving authority of the Petitioner is the Prime Minister but it is noticeable here that the word “prior” is never mentioned; meaning thereby that although the “approval” of the Prime Minister for the appointment of the Petitioner is essential yet the “prior approval” is not necessary for appointment or termination of the Petitioner. The word “approval” has been defined in the Black’s Law Dictionary (Fifth Edition) which states as under:

“Approval.--The act of confirming, ratifying, assenting, sanctioning, or consenting to some act or thing done by another.”

Hence, approval to an act or decision can also be subsequent to the act or decision. Because of the jurisprudence developed across the world, there is distinction between “permission”, “prior approval” and “approval”. The requirement that the Management must obtain approval is distinguished from the requirement that it must obtain permission. If the words used were “with the prior approval of the Prime Minister”, the impugned order could not be issued without first obtaining the approval of the Prime Minister. But since the words used in the procedure are “Approving Authority”, the impugned order could be passed after obtaining the approval of the Prime Minster subsequently and in case the Prime Minster did not grant approval subsequently, any action taken on the basis of the decision of the Board would be invalid and not otherwise. The contention of the learned counsel for the Petitioner that the ex-post facto approval of the Prime Minister qua the impugned order cannot have any legal sanctity, is not instructive in view of the above drawing distinction between the expression “approval” and “prior approval”. Hence, the distinction is also drawn between “approval” and “permission” for in the latter prior approval or permission is required. However, the approval was required, and the action holds good and only if it is disapproved, it loses its force. Accordingly, when the permission was required, it does not become effective till permission was obtained. As is clear from the above, the dictionary meaning of the word “approval” includes ratifying of the action, ratification obviously can be given ex-post facto approval. In the instant case, the action was approved by the Prime Minister. It is also worth mentioning that if the prior approval is required, expression “prior” has to be in the particular provision. In the instant case the word “prior” is not conspicuous. Although a valuable right of a citizen cannot be permitted to be taken away yet this Court is bound to determine the respective rights of the parties. As such, the Petitioner cannot be allowed to base his case on the ground that the impugned order has been passed without approval by the competent authority i.e. the Prime Minister. Reliance in this regard can be placed on the case titled Shakil Ahmed v. Muhammad Hanif and another (2007 MLD 1395) wherein it has been held as under:

“Objection of tenant that gift in favour of donee by his father was made without prior approval of Central Government; and that approval granted after filing of ejectment petition rendered same incompetent. Validity. Permission of Central Government or Cantonment Board would not be necessary for transfer of old grant. Central Government had granted post facto approval to such gift. Objection was overruled in circumstances.”

(emphasis added)

(VII) ANALYSIS BY THE COURT

1. A discreet analysis of above stated circumstances reveals that the Petitioner being a contract employee has no locus standi to file instant petition. It is settled law that, where a service grievance is agitated by a person/employee who is not governed by the statutory rules of service, the constitutional petition before the High Court, in terms of Article 199 of the Constitution is not maintainable. Where relationship of the Petitioner is contractual in nature and is not governed by any statutory rules of service then the principle of master and servant will be applicable for which remedy lies before the Civil Court of competent jurisdiction and not under the constitutional jurisdiction of this Court. In addition to that, it is a cardinal principle of law that a contract employee instead of pressing for his reinstatement to serve for the leftover period can at best claim damages to the extent of unexpired period of his service. It is needless to mention that contract employees are always governed by the terms and conditions of contract and cannot ask for more than that. Therefore in this case, his contract was terminated under Clause-11 of the contract.

2. The Petitioner after accepting all the terms and conditions of his contract employment submitted his joining report as “I hereby tender my acceptance to the terms and conditions of the said contract mentioned in the offer of appointment”. As per Clause-11 of the contract employment of the Petitioner dated 05.06.2014 which specifically deals with the termination of contract (On one month’s notice on either side or payment of one month’s basic pay in lieu thereof). Meaning thereby; that the contract of the Petitioner was liable to be terminated on one month’s notice on either side or payment of one month’s basic pay in lieu thereof. As such, the impugned letter has been issued strictly in accordance with the terms and conditions of contract employment duly accepted by the Petitioner. As stated above, it is reiterated that at the time of his joining the Petitioner accepted the above said terms of his contract employment and now at belated stage he cannot deviate from the same. It is settled principle that where the employee, after accepting terms and conditions of his contract employment had submitted his joining report, service of such employee could be terminated without assigning any reason. It is the prerogative of the competent authority either to dispense with services of such employee or continue with the same by extending the contract.

3. Moreover, it has also been alleged by the Petitioner that the impugned letter has been issued on the basis of mala fide but the Petitioner has nothing appended with this petition in support of his this contention. Mere verbal allegation cannot be relied upon; a specific stance taken by any party should be proved with substantial material.

4. From the above stated circumstances, it is clear that the competent authority to appoint the Petitioner is the Selection Board headed by the Secretary of the said Ministry/Division and not the Prime Minister rather it is the approving authority, as such the impugned order cannot be said to have been passed by the incompetent authority. Moreover, it is very much clear from the above procedure/guidelines that no doubt the approving authority of the Petitioner is the Prime Minister but it is noticeable here that the word “prior” is never mentioned; meaning thereby that although the “approval” of the Prime Minister for the appointment of the Petitioner is essential yet the “prior approval” is not necessary for appointment or termination of the Petitioner.

5. The judgments produced by the learned counsel for the Petitioner cannot be relied upon being distinguishable from the facts and circumstances of the case in hand as each and every case has its own facts and circumstances.

6. In view of above, I see no illegality or legal infirmity in the impugned order. Consequently, the instant petition is devoid of any merit and is accordingly dismissed.

(M.M.R.) Petition dismissed

PLJ 2019 Lahore 165

Present: Jawad Hassan, J.

AOWN ABBAS BHATTI--Petitioner

versus

FORMAN CHRISTIAN COLLEGE and 2 others--Respondents

W.P. No. 130999 of 2018, decided on 23.2.2018.

Constitution of Pakistan, 1973--

----Art. 199(5)--Punjab Government Rules of Business, 2011, R. 283--Constitutional petition--Petitioner was serving in ‘F-College poor performance--Expelled from service--Challenge to--Question of--Whether FC college falls within the definition of person on not--FC College, being a private entity, is not in dispute, and language of Act of Parliament reflects legislative intention--FC College does not fall within definition of a “person” for which a test has been determined above because setup of Board of Governors of FC College is not under dominative control of Federal or Provincial Government, and FC College does not get any operating funds from Government--Therefore, when both “administrative” and “financial” control of Government over Respondents is lacking, I am constrained to hold that FC College is not a “person” within meaning of Article 199(5) of Constitution, which could be held to be performing its duties in connection with affairs of Federation or Province--It is not enough for this Court to assume jurisdiction against any body politic or corporate merely because it has been established through an Act of Parliament--For ‘body politic’ or ‘corporate’ to be amenable to jurisdiction under Article 199, it simultaneously has to be a “person”, as defined in Article 199(5) of Constitution--FC College is indeed a ‘body politic’ or ‘corporate’ but not a “person”, and therefore, is not amenable to jurisdiction of this Court--Petitioner has not been able to point out any violation of any provision of law or any rules and regulations by FC College, and case law relied upon by learned counsel for Petitioner, in light of catena of judgments mentioned and cited above, is not only distinguishable, rather do not apply to facts and circumstances of present case. [Pp. 179 & 180] A, B & C

Mr. Hamayun Sarfraz Chattha, Advocate for Petitioner.

Mian Zafar Iqbal Kalanauri, Advocate and Mr. Ashfaq Ahmed Kharal, Assistant-Advocate General for Respondent.

Date of Decision: 23.2.2018

Judgment

Through the instant Constitutional Petition (the “Petition”), filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the “Constitution”), the Petitioner has challenged the letter dated 27.10.2017 (the “Impugned Letter”) whereby the Petitioner was suspended/expelled by the Respondent/Forman Christian College (the “FC College”).

1. The main grievance of the Petitioner is that due to his alleged poor academic performance, he was suspended on probation for the Fall Semester 2017 and his registration for the Fall Semester 2017 was cancelled and he was told that his case can be reviewed for the registration for Spring 2018, however his probationary status will remain until his CGPA reaches the requirement of 2.0. The Impugned Letter was issued to the Petitioner on 27.10.2017.

A. The Petitioner’s Arguments:

1. The learned counsel for the Petitioner inter alia submitted that the Impugned Letter has been issued by the Respondents in clear violation of Articles 10-A, 18, 25-A of the Constitution; that the decision of the Respondent is against the rules and regulations; that the Petitioner is being deprived of his fundamental right of education guaranteed under the Constitution; that no opportunity of personal hearing was ever afforded to the Petitioner, as such the decision of the Respondents is arbitrary and against the principle of natural justice; and that having two registrations/roll numbers is not against the rules and regulations.

B. The Respondents’ Arguments:

1. In response to order dated 16.02.2018, the Respondents have submitted report and parawise comments denying all the allegations levelled in the Petition and prayed for dismissal of the Petition. It is submitted in the report and parawise comments that this petition is not maintainable on the ground that the Respondents does not fall within the definition of a person; that the setup of the Board of Governors of the Respondents is not under the dominative control of the Federal or the Provincial Government; that the Respondents do not get any operating funds from the Government of the Punjab or the Federal Government; that Petitioner has not been able to point out any violation of any provision of law or any rules and regulations by the Respondents; that the Petitioner may avail alternate remedy before appropriate forum; that the instant petition has been filed just to harass and blackmail the Respondents.

2. Mian Zafar Iqbal Kalanauri, Advocate for the Respondents, vehemently contested the arguments advanced by the learned counsel for the Petitioner and prayed for dismissal of the Petition mainly on the ground that the same is not maintainable; that the Respondent is a private body and does not fall within the ambit of definition of a person as defined under Article 199 (5) of the Constitution; that there are plethora of judgments on the maintainability of the petition against the private educational institutions. It was further argued that the Petitioner should first cross the hurdle of maintainability before going into the merits of the case. The learned Law Officer while relying upon the case of Anoosha Shaigan v. Lahore University of Management Sciences through Chancellor and others (PLD 2007 Lahore 568) has contended that the matter in issue has already been discussed in detail in the said judgment and it was a test case. He also placed reliance on the case titled Maqsood Toor v. Federation of Pakistan etc (2000 SCMR 928), Tanvir Iqbal v. The Principal, OPF Girls School (1994 SCMR 958) and Muhammad Sharif v. Secretary (PLD 1973 SC 497).

3. In rebuttal, the learned counsel for the Petitioner submitted that the instant petition is maintainable and relied upon the case titled Saira Rana v. University of Central Punjab (2014 YLR 475), AF Industries through Proprietor and 2 others v. Federation of Pakistan through Secretary Law and 7 others (2010 CLD 1765), The State and others v. Director General, FIA and others (PLD 2010 Lahore 23), Muhammad Iqbal Khan Niazi v. Vice Chancellor, University of Punjab etc. (PLD 1979 Supreme Court 1), Aitchison College, Lahore through Principal v. Muhammad Zubair and another (PLD 2002 Supreme Court 326), and Human Rights Commission of Pakistan and 2 others v. Government of Pakistan and others (PLD 2009 Supreme Court 507).

4. I have heard the arguments of both the sides at length and perused the record myself minutely.

C. Maintainability of the Petition to be decided first:

1. At the very outset it is observed here that the Hon’ble Supreme Court of Pakistan in its judgment reported as Government of Sindh through Secretary Education and Literacy Department and others v. Nizakat Ali and others (2011 SCMR 592) has held that every Court prior to taking cognizance and adjudicating upon an issue should first resort to the question of assumption of jurisdiction of the Court and if it comes to the conclusion that jurisdiction can be assumed only then it can adjudicate upon the issue. The question regarding assumption of jurisdiction and its exercise has very comprehensively been dealt with and decided by the Hon’ble Supreme Court of Pakistan in the case titled Fauji Foundation and another v. Shamimur Rehman (PLD 1983 SC 457). Even at the hearing, question as to the maintainability of the Petition being of crucial importance and touching the root of the case was posed to the learned counsel for the Petitioner.

2. In view of above, this Court first has to dilate upon the issue of maintainability of the petition as without crossing the hurdle of maintainability, it cannot be proceeded towards the merits of the case. Therefore, the essential question before proceeding with the merits of the case is that whether the Respondent/FC College against which a direction has been sought from this Court, falls within the definition of a person or not.

D. The Forman Christian College, Lahore Act 2004:

1. Before rendering the decision on maintainability of the Petition, it is essential to see and study the constitutional document of the FC College under which it is currently working and operating. Admittedly, the FC College was granted the status of University in the private sector under the Forman Christian College, Lahore Act 2004 (the “Act”). The Act recognizes the FC College as a Society, and defines, in Section 2(p), the “Society”, as “the educational society of the Forman Christian College, Lahore registered under the Societies Registration Act 1860”.

2. Section 3(1) of the Act clearly gives the FC College status of a University in the private sector and reads as follows:

“3. Establishment of the University.– (1) There shall be established a University to be called the Forman Christian College, Lahore in the private sector with its campus located at Lahore.” (emphasis added)

Section 4 of the Act provides the academic functions and powers of the FC College and Section 5 of the Act restricts its jurisdiction to the Province of Punjab. Under Section 6(1) of the Act, the Governor of the Punjab is the Patron of the FC College, who or his nominee shall preside at the convocations of the FC College.

1. Section 7 of the Act gives the power to the Patron for an inspection or inquiry in respect of any matter connected with the affairs of the FC College, who shall refer the matter to a committee consisting of at least three (3) members including a nominee of the Government not below the rank of an Additional Secretary, a nominee of the Punjab Higher Education Commission not below the rank of a member of the Commission and a nominee of the Chairman of the Society. The Patron is required to communicate to the Board his views with regard to the result of the inspection or inquiry and can, after ascertaining the views of the Board, advise the Board on the action to be taken by it. If the Board of the FC College does not, within the time specified, take action to the satisfaction of the Patron, the Patron may issue such directions as he thinks fit and the Board shall comply with all such directions, and the Patron may, on the recommendations of Accreditation Committee, take any appropriate action. Further, under Section 7(7) of the Act, the Patron may, on the recommendation of Accreditation Committee, annul any decision of the Board on the ground of academic excellence, religion, culture, ideology or national integrity.

2. Section 8 of the Act provides appointment of a Rector, who should be an eminent scholar of repute or distinguished administrator who is appointed by the Government on the recommendation of the Board on such terms and conditions as the Board may determine. The Rector is the Chief Executive Officer of the FC College and performs such functions as are assigned to him by the Board. Further, under Section 9 of the Act, the FC College is empowered to appoint such persons in its services as may be necessary on such terms and conditions as may be determined by the Board.

3. Section 10 of the Act constitutes “the Forman Christian College, Lahore Fund”, which vests in the FC College to credit all sums received by the FC College. The Board of the FC College is empowered to approve the budget of the FC College and to maintain and audit accounts under Section 11 of the Act.

4. Section 12 of the Act provides the Authorities of the FC College, which include (a) the Board of Governors; (b) the Academic Council; (c) the Board of Faculties; (d) the Board of Advanced Studies and Research; (e) the Selection Board; (f) the Finance and Planning Committee; and (g) such other Authorities as may be prescribed by the Statutes.

5. Section 13 of the Act provides constitution of the Board of Governors, which consist of (i) the Chairman of the Society; (ii) members of the Board of Directors of the Society subject to a maximum of ten (10) members; (iii) five (5) eminent persons of national repute to be nominated by the Society other than members of its Board of Directors; (iv) the Chairman, Higher Education Commission or his nominee not below the rank of an Executive Director; (v) Chairperson of the Punjab Higher Education Commission or his nominee not below the rank of a whole-time member of the Punjab Higher Education Commission; (vi) three (3) members of the Provincial Assembly of the Punjab, including at least one female member of the Assembly, to be nominated by the Speaker of the Assembly; (vii) a Vice Chancellor of a public sector University in the Punjab nominated by the Patron; (viii) the Rector; and (ix) Secretary to Government of the Punjab, Higher Education Department or his nominee not below the rank of Additional Secretary. Further, the Chairman of the Society is the Chairman of the Board, and the quorum for a meeting of the Board is one-half (1/2) of the total number of members with at least two (2) official members.

6. Under Section 14 of the Act, the administration and management of the affairs of the FC College vests in the Board, and under Section 15 of the Act, the meetings and business of the Board is conducted in such manner and in accordance with such procedure as may be prescribed in the Regulations and until these matters are prescribed, as may be determined by the Board. Section 16 of the Act empowers the Board to delegate any of its powers, duties and functions to any person or a committee.

7. Section 17 of the Act constitutes the Academic Council, consisting of (i) the Rector (Chairman); (ii) all the Deans; (iii) all the Heads of the Departments/Institutes; (iv) all Professors and Associate Professors of the University; (v) all full-time members of the teaching faculty who hold appointments as Assistant Professors and Lecturers, who have been on the faculty for at least one (1) year; (vi) any senior administrative officer of the FC College to be nominated by the Rector; (vii) an expert in the field of education to be nominated by the Secretary to the Government, Higher Education Department, from a panel of experts recommended by the Board; and (viii) the Registrar (Member/Secretary). These members appointed by nomination shall hold office for three (3) years, and the quorum for a meeting of the Academic Council is one-half (1/2) of the total number of members, a fraction being counted as one.

8. Section 18 of the Act provides powers and duties of the Academic Council, which is the academic body of the FC College, which has the powers to lay down proper standards of instruction, research, publication and examination and to regulate and promote the academic life of the FC College, specifically inter alia to regulate the admission of students to the courses of studies and examinations in the FC College, and to make Regulations prescribing the courses of studies, the syllabi and the outlines of tests for all the FC College examinations subject to approval of the Board. Moreover, under Section 21 of the Act, the Board is empowered, by notification, to make Regulations for the administration and management of the affairs of the FC College. Lastly, the the Board is required to give such directions, not inconsistent with the Act, as it may consider necessary for the removal of such difficulty arising in giving effect to any of the provisions of the Act.

9. Having gone through the Act in detail, which is governing the management and operations of the FC College, it is equally necessary to look at the law settled by the Hon‟ble Courts in view of maintainability of the petition against a “person”. It is unequivocal from the Article 199(5) of the Constitution that a person includes any body Politic or Corporate, any Authority of or under the control of the Federal Government or of a Provincial Government. For the sake of clarity, the said Article is reproduced below and is as follows:

“(5) In this Article, unless the context otherwise requires;

“person” includes any body Politic or Corporate, any Authority of or under the control of the Federal Government or of a Provincial Government, and any Court or Tribunal, other than the Supreme Court, a High Court or a Court or Tribunal established under a Law relating to the Armed Forces of Pakistan;”

E. The Hon’ble Supreme Court’s view on the maintainability of the writ petition against ‘Person’ under Article 199 (5) of the Constitution:

1. The Hon’ble Supreme Court of Pakistan has time and again tried to define the concept of ‘person’ for the purposes of maintainability of a petition under Article 199 of the Constitution, against different Statutory Corporations or other Corporate and Juridical persons. In the case of Salahuddin and 2 others v. Frontier Sugar Mills & Distillery Ltd. (PLD 1975 SC 244), the Hon’ble Supreme Court of Pakistan laid down an exhaustive test to determine whether any entity falls within the definition of a ‘person’, performing functions in connection with the affairs of the Federation etc. and observed as follows:

“However private organizations or persons, as distinguished from government or semi-government agencies and functionaries cannot be regarded a persons performing functions in connection with the affairs of the Federation or a Province simply for the reason that their activities happen to be regulated by laws made by the State. … The primary test must always be whether the functions entrusted to the organization or person concerned are indeed functions of the State involving same exercise of sovereign or public power; whether the control of the organization vests in a substantial manner in the hands of Government; and whether the bulk of the funds is provided by the State. If these conditions are fulfilled, then the person, including a body politic or body corporate, may indeed be regarded as a person performing functions in connection with the affairs of the Federation or a Province; otherwise not.” (emphasis added)

1. In another case titled Pakistan International Airlines Corporation v. Tanweer ur Rehman (PLD 2010 SC 676), the Hon’ble Supreme Court of Pakistan has further elaborated and laid down the principles of Salahuddin case supra, and ruled as follows:

“Now let us see what is meant by the expression `performing functions in connection with the affairs of the Federation’. The expression clearly connotes governmental or State functions involving an element of exercise of public power. The functions may be the traditional police functions of the State, involving the maintenance of law and order or they may be functions concerning economic development, social welfare, education, public utility services and other State enterprises of an industrial or commercial nature. Generally, these functions are to be performed by persons or agencies directly appointed, controlled and financed by the State; either by Federation or a Provincial Government. …”

1. In Aitchison College Lahore through Principal v. Muhammad Zubair and another (PLD 2002 SC 326) and Maqsood Toor v. Federation of Pakistan (2000 SCMR 928), the Hon‟ble Supreme Court has again resonated the test laid down in Salahuddin case supra. However, the Hon‟ble Supreme Court, in Aitchison College case supra, held that the Aitchison College falls within the definition of ‘person’ under Article 199(5) of the Constitution, which is distinguished from this captioned case as the dominating control in Aitchison College is (1) taken over under MLO (2) Governor– President and also on the Board (3) Provincial Secretaries – Corp Commanders etc. members (4) included as Special Institution under Provincial Rules of Business and (5) ability to transfer Government servants to Aitchison College.

F. The Hon’ble High Courts’ view:

1. The question of maintainability involved in the Petition has elaborately been answered in the Anoosha Shaigan v. LUMS (PLD 2007 Lahore 568) cited by Mian Zafar Iqbal Kalanauri, Advocate, wherein this Court dismissed the petition against the Lahore University of Management Sciences (LUMS) and held as under:

“5. … The word “control” appearing in the aforementioned definition [of the person] is also quite significant and it is not restricted to the financial control of the Government over a body but the executive control as well; it does not necessarily mean the financial control over the bodies that are under the dominative control of the Federal, or Provincial Government, which are amenable to the jurisdiction under Article 199 of the Constitution. …

1. … I am of the considered view that the absolute control over the management of a body/an organization by the federation etc., is a condition most important for declaring it to be a “person” performing its functions in connection with the affairs of the Federation etc; the Federation etc. should have a complete domination to do and undo whatever it decides in running the affairs of such a body and should have the exclusive, complete and final authority to take the vital policy decisions. Such control must be absolute, unfettered, unbridled and exclusive, besides, the State must also have the financial control of the Organization; the power of hiring and firing the employees thereof appointing and removing the management body meant for running the routine affairs of the Organization. But from the Presidential Order of 1985, though the President is the Chancellor of the LUMS, but this is notional and more with the status of a Patron-in- Chief; in practical terms except for the nomination of the persons on the Board or the Council, he does not have the administrative or policy-making control, which is the authority of the Board of Trustees and the Council of LUMS, which manages its affairs. It has been rightly pointed out by the respondents counsel that the funds to LUMS are not being provided by the Government on regular basis, those are generated by the LUMS itself either from the fees or the donations and may be occasionally in the nature of donation, the government also contributes, but this contribution cannot be held to be within the concept of “financial control” of the Organization …….”

2. In Dr. Kamran Jahangir v. Chancellor Shifa Tameer-E-Millat University and others (2015 PLC (C.S.) 710 (Islamabad)), it has been held that the University under question is not a person in context of Article 199 of the Constitution by following the principles elaborated in Anoosha Shaigan case supra, and further held as under:

“11. The High Court’s exercise powers and jurisdiction under Article 199 of the Constitution in rare and exceptional cases when the relief is being sought against an educational institution. In case of educational institutions, Courts are conscious of the doctrine of in ‘loco parentis’, Latin for ‘in the place of a parent’. It relates to a presumption that an educational institution is the best judge of the interests of the students and ought to be allowed to act as it may deem appropriate. This doctrine has been upheld by the august Supreme Court in “The University of Dacca v. Zakir Ahmed”, PLD 1965 SC 90. It was observed that ‘--- we are not unmindful of the necessity of maintaining discipline in educational institutions or other institutions or departments where the maintenance of discipline is essential for the orderly conduct of the institution or department concerned, nor are we unmindful of the fact that persons in charge particularly of educational institution must be given full authority to correct those placed in their charge in the same manner as a parent or guardian would be able to do”. The law was later resonated in the judgment of “Ahmed v. Vice- Chancellor University of Engineering and Technology”, PLD 1981 SC 464. The Courts, therefore, show restrain while interfering in the administrative matters and decisions of an educational institution. This self-restraint in the case of educational institutions is to safeguard and protect the autonomy, independence and sanctity of an educational institution. It is also to ensure that the discipline of the students, and authority of the faculty, is not eroded. In the case before this Court, the petitioner served the University for a considerable time. Resorting to litigation by a faculty member or officer of an educational institution, and making the latter stand before the Court in an adversarial position, is certainly not desirable. Such litigation erodes and undermines the authority and prestige of an educational institution, and inevitably has adverse effects on the impressionable minds of the students enrolled in such institutions. The jurisdiction of this Court under Article 199 of the Constitution is equitable and discretionary in nature. Even if the petitioner would have been successful in making out a case in favour of maintainability of the petition, yet this Court may not have exercised its discretionary jurisdiction, so as to uphold the authority and prestige of the educational institution i.e. the University.” (emphasis added)

G. The Functional Test:

1. Mr. Justice (R) Fazal Karim in Second Addition (2018) of his book Judicial Review of Public Actions in Volume-3, Chapter-5 at Page-1511 under the heading Persons performing functions in connection with the affairs of Government has stated as under:

“As we shall see, the word “person” has a special significance for the purposes of Article 199. However, what needs to be highlighted here is that to engage Article 199, clause (1), sub-clause (a), it is not enough that the respondent functionary is a “person”within the meaning of Article 199, but it must be shown further that the act in question was done in the performance of functions in connection with the affairs of the Federation, a Province or a local authority, that is to say, it was a public function.”

1. The review of the above produced case laws indicates that the test relevant for the determination of the status of a “person”, performing functions in connection with the affairs of the Federation or the Province, is manifested on following principles:

(i) whether the functions entrusted to the organization or person concerned are indeed functions of the State involving same exercise of sovereign or public power;

(ii) whether the absolute, unfettered, unbridled and exclusive administrative and management control of the organization vests in a substantial manner in the hands of the Government, which means that the Government should have (a) complete domination to do and undo whatever it decides in running the affairs of such a body, including the power of hiring and firing the employees and appointing and removing the management body, and (b) the exclusive, complete and final authority to take the vital policy decisions; and

(iii) whether the Government has financial control of the organization and whether the bulk of the funds is provided by the Government.

The above mentioned conditions determine a test for a statutory body to fall under definition of a “person” under Article 199(5) of the Constitution and if these conditions are fulfilled, then a body may indeed be regarded as a person performing functions in connection with the affairs of the Federation or a Province; otherwise not.

H. The Application of the Test on the FC College:

1. As discussed above, the Preamble, as well as Section 3(1), of the Act clearly gives the FC College status of a University “in the private sector”, and the Act also recognizes the FC College as an Educational Society registered under the Societies Act, 1860. The Board has administrative and management control of the affairs of the FC College, which consist of total of twenty-four (24) members from which only five (5) are government officials, including (i) the Chairman, Higher Education Commission or his nominee, (ii) Chairperson of the Punjab Higher Education Commission or his nominee, and (iii) three (3) members of the Provincial Assembly of the Punjab, and the Board has majority of members, being nineteen (19) from private persons. The meetings and business of the Board is conducted in a manner determined by the Board in absence of prescribed Regulations. Even the Rector, being the Chief Executive Officer, is appointed by the Government on the recommendation of the Board on terms and conditions determined by the Board and performs such functions assigned by the Board. The FC College is empowered to appoint persons in its services on such terms and conditions determined by the Board, and the Board is empowered to approve the budget of the FC College and to maintain and audit accounts. The Board is also empowered to make Regulations for the administration and management of the affairs of the FC College, and can give such necessary directions for the removal of such difficulty arising in giving effect to any of the provisions of the Act. Even the Patron, Governor of the Punjab, is only required under the Act to preside at the convocations and to advise the Board on the action to be taken after inspection or inquiry conducted through a committee.

I. Administrative Control of Government under the Rules of Business:

1. It is pertinent to mention here that even the Government of Punjab has no direct control of the FC College because it is not an autonomous body of the Higher Education Department as per Rules 2 and 3 read with First Schedule of the Punjab Government Rules of Business, 2011 (the “Rules”). The Rules have First and Second Schedule which are made as per Rules 3 and 4 for the Allocation of Business and Organizations of the Departments of the Government of Punjab. In Schedule I, in Column I the names of Departments are listed, in Column II the names of attached Departments are listed and in Column III the names of Autonomous Bodies and Companies are listed. The Higher Education Department has only one attached Department i.e. Director Public Instructions (Colleges), Punjab in Column II and has the names of many Universities enlisted in Column III but it does not has the name of FC College in Column III as its Autonomous Body. The only reference of FC College under the Rules is mentioned in Schedule II under Item 37 (xxx) in which the Higher Education Department can frame Rules for FC College. Therefore, while applying the above laid down test FC College does not fall within the definition of a “person” against which Constitutional petition is maintainable.

2. Mr. Justice (R) Fazal Karim in Second Addition (2018) of his book Judicial Review of Public Actions in Volume-3, Chapter-5 at Pages-1516 & 1517 has analysed the Aitchison College Judgment, Supra as under:

“The Provincial Rules of Business were amended to treat the College as an attached department of the Provincial Education Department, with the status of a special institution. Aggrieved by certain orders of the Principal, the Respondents filed petitions under Article 199, which were defended by the Principal mainly on the ground that the College was not a “person” and was not amendable to the jurisdiction of the High Court.

The High Court held that “dominant control of the said Board is that of the Provincial Government and therefore it falls within the definition of the word “person” as defined in sub-Article (5) of Article 199 of the Constitution, thus it is amenable to the constitutional jurisdiction of this Court”

The Supreme Court affirmed holding that with the amendment of the Rules of Business, the College had been brought under the administrative control of the Education Department of the Province, that the Board was authorized to formulate the budget of the College for the approval of the Government and that in the circumstances the fact that the College was not getting any financial assistance from the Government did not mean that it was an educational institution not functioning under the control of Provincial Education Department…..‟. As management and control and all other matters .…. “to run its affairs through a statutory body… under MLO .…. vests in the Provincial functionary, therefore, the institution would fall within the definition of person under article 199 (5) of the Constitution.”

1. Furthermore, this Court in case titled Sheikh Nadeem Ahmed v. G.C. University and others (2016 MLD 1966) has held as under:

“I have also noted that Government of Punjab vide notification dated 11.03.2011 made Rules of Business (Rules) under Article 139 of the Constitution. Rule 3(1) provides that the Secretariat shall consist of the departments specifying in column 2 of the first schedule of Rules. Higher Education Department is mentioned at Sr.No. 16 of Column No. 2 and one of the attached departments to Higher Education is Government College University Lahore given in Sr. No. XII of Column 4 of the first schedule. Similarly Rule 3(3) of Rules provides that business of government shall be distributed amongst several departments in the manner indicated in second schedule. Clause 37 of second schedule deals with administration of laws and rules framed thereunder and at Sr.No. XI, Government College University Lahore Ordinance, 2002 is one of law which is to be administered and rules to be framed for said Ordinance by Higher Education Department. The aforementioned Rules show that G.C. University Lahore is not only an attached institution of the Government of Punjab, Higher Education Department but laws and rules of G.C. University are also being administered by Punjab Higher Education Department.”

1. In view of above tests, there is no doubt that as the FC College is not mentioned in Column III as Autonomous Body and the only reference of FC College under the Rules is mentioned in Schedule II under Item 37 (xxx) of the Rules, therefore, the FC College does not fall within the definition of a “person” and this petition is not competent against it.

2. It, therefore, follows from above that the FC College, being a private entity, is not in dispute, and the language of the Act of the Parliament reflects the legislative intention. The FC College does not fall within the definition of a “person” for which a test has been determined above because the setup of the Board of Governors of the FC College is not under the dominative control of the Federal or the Provincial Government, and the FC College does not get any operating funds from the Government. Therefore, when both the “administrative” and the “financial” control of the Government over Respondents is lacking, I am constrained to hold that the FC College is not a “person” within the meaning of Article 199(5) of the Constitution, which could be held to be performing its duties in connection with the affairs of the Federation or the Province. If the Parliament in its wisdom creates a juridical person through the legislative process and does not provide for the control of the Government over it, then obviously it is intended not to bring it within the ambit of a ‘person’ in the context of Article 199 of the Constitution.

3. As a corollary, it is not enough for this Court to assume jurisdiction against any body politic or corporate merely because it has

been established through an Act of the Parliament. For the ‘body politic’ or ‘corporate’ to be amenable to the jurisdiction under Article 199, it simultaneously has to be a “person”, as defined in Article 199(5) of the Constitution. The FC College is indeed a ‘body politic’ or ‘corporate’ but not a “person”, and therefore, is not amenable to the jurisdiction of this Court.

1. Even otherwise, the Petitioner has not been able to point out any violation of any provision of law or any rules and regulations by the FC College, and the case law relied upon by the learned counsel for the Petitioner, in the light of the catena of judgments mentioned and cited above, is not only distinguishable, rather do not apply to the facts and circumstances of the present case.

2. In view of what has been discussed above, the instant petition is not competent before this Court, therefore, relying upon the same, the instant petition stands dismissed being not maintainable.

(M.M.R.) Petition dismissed

PLJ 2019 Lahore 180 [Multan Bench Multan]

Present: Mujahid Mustaqeem Ahmed, J.

SHAKOOR AHMAD--Petitioner

versus

DISTRICT JUDGE OKARA and others--Respondents

W.P. No. 18134 of 2018, decided on 12.12.2018.

Constitution of Pakistan, 1973--

----Art. 199--Muslim Family Laws Ordinance, (VIII of 1961), Ss. 9 & 10--Constitutional petition--Constitutional jurisdiction--Suit for maintenance allowance, recovery of dowery articles--Ex-parte decreed--Application for execution of decree--Transferred--Filling of writ petition--Order of executing Court--Set-aside--Direction to SJ for appropriate order--Orders of SJ on execution application--Jurisdictional defect--Challenge to--It is quite convenient and feasible for petitioner to join proceedings before learned executing Court and to make payment of decretal amount or contest execution petition in accordance with law--As such, by impugned orders, no right whatsoever of petitioner stood infringed--Rather it may be observed that cause and apprehensions if any of petitioner are pre-mature and so far learned executing Court has not passed any orders towards mode and manner of recovery of decretal amount--Petitioner by invoking constitutional jurisdiction of this Court has approached this Court for equitable relief--It is well settled that he, who seeks equity, must do equity--Learned counsel for petitioner has failed to point out any illegality, perversity or any jurisdictional defect and, as such, no valid ground exists for interference in orders impugned herein--I am of view that petitioner has not approached this Court with clean hands and his main object by filing this constitutional petition is to deprive decree holders from fruits of decree--Petition was dismissed.

[Pp. 183 & 184] A, B C, & D

1999 MLD 1870 & PLD 2001 SC 415 ref.

Mr. Shameem Riaz Ahmad Langrial, Advocate for Petitioner.

Date of hearing: 12.12.2018.

Order

The petitioner by invoking constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, has assailed the legality and propriety of orders dated 18.09.2018 and 01.10.2018 passed by the learned District Judge, Okara mainly on the grounds of against facts, law and as such not sustainable.

1. The brief facts of family litigation culminating into this writ petition and necessary for its fair adjudication are that Mst. Hamida Bibi/Respondent No. 7, wife of present petitioner alongwith her two minor daughters in year 2015, filed suit for maintenance allowance, recovery of dowry articles and dower, which was ex-parte decreed on 04.04.2016 by the learned Judge Family Court, Depalpur, District Okara. Mst. Hamida/Respondent No. 7 alongwith other decree holders moved application for execution of decree, but the decretal amount Rs. 3,25,500/- could not be recovered and at the instance of decree holders, learned Judge Family Court, Depalpur transferred the decree to the learned Senior Civil Judge, Sahiwal as present petitioner was residing in District Sahiwal and had landed property in that District. At the instance of the petitioner, vide order dated 11.09.2018 passed by this Court in W.P.No. 1251/2018, order of the learned executing Court, Depalpur and the learned District Judge, Okara were set-aside and the learned District Judge, Okara was directed to pass appropriate order on the reference, remitted by the learned executing Court/transferor Court.

2. In pursuance of that order, learned District Judge, Okara, on 01.10.2018 passed the impugned order, which reads as under:--

“6. Admittedly, learned Judge Family Court Depalpur was not competent to transmit/transfer the decree of maintenance allowance etc to the learned Senior Civil Judge Sahiwal, directly, without adopting proper channel of this Office, therefore, execution petition titled above is sent to the learned Senior Civil Judge Sahiwal, in compliance of order of Hon’ble High Court, Multan Bench, for further proceedings, in accordance the law”.

By approaching this Court, the petitioner has assailed the legality and property of above orders mainly on the grounds of against facts, law and as such not sustainable.

1. The main contention of learned counsel for the petitioner is that the decretal amount can be recovered by the learned Judge Family Court, Depalpur under Section 13(3) of the West Pakistan Family Courts Act, 1964 as arrears of land revenue and as such there was no need to transfer the decree to the Civil Court, Sahiwal. In support of this contention, learned counsel for the petitioner has relied on case Muhammad Sadiq vs. Dr. Sabira Sultana (2002 SCMR 1950), Amjad Iqbal vs. Mst. Nida Sohail and others (2015 S.C.M.R. 128), Muhammad Pervez vs. Mst. Nabila Yasmeen and 2 others (2004 SCMR 1352), Farooq Ahmed & another vs. Additional District Judge, Samundari, District Faisalabad and 5 others (PLJ 2015 Lahore 774), Abdul Matloob vs. Zarqa Kalsoom and others (2003 CLC 1458 Lahore), Nasir Khan vs. Tahira Rashida (1986 CLC 2381 Lahore), Lal Muhammad and another vs. Mst. Niaz Parwara (PLD 1970 Peshawar 52), Syed Maqsood Ali vs. Mt. Soofia Noushaba and 2 others (1986 CLC 620 Karachi) and Muhammad Ramzan and others vs. Civil Judge and others (2003 YLR 2767 Lahore).

2. Contention heard.

3. The petitioner is judgment debtor of a family decree for maintenance, dowry, dower etc. passed in favour of petitioner’s wife and two daughters. It is legal and moral obligation of the petitioner to pay maintenance to them, but neither from averments in the writ petition nor from submissions of learned counsel for the petitioner, it is established that till date, the petitioner has paid even a penny to satisfy that decree. As per petitioner’s own case, he is resident of Tehsil & District, Sahiwal, whereas, at the instance of respondent-Mst. Hamida Bibi, the decree has been transferred to the Civil Court/Family Court, Sahiwal so as to ensure execution of decree as per law against the person and property of present petitioner (judgment debtor in that decree). Of course, it will be difficult for the respondent/mother of two minor kids, residing in Tehsil Depalpur to pursue her execution petition at District headquarter, Sahiwal, whereas, it is quite convenient and feasible for the petitioner to join proceedings before the learned executing Court and to make payment of decretal amount or contest the execution petition in accordance with law. As such, by the impugned orders, no right whatsoever of the petitioner stood infringed. Rather it may be observed that the cause and apprehensions if any of the petitioner are pre-mature and so far the learned executing Court has not passed any orders towards mode and manner of recovery of decretal amount.

4. The petitioner by invoking constitutional jurisdiction of this Court has approached this Court for equitable relief. It is well settled that he, who seeks equity, must do equity. In case Abdul Rashid Khan and 8 others vs. President, Services Institute P.A.F. Base, Lahore, through its Incharge and 2 others (1999 MLD 1870), this Court has laid down following principle:--

“Constitutional jurisdiction of High Court being discretionary, could only be pressed into service to foster cause of justice and public good and was not to be exercised to perpetuate injustice or would refuse to exercise its Constitutional jurisdiction if by doing so, instead of advancing ends of justice, same would be defeated”.

In another case Secretary to the Government of the Punjab, Forest Department, Punjab, Lahore through Divisional Forest Officer vs. Ghulam Nabi and 3 others (PLD 2001 Supreme Court 415), while discussing the scope of exercise of constitutional jurisdiction by this Court, following principle has been laid down:--

“Superior Courts have ample jurisdiction to refuse a relief where granting it would tantamount to injustice”.

In case Muhammad Abdullah vs. Yatim Khana Khalqia, Sargodha through its Manager and others (2004 SCMR 471), the difficulties of the decree holder have been noted as under:--

“This is sorry state of affairs. In spite of all these facts, he succeeded in an illegal manner to thwart the execution proceedings for more than two decades. Even the learned Executing Court had not taken notice of all these aspects and dragged the execution proceedings for such a long period. This is unfortunate state of situation of litigation in this country. At this juncture it would be appropriate to reproduce the observations of the Judicial Committee of Privy Council made as far back as in the year 1872 in the case titled The General Manager of the Raj Durbhunga, under the Court of Wards v. Maharajah Coomar Ramaput Singh 14 MIA 605= 17 WR 459=10 BLRPC 294=2 Suth. PCJ 117 respecting the plight of litigants in this part of the world which are as under:--

“The Right Hon. Sir James Colvile:--These proceedings certainly illustrate what was said by Mr. Doyne and what has been often stated before, that the difficulties of a litigant in India begin when he has obtained a decree. When, whoever, the actual question which is at issue between the appellant and the respondent on this appeal is eliminated from the rest of the record. It does not appear to their Lordships to present any very great difficulty.” (underline is mine)

The process of execution as in vogue in our system has totally shattered the confidence reposed by the general public in our judicial system. Firstly, it takes years for a suit of any kind to reach its logical conclusion. Thereafter, the decree-holder has to file execution proceedings, which more or less is contested like a suit. Sufficient time is spent before the Executing Court and the matter is contested by the judgment-debtor like a suit by filing number of applications just to prolong the matter. It takes years to finalize the same”.

1. In Muhammad Pervez’ case supra relied by learned counsel for the petitioner, the apex Court observed that the Courts were aware of their authority and obligation to implement the decrees passed by them. Judgment-debtor was bound to satisfy the decree either himself or through the attorney.

2. In Farooq Ahmed’s case referred above, this Court has held as under:

“5. Scanning the above case law I am convinced to hold that the judgment debtor, his attorney as well as his surety cannot frustrate the execution of the decree for the reason that the Family Court’s proceedings are special in nature, therefore, the Executing Court will try and put in all efforts to execute the decree. In my humble opinion, the Courts are well aware of their powers to ensure the execution of their judgments and decrees which are not passed in vacuum and have full support of the law and the procedure of the country.”

1. Worth-mentioning that in this petition, the petitioner has not even impleaded his minor daughters so as to camouflage his case only against Mst. Hamida Bibi/Respondent No. 7. This fact also indicates petitioner’s mala-fide.

2. When confronted with the well-reasoned orders passed by the learned District Judge, Okara, learned counsel for the petitioner has failed to point out any illegality, perversity or any jurisdictional defect and, as such, no valid ground exists for interference in the orders impugned herein.

3. For what has been discussed above, I am of the view that the petitioner has not approached this Court with clean hands and his main object by filing this constitutional petition is to deprive the decree holders from the fruits of the decree. As such, instant petition being devoid of merits is dismissed in limine.

(M.M.R.) Petition dismissed

PLJ 2019 Lahore 185 (DB)

Present: Mamoon Rashid Sheikh and Shahid Waheed, JJ.

DAAN KHAN (deceased) through Legal Heirs--Appellant

versus

ASSISTANT COLLECTOR (NOTIFIED)--Respondent

I.C.A. No. 255415 of 2018, decided 23.1.2019.

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

----O. IX, Rr. 3 & 4--Displaced Persons (Compensation and Rehabilitation) Act, 1958, Ss. 10 & 11--Cancellation of allotment by notified officer--Filling of W.P--Accepted and case was remanded--Notified officer again cancelled said allotment--Appellants were challenged said cancellation through W.P. which was dismissed for non-prosecution--Application for recalling of order--Dismissed--Fresh constitutional petition was also dismissed--Question of--Whether after availing remedy for restoration of earlier constitutional petition, applicants could resort to other remedy provided in rule 4 of Order IX 7, CPC--Maintainability--Challenge to--Argument canvassed at Bar is not well founded. It is an admitted fact that appellants’ earlier constitutional petition i.e. W.P. No. 192-R of 1993 was dismissed for non-prosecution vide order dated 16.02.1998 under Order IX Rule 3, CPC. According to Rule 4 of Order IX, CPC appellant had two remedies, to wit, to bring a fresh constitutional petition or to apply for an order to set dismissal aside. appellant elected second option and filed an application for revival of earlier petition i.e. W.P. No. 192-R of 1993 but same was dismissedon ground of limitation--Had appellants not availed remedy of filing an application of restoration of earlier constitutional petition, their second constitutional petition on basis of principle settled in above cited cases and under Order IX Rule 4, CPC would have been maintainable. In these attending circumstances, we are of view that order passed by learned Single Judge-in-Chamber is valid and thus, interference therewith is uncalled for. [Pp. 187 & 188] A & C

PLD 1980 SC 139 & PLD 2018 SC 828, ref.

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

----S. 11, O. II R. 2--Qanun-e-Shahadat Order, (10 of 1984), Art. 144--Doctrine of election--Principles of res-judicata--Principles of estoppel--Second constitutional petition--Maintainability--Once choice is exercised and election is made then a suitor is prohibited from launching another proceeding to seek a relief or remedy contrary to what could be claimed and or achieved by adopting other proceeding/action and or remedy, which in legal parlance is recognized as doctrine of election, which doctrine is culled by Courts of law from well-recognized principles of waiver and or abandonment of a known right, claim, privilege or relief as contained in Order II, rule (2) C.P.C., principles of estoppel as embodied in Article 114 of Qanun-e-Shahadat Order 1984 and principles of res-judicata as articulated in Section 11, C.P.C. and its explanations”--On basis of said precedent conclusion is that appellants’ second constitutional petition i.e. W.P. No. 104-R of 2010, giving rise to instant appeal, was not competent--Appeal was dismissed. [P. 188] B

PLD 1980 SC 139, 2002 MLD 1716, ref.

Ch. Muhammad Amin Javed, Advocate for Appellants.

Mr. Asif Mehmood Cheema, Additional Advocate General for Respondents.

Date of hearing: 23.1.2019

Judgment

Shahid Waheed, J.--The genesis of the dispute involved in this case is the order dated 26.07.1979 whereby the Notified Officer/respondent on the complaint under Sections 10/11 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, filed by one Muhammad Bashir, the general attorney of Muhammad Ishaq, cancelled the allotment of land measuring 82 Kanals 17 Marlas situated in Sikandarpura District Kasur made in favour of the predecessor of the present appellants namely Sher Khan vide Mutation No. 132 dated 22.04.1956 after having got confirmation of claim against Khata No. 5657 of RL-II. The cancellation order dated 26.07.1979 was challenged before this Court through W.P.No. 814-R of 1979. This petition was accepted vide order dated 25.10.1992 and the case was remanded to the respondent with a direction to take evidence regarding the appellants as legal heirs of Sher Khan even after summoning record from the Central Record Room. On remand the Notified Officer again cancelled the allotment vide order dated 27.07.1993. The appellants feeling aggrieved challenged the said cancellation before this Court through W.P. No. 192-R of 1993. On 16.02.1998 neither party appeared when W.P. No. 192-R of 1993 was called on for hearing, the learned Single Judge-in-Chamber dismissed the petition for want of prosecution. After a lapse of more than a decade the appellant moved an application i.e. C.M. No. 01 of 2010 for recalling of order dated 16.02.1998. This application was dismissed being barred by time vide order dated 14.04.2010. Subsequently, the appellant brought a fresh constitutional petition i.e. W.P. No. 104-R of 2010 questioning the order dated 27.07.1993 of the Notified Officer. This petition was dismissed on the ground of laches and also that the same being second writ petition was not maintainable. So, this appeal.

1. It is contended on behalf of the appellants that on the basis of principle settled in the cases of “Dr. M.A. Haseeb Khan ETC versus Sikandar Shaheen and 9 others” (PLD 1980 Supreme Court 139) and “Shamim Akhtar versus Muhammad Tufail” (2002 MLD 1716) the second constitutional petition was maintainable and the same could not be considered to be hit by principle of res judicata or laches.

2. The argument canvassed at the Bar is not well founded. It is an admitted fact that the appellants’ earlier constitutional petition i.e. W.P. No. 192-R of 1993 was dismissed for non-prosecution vide order dated 16.02.1998 under Order IX Rule 3, CPC. According to Rule 4 of Order IX, CPC the appellant had two remedies, to wit, to bring a fresh constitutional petition or to apply for an order to set the dismissal aside. The appellant elected the second option and filed an application for revival of earlier petition i.e. W.P. No. 192-R of 1993 but the same was dismissed vide order dated 14.04.2010 on the ground of limitation. Now a question arises as to whether after availing the remedy for restoration of earlier constitutional petition, the appellants could resort to the other remedy provided in Rule 4 of Order IX, CPC. Answer to this question is available in a recent judgment handed down by the Hon’ble Supreme Court of Pakistan in the case of “Trading Corporation of Pakistan versus Devan Sugar Mills Limited and others” (PLD 2018 Supreme Court 828) wherein it has been held that “the moment suitor intends to commence any legal action to enforce any right and or invoke a remedy to set right a wrong or to vindicate an injury, he has to elect and or choose from amongst host of actions or remedies available under the law. The choice to initiate and pursue one out of host of available concurrent or co-existent proceeding/actions or remedy from a forum of competent jurisdiction vest with the suitor. Once choice is exercised and election is made then a suitor is prohibited from launching another proceeding to seek a relief or remedy contrary to what could be claimed and or achieved by adopting other proceeding/action and or remedy, which in legal parlance is recognized as doctrine of election, which doctrine is culled by the Courts of law from the well-recognized principles of waiver and or abandonment of a known right, claim, privilege or relief as contained in Order II, rule (2) C.P.C., principles of estoppel as embodied in Article 114 of the Qanun-e-Shahadat Order 1984 and principles of res-judicata as articulated in Section 11, C.P.C. and its explanations”. On the basis of said precedent the conclusion is that the appellants’ second constitutional petition i.e. W.P. No. 104-R of 2010, giving rise to instant appeal, was not competent.

3. The precedents cited by the appellants’ counsel are inapt. In the cases of “Dr. M. A. Haseeb Khan ETC versus Sikandar Shaheen and 9 others” (PLD 1980 Supreme Court 139) and “Shamim Akhtar versus Muhammad Tufail” (2002 MLD 1716) it was held that when the first writ petition was not decided on merits but was dismissed for non-prosecution, for such reason alone bar could not be placed for filing a fresh writ petition. This is not the case here. Had the appellants not availed the remedy of filing an application of restoration of earlier constitutional petition, their second constitutional petition on the basis of principle settled in the above cited cases and under Order IX Rule 4, CPC would have been maintainable. In these attending circumstances, we are of the view that the order passed by the learned Single Judge-in-Chamber is valid and thus, interference therewith is uncalled for.

4. In the sequel, this appeal being devoid of any merit is dismissed.

(M.M.R.) Appeal dismissed

PLJ 2019 Lahore 189 [Rawalpindi Bench, Rawalpindi]

Present: Shakil-ur-Rehman Khan, J.

RAFAQAT HUSSAIN--Petitioner

versus

ASIFA ALTAF etc.--Respondents

W.P. No. 652 of 2018, heard on 12.12.2018.

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

----Ss. 9 & 10--Family Courts Act, 1964, S. 13--Constitution of Pakistan, 1973, Art. 199--Constitutional Petition--Suit for recovery of dowry articles, delivery expenses, maintenance allowance--Partially decreed--Appeals--Partially accepted both appeal--Consolidated judgment--Writ Petition--Disposed of with conditional compromise--Three months delay in making maintenance allowance as per compromise--Discretionary relief--Constitutional Jurisdiction--Challenge to--If it is accepted that father of Respondent No. 1 had insisted to receive said amount of Rs. 150,000/- before learned Executing Court, and he subsequently failed to appear before learned Executing Court, said amount could have been easily deposited before learned Executing Court in compliance of conditional compromise--Petitioner being father of minor through his counsel contended that had other side challenged delay in making payment, petitioner / judgment debtor would not have deposited said money--Conduct of petitioner also disentitles him of discretionary relief under constitutional jurisdiction--There is no effort, none whatsoever, on part of petitioner/judgment debtor to comply with terms and conditions of conditional compromise entered into by him voluntarily for purposes of depositing said amount of Rs. 1,50,000/- within period of three months--It is a commonly known fact that learned lower Courts observe holidays in month of August every year--Such time period was fixed with consent of parties in presence of their learned counsel and they knew well what they were agreeing to, in terms of timeline--Now they cannot be allowed to wriggle out of same more so for reason that matter is governed by Family Courts Act, 1964--Petition was dismissed. [Pp. 196, 197 & 201] A, B, C & D

2017 YLR 827, 2017 CLC 487 & 2018 SCMR 1885, ref.

Mr. Shafqat Saleem Khokhar, Advocate for Petitioner.

Ch. Abid Hussain, Advocate for Respondent Nos. 1 & 2

Date of hearing: 12.12.2018.

Judgment

The brief facts leading to the filing of the instant writ petition are thatvide judgment and decree dated 14-9-2015, the learned Family Court, partially decreed the suit filed by Respondent Nos.1 and 2 in the following manner:--

“i. Claim of Plaintiff No. 1 for recovery of dowry articles is dismissed.

ii. The Plaintiff No. 1 is entitled for recovery of delivery expense at the rate of Rs. 8000/- from the defendant.

iii. Claim for maintenance allowance of Plaintiff No. 1 is dismissed.

iv. Claim for maintenance allowance of Plaintiff No. 2 is decreed at the rate of Rs. 7000 from 08.12.2008 uptill legal entitlement with 10% annual increase.”

Both the parties i.e. petitioner as well as the Respondent Nos.1 and 2 filed separate appeals against the same which were decided vide consolidated judgment & decree dated 30.8.2016 in the following terms:--

“16. For what has been discussed above, both the appeals are partially accepted and impugned judgment and decree is modified to the effect that the Appellant No. 1 is held entitled to recover maintenance allowance at the rate of Rs. 4000/- per month from April, 2008 till divorce and at the same rate for the period of Iddat whereas maintenance allowance of minor appellant No. 2 is reduced from Rs. 7000/- to Rs. 5000/- per month from the date of her birth i.e. 8.12.2008 till she is legally entitled with 10% annual increment. The first increment will take effect from January, 2017. Remaining claims in both the appeals are dismissed. No order as to cost. Copy of this judgment be also placed in connected appeal.”

The petitioner challenged the said judgments & decrees through Writ Petition No. 2705/2016 which was decided in terms of order dated 24.5.2017 in the following terms:--

“This petition calls into question decrees of the learned Courts below whereby maintenance allowance of Respondents No. 1 and 2 was determined.

1. During the course of arguments learned counsel for the parties entered into compromise and jointly submit that the petitioner has already deposited Rs. 250,000/- out of the decretal amount with the Deputy Registrar (Judl) of this Court; that by allowing C.M.No. 83 of 2017 the Deputy Registrar (Judl) be directed to pay Rs. 250,000/- to Respondents No. 1 and 2 after due verification and proper receipt; that petitioner be directed to pay a further amount of Rs. 150,000/- to Respondents No. 1 and 2 within three months from today for the full and final satisfaction of the decree; that on payment of Rs. 150,000/- within three months by the petitioner the decree would stand satisfied otherwise the decree of the learned Courts below shall stand revived and Respondents No. 1 and 2 shall have a right to get it executed; and, that in terms of above this petition be disposed of.

2. Order accordingly.”

In view of the above, the petitioner / judgment debtor got paid the sum of Rs. 150,000/- and the following order was passed on 29.9.2017 by the learned Executing Court:--

“Learned counsel for the judgment debtor states that they are ready to pay Rs. 1,50,000/- to the decree holder as per direction of Hon’ble Lahore High Court, Rawalpindi Bench, Rawalpindi, in writ petition No. 2705/2016 dated 24.05.2017. The father of the judgment debtor has paid amount of Rs. 1,50,000/- to the father of decree holder who received the same and endorse his thumb impression and signature in token of the receipt of said amount.

1. Learned counsel for the decree holder maintained that in the light of direction of Hon’ble Lahore High Court, Rawalpindi Bench, Rawalpindi dated 24.05.2017 the instant decree has satisfied. I have perused the order of Hon’ble Lahore High Court, Rawalpindi Bench, Rawalpindi dated 24.05.2017 passed in writ petition No. 2705/2016 vide above said order the Hon’ble Court directed the judgment debtor as follows:-

“That petitioner be directed to pay a further amount of Rs. 1,50,000/- to Respondents No. 1 and 2 within three months from today for the full and final satisfaction of the decree; that on payment of Rs. 1,50,000/- within three months by the petitioner the decree would stand satisfied otherwise the decree of the learned Courts below shall stand revived and Respondents No. 1 and 2 shall have a right to get it executed.”

1. Perusal of the above said direction of Hon’ble Lahore High Court, Rawalpindi Bench Rawalpindi clearly give the direction to the judgment debtor to pay Rs. 1,50,000/- to decree holder within three months from today i.e. 24.05.2017 which means that the period of three months has reckoned on 24.08.2017.

2. As per record the judgment debtor has badly failed to comply the direction of Hon’ble Lahore High Court, Rawalpindi Bench Rawalpindi in its letters and spirits. As the judgment debtor has failed to comply the direction of Hon’ble Lahore High Court, Rawalpindi Bench Rawalpindi vide order dated 24.05.2017. Therefore, in the light of the said order now the decree of trial Court shall stand in field and same shall be executed.

Now to come up for further payments for 03.11.2017.”

The above noted order dated 29.9.2017 was challenged through appeal which was dismissed vide judgment & decree dated 20.11.2017. The petitioner / judgment debtor has challenged the order dated 29.9.2017 as well as judgment & decree dated 20.11.2017 through the instant writ petition.

1. Learned counsel for the petitioner stated that a compromise had been entered into by the petitioner and the Respondent Nos.1 and 2 whereby it was agreed that a sum of Rs. 1,50,000/- when paid shall be taken as full and final settlement of decree dated 30.8.2016 and it had to be paid within three months and on the basis of the said compromise, the Writ Petition No. 2705/2016 was disposed of; he stated that the petitioner / judgment debtor immediately contacted Respondent Nos. 1 and 2 for paying the said amount but they insisted to receive it in the learned Executing Court. The father of the said Respondent No. 1 did not turn up before the learned Executing Court on 09.6.2017 and 14.7.2017 and the case was adjourned to 29.9.2017 due to the summer vacations in the month of August; he further pointed out that the Respondent Nos.1 and 2 had also submitted a schedule of payment and the execution proceedings were adjourned for the reply thereto and the matter was fixed for 29.9.2017; he added that the real father of the petitioner / judgment debtor, in his capacity as attorney offered to pay the said amount and the father of the Respondent No. 1, in the presence of his counsel, without any objection received the same. Moreover, the learned counsel for the decree holder made a statement before the said learned Executing Court to the effect that, in the light of the direction of the Hon’ble Lahore High Court, Rawalpindi Bench, Rawalpindi dated 24.5.2017 the instant decree has been satisfied; he vehemently argued that in view of the above circumstances and the statement of the learned counsel for the decree holder, the execution petition should have been disposed of but unfortunately the learned Executing Court revived the decree dated 14.9.2015; he next contended that the petitioner / judgment debtor challenged the said order dated 29.9.2017 in appeal which was unfortunately dismissed vide judgment & decree dated 20.11.2017, hence this writ petition.

His first objection was that learned District Court committed an illegality by issuing a decree sheet in execution proceedings, which was not only illegal but also amounts to issuing two decrees in one suit; he further contended that the payment was made and received in accordance with the direction of this Court and the offer was accepted by the father of the Respondent Nos.1 and 2 without any objection and with free will. Moreover, no objection regarding alleged delay was raised by the father of Respondent Nos.1 and 2 or their learned counsel and that they never insisted for execution of the decree; he then threw the challenge to the order dated 29.9.2017 and contended that the same is not sustainable in the eyes of law because the Respondent Nos.1 and 2 alongwith their counsel made a statement about the satisfaction of the decree but unfortunately the learned Courts below are bent upon to execute a decree which stands satisfied with the concurrence of the contesting parties; he then contended that the learned Executing Court as well as the learned appellate Court lost sight of the fact that in the earlier round vide judgment & decree dated 30.8.2016 the judgment & decree of the learned trial Court dated 14.9.2015 was modified but unfortunately both the learned Courts below are now putting in their efforts to execute the decree dated 14.9.2015; he further stated that the impugned order and the judgment & decree cannot supersede the order dated 24.5.2017 passed in W.P. No. 2705/2016. The said learned Courts below lost sight of the fact that only the decree of the learned appellate Court dated 30.8.2016 had been challenged in W.P. No. 2705/2016; he further contended that, without conceding mere delay if any could have been easily condoned in view of the fact that regular periodical payments were being made by the petitioner / judgment debtor without any fail after the order passed by this Court, that too, had an objection been raised regarding limitation of 3 months by the decree holders / Respondent Nos.1 and 2; he then stated that, again without conceding the delay, if any was beyond the control of the petitioner / judgment debtor due to long adjournment for summer vacations and the insistence of the Respondent Nos.1 and 2 to receive the requisite amounts in the Court. His next argument was that both the learned Courts below have exercised their jurisdiction with material irregularities, illegalities and the same are based on surmises and conjectures as well as result of mis-reading of the material on record. Today, he also placed the certified copy of the order sheet of the learned Executing Court, on record. The learned counsel for the Respondent Nos.1 and 2 has also seen the same and has no objection if the same is taken on record of the instant case. Learned counsel for the petitioner then pointed out that on 09.6.2017 and 14.7.2017 the father of the Respondent No. 1 was not present and the matter was fixed for 29.9.2017 but this aspect of the matter was not taken into consideration while passing the impugned order and the impugned judgment & decree challenged before this Court through the instant writ petition. He further explained that the delay was only due to the Holidays and therefore, the time period fixed by this Court through the order of the earlier writ petition could not be complied with, particularly when Respondent Nos.1 and 2 wanted to collect said amount only in Court; he further contended that the decree holder had not challenged the said aspect of the matter before the learned Executing Court and had they challenged it, the petitioner / judgment debtor would not have deposited the said money.

1. Learned counsel for the Respondent Nos. 1 and 2 states that the petitioner / judgment debtor is not paying the future maintenance since last three months. He further stated that the petitioner / judgment debtor never offered the said amount of money, out of Court and that the father of the said Respondent No. 1 is not her attorney in the execution proceedings.

In rebuttal the learned counsel for the petitioner / judgment debtor argued that all the points raised by the learned counsel for the Respondent Nos.1 and 2 are at best factual controversies.

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

2. It transpires from the record that the suit for recovery of dowry articles or their price in the alternative, recovery of delivery expenses of Respondent No. 2, recovery of maintenance allowance of Respondent No. 1, recovery of maintenance allowance of Respondent No. 2 with annual increase and recovery of maintenance allowance for Iddat period of the Respondent No. 1 was partially decreed vide judgment & decree dated 14.9.2015. The appeals filed by the petitioner as well as Respondent Nos.1 and 2 were decided vide judgment & decree dated 30.8.2016. The learned appellate Court partially accepted both the appeals while modifying the judgment & decree dated 14.9.2015 passed by the learned Family Court as noted above in detail. The petitioner had earlier challenged the same through a Writ Petition No. 2705/2016 which was decided in terms of order dated 24.5.2017, as noted above. It is also necessary to note here that the Respondent No. 1 and the petitioner were married on 23.3.2007 and Rukhsati took place on 28.3.2007. Subsequently, the petitioner went to Australia in June 2007. In March 2008, he came back to Pakistan and in April 2008 the Respondent No. 1 was expelled from his house. Respondent No. 2 was born on 08.12.2008 and Respondent No. 1 was divorced on 16.02.2012. The above noted suit was filed by the Respondent Nos.1 and 2 on 10.7.2012. This suit was decreed to the extent of delivery expenses at the rate of Rs. 8,000/- and the maintenance allowance of the Respondent No. 2 was decreed at the rate of Rs. 7,000/- from 08.12.2008 uptill her legal entitlement with 10% annual increase. The learned appellate Court vide judgment & decree dated 30.8.2016, while upholding the judgment & decree of the learned Family Court, modified the same and held that the Respondent No. 1 is also entitled to recover maintenance allowance. However, it reduced the maintenance allowance of the minor / Respondent No. 2 from Rs. 7,000/- to Rs. 5,000/- per month.

On the other hand, this Court vide order dated 24.5.2017 passed in Writ Petition No. 2705/2017 noted the terms and conditions of the conditional compromise between the parties. The main condition for the said full and final satisfaction of the decree was the payment of Rs. 150,000/- within three (3) months by the petitioner, otherwise the decrees of the learned Courts below were to stand revived.

1. In this view of the matter and the arguments of the learned counsel for the parties, it is imperative to note the relevant statutory provisions relating to a money decree passed by the learned Courts below. The relevant provision being Section 13 of the Family Courts Act, 1964 provides as follows:--

“13. Enforcement of decrees.–(1) The Family Court shall pass a decree in such form and in such manner as may be prescribed, and shall enter its particulars in the prescribed register.

(2) If any money is paid or any property is delivered in the presence of the Family Court, in satisfaction of the decree, it shall enter the fact of payment or the delivery of property, as the case may be, in the aforesaid register.

(3) Where a decree relates to the payment of money and the decretal amount is not paid within time specified by the Court not exceeding thirty days, the same shall, if the Court so directs, be recovered as arrears of land revenue, and on recovery shall be paid to the decree-holder.

(4) The decree shall be executed by the Court, passing it or by such other Civil Court as the District Judge may, by special or general order, direct.

(5) A Family Court may, if it so deems fit, direct that any money to be paid under a decree passed by it be paid in such installments as it deems fit.”

1. The Family Court Rules, 1965 framed under the Section 26 of the Family Courts Act, 1964 provides as follows:--

“16. In every suit, on passing the judgment, a decree shall be drawn up in Form I and shall be signed by the presiding Judge. The decree shall bear the seal of the Court.

1. The Court shall maintain a register of decrees and orders in the form prescribed for decrees and orders under the Code of Civil Procedure, 1908.

2. Whenever any fine is paid under Section 15 or Section 16 or money or property is deposited with or realized by the Court under the Act or these rules, a receipt shall be given in Form II which shall be serially numbered and the counterfoil thereof shall be kept in the Court.

3. All fines, monies, or property deposited or realized and disbursed by the Court shall be entered in a register in Form III.

4. Where the Court receives any amount payable to a party it shall cause a notice thereof to be served on the’ party entitled to receive it and shall pay it to the party concerned within four days, so far as may be of his applying therefor.”

A joint reading of the above go to show that a special procedure has been laid down for the purposes of executing a money decree passed under the Family Courts Act, 1964.

1. I have carefully considered the contentions of the learned counsel for the petitioner but in view of the record and the conduct of the petitioner, cannot accept the same. Even if it is accepted that the father of the Respondent No. 1 had insisted to receive the said amount of Rs. 150,000/- before the learned Executing Court, and he subsequently failed to appear before the learned Executing Court on 09.6.2017 and 14.7.2017, the said amount could have been easily deposited before the learned Executing Court in compliance of the conditional compromise reflected in the order dated 24.5.2017 of this Court. The order sheet placed on record today by the learned counsel for the petitioner and not objected to by the learned counsel for the Respondent Nos.1 and 2 clearly show that on 09.6.2017 the case was simply adjourned to 14.7.2017 for making the payment. This order was passed in the presence of the learned counsel for the parties. On 14.7.2017, again the learned counsel for the parties were present and a schedule for payment was submitted by the learned counsel for the Respondent Nos.1 and 2 / decree holders and the case was adjourned to 29.9.2017 for filing reply to the same.

It would not be out of place to mention here that the decretal amount that is to be paid according to the judgments & decrees of the learned Family Court and the learned appellate Court include:--

(i) Rs. 8,000/- for the delivery expenses of the Respondent No. 2;

(ii) Maintenance allowance of the Respondent No. 1 at the rate of Rs. 4,000/- from April 2008 to 16.02.2016, that is the date when she was divorced and at the same rate for the Iddat period; and

(iii) Maintenance allowance of Respondent No. 2 at the rate of Rs. 5,000/- from 08.12.2008 till she is legally entitled with 10% annual increment and the first increment was to take effect from January 2017.

Keeping in view the above and more importantly the fact that the conditional compromise was not fulfilled by the petitioner within the stipulated period and irrespective of the fact that the father of the Respondent Nos.1 and 2 as well as their counsel had taken the sum of Rs. 150,000/- on 29.9.2017 without any objection did not debar the learned Executing Court from applying its mind to the terms of the conditional compromise entered into by and between the parties before this Court on 24.5.2017. Reliance is placed on the case of Waheed Anwar vs. Additional District Judge and others (2017 YLR 827) wherein the constitutional petition was dismissed for the reason that the conditional compromise was not followed in letter and spirit and as a consequence the decree was held to be executable. I am also surprised to note that the petitioner being the father of the minor through his counsel contended that had the other side challenged the delay in making the payment, the petitioner / judgment debtor would not have deposited the said money. The conduct of the petitioner also disentitles him of the discretionary relief under the constitutional jurisdiction. It is also incorrect on his part to argue that the learned Courts below are adamant to execute the judgment & decree dated 14.9.2015 passed by the learned Family Court. In this regard, it is reiterated that the judgment & decree dated 14.9.2015 passed by the learned Family Court was upheld but modifiedvide judgment & decree dated 30.8.2016. Therefore, the same is not dead document. The conditional compromise was probably a one-time window for the petitioner to once and for all wriggle out of his responsibilities, particularly towards his minor daughter. I cannot help but to express my surprise to the terms and conditions of the same. The question is that how can a father shirk of his responsibilities towards the minor and who could have agreed on her behalf allowing the father to do so. In any case, even if the conditional compromise as reflected in order dated 24.5.2017 was to be followed / implemented, the petitioner can only blame himself for not making the requisite payment within the stipulated period of three (3) months. In such view of the matter, the arguments of the learned counsel for the petitioner are of no consequence. It is the moral as well as legal responsibility of the petitioner to provide for his daughter till her legal entitlement. The petitioner due to his conduct has now missed the bus.

There is yet another aspect that needs consideration. It is noted from the judgment & decree dated 30.8.2016 passed by the learned appellate Court about the conduct and status of the petitioner as follows:--

“12. As far as status of respondent is concerned, it is transpired from the file that neither the appellant nor the respondent had appeared in person before the Court and both of them had produced evidence through special attorney. It is also evident from the file that no direct evidence has been tendered by the appellant to establish the financial status of the respondent but this fact is established from the file that the respondent is residing abroad in Australia. Although the respondent has contended that he is in Australia for the purpose of getting education but this is also very much clear from the record that he has completed his certificate in Printing and Graphic Arts which means that he had completed his higher education in Australia in 2009. The statement of the respondent was recorded in the year 2015 being DW.01 wherein it is evident that the respondent remained in Australia till 11.2.2015 and no reason has been provided that why he is living abroad despite completing his education which depicts that he is there just to earn his livelihood. Even otherwise, the respondent had gone abroad for getting higher education that too is sufficient to establish that he is financially a very strong person, because in our society an ordinary man cannot afford such sort of blessing in shape of Higher Education. Although the appellant has failed to establish that the respondent is earning Rs. 1,50,000/- but keeping in view the status of both the parties, the appellant No. 1 is held entitled to recover maintenance allowance at the rate of Rs. 4000/- per month from April, 2008 till divorce and at the same rate for the period of Iddat.

1. As far as minor daughter appellant No. 02 is concerned, it is claim of the appellant through her appeal that the maintenance fixed by the trial Court is not in accordance with status of the respondent & is meager one, whereas the respondent contended that he is merely a student at Australia and cannot pay the granted maintenance allowance which should be reduced. From perusal of record it is evident that no direct evidence has been tendered by the appellant to establish financial status of the respondent. It is already discussed in the preceding paragraph that the minor was born in the house of parents of appellant No. 1 during the period of Ghair Abadi, therefore, there is no justification to allow the appeal of the respondent regarding reduction of period of maintenance allowance as same has been proved and established through evidence of the respondent. As far as quantum of maintenance allowance is concerned, there is no sufficient evidence available on the file to establish that the respondent is a man of strong financial resources to pay maintenance allowance as claimed by the appellant. Even otherwise, age of the minor at present is almost eight years and there is nothing on the file to establish the monthly expenditure of the minor as no receipt of school or otherwise has been produced by the appellant to establish the monthly expenditure of the minor, therefore, quantum of maintenance allowance of the appellant No. 01 is reduced from Rs. 7000/- to Rs. 5000/- per month from the date of her birth i.e. 8.12.2008 till she is legally entitled with 10% annual increment. The first increment will take effect from January, 2017 & the decree/judgment of learned trial Court is modified accordingly.”

The record shows that nothing was placed on record before the learned Courts below regarding the monthly expenditure of the minor, particularly regarding schooling expenses etc. and keeping in view the same, the quantum of maintenance allowance was reduced from

Rs. 7,000/- to Rs. 5,000/- per month by the learned Appellate Court while modifying the judgment & decree passed by the learned Family Court. The record also shows that the petitioner went to Australia for his higher education and it is noted from the record that after having completed his education there, he is now working there. This aspect has been specifically noted by the learned appellate Court in its judgment & decree dated 30.8.2016.

The Hon’ble Supreme Court of Pakistan in the case reported as Muhammad Asim and others vs. Mst. Samro Begum and others (PLD 2018 SC 819) has held as under:

“6. That as regards the learned counsel’s contention that the earnings of the Muhammad Asim are not known, we deprecate this attempt at intentional non-disclosure. Muhammad Asim is employed by PAEC but elects not to disclose his position or salary; he thus seeks to take advantage of his own willful non-disclosure. Where a husband is required to maintain his wife, former wife during her iddat period or child and is required to pay maintenance, including the arrears of maintenance, his present and past earnings must be disclosed by him, because his financial status determines the amount of maintenance that should be awarded. In case of non- disclosure an adverse inference can be drawn against him. Family judges should try to ascertain the salary and earnings of the husband/father who is required to pay maintenance. Muhammad Asim did not disclose his salary and earnings but considers the maintenance that has been awarded to be excessive. However, willful non-disclosure of his earnings suggest that the maintenance amount is well within his means; his conduct further betrays that he does not want to be fair and has unnecessarily embroiled his former wife and child in needless litigation. The only objective for assailing the judgment of the Appellate Court and then of the High Court has been to starve the needs of his own child and the legal dues of his former wife. This is unconscionable and inexcusable.”

It would not be out of place to note here that sub-section (4) of Section 17-A of the Family Courts Act, 1964 provides as follows:

“17A. Suit for maintenance.–(4) For purposes of fixing the maintenance, the Family Court may summon the relevant documentary evidence from any organization, body or authority to determine the estate and resources of the defendant.”

In such view of the matter the statutory provision empowers the Family Courts to put in serious efforts while utilizing its said power in order to determine not only the estate but also the resources of the defendant, for the purposes of fixing the maintenance, in each and every case.

In view of the case reported as Abdul Khaliq vs. Sidra Khaliq and 3 others (2017 CLC 487), the Family Court can be approached for enhancement of the maintenance allowance of the minor by way of filing an appropriate application supported by the relevant documents, if any to ensure that she is provided proper education and her other needs. In the above background, the order dated 29.9.2017 passed by the learned Executing Court as well as the judgment dated 20.11.2017 are not liable to be interfered with under the constitutional jurisdiction.

The record shows that there is no effort, none whatsoever, on the part of the petitioner / judgment debtor to comply with the terms and conditions of the conditional compromise entered into by him voluntarily for the purposes of depositing the said amount of RS. 1,50,000/- within the period of three months. It is also evident from the record that the date before which this had to be done was fixed in the presence of the learned counsel of the Judgment Debtor. It is a commonly known fact that the learned lower Courts observe holidays in the month of August every year. Such time period was fixed with consent of the parties in the presence of their learned counsel and they knew well what they were agreeing to, in terms of the timeline. Now they cannot be allowed to wriggle out of the same more so for the reason that the matter is governed by the Family Courts Act, 1964, the purpose of which has been very clearly laid down by the Honourable Supreme Court of Pakistan in the case reported as Saif-ur-Rehman vs. Additional District Judge, Toba Tek Singh and 2 others (2018 SCMR 1885) wherein it was held that a special forum in the shape of Family Courts with special procedure has been made for expeditious settlements and disposal of disputes relating to marriage and family affairs. It was further noted that purposive rather than literal approach to the interpretation has to be adopted while interpreting statutes and therefore, the interpretation which advances the purpose of the Act is to be preferred rather than the interpretation which defeats its objects.

1. In view of the above, instant writ petition is dismissed being devoid of any force. Learned Executing Court is directed to proceed with the execution application in accordance with law.

(Y.A.) Petition dismissed

PLJ 2019 Lahore 202

Present: Amin-ud-Din Khan, J.

MUHAMMAD SARWAR--Petitioner

versus

ZILE HUMA and another--Respondents

C.R. No. 3644 of 2011, heard on 12.9.2018.

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

----S. 12(2) & O. I R. 10--Agreement to cell--Suit was decreed on basis of compromise--Filling of execution petition--Accepted--Appeal--Dismissed--Jurisdiction of Rent Controller--Concurrent findings--Determination of objections--Validity--Rent Controller has limited jurisdiction with regard to determine matter relating to rented premises in accordance with law applicable, asking him to determine all questions involved and objections raised with regard to execution of order as a full fledge civil Court will be against mandate of law--Determination of objections by executing Court and dismissal whereof is in accordance with law--No case for interference by this Court while exercising jurisdiction u/s 115 of, CPC is made out--Therefore, I have no reason to disagree with concurrent findings of two Courts below and as such instant civil revision having no substance stands dismissed with costs throughout--Civil Revision was dismissed. [P. 206] A & B

PLD 1978 Lah. 1078, PLD 1970 SC 158 & PLD 1970 SC 173, ref.

M/s. Khawaja Muhammad Ashraf Jan and Khawaja Ahsan Ashraf, Advocates for Petitioner.

M/s. Syed Muhammad Shah and Qamar Abbas Haideri, Advocates for Respondents.

Dates of hearing: 6, 10 and 12.9.2018.

Judgment

Through this civil revision the petitioner has challenged the judgment & decree dated 14.09.2011 passed by the learned Additional District Judge, Gujranwala whereby the appeal filed by the petitioner was dismissed and the judgment/order dated 05.03.2011 passed by the learned Civil Judge/Executing Court, Gujranwala whereby the objections filed by the petitioner were dismissed.

1. I have heard the learned counsel for the parties at full length consisting upon three dates of hearing but the matter in issue as well as facts for determination of point in issue is not very lengthy. Admittedly an execution petition, subject matter of instant revision petition wherein objections were filed and concurrently dismissed by two Courts below, is a decree passed by the learned Rent Controller in an ejectment matter.

2. First of all, I would like to take legal point so that the whole factual position could be discussed in the light of law applicable. I take light from the judgment of august Supreme Court of Pakistan reported as “Muhammad Yasin versus Sheikh Ghulam Murtaza and another” (PLD 1988 Supreme Court 163). I quote a paragraph from the said judgment, which is as follows:

“A Controller has no power or control over a decree of a Civil Court except for this deeming provision. Where a power to execute an order in the manner of a decree of a Civil Court is conferred then on the ordinary rule of interpretation all the powers necessary or enjoyed by the executing authority for effectively and completely executing a decree of a Civil Court shall be available to the Controller. The deeming cannot stop short or boggle. To hold that the Controller will have the power to execute the order as a decree of the Civil Court but will have no power to decide objections to the order, and to its executability, will amount to in fact denying the Controller the very power to execute the decree itself. Such cannot be the result or the effect of the deeming clause. It has to be given full effect and the logical consequence of the empowering provision must follow.”

Similarly light can also be taken from the other judgment of august Supreme Court of Pakistan reported as “Muhammad Tariq Khan versus Khawaja Muhammad Jawad Asami and others” (2007 SCMR 818). The relevant paragraph is as under:

“It is a settled law that decree is executable in the light of the terms and conditions mentioned in the decree and the executing Court has to confine its deliberations within the purview of the decree and not beyond that. It is the duty and obligation of the executing Court to dispose of the objections filed by the objectors in the light of terms and conditions of a decree and the learned Rent Controller has no authority to deviate from a real controversy between the parties keeping in view the decree secured by the petitioner in the case in hand. The learned Rent Controller has only authority to determine the questions relating to execution, discharge and satisfaction of the decree under Section 17 of the Punjab Urban Rent Restriction Ordinance, 1959. See S. Anwar Ali Shah’s case PLD 1978 Lah. 1078. It is also settled law that executing Court cannot go behind the decree. See Mst. Nasim Akhtar’s case 1994 SCMR 22. It is also a settled law that preamble is key to understand the statute. See Syed Ikhlaq Hussain’s case PLD 1969 Lah. 563. It is pertinent to mention here that Rent Restriction Ordinance is enacted by the Legislature in its wisdom to regulate the relationship of landlord and tenant to provide them remedy for resolution of any dispute arising between them to approach the Rent Controller who is also bound to pass orders within the four-corners of the provisions of the said Ordinance. We have examined all the provisions of Rent Restriction Ordinance with the assistance of the learned counsel for the parties. We do not find any provision on the basis of which the Rent Controller has possessed any power to award damages to the objectors. It is also a settled law that executing Court has to decide the objections keeping in view the pleading of the parties in the rent matter and the decree passed by the Rent Controller. It is no doubt that the Rent Controller has power to restore the possession to the respondents which was taken from them under the orders of the Rent Controller but the Rent Controller has no power, as mentioned above, to grant damages to the respondents. It is a settled law that our Constitution is based on trichotomy and Court has only power to interpret the law as law laid down by this Court in various pronouncements. See Zia-ur-Rehman Khan’s case PLD 1973 SC 49. The learned Rent Controller has exceeded its jurisdiction while restoring the possession to the respondents in its order, dated 30-10-1997 while awarding damages and this fact was overlooked by the learned High Court in the impugned judgment. It is a settled law that Presiding Officer has to decide the objection petition after judicial application of mind keeping in view the provisions of Rent Restriction Ordinance. The learned Rent Controller, as mentioned above, has decided the objection petition without judicial application of mind, therefore, his order is without lawful authority to the extent of granting damages to the objectors. See Gournga Mohan Sikdar’s case PLD 1970 SC 158 and Mollah Ejahar Ali’s case PLD 1970 SC 173. The Rent Controller being a persona designata has no lawful authority to decide the objection petition considering himself to be a Civil Court and was regulated by the provisions of C.P.C. The principles of C.P.C. are applicable, therefore, having a jurisdiction to decide the matter in question under a special law, therefore, Rent Controller is bound to decide the matter within the parameters prescribed by the Legislature in its wisdom keeping in view provisions of special law and not beyond that. The learned High Court has also overlooked this aspect of the case to the extent of grant of damages to the respondents by the Rent Controller. It is a settled law that when the basic order is without lawful authority then the superstructure shall have to fall on the ground automatically as law laid down by this Court in Yousaf Ali’s case PLD 1958 SC 104.”

Further relevant judgment of this Court on the point is “Allah Ditta versus Muhammad Umar and others” (2009 YLR 1811).

1. The main weapon of attack of petitioner is that Mst. Nusrat Bibi filed a suit against the petitioner and others on 24.12.1996 on the basis of an agreement to sell dated 08.11.1994 by their mother Mst. Sughran Bibi and the suit was decreed on the basis of a consent statement of counsel for the defendants whereby the petitioner was one of the defendants in the suit and ultimately suit was decreed vide judgment & decree dated 08.01.1997 on the basis of compromise. Mst. Nusrat Bibi got the decree implemented in Register PT-I of the Excise and Taxation Department. On the basis of a power of attorney by Mst. Nusrat Bibi in favour of Syed Aftab Zaidi the property was sold through Hameeda Bibi and Zil-e-Huma the decree holder. Muhammad Ikram was a tenant on the property in dispute against whom Zil-e-Huma filed an application for eviction on 07.02.2007. Muhammad Sarwar the present petitioner/objector filed an application under Order I Rule 10 of the, CPC, which was dismissed by the learned Rent Controller on 03.04.2008 and ejectment order was passed on 07.04.2008. Muhammad Sarwar opted to file an appeal before the learned first appellate Court, which was dismissed on 19.08.2008. He filed second appeal bearing SAO No. 102/2008, which too, was dismissed vide judgment passed by this Court on 14.10.2008. Muhammad Ikram also filed first appeal and after its dismissal filed second appeal bearing SAO No. 85/2008, which was accepted and case was remanded vide judgment dated 20.11.2008. It is stated that after remand the execution petition was accepted on 18.05.2009. The appeal there against filed by Muhammad Ikram tenant was dismissed and in SAO four months’ time was granted by this Court. On 18.05.2009 decree holder filed an execution petition. The objections were filed on 18.07.2009. The reply was filed. Learned executing Court dismissed the objection petition on 05.03.2011. Before that when no injunctive order could be procured by the petitioner, warrant of possession was executed on 23.07.2009. The argument of learned counsel for the petitioner/objector that the Court while executing the decree in a rent

matter has also full powers as a civil Court, therefore, his objection that all the objections raised by the petitioner be decided after full fledge trial as a separate civil suit is barred, is not a legal and valid argument. I am clear in my mind that if this argument is accepted and learned Rent Controller is bound down to determine the objections after full trial as a civil Court, it will be against the mandate of law relating to the rented premises. When a Rent Controller has limited jurisdiction with regard to determine the matter relating to rented premises in accordance with law applicable, asking him to determine all the questions involved and objections raised with regard to execution of order as a full fledge civil Court will be against the mandate of law as well as the law declared by the august Supreme Court in Muhammad Tariq Khan’s case referred supra.

1. Even otherwise, the judgment on the basis of which the property through a registered sale deed was transferred in the name of petitioner of eviction petition was challenged through an application u/S. 12 (2) of the, CPC. Admittedly said application was withdrawn on 07.03.2006 and even petition under Order I Rule 10 of the, CPC was filed by the petitioner, which too, was dismissed and even he filed first appeal as well as second appeal also as narrated by the learned counsel for the petitioner himself. In these circumstances, determination of objections by the executing Court and dismissal whereof is in accordance with law. No case for interference by this Court while exercising jurisdiction u/S. 115 of the, CPC is made out. Therefore, I have no reason to disagree with the concurrent findings of two Courts below and as such the instant civil revision having no substance stands dismissed with costs throughout.

(M.M.R.) Civil revision dismissed

PLJ 2019 Lahore 206 [Bahawalpur Bench Bahawalpur]

Present: Qazi Muhammad Amin Ahmed, J.

SAMINA MUNIR--Petitioner

versus

ASJ/JUSTICE OF PEACE, etc.--Respondents

W.P. No. 9696 of 2017, decided on 28.9.2018.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional Petition--Application for registration of criminal case--Non-registration of FIR--Writ Petition before justice of peace--Rejected--Constitutional Jurisdiction--Challenge to--It is by now well settled that criminal prosecutions and civil pursuits can progress side by side and unless decision of a criminal case is to be exclusively and essentially based upon civil adjudication, former cannot be held in abeyance; she has alleged violation and subsequent fabrication of a fake marriage certificate--Station House Officer shall forthwith record a First Information Report on basis of petitioner’s statement, to be investigated by an officer not below a Deputy Superintendent of Police--It is clarified that observations made hereinabove being issue specific would not impact upon fate of case to be determined independently, justly and fairly on strength of available evidence alone--Petition was allowed.

[P. ] A & B

PLD 1981 SC 95, ref.

Mr. Adnan Arshad Jatoi, Advocate for Petitioner.

Mr. Muhammad Iqbal Mahar, A.A.G. and Mr. Ijaz Ahmad Chughtai, Advocate for Respondents.

Date of hearing: 28.09.2018.

Order

In the wake of her failure with the Station House Officer as well as a Justice of Peace at Lodhran, the petitioner seeks intervention by this Court in its Constitutional jurisdiction for registration of a criminal case against the respondents as well as their unknown accomplices.

It is alleged that she met Muhammad Azhar respondent to take back certain amount on 9-7-2017 whereafter she was taken to a place by the accused; under restrain not only her belongings were taken by the accused but she was violated as well by the respondent; she was later rescued by one of her brothers and medically examined under a magisterial direction.

Respondent came up with a different story, supported by a police report wherein the petitioner was blamed for having married Muhammad Azhar respondent of her will and volition and it was so asserted on the strength of a marriage certificate, nonetheless, vehemently denied by her. Pendency of a suit by the petitioner seeking jactitation of the marriage being attributed to her is a common ground between the parties.

Learned counsel for the petitioner contends that the petitioner, a young lady, was duped and violated while seeking respondent’s assistance to pursue the case of her real brother, a condemned prisoner, awaiting final adjudication upon his life. Vulnerably placed, she was horrifically abused, adds the counsel. It is lastly argued that in the face of most heinous accusation, petitioner’s recourse to criminal justice cannot be denied merely on account of pendency of a suit seeking repudiation of marriage, instituted by no other than the petitioner herself. Contrarily, the view taken by the Justice of Peace is defended by the learned counsel for the respondent on the strength of Azam’s case (PLD 1981 SC 95) relied by the Justice of Peace while declining assistance, however, learned counsel has not controverted receipt of a death penalty by petitioner’s brother and instead attempted to bank upon varied positions taken by the petitioner during her past pursuits including a failed marriage with one Qaisar.

1. Heard. Record perused.

2. Direction by this Court for registration of a criminal case is a no small measure, as it may have devastating impact upon an accused blamed for a crime; this power must be exercised with caution and circumspection, however, traditional judicial restraint notwithstanding, certainly there are situations that warrant intervention by this Court. It is not a case involving run of the mill runaway marriages or subsequent betrayals after initial volitions. The petitioner is enduring horrors of an impending execution of her brother and in the given state of affairs prevalent in the justice sector, role played by non-statutory actors, throwing around their weight to lure the unsuspecting hapless litigants is a common knowledge, thus, position taken by the petitioner warrants a most thoughtful consideration; her previous marriage with one Qaisar and subsequent dissolution thereof has no nexus with her accusation qua the accused; grey areas of her past life, if at all any, cannot be pleaded as a justification for denying her access to justice. Reliance upon Azam’s case is beside the mark, inasmuch as in the said case, prosecution consequent upon a First Information Report was in progress when it was halted to await final adjudication in civil jurisdiction and as such law declared in the said case, does not create any bar on the registration of a criminal case on the basis of disclosure of information regarding commission of a cognizable offence. It is by now well settled that criminal prosecutions and civil pursuits can progress side by side and unless decision of a criminal case is to be exclusively and essentially based upon civil adjudication, the former cannot be held in abeyance; she has alleged violation and subsequent fabrication of a fake marriage certificate. These allegations, taken from any angle, in all fairness, warrant an independent, unbiased and objective

investigative probe; the only methodology hitherto known to determine truthfulness or otherwise of a criminal charge. Registration of a criminal case is a means to an end and not an end in itself; the process, structured upon tangible material with a probable cause, cannot be scuttled merely on the basis of its anticipated failure nor antecedents or past credentials of a victim/woman, viewed uncharitably, can shield the perpetrator in subsequent transgressions. Constitutional Petition No. 9696 of 2017 is allowed. Station House Officer shall forthwith record a First Information Report on the basis of petitioner’s statement, to be investigated by an officer not below a Deputy Superintendent of Police. It is clarified that observations made hereinabove being issue specific would not impact upon the fate of the case to be determined independently, justly and fairly on the strength of available evidence alone.

(M.M.R.) Petition allowed

PLJ 2019 Lahore 209 [Bahawalpur Bench Bahawalpur]

Present: Qazi Muhammad Amin Ahmad, J.

SAEED AHMAD--Petitioner

versus

A.S.J. etc.--Respondents

W.P. No. 8067 of 2017, decided on 3.9.2018.

Constitution of Pakistan, 1973--

----Art. 199--Criminal Procedure Code, (V of 1898), S. 154--Constitutional petition--Abuse of process of law--No justification for M.O. to view violence--Exposing a person to investigative process and face rigors of criminal prosecution is a no small measure; there must exist reasonable and tangible material, with evidential basis to set law into motion so as to bring about an indictment--In present case, number likely to face consequences is no less than ten as against solitary tenderness and swelling, viewed by Medical Officer with suspicion and, thus, argument that registration of criminal case and investigation consequent thereupon would be abuse of process of law. [P. 211] A

Legislative digression--

----Scope of--Creditability in process of Law--It is important to maintain credibility in process of law and to prevent its abuse by unscrupulous in pursuits to quench personalvendettas. [P. 211] B

Constitution of Pakistan, 1973--

----Art. 199--Constitutional Petition--Justice of Peace--Administrative--Injustice--Authority to be exercised by Justice of Peace is to advance ends of justice and for sake of a person, wronged in face of administrative injustice/inaction; it cannot be invoked for purposes incompatible therewith--Exaggerated accusations, casting wider net upon opponents need to be quashed in bud instead of taxing upon public time and resource--Justice of Peace lost sight of these aspects in present case and, thus, intervention in equity is most conscionable--Petition was allowed. [P. 211] B

Mr. Muhammad Aslam Khan Dhukkar, Advocate for Petitioner.

Mr. M. Imran Pasha, Advocate for Respondent.

Mr. Saeed Ahmad Choudhry, A.A.G. for State.

Date of hearing: 3.9.2018

Order

Impugned herein is order dated 28-9-2017 by a Justice of Peace whereby he directed the Station House Officer to receive version advanced by Zubaida Bibi respondent “in accordance with provision of Section 154, Cr.P.C.”. It is being construed as a step preparatory to registration of a criminal case.

Respondent alleged that on the eventful day i.e. 8-9-2017 at 10:00 p.m, accused 10 in number, differently armed, mounted assault after criminal trespass in the backdrop of a motive revolving around a dispute over property; besides respondent, her son Sikandar was thrashed by the assailants, however, only the latter was medically examined same day; he came up with complaint of pain before the Medical Officer on different parts of his body with no apparent mark of violence, except tenderness and swelling on dorsal aspect of right hand. The Medical Officer suspected the nature of injuries and as such did not rule out possibility of fabrication. Respondent’s claim is structured upon this suspicious foundation.

Learned counsel for the petitioner contends that 10 persons are likely to be dragged in the quagmire of criminal prosecution on the basis of a medical certificate suggesting no apparent infliction of violence, an assertion, fake on the face of it and as such there was no occasion for the Justice of Peace to issue the impugned direction which if implemented, according to him, would be abuse of process of law. Contrarily, learned counsel for the respondent defended the impugned order on the ground that anticipated failure of the prosecution case

cannot be made basis to scuttle investigative process; he has referred to the previous enmity and maintained that there was no justification for the Medical Officer to view violence endured by Sikandar PW as being result of a friendly hand.

1. Heard. Record perused.

2. Exposing a person to investigative process and face rigors of criminal prosecution is a no small measure; there must exist reasonable and tangible material, with evidential basis to set the law into motion so as to bring about an indictment. In the present case, the number likely to face the consequences is no less than ten as against solitary tenderness and swelling, viewed by the Medical Officer with suspicion and, thus, argument that registration of criminal case and investigation consequent thereupon would be abuse of process of law, casting hardship on the proposed accused, cannot be dismissed out of hand. Prosecution of offences is a State attribute and it must remain so despite transient legislative digressions; it is important to maintain credibility in the process of law and to prevent its abuse by the unscrupulous in pursuits to quench personal vendettas. Authority to be exercised by the Justice of Peace is to advance the ends of justice and for the sake of a person, wronged in the face of administrative injustice/inaction; it cannot be invoked for purposes incompatible therewith. Exaggerated accusations, casting wider net upon the opponents need to be quashed in the bud instead of taxing upon public time and resource. Justice of Peace lost sight of these aspects in the present case and, thus, intervention in equity is most conscionable. W.P. No. 8067 of 2017 is allowed. Impugned order dated 28-9-2017 is set aside.

(M.M.R.) Petition allowed

PLJ 2019 Lahore 211 (DB)

Present: Malik Shahzad Ahmad Khan and Mirza Viqas Rauf, JJ.

QAISER AMIN BUTT--Petitioner

versus

NATIONAL ACCOUNTABILITY BUREAU through D.G. Lahore and another--Respondents

W.P. No. 255418 of 2018, decided on 23.1.2019.

National Accountability Ordinance, 1999 (XVIII of 1999)--

----S. 26(a)--Constitution of Pakistan, 1973, Art. 199--Tender of Pardon--Bail grant of--Powers of Chairman NAB--Investigation--Chairman, NAB is empowered under Section 26(a) of National Accountability Ordinance, 1999 to tender a full or conditional pardon to a person with a view to obtain evidence supposed to have been directly or indirectly concerned or privy to any offence, at any stage of inquiry/investigation or trial. [P. 214] A

National Accountability Ordinance, 1999 (XVIII of 1999)--

----S. 26(a)(i)--Constitution of Pakistan, 1973, Art. 199--Constitutional Petition--Bail, grant of--Tender of Pardon, grant of--Further inquiry--When an accused is granted full pardon then he shall not be tried for offences in respect of which pardon was granted--As full pardon has been granted to petitioner in this case and he is not to be tried for offence(s) of this case, therefore, no useful purpose shall be served by keeping petitioner behind bars as a punishment--As Chairman NAB, while exercising his powers bestowed upon him under Section 26(a) read with Section 26(c)(i) of National Accountability Ordinance, 1999 has granted full pardon to petitioner which has further been supported by statement of petitioner recorded under Section 164, Cr.P.C., therefore, this Court cannot withhold its benefit even at bail stage.

[Pp. 215 & 216] B & C

PLD 1975 Karachi 159 iref.

M/s. Peer Masood Chishti, Sahibzada Muzzafir Ali, Mir Haroon Rashid and Waqas Umar Sial, Advocates for Petitioner.

Syed Faisal Raza Bukhari, Special Prosecutor for NAB alongwith Khawar Ilyas, Director, NAB, Zavar Manzoor, Deputy Director/ Investigating Officer, NAB.

Mian Tariq Shafique Bhandara, Deputy Attorney General for Pakistan.

Date of hearing: 23.1.2019.

Order

The petitioner Qaiser Amin Butt/Director of M/s. Paragon City (Pvt.) Ltd. who is in the custody, through the instant petition filed in terms of Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, prays for his release on post arrest bail in Inquiry No. 1(9)HQ/1832/NAB-L dated 10.1.2018 facing the allegation that he alongwith other co-accused persons Launched Paragon City (Pvt.) Limited Housing Scheme, Lahore in the year 2005 on the basis of fake and forged documents which scheme in the year 2013, was merged into Lahore Development Authority but record of the same was not transferred to LDA. He is also facing the allegation that he with the connivance of his co-accused, cheated and defrauded the public at large and grabbed a sum of Rs. 250 million on the pretext of allotment of plots in Paragon Housing Scheme, Lahore by issuing bogus allotment letters. During the physical remand, it transpired that the petitioner being Director of M/s. Paragon City (Pvt.) Ltd. aided, connived, assisted and abetted Nadeem Zia, co-accused and others in commission of offences of cheating the public at large and misappropriation of funds collected from the general public.

1. Learned counsel for the petitioner submits that the petitioner has made full disclosure of the facts through his statement recorded under Section 164, Cr.P.C., in consequence whereof full pardon has been granted to him by the Chairman, NAB in terms of Section 26(a)(i) of the National Accountability Ordinance, 1999, and he (petitioner) is also committed to remain bound to appear as prosecution witness before the learned Accountability Court, Lahore where the reference would be filed. He further submits that since the reference has yet not been filed, therefore, further incarceration of the petitioner will not serve any useful purpose, particularly when the petitioner is not required for further investigation/inquiry into the matter. Lastly, he submitted that the NAB authority has also no objection on release of the petitioner from the jail, therefore, the petitioner may be granted post arrest bail.

2. On the other hand, the learned Special Prosecutor for NAB assisted by Khawar Ilyas, Director NAB, Lahore submits that since the Chairman, NAB, while exercising powers under Section 26(a)(i) of the National Accountability Ordinance, 1999, has granted full pardon to the petitioner, therefore, he has no objection on acceptance of this petition and release of the petitioner in consequence of the same.

3. Arguments heard. Record perused.

4. From the arguments advanced by learned counsel for the petitioner as well as the learned Law Officers and scanning of the record, it is gathered that Qaiser Amin Butt who is Director of M/s. Paragon Housing Society, Lahore is facing the allegation of aiding/abetting the co-accused Nadeem Zia and others who, in connivance with the petitioner embezzled a huge amount from the general public on the pretext of allotment of plots in the abovementioned housing society, which was not registered in accordance with law with the concerned departments i.e. LDA and TMA Aziz Bhatti Town, Lahore and at the time of merger of the abovementioned Paragon Housing Society into Lahore Development Authority, its documents were not handed over to LDA and the accused persons, allotted so many commercial plots on the basis of fake/forged documents.

5. It has surfaced on record that during the course of investigation, the petitioner requested for tender of pardon under Section 26 of the National Accountability Ordinance, 1999, which request of the petitioner has been accorded by the Chairman, NAB on 05.12.2018 and in consequence of the same statement of the petitioner under Section 164, Cr.P.C. has also been recorded by the learned Judicial Magistrate concerned. As a sequel to the above, the Chairman NAB has granted pardon to the petitioner.

6. The Chairman, NAB is empowered under Section 26 (a) of the National Accountability Ordinance, 1999 to tender a full or conditional pardon to a person with a view to obtain evidence supposed to have been directly or indirectly concerned or privy to any offence, at any stage of inquiry/investigation or trial. This provision contained the word “Notwithstanding anything contains in the Code” meaning thereby that being a provision of Special Law, the NAB Ordinance, 1999 shall have a preference over the Code of Criminal Procedure, 1898. The further perusal of this provision shows that it also deals with the effect of accepting such tender of pardon to a person at the stage of inquiry/investigation or trial and it also stipulates that he would not be tried if had been granted full pardon, otherwise, would be tried partially be awarding a punishment or penalty not higher to the one specified in the law. Section 26 of the National Accountability Ordinance, 1999 is reproduced as under:--

“26. Tender of Pardon[.. ....]:

(a) Notwithstanding anything contained in the Code, at any stage of [inquiry, investigation or trial], the Chairman [NAB] may, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to any offence, tender a full or conditional pardon to such a person on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relating to the said offence including the names of the persons involved therein whether as principals or abettors or otherwise.

(b) Every person accepting a tender of pardon under sub-section (a) shall be examined [by a Magistrate and shall also be examined] as a witness in the subsequent trial.

(c) Subject to sub-section (d), the person to whom pardon has been granted under this section shall not--

(i) In the case of a full pardon be tried for the offence in respect of which the pardon was granted; and

(ii) In the case of conditional pardon be awarded a punishment of penalty higher or other than that specified in the grant of pardon notwithstanding the punishment or penalty authorized by law.

(d) Where the Chairman NAB certifies that in his opinion, any person who has accepted such tender has, either by willfully concealing anything essential or by giving false evidence through willful or reckless mis-statement, not complied with the condition on which the tender [of pardon] was made, such a person may be tried for the offence in respect of which the pardon was so tendered, or for any other offence of which he appears to have been guilty in connection with the said matter including the offence of giving false evidence, which he knows or ought or know is false.

(e) Any statement made before [a Magistrate] by a person who has accepted a tender of pardon may be given in evidence against him at [the] trial.

It is evident from the perusal of sub-section (c)(i) of Section 26 of the National Accountability Ordinance, 1999, that when an accused is granted full pardon then he shall not be tried for the offences in respect of which pardon was granted. As the full pardon has been granted to the petitioner in this case and he is not to be tried for the offence(s) of this case, therefore, no useful purpose shall be served by keeping the petitioner behind the bars as a punishment. Although, under Section 337, Cr.P.C. it is provided that an accused to be kept in confinement till final decision of the case but Section 3 of the National Accountability Ordinance, 1999 provides that the provisions of the said Ordinance shall override the other laws. As mentioned earlier, the NAB Ordinance, 1999 is a special law and in the light of Section 26(c)(i), no trial of the petitioner is to be conducted in this case. as he has been granted full pardon by the Chairman, NAB, therefore, bar contained in Section 337(3), Cr.P.C. is not applicable to the case of the present petitioner. Even otherwise, the bar under Section 337(3), Cr.P.C. is not absolute and bail may be granted to an approver under Section 561-A, Cr.P.C. in the cases of hardships or injustice as observed in the case of “Abdul Latif vs. The State” (PLD 1975 Karachi 159). As the petitioner is not to be tried in this case, therefore, keeping him behind the bars for indefinite period would amount to hardship and injustice.

1. As the Chairman NAB, while exercising his powers bestowed upon him under Section 26(a) read with Section 26(c)(i) of

the National Accountability Ordinance, 1999 has granted full pardon to the petitioner which has further been supported by the statement of the petitioner recorded under Section 164, Cr.P.C., therefore, this Court cannot withhold its benefit even at bail stage. In the wake of abovementioned facts, the case of the petitioner squarely falls within the ambit of further inquiry entitling him to the concession of post arrest bail.

1. For what has been discussed above, the petition is hand is allowed and Qaiser Amin Butt, petitioner is admitted to post arrest bail subject to his furnishing bail bonds in the sum of Rs. 1,000,000/- (Rupees One million only) with two sureties in the like amount to the satisfaction of the learned trial Court.

2. However, it is made clear that the petitioner shall surrender his passport with the NAB and his name be placed in the Exit Control List (ECL) forthwith before his release.

(M.M.R.) Petition allowed

PLJ 2019 Lahore 216

Present: Ch. Muhammad Iqbal, J.

BILAL ASLAM--Petitioner

versus

NASEER AHMAD etc.--Respondents

Election Petition No. 16 of 2018, decided on 10.1.2019.

Election Act, 2017 (XXXIII of 2017)--

----Ss. 142, 143, 144 & 145(1)--Civil Procedure Code, (V of 1908), O. VI, R. 15, O. XIX R. 3--Lahore High Court Rules & Orders Vol. IV, Chapter 12, Rr. 11, 12, 14, 15 & 16--General Elections--Notification as returned candidate--Allegation of Corrupt or illegal practice--Non compliance of mandatory requirement of law--Maintainability--hallenge to--Principles of Civil Procedure Code 1908 relating to verification of pleading are made applicable in manner of verification prescribed in Code of Civil Procedure, 1908 (Act V of 1908)--Provision of law are made obligatory for a petitioner to fulfill above statutory requirements which are mandatory in nature and in said provisions or law are not complied with then penal provision of Section 145 (1) shall come into play and election petition is necessarily liable to be rejected summarily under Section 145 (1) of Election Act--It does not contain month and year as well as exact place at which verification is being made on Oath rather it does not contain name of identifier his full particular as well as his national identity card number in verification--Further it does not contain any attestation of Oath Commissioner which is mandatory requirement in election matters--From perusal or petition as well as affidavits of witnesses and other documents it reveal that no such specific attribution of illegal act and corrupt practice with exact day, date, time, place has been jotted down and name of witnesses or such illegal act or corrupt practice has also not been disclosed in petition which is conspicuous non-compliance of law--Further it was a mandatory obligation saddled upon petitioner that petition must be verified on oath as prescribed in Order VI Rule 15, CPC and any deviation whereof shall entail summary rejection of petition under Section 145(1) of Election Act, 2017--From perusal of election petition it reveals that no such specific particulars are mentioned in it which is conspicuous non-compliance of provisions of Sections 142, 143 and 144 of Act ibid, Order VI Rule 15 as well as provision of Order 19 Rule 3 and High Court Rules and Order Vol. IV, Chapter-12, Rule 11, 12, 14, 15 & 16--Moreover, election petition has not been verified on oath as it does found verified by Oath Commissioner or by other competent person so designated in this behalf and such incurable flaws are considered fatal for maintainability of this election petition--Election petition was rejected. [Pp. 222, 224, 225 & 238] B, C, D, G

2015 SCMR 1585, ref.

Lahore High Court Rules & Order--

----Vol. IV, Chapter 12 Rule 11, 12, 14, 15 & 16--Civil Procedure Code, (V of 1908), O.XIX, R. 3--Requirement of verification of affidavit--Procedure provide in Order 19 Rule 3, CPC as well as High Court Rules and Order Chapter 12 Vol. IV , Rules 11, 12, 14, 15 & 16 are to be complied with and affidavits shall contain such qualification as enunciated in afore-quoted rules whereas affidavit attached with instant petition does not make distinction between correctness of fact according to personal knowledge of deponent or correctness of information according to believe of deponent by making specified reference to paragraphs, whereas verification and identification of deponent are also lacking which show that affidavits were not sworn as per law. [P. 228] E

PLD 1995 Lahore 98, 2016 SCMR 1312 & 1987 MLD 1372, ref.

Election Act, 2017 (XXXIII of 2017)--

----S. 144(1)(b)--Particulars of corrupt or illegal practice--Full particulars of any corrupt or illegal practice or other allegedly committed illegal act, including names of persons who alleged to have committed such corrupt or illegal practice or illegal act as well as date, time and place of commission of such practice or act shall mandatorily be specifically mentioned in election petition but no such definite material illegalities or corrupt practice or acts are mentioned in instant election petition, which is clear noncompliance of aforesaid provisions of law and such deficiencies are considered enough for displacing superstructure of propounded assertion in petition. [P. 236] F

2017 SCMR 292, ref.

Constitution of Pakistan, 1973--

----Art. 17(2)--Right of association and participation in political activities--Right of association, participation in political activities to contest election or to elect their representative etc., are enshrined in Article 17(2) of Constitution of Pakistan, 1973 whereby every citizen is entitled to participate or contest Election to be a member of legislatives institution subject to certain qualification prescribed under law. [Pp. 219 & 220] A

Ch. Zafar Ullah and Hassan Nasrullah Warraich, Advocates for Petitioner.

M/s. Khalid Ishaque and Mian Naseer Ahmad, Advocates for Respondent No. 1.

Date of hearing: 12.11.2018.

Judgment

Brief facts of this petition are that General Election was held on 25.07.2018 and as a result of the poll, Respondent No. 1 Naseer Ahmad was elected as member of Provincial Assembly of Punjab (PP-163 Lahore-XX) and his notification as a returned candidate was issued on 07.08.2018 by the Election Commission of Pakistan. Petitioner who was a runner up candidate being dissatisfied from the election results challenged the notification of Respondent No. 1 through the instant election petition inter-alia on the grounds that Form 45 was illegible and numbers of the votes were illegally counted in favour of the returned candidates; that many irregularities were observed while recounting process by the duly nominated agents or the petitioner; that many double stamped votes were counted in favour of the respondent; that the polling agents of the petitioner were not given a fair access during the counting process; that the respondent being Ex-MPA of the constituency inserted influence on the voter on the date of election; that narrow margin of only 2028 votes is occasioned in the counting process and if the petitioner’s votes are fairly counted the result would be altogether different; that many ballots of the petitioner malafidely placed in the bundle of the respondents votes; that the entire process of recounting tabulation and consolidation of the result was maneuvered one. The petitioner finally prayed that election of Respondent No. 1/returned candidate may be declared void and fresh re-counting of the vote may kindly be ordered to be conducted. Hence, the present petition.

In response to the notice of this Court, Respondent No. 1 joined the proceedings on 09.10.2018, whereas the other respondents defaulted in appearing and they were proceeded against ex-parte on 09.10.2018. Respondent No. 1 Naseer Ahmad filed contesting reply to the Election Petition raising preliminary objections as well as on merit inter-alia on the grounds that no verification of Election Petition was made according to Section 144(4) of the Election Act as well as according to Order VI Rule 15, CPC; that Affidavit of the petitioner does not disclose the true facts for which matter the affidavit shall be confined; that verification of affidavits of witnesses as well as documents/ Annexure annexed with the Election Petition has not been made according to the provisions of law; that full particulars of the corrupt or illegal practice have not specifically been jotted down in the petition; that copies of election petition, affidavits of the witnesses, list of witnesses and all the allied material documents have not been served to the respondents; that election petition is incompetent due to misjoinder of all the necessary parties; that principle of Approbate and Reprobate is applicable to the petitioner’s case; that the petitioner has no cause of action to file the instant petition and prayer sought by the petitioner is not available.

1. Learned counsel for Respondent No. 1 raised preliminary objection regarding maintainability of this petition and submits that no specific particulars of any alleged corrupt or illegal practice or other illegal act alleged so committed, including names of the parties witness as well as the name of person who allegedly committed such corrupt or illegal practice or illegal act have been mentioned and no date and place of the commission of such practice or act has been described with full elaboration in the petition as prescribed under Section 144 (1) (b) of the Election Act 2017; that verification of the election petition is not made as required under Section 144 (4) of the Election Act, 2017, as such, election petition is liable to be rejected for non-compliance of mandatory provision of Sections 142, 143 and 144 of the Act ibid.

2. Heard. The right of association, participation in political activities to contest the election or to elect their representative etc., are enshrined in Article 17(2) of the Constitution of Pakistan, 1973 whereby every citizen is entitled to participate or contest the Election to be a member of legislatives institution subject to certain qualification prescribed under the law. It is vested jurisdiction of the parliament under Article 225 of the Constitution of Pakistan, 1973 to frame or legislate law. The Election Act, 2017 is also visualized and legislated by the parliament which prescribed an elaborate mechanism of the Election of representative of the people from gross route level upto the member of Parliament. The Election Act, 2017 is legislated by the Parliament which is a special law on the subject and it regulate the entire process of election commencing from issuance of the notification for holding of election, the process of polling, issuance of notification of the successful candidate or the final resolution of any dispute associated with the such election process. The Election Act, 2017 is a comprehensive and elaborate enactment which coops each and every aspect of the matter relating to Elections. Admittedly, the Election Act 2017 is special law and jurisdiction where under is to be exercised in its letter and spirit and it takes preference over the general law on the subject. Under the Election Act the process of Election or any ancillary matter or any illegality, irregularity illegal and corrupt practices etc., can only be challenged through presenting an election petition before the Election Tribunal/Court according to the procedure elaborated in the Election Act. Any violation of law committed in pre poll, during the poll and post poll process can only be challenged through presenting an Election Petition as envisage in Section 139 of the Election Act, 2017 (The Act). It is worth mentioning here that two fold sanctity is attached to the election process firstly the people exercise their fundamental right of vote in favour of their best representative who represent their aspiration at the local as well as in national level secondly a legal sanctity is also attached to the official acts and to surmount the above extraordinary correctness in narration of the facts in the pleading as well as strongly corroborating material evidence is required. It is unalienable obligation of the Tribunal to strictly scrutinize the petition at the very inception as to whether it qualify the touchstone or standard prescribed by Sections 142, 143 and 144 of the Election Act, 2017 or otherwise. For ready reference, provision of relevant sections whereof are reproduced as under:--

3. Presentation of petition.--(1) An election petition shall be presented to the Election Tribunal within forty­five days of the publication in the official Gazette of the name of the returned candidate and shall be accompanied by a receipt showing that the petitioner has deposited at any branch of the National Bank of Pakistan or at a Government Treasury or Sub-Treasury in favour of the Commission, under the prescribed head of account, as security for the costs of the petition, such amount as may be prescribed.

(2) An election petition shall be deemed to have been presented--

(a) when delivered to the Election Tribunal appointed under Section 140--

(i) by the petitioner in person; or

(ii) by a person authorized in writing in this behalf by the petitioner; or

(b) when sent by registered post or courier service to the Election Tribunal by the petitioner.

(3) An election petition, if sent by registered post or courier service, shall be deemed to have been presented in time if it is posted or sent within the period specified in sub-section (1).

1. Parties to the petition.--(1) The petitioner shall join as respondents to his election petition all other contesting candidates.

(2) The Election Tribunal may direct the petitioner to join any other person as respondent against whom any specific allegation of contravention of this Act has been made.

(3) The petitioner shall serve a copy of the election petition with all annexures on each respondent, personally or by registered post or courier service, before or at the time of filing the election petition.

1. Contents of petition.--(1) An election petition shall contain---

(a) a precise statement of the material facts on which the petitioner relies; and

(b) full particulars of any corrupt or illegal practice or other illegal act alleged to have been committed, including names of the parties who are alleged to have committed such corrupt or illegal practice or illegal act and the date and place of the commission of such practice or act.

(2) The following documents shall be attached with the petition--

(a) complete list of witnesses and their statements on affidavits:

(b) documentary evidence relied upon by the petitioner in support of allegations referred to in para (b);

(c) affidavit of service to the effect that a copy of the petition along with copies of all annexures, including list of witnesses, affidavits and documentary evidence, have been sent to all the respondents by registered post or courier service: and

(d) the relief claimed by the petitioner.

(3) A petitioner may claim as relief any of the following declarations--

(a) that the election of the returned candidate is void and petitioner or some other candidate has been elected ; or

(b) that the election of the returned candidate is partially void and that fresh poll be ordered in one or more polling stations; or

(c) that the election as a whole is void and fresh poll be conducted in the entire constituency.

(4) An election petition and its annexures shall be signed by the petitioner and the petition shall be verified in the manner laid down in the Code of Civil Procedure, 1908 (Act V of 1908) for the verification of pleadings.”

As a legislation by reference under Section 144 (4) of the Election Act, 2017 the principles of Civil Procedure Code 1908 relating to verification of the pleading are made applicable in the manner of verification prescribed in the Code of Civil Procedure, 1908 (Act V of 1908). The procedure for verification of the pleading is given in Order VI Rule 15, CPC which is as under:

1. Verification of pleadings (1) Save as otherwise provided by any law for the time being in force, every pleading shall be verified [on oath or solemn affirmation] at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case

(2) the person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true.

(3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed.

The next significant document in the judicial proceeding of lis is an affidavit which legally brings sanctity to the assertion propounded in pleadings and this material document is also required to be verified as prescribed by the law. Under Order 19(3), CPC, the prescribed requirement of a valid affidavit which is mentioned as under:

1. Matters to which affidavits shall be confined (1) Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications, on which statements of his belief may be admitted; provided that the grounds thereof are stated.

(2) The cost of every affidavit which shall unnecessarily set forth matter of hearsay or argumentative matter, or copies of or extracts from documents, shall unless the Court otherwise directs) be paid by the party filing the same.

The provision of, CPC quoted hereinabove regarding the prove of the facts which are deemed to be correct according to the personal knowledge of the deponent and such pertinent fact be specified and sifted out from the pleading and information received from other sources be specified with para number that such information are correct according to belief of deponent and a very conspicuous distinction or demarcation should be made qua personal knowledge and correctness of the information according to belief. Further, Lahore High Court in its Rules and Order Vol. IV, Chapter-12, Rules 11, 12, 14, 15 & 16 has liad down following prerequisites of an affidavit that:

i. Identification of deponent

ii. Particular of deponent and identified to be mentioned at the foot of the affidavit.

iii. Time and place of the making of the affidavit to be specified

iv. Certification by Court/Magistrate/other Officer at the foot of the affidavit that such affidavit was made before him.

v. Date, signature and name of the Office and designation of the Court/ Magistrate Other officer to subscribe underneath the Certification.

vi. Every exhibit referred to in the affidavit to be dated and initiated by the Court /Magistrate/Other Officer.

vii. Where deponent of an affidavit does not understand the contents of an affidavit, the Court/ Magistrate/ Other Officer administering Oath must read out the contents of the affidavit to such person so that he understands. Where such is the case, the Court/Magistrate/Other Officer shall note at the foot of the affidavit that the affidavit has been read out to the deponent and he understands its contents.

viii. Deponent to sign/mark and verify the affidavit and the Court, Magistrate or other officer administering the oath or affirmation to the attest the affidavit.

ix. Oath to be administered by the Court/Magistrate/ Other Officer in accordance with the Indian Oath Act, 1878 and affidavit to be verified by deponent and attested by Court /Magistrate/Other Officer on forms appended thereto.

The aforementioned provision of law are made obligatory for a petitioner to fulfill the above statutory requirements which are mandatory in nature and if the said provisions of law are not complied with then penal provision of Section 145 (1) shall come into play and election petition is necessarily liable to be rejected summarily under Section 145 (1) of the Election Act which is reproduced as under:

“145. Procedure before the Election Tribunal.--(1) If any provision of Section 142, 143 or 144 has not been complied with, the Election Tribunal shall summarily reject the election petition.”

1. Now adverting to the institution or this petition, its contents, verification of the petition, affidavits, contents of the affidavits, attestation of affidavit of witnesses, the annexures and other document appended with this petition as well as illegal and corrupt practices as alleged in this petition. The verification of the Election Petition given at Page 16 which reads as follow:

Verification

Verified on oath at Lahore on the 17th that the contents of Para No. 1 to 8 are true and correct to the best of my knowledge and belief and rest of the Paras No. 9 to 11 are believed to be correct.

Petitioner

Certificate

As per instructions, it is certified that this is first election petition before this Honourable Tribunal on behalf of the petitioner.

Advocate

From the perusal of aforementioned verification it does not contain the month and year as well as the exact place at which the verification is being made on Oath rather it does not contain the name of identifier his full particular as well as his national identity card number in the verification. Further it does not contain any attestation of Oath Commissioner which is mandatory requirement in election matters as described in sub-section (4) to Section 144 of the Election Act, 2017. As no verification has been made on oath which illegality in itself is fatal for the election petition. The question with regard to the verification of election petition came under judicial scrutiny and the Hon’ble Supreme Court of Pakistan in a judgment titled Lt. Col. (Rtd. ) Ghazanfar Abbas Shah vs Mehr Khalid Mehmood Sargana & Others (2015 SCMR 1585) has held as under:

“5. With regards to verification of election petitions on oath, it is clear from the provisions of Section 55(3) of the ROPA that an election petition has to be verified in accordance with the provisions of Order VI Rule 15, CPC which provide the basics as to how pleadings have to be verified, what shall be the contents of the verification of pleadings and how they have to be attested by the oath commissioner when read with other relevant provisions of law. Be that as it may, in addition to the law cited by both the sides (from some other dicta), it is conclusively settled by this Court that verification of an election petition is mandatory and a petition which lacks proper verification shall be summarily dismissed by the tribunal, even if the respondent has not asked for or prayed for its dismissal.”

1. Taking into account the verification of the election petition independent of the affidavit, it has been conspicuously noticed that there is no date or place mentioned in the verification i.e. at what date and what place the verification was made by the appellant. The two stamps of the oath commissioner, Lahore Cantt, affixed at the bottom of the verification also do not postulate the date on which the verification was made by the election petitioner. Besides, it is not reflected from the verification whether the appellant was present at the time of verification before the oath commissioner because he has not been identified with reference to his national identity card, rather by some Advocate, whose name and particulars are not even mentioned on the said verification. Therefore on account of the deficiencies identified above, we hardly find the verification to be valid in terms of spirit of provisions of Section 55(3) of the ROPA and in line with the law laid down by this Court in various dicta. Resultantly, we have no hesitation to hold that the verification is not in accord with the law.”

“It is also relevant to note here that in an ordinary lis (suit etc.) requiring verification and support by an affidavit, if the verification or affidavit is flawed, such lapse may be considered an irregularity and be treated as a curable defect, but we are not laying down any hard and fast rule, because the matter before us is not pertaining to ordinary litigation, however in the case of an election petition the law is very stringent and imperative. Therefore if the election petition has not been verified in accordance with law, this cannot be treated as a curable defect and the Election Tribunal particularly after the lapse of’ the period of’ limitation prescribed for filing of election petition, cannot permit the election petitioner to cure the same.”

Further, in the judgment titled Sultan Mahmood Hinjra vs Malik Ghulam Mustafa Khar and others(2016 SCMR 1312), the Hon’ble Supreme Court of Pakistan held as under:

“.... 6. It would be pertinent to mention at this juncture that although the provisions relating to the verification of pleadings are generally directory in nature, the position is different in election laws by virtue of Section 63 of the ROPA, 1976 which casts upon the Tribunal a duty to dismiss the election petition if the provisions of Section 54 or 55 of the ROPA, 1976 have not been complied with, as such its compliance has been held to be mandatory in nature by virtue of the penal consequences prescribed under Section 63 of the ROPA. 1976.”

1. This Court in a chain of judgments has addressed the issue of verification of pleadings wherefrom reproducing the relevant portions would be beneficial here. In the case of Zia ur Rehman vs. Syed Ahmed Hussain and others (2014 SCMR 1015) it has been held as under:

“10. Admittedly both the election petitions filed by the respondents in the afore-mentioned appeals were not verified on oath in the manner prescribed under the afore-quoted provision. If the law requires a particular thing to be done in a particular manner it has to be done accordingly. Otherwise it would not be in-compliance with the legislative intent. Non-compliance of’ this provision carries a penal consequences in terms of’ Section 63 of the Representation of the People Act whereas no penal provision is prescribed for non-compliance with Order VI, Rule 15 of the Civil Procedure Code. The effect of non-compliance of Section 55 of’ the Representation of the People Act, 1976 came up for consideration before this Court in Iqbal Zafar Jhagra v. Khalilur Rehman (2000 SCMR 250) wherein at page 290 it was candidly held that “the verification of pleadings has been provided under Order VI, Rule 15, C.P.C. which when read with Section 39, C.P.C., clearly shows that the pleadings are to be verified on oath and the oath is to be administered by a person who is duly authorized in that behalf. It is an admitted position that the petition filed by Syed Iftikhar Hussain Gilani though mentions that it is on oath the oath was neither verified nor attested by a person authorized to administer oath and as such it could not be said that requirements of Section 36 of the Act were complied with. We have considered the reasons given by the learned Tribunal in holding that the petition filed by Syed lftikhar Hussain Gillani did not comply the provisions of Section 36 of the Act and are of the view that these reasons do not suffer from any legal infirmity.”

And in the case of Sardarzada Zafar Abbas and others v. Syed Hassan Murtaza and others (PLD 2005 SC 600), this Court has laid the following guidelines:

“The verification on oath of the contents of an election petition, is provided under Section 55(3) of the Representation of the People Act of 1976, (hereinafter to be referred to as the Act). It provides that every election petition and every schedule or annexure to petition shall be signed by the appellant and verified in the manner laid down in the Code of Civil Procedure, 1908. The Code contains such provisions under Order VI, Rule 15, which requires the verification of pleadings on oath. Such verification is not to be signed in routine by the deponent but being on oath, it requires to be attested either by the Oath Commissioner or any other authority competent to administer oath. It needs hardly to be emphasized that every oath is to be practically administered.

So far as, the provisions of civil law are concerned, such verifications generally are of directory nature. An omission to do so can be rectified subsequently during trial and even the Court can direct such rectification. While, on the other hand, under election laws such verification on oath is mandatory because of being followed by penal consequences under Section 63(a) of the Act that makes it mandatory for the Tribunal to dismiss election petition if the provisions of Sections 54 and 55 of the Act have not been complied with. Similar view was taken by this Court in Iqbal Zafar Jhagra’s case (2000 SCMR 250), though related to the Senate elections. It is, therefore, settled that the verification on oath of an election petition though mannered in accordance with civil law yet it entails upon penal consequences and hence is mandatory.”

1. As far as the question with regard to proper filing of the affidavits, the procedure provide in Order XIX Rule 3, CPC as well as High Court Rules and Order Chapter 12 Vol. IV , Rules 11, 12, 14, 15 & 16 are to be complied with and the affidavits shall contain such qualification as enunciated in afore-quoted rules whereas the affidavit attached with the instant petition does not make distinction between the correctness of fact according to the personal knowledge of deponent or the correctness of information according to believe of the deponent by making specified reference to the paragraphs, whereas the verification and identification of the deponent are also lacking which show that affidavits were not sworn as per law. The requirement of valid affidavits has also been discussed by the Hon’ble Supreme Court of Pakistan in a judgment titled Lt. Col. (Rtd.) Ghazanfar Abbas Shah vs Mehr Khalid Mehmood Sargana & Others (supra) held as under:--

“7. We shall now turn to the second limb of the proposition i.e. whether the affidavit enclosed with the election petition was Sufficient for establishing that the election petition has been duly verified in accordance with law or not. For this purpose, so as to determine the prerequisites of a valid affidavit, the provisions of High Court Rule and Orders. Chapter No. 12, Volume No. IV, Rules No. 11, 12, 14, 15 and 16 are reproduced below:--

“11. Identification of deponent. Every person making an affidavit shall, if not personally known to the Court, Magistrate or other officer appointed to administer the oath or affirmation, be identified to such Court Magistrate or officer by some person known to him; and such Court. Magistrate or officer shall specify at the foot of the affidavit, the same and description of the person by whom the identification is made, as well as the time and place of the making of the affidavit.

1. Mode of attestation. The Court, Magistrate, or other officer as aforesaid, before whom an affidavit is made, shall certify at the foot of the affidavit the fact of the making of such affidavit before him, and shall enter the date and subscribe his signature to such certificate, and shall, for the purpose of’ identification. mark date, and initial every exhibit referred to in the affidavit. The name of the verifying authority must be signed in full, and care must be taken that his proper designation as a Civil Court or Magistrate is added.

2. Attesting Officer’s duty. If any person making an affidavit appears to the Court, Magistrate or other officer administering the oath or affirmation, to be ignorant of the language in which it is written, or to be illiterate, or not fully to understand the contents of’ the affidavit, such Court, Magistrate or officer shall cause the affidavit to be read and explained to him in a language which both he and such Court Magistrate or officer understand; either doing so himself, or causing another person to do so in his presence. When an affidavit is read and explained as herein provided, such Court. Magistrate or other officer as aforesaid shall certify in writing at the foot of the affidavit that it has been so read and explained, and that the declarant seemed perfectly to understand the same at the time of making it.

3. Attesting, signing and verification or affidavit. Every affidavit shall be signed or marked and verified at foot by the declarant and attested by the Court. Magistrate or other officer administering the oath or affirmation, the verification, by the declarant shall be in one of’ the forms attached thereto, and shall be signed or marked by the declarant. The attestation of’ the Court, Magistrate or other officer administering the oath or affirmation shall also be in the form prescribed below.

4. Manner of’ administering oath to deponent. In administering an oath or affirmation to the declarant in the case of any affidavit under the Code of’ Civil Procedure, the Court, Magistrate or other officer appointed in that behalf shall be guided by the rules under the Indian Oaths Act, 1878, printed in Part A of’ this Chapter and shall follow the form of verification by oath or affirmation thereto appended.

I-FORM OF VERIFICATION OF OATH OR AFFIRMATION

(Vide paragraph 15 above)

Oath.

I solemnly swear that this may declaration is true, that it conceals nothing, and that no part of’ it is false ..................... so help me God.

Affirmation

I solemnly affirm that this my declaration is true, that it conceals nothing, and that no part of it is false.

II-FORM OF CERTIFICATE

(vide paragraph 12. 14 and 15 above)

Certified that the above was declared on .................. (here enter oath)/affirmation as the case may be) before me this ............ (date) day of .............. (month) .................. (of 19, at ............... (place) in the district of (name of’ district) ................ by ................ (full name and description of declarant) who is ................. here enter “ personally known to me” or identified at (time and place of identification) by (full name and descriptor: of person marking the identification), who is personally known to me.”

(Full Signature) A. B.

(Officer) District Judge (or as the case may be) of

II-A

The exhibits marked A, B, C (as the case may be) above referred to are annexed hereto under this date and my initials. Certified further that this affidavit has been read and explained to (name) .................. the declarant who seemed perfectly to understand the same at the time of making thereof.”

From the High Court Rules and Orders reproduced in the preceding para, it is clear to our mind that an affidavit has to meet the following requisites:

1. Identification of deponent (Rule 11)

2. Particulars of deponent and identifier to be mentioned at the foot of the affidavit (Rule 11)

3. Time and place of the making of the affidavit to be specified (Rule 11)

4. Certification by Court/ Magistrate /Other Officer at the foot of the affidavit that such affidavit was made before him (Rule 12)

5. Date, Signature and name of office and designation of the Court/Magistrate/Other Officer to be subscribed underneath the Certification (Rule 12)

6. Every exhibit referred to in the affidavit to be dated and initialed by the Court/Magistrate/Other Officer (Rule 12)

7. Where deponent of an affidavit does not understand the contents of an affidavit, the Court/ Magistrate/Other officer administering oath must read out the contents of an affidavit to such person so that he understands. Where such is the case, the Court /Magistrate/Other officer shall note at the foot of the affidavit that the affidavit has been read out to the deponent and he understands its contents (Rule 14)

8. Deponent to sign/mark and verify the affidavit and the Court, Magistrate or other officer administering the oath or affirmation to attest the affidavit (Rule 15)

9. Oath to be administered by the Court / Magistrate/Other officer in accordance with the Indian Oaths Act, 1878 and affidavit to be verified by deponent and attested by Court/Magistrate/Other officer on forms appended thereto (Rule 16)

The format of an affidavit is as has been mentioned in the law reproduced supra. But in the affidavit in question, it is conspicuous that the following essential elements are missing:--

(a) date on which and the place where the verification was made, have not been specified;

(b) no date has been mentioned on the stamp(s) of attestation fixed by the Oath Commissioner.

(c) it has also not been mentioned that the appellant was administered oath by the Oath Commissioner before the attestation was made;

(d) whether the appellant was duly identified before the Oath Commissioner is another important question the answer to which is also not clear from the said verification.

(e) it does not appear from the affidavit that appellant was identified with reference to his ID card which is the ordinary, usual and general course for identification of a person or even by an Advocate; and

(f) no ID Card Number is given; the identification does not seem to have been made: the particulars of the identifier are also conspicuously missing.

This affidavit, therefore, can hardly be considered to be verification of the election petition in terms of the law. To reiterate the reasons, neither have the date and place of attestation been specified nor was the appellant properly identified. With regards to what a valid affidavit should contain we also draw support from the judgment of the Lahore High Court in the case reported as Bashir Ahmed vs. Abdul Wahid (PLD 1995 Lahore 98), which in our view is good law. The relevant portion of the said judgment reads as follows:

“The main requirements of the affidavit according to the High Court (Lahore) Rules and Orders, Volume IV, Part B, Chapter 12-B, Rules 8, 9, 14 and 15 are:--

(i) the name of the Court, title of the proceedings, (ii) subject of the suit or petition;

(iii) name of the deponent, the date and place;

(iv) the affidavit is to be divided into paragraphs which shall be numbered consecutively and shall be confined to distinct portion of the subject, (v) the deponent, other than the party to the suit, shall be described in such a manner as would serve to identify him clearly i.e full name, father’s name, profession or trade and place of his residence, (vi) the declarant in affidavit while referring the facts within his knowledge must do so directly and positively using the words ‘I affirm or ‘I make oath and say, (vii) when making reference as to the information obtained from others, the declarant must use the expression ‘I am informed’, and should add ‘and verily believe it to be true’, or he may state the source from which he received such information. Every affidavit shall be signed or thumb-marked, and

(viii) it shall be verified in accordance with the verification in the form given in Rule 16 of the High Court (Lahore) Rules and Orders. The verification shall be signed and thumb­ marked by the declaration. The affidavit shall be attested by the Oath Commissioner. One can divide the affidavit into following three parts in accordance with the above requirements:--

(1) name of the Court, title and subject of the proceedings and name etc. of the deponent;

(2) declaration of facts sought to be proved by the affidavit duly signed by the declarant, and

(3) verification duly signed by the deponent and attested by the Oath Commissioner.”

This affidavit, even if considered to be verification of the election petition in terms of the Sardarzada Zafar Abbas supra, as mentioned earlier, can hardly be held to be proper verification. It may be pertinent to mention here, that neither does the affidavit in the instant case fulfill the requirements in the High Court Rules and Orders supra nor does it meet the essentials laid out in the judgment reported as Bashir Ahmad supra. We, therefore, are of the candid view that the affidavit in question is a flawed one.

In the case reported as Sultan Mahmood Hinjra vs Malik Ghulam Mustafa Khar and others (2016 SCMR 1312) the Hon’ble Supreme Court has observed as under:

“When the affidavit at hand is examined in the light of the above it transpires that certain essential requirements are missing therefrom. Firstly, it has not been mentioned whether the Respondent No. 1 was administered oath by the Oath Commissioner before the attestation was made. Secondly it has not been specified whether the Respondent No. 1 was duly identified before the Oath Commissioner. In this regard, it has simply been stated at the foot of the affidavit that the Respondent No. 1 was present before the Oath Commissioner in person, however, the details of the person identifying the Respondent No. 1 have not been mentioned whereas according to the above quoted provisions, the Oath Commissioner is bound to specify at the foot of the affidavit the name and description of the person by whom identification of the deponent was made and in this regard a certificate has to be appended. Furthermore, it is also not clear from the affidavit that the Respondent No. 1 was identified with reference to his ID card and in this regard, no ID card number is given, as such the identification does not seem to have been made. There is yet, another aspect to the matter. The affidavit in question does not make any reference to the numbered paragraphs contained therein which the Respondent No. 1 verifies on his own knowledge and what he verifies upon information received and believed to be true. Further, the affidavit in question also does not make any reference to the verification of the annexures appended along with the petition, which although have been mentioned in the said affidavit.”

The similar view regarding requirement of verification of an affidavit has been followed by this Court in the cases reported as Manzoor & Company and Another vs Malik Muhammad Hanif (PLD 1995 Lahore 95), Bashir Ahmed vs Abdul Wahid (PLD 1995 Lahore 98) & Lt. Col. (Retd). J. Abel vs. Emmanual Zafar & others (1987 MLD 1372).

1. It is argued by the learned counsel for the petitioner that once a notice is issued to the respondent in the election petition whereafter it cannot be rejected as evinces from the provisions of Section 145(2) of the Election Act, 2017 suffice it to say that Tribunal is undoubtedly under legal obligation to apply a stringent consideration to the pleadings (plaint) as elaborated in Sections 142, 143 and 144 of the Election Act, 2017 but if a notice is issued to the respondents it does not preclude the Tribunal to subsequently determine the question of maintainability of the petition, as the such kind of assertion cannot take away the fundamental right of audience of an adverse party guaranteed under Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973 to raise the preliminary objection regarding the deficiencies infirmities or illegalities, irregularities and maintainability of the petition. Further, if an objection is raised with regard to the maintainability of the petition for non-compliance of mandatory provision of law, the Court/Tribunal is under unalienable legal obligation to decide the raised preliminary objection before entering into field of disputed facts and recording of evidence because if in the opinion or conclusion of Court the objection is liable to be sustained then the Court is left with no option but to reject the petition as observed by the Hon’ble Apex Court in a case reported as Zia Ur Rehman vs Syed Ahmed Hussain & Others (2014 SCMR 1015) held as under:--

‘‘7. When the law prescribes a certain format of an Election Petition and its verification on oath and entails a penal consequence of its non-compliance, it is mandatory provision. If an objection is raised with regard to maintainability of such a petition for non-compliance of a mandatory provision, the Court/Trihunal should decide that preliminary objection. Because if that objection is sustained then the Court is left with no option but to dismiss the petition.”

Further, in a recent judgment titled Sultan Mahmood Hinjra vs Malik Ghulam Mustafa Khar & others(2016 SCMR 1312), the Hon’ble Supreme Court of Pakistan held as under:

“10. In conclusion to our discussion we are of the opinion that when an objection with regard to the maintainability of an election petition for non­compliance of a mandatory provision is raised then the Tribunal should decide that very objection first because if such objection sustained then the Tribunal left with no option but to dismiss the election petition. Mentioning the case of Zia ur Rehman (supra) would again be beneficial here wherein it has been held as under:--

“7... ... ..... ... If an objection is raised with regard to maintainability of such a petition for non-compliance of a mandatory provision, the Court/Tribunal should decide that preliminary objection. Because if that objection is sustained then the Court is left with no option but to dismiss the petition ..... .. ..... ... “

In another case reported as Malik Umar Aslam vs Sumera Malik & another (PLD 2007 SC 362), the Hon’ble Supreme Court of Pakistan has declared that it is duty of the Court to ensure compliance of mandatory provisions of law and any non-compliance of such mandatory provisions invoke the imposition of penal provision of law as held hereunder:--

“The Court is always empowered to ensure that the law under which proceedings have been initiated before it stands complied with fully particularly in the cases where non-compliance of mandatory provision prescribes a penalty.”

The Hon’ble Supreme Court of Pakistan in a case titled Hina Manzoor vs Malik Ibrar Ahmed & others (PLD 2015 SC 396) held as under:

“5. Learned counsel further submits that even in case the memo. of the petition as originally submitted by the appellant was found to be lacking in meeting the requirements of Section 55 (3) of the ROPA, such shortcoming was rectified by the appellant by filing a fresh memo. of petition which was duly verified/attested by an Oath Commissioner and such memo. replaced the original one, and the same ought to have been entertained instead of dismissing the petition. However, in our view, filing of subsequent memo. of petition was of no avail, as admittedly the same was filed after lapse of the time of 45 days prescribed by Section 52(2) of the ROPA and thus fresh/amended memo, which was barred by limitation, could not have been entertained, such being violative of the right of dismissal of the petition accrued in favour of the Respondent No. 1.”

1. As per Section 144(1)(b) or the Election Act, 2017 full particulars of any corrupt or illegal practice or other allegedly committed illegal act, including names of the persons who alleged to have committed such corrupt or illegal practice or illegal act as well as the date, time and place of the commission of such practice or act shall mandatorily be specifically mentioned in the election petition but no such definite material illegalities or corrupt practice or acts are mentioned in the instant election petition, which is clear noncompliance of the aforesaid provisions of law and such deficiencies are considered enough for displacing superstructure of propounded assertion in the petition. Reliance is placed on the case reported as Usman Dar & Others vs Khawaja Muhammad Asif & others (2017 SCMR 292) wherein the Hon’ble Apex Court held as under:

“17. We have gone through the contents of the election petition as well as the affidavits of PWs. 1 to 10 in light of the requirements, inter alia, of Section 55 ibid. We find that the petition read with the statements of witnesses did not fulfill the mandatory requirements of Section 55 of ROPA, in so far as it failed to give detailed and complete particulars of the alleged corrupt or illegal practices or other illegal acts alleged to have been committed by the Respondent No. 1. Further, a full statement of the names of the persons accused of corrupt or illegal practices or illegal acts, and the date and place of commission of such acts or practices are not available on record. We have also found that the affidavits of all 10 witnesses are almost completely identical, in that only the names of the deponents vary between them. We find it untenable that the sequence of events at nine different polling stations was exactly the same, down to the small details. In addition, the allegations are vague, generalized and non-specific, and do not meet the requirements specified in Section 55 of the ROPA. Reference may be made to Muhammad Saeed v. Election Petitions Tribunal, West Pakistan, etc. (PLD 1957 SC (Pak) 91) wherein it was held that, “The law relating to the trial of elections petition, though volumes have been written on it, insofar as it is relevant to the present case, is so simple that if can be summed up in one sentence, namely, where an election is sought to be set aside on the ground of commission of corrupt practices, the party challenging its validity must specify in the petition the corrupt practices committed, giving in the list attached to the petition or in his statement before the settlement of issues full particulars of those corrupt practices; that no fresh charge or instance of a corrupt practice can be added at the trial, that the burden of proof of corrupt practices is on the petitioner; that the evidence in proof of such practices must be restricted to the charges or instances mentioned in the petition and the particulars; that each ingredient of a corrupt practice so charged must be affirmatively proved by evidence, direct or circumstantial; and that where the evidence is wholly circumstantial, the commissioners before finding a corrupt practice proved must exclude all reasonable hypotheses which are consistent with that corrupt practice having not been committed”. Reference may also be made to the case of Hafeezuddin v. Abdul Razzaq (PLD 2016 Supreme Court 79) in which this Court held that, Before we embark upon an analysis of the evidence and a determination about the correctness or otherwise of the findings of the learned Tribunal, if is pertinent to mention that the rules of proof for the grounds challenging the election which are founded on corrupt and illegal practices are quite strict and stringent and the allegations in this regard must be absolutely proved through positive evidence without accepting any inferences and if there is any doubt, the benefit must go to the person against whom corrupt or illegal practices are being alleged, as held by this Court in the cases reported as Muhammad Saeed and 4 others v. (1) Election Petitions Tribunal, West Pakistan, (2) Mehr Muhammad Arif Khan, (3) Ghulam Haider and (4) West Pakistan Government and others PLD 1957 SC (Pak.) 91); Mian Jamal Shah v. (1) The Member Election Commission, Government of Pakistan, Lahore, (2) The Returning Officer, Constituency of the National Assembly of Pakistan No. NW-II, Peshwar II, and (3) Khan Nasrullah Khan (PLD 1966 SC 1); Khan Muhammad Yusuf Khan Khattak v. S.M. Ayub and 2 others (PLD 1973 SC 160).”

This arguments of the learned counsel for the petitioner that as a substantial compliance of the mandatory provisions of law has been made and only inconsequential nature or technical deficiencies, if any, are available in petition the same can be removed subsequently as envisages in Rule 140 of the Elections Rules, 2017. He has reiterated that had the office raised any objection regarding non-verification of the petition on oath at the relevant time of presentation of the petition, the issue of verification can be meted out so that the matter could be decided on merit suffice it to say in this regard that every litigant is under obligation to comply with the plain provisions of law and mere posing of being a layman regarding the provisions of law is no excuse and it is the petitioner who has to bring his grievances according to the provisions of law and ignorance of law is no good ground to deviate from mandatory modus operandi elaborated in the statutory provisions of the Act. An elaborate procedure has been provided in Election Act according to which the petition shall contain the specific allegation with exact time place, day, date, name of the witnesses as well as particulars of the person who allegedly committed corrupt practices, illegal act as well as any accomplice of such illegal act must be described in the petition. Mere general nature of allegation regarding the corrupt practice would be tantamount to the non-compliance of the mandatory provisions or law. From perusal or the petition as well as the affidavits of witnesses and other documents it reveal that no such specific attribution of illegal act and corrupt practice with exact day, date, time, place has been jotted down and name of the witnesses of such illegal act or corrupt practice has also not been disclosed in the petition which is conspicuous non-compliance of law. Further it was a mandatory obligation saddled upon the petitioner that the petition must be verified on oath as prescribed in order VI Rule 15, CPC and any deviation whereof shall entail the summary rejection of the petition under Section 145(1) of the Election Act, 2017. From perusal of the election petition it reveals that no such specific particulars are mentioned in it which is conspicuous non-compliance of the provisions of Sections 142, 143 and 144 of the Act ibid, Order VI Rule 15 as well as the provision of Order XIX Rule 3 and High Court Rules and Order Vol. IV, Chapter-12, Rule 11, 12, 14, 15 & 16. Moreover, the election petition has not been verified on oath as it does found verified by the Oath Commissioner or by the other competent person so designated in this behalf and such incurable flaws are considered fatal for the maintainability of this election petition.

1. In view of the above discussion, the instant election petition is not maintainable and same is hereby rejected under Section 145(1) of the Election Act, 2017 for non-compliance of the mandatory provisions of law.

(M.M.R.) Petition rejected

PLJ 2019 Lahore 239 [Multan Bench, Multan]

Present: Ch. Muhammad Masood Jahangir, J.

MEHBOOB-UD-DIN, etc.--Petitioners

versus

Mst. ZUBAIDA, etc.--Respondents

C.R. No. 784-D-2006, heard on 20.12.2018.

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

----S. 42--Qanun-e-Shahadat Order, (10 of 1984), Arts. 78, 85--Suits for cancellation of document--Dismissed Appeals--Allowed lacking of ingredients of gift--Challenge to--Article 78 of Order ibid prescribes that if any document is alleged to be signed/ thumb marked or to have been written by any person, signatures/imprints or writing must be proved in that person’s handwriting--Minute appraisal of copy of impugned Gift Deed divulged that its Stamp Paper was not purchased by any of purported donors, rather it was issued to Fakhar-ud-Din, father of donees, who admittedly had no authority on their behalf--Petitioners did not succeed to establish authenticity and veracity of impugned document because none among Stamp Vendor, Petition Writer, Registry Moharrir, Sub-Registrar and Attesting Witnesses was examined--While dismissing suit, learned Trial Court failed to appreciate evidence available on record as well as law on subject, but Appellate Court perfectly accumulated and thrashed it in its true perspective to decree suit, whose judgment being based on reasoning has to be preferred especially when learned counsel for petitioners was not able to persuade that any wrong was committed and this Court being sanguine feels no hesitation to confirm impugned judgment and decrees--Civil revision was dismissed.

[Pp. 242, 243 & 246] A, B, C & D

PLD 1977 Lahore 729 and 1999 SCMR 1245 ref.

Syed Tajammul Hussain Bukhari, Advocate for Petitioners.

M/s. Rana Muhammad Aslam, Advocate for Respondents in C.R.No. 784-D-2006 and Muhammad Saleem, Respondent No. 2(b) in person in C.R. No. 785-D-2006 on behalf of legal heirs of Mst. Rashida Begum.

Date of hearing: 20.12.2018.

Judgment

Inessential detail apart, the precise history of the case was that subject house had been transferred to Mst. Zubaida Begum and Mst. Rashida Begum, Respondents No. 1 and 2 along with their mother Mst. Zainab by the Settlement Department vide Permanent Transfer Order, which was subsequently alienated through impugned registered Gift Deed dated 05.08.1984 (Exh.D2) to present petitioners, who were nephews as well as maternal grandsons of the purported donors. In 1998, Respondents No. 1 and 2 at their end instituted two independent suits for the cancellation of afore-noted instrument contending therein that neither they had offered the gift nor executed instrument to such effect, which was managed by their brother Fakhar-ud-Din in favour of his sons to deprive his mother and sisters from their property and it being forged, fictitious and having been obtained through misrepresentation was illegal as well as ineffective upon their rights. Both the suits were contested with the defence that Respondents No. 1 and 2 along with their mother had voluntarily transferred the house through the instrument genuinely constructed on their behalf. It was also pleaded in the written statements that Mst. Rashida Begum Respondent No. 2 was compensated with some other property, whereas in favour of Mst. Zubaida, Respondent No. 1, the rooms of House No. 706 were transferred vide registered instruments No. 1543 and 1544 executed/attested on the day when impugned deed was attested. As both the suits pertained to the same subject matter and parties, the learned Trial Court was perfect to consolidate it through formulation of joint issues and after examination as well as appreciation of evidence brought on record by the respective parties, learned Trial Court dismissed both the suits vide common judgment and decrees dated 25.06.2005, which could not hold the field for any considerable period when two independent Appeals of the respondents were allowed and through consolidated impugned judgment dated 19.07.2006, not only the verdict of the subordinate Court was set aside, but the suits were also decreed cancelling the Gift Deed, hence Civil Revision in hand and connected one bearing No. 785-D-2006. As did the Courts below, this Court is also inclined to decide both these jointly through this single judgment.

1. Syed Tajjamal Hussain Bokhari, Advocate for the petitioners/donees emphasized with great vehemence that property had been transferred through registered instrument, which under the law attained strong presumption of correctness and learned Trial Court was perfect to honour its authenticity, whereas learned lower Appellate Court without considering that on the same day, some other property had also been alienated in favour of Respondent No. 1/donor through registered instruments, but those were never challenged at any forum erred in law to undo one of the transactions and other two attested in her favour were kept solemn. Added that suit was badly time barred, but this aspect of the case was not considered in its true perspective. It was next argued that despite the fact that plaintiffs had denied their thumb impressions over the questioned document, but they did not tender a request to refer the specimens of their thumb impressions for comparison to the Finger Print Bureau and their silence in this regard was sufficient proof to hold that their imprints over the questioned document were identical. It was finally pleaded that impugned judgment being classic example of misreading and non-reading of evidence was liable to be set aside and prayed for acceptance of Civil Revisions and restoration of judgment and decrees of learned trial Court.

In contra, M/s. Rana Muhammad Aslam, Advocate for Respondent No. 1 and Muhammad Saleem, Respondent No. 2 (b) on behalf of remaining respondents submitted that Stamp Vendor, Deed Writer, Registry Moharrar, Sub-Registrar and the Attesting Witnesses despite their availability were deliberately withheld, as such learned lower Appellate Court was perfect to draw a hostile inference against the beneficiaries. It was next added that the petitioners did not refer the essential details with regard to time, date, month, year, venue and names of witnesses in their written statement to disclose that when, where and before whom the original transaction was settled. It was further pleaded on their behalf that evidence of the petitioners was also lacking to confirm the basic three ingredients of the transaction of gift. They also argued that impugned document was surreptitiously engineered through fraud and misrepresentation by Fakhar-ud-Din father of the petitioners for his greed, which could not be perpetuated on the score of limitation or for some other legal infirmity. It too was their stance that the judgment of the learned lower Appellate Court has to be preferred over that of its subordinate Court and lastly prayed for the dismissal of Petitions in hand.

1. Arguments heard and record perused.

2. First of all, this Court deems it apposite to attend to inaugural as well as sweeping and wide argument of Mr. Bukhari that impugned instrument being registered by an Authority while performing its official functions attains presumption of truth might have substance, but only in the cases where authenticity and genuineness thereof is not challenged. I must endorse that public documents are the acts of public functionaries in Executive, Legislative and Judicial Departments of the Government including those under the general head the transactions, which official persons are required to enter in Books and Registers in the course of their public duties and which occur within the circle of their own personal knowledge and observations, however, as per sub clause (e) of Article 85 of the Qanun-e-Shahadat Order, 1984 whenever the execution or contents of any such document are disputed, the presumption so attached to it loses its significance and it becomes sine qua non for the beneficiary thereof to have it proved through mode requires to prove a private document. Article 78 of the Order ibid prescribes that if any document is alleged to be signed/ thumb marked or to have been written by any person, the signatures/imprints or writing must be proved in that person’s handwriting. Although this provision does not lay down any particular manner for proving it, but any mode of proof recognized by this statute can be availed by the party upon which onus probandi is rested. The pivotal aspect of provision ibid is that, it addresses to prove the identity of its scribe as well as other signatories, but mere proof of handwriting, signatures and imprints will not be sufficient to prove transaction couched therein. Reliance can be placed upon judgments reported as Muhammad Sher and 2 others versus Muhammad Azim and another (PLD 1977 Lahore 729), Abdul Majeed and others versus Muhammad Subhan and 2 others (1999 SCMR 1245), Abdul Ghafoor and others versus Mukhtar Ahmad Khan and others (2006 SCMR 1144), Mrs. Khalida Azhar versus Viqar Rustam Bakhshi and others (2018 SCMR 30) and Fareed and others versus Muhammad Tufail and another (2018 SCMR 139). The conclusion drawn by the apex Court in Abdul Majeed’s case (supra) in this regard being directly applicable in the situation discussed herein above is reflected below:

“It is axiomatic principle of law that a registered deed by itself, without proof of the execution and the genuineness of the transaction covered by it, would not confer any right. Similarly, a mutation although acted upon in Revenue Record, would not by its own force be sufficient to prove the genuineness of the transaction to which it purports unless the genuineness of the transaction is proved. There is no cavil with the proposition that these documents being part of public record are admissible in evidence but they by their own force would not prove the genuineness and execution of that to which they relate unless the transaction covered by them is substantiated from independent and reliable source. Admissibility is to be distinguished from proof required by law for determining the execution and genuineness of document.”

In this view of the matter, when not only through various paras of the plaint as well as deposition of the plaintiff (PW-1) the construction of impugned Gift Deed as well as transaction referred therein was attacked with serious allegations, the onus was shifted on the petitioners to prove those facts, but surprisingly from the day first, the petitioners failed to assert and prove the ingredients of their purported transaction to the effect that when, where and before whom declaration of gift was offered by the donors, which was accepted by them and the possession changed hands in lieu thereof. Moreover, minute appraisal of copy of impugned Gift Deed divulged that its Stamp Paper was not purchased by any of the purported donors, rather it was issued to Fakhar-ud-Din, the father of the donees, who admittedly had no authority on their behalf. Important that Gift Deed was scribed on that very day when Stamp Paper was issued and if the donors were present at the time of its writing, then what was the fun that its paper was not personally purchased by any of them. The purchase of Stamp Paper by an unauthorized person despite availability of the ladies on whose behalf it was written, made its dubious from the day of its inception. Over and above, the petitioners did not succeed to establish the authenticity and veracity of impugned document because none among the Stamp Vendor, Petition Writer, Registry Moharrir, Sub-Registrar and Attesting Witnesses was examined. Only Muhammad Nazir, Lumberdar (DW-2), the alleged identifier was produced, but his sole deposition was insufficient to fulfil the requirement for proof of document, especially keeping in mind his answers uttered during the test of cross-examination, which being relevant are referred as under:--

It left no iota in mind that the ladies allegedly identified by him were not personally known to him, as such, his identification lost its significance.

1. The emphasis of learned counsel for the petitioners that both the marginal witnesses of the Gift Deed were sons of the plaintiffs/donors and there was a risk that had they been summoned for examination in the witness-box, they might have supported their mothers is fallacious. In recent era, the apex Court in a case reported as Hafiz Tassaduq Hussain vs. Muhammad Din through Legal Heirs and others (PLD 2011 SC 241) has already dealt with this situation while concluding therein that irrespective of fear and risk the beneficiary of a document has to produce its signatories even if related with his adversary and the moment he/they depose(s) inimical to its examiner, the latter may extend a request for declaring him/them hostile. The relevant Para-12 of this esteemed judgment is given below:

“12. For the argument that as the second attesting witness of the agreement was the son of the respondent, therefore, the appellant cold not take the risk of examining him, it may be held that as ordained above the mandatory provisions of law had to be complied and fulfilled and only for the reason or the perception that such attesting witness if examined may turn hostile does not absolve the concerned party of its duty to follow the law and allow the provisions of the Order, 1984, relating to hostile witness take its own course. Before parting it may be mentioned that the judgment reported as Abdul Wali v. Muhammad Saleh (1998 SCMR 760) which find mention in the leave granting order is not relevant for the proposition in hand as it relates to a document before the enforcement of the Order, 1984 when Article 17 was not there.”

Although Feroze-ud-Din, one of the donees (DW-3), Abdul Rasheed (DW-4), Muhammad Tayyab (DW-5) and Fakhar-ud- Din (DW-6) father of the petitioners were examined on behalf of the latters, but none of them was signatory of Exh.D2, as such, their testimony was of no importance.

1. The emphasis of Mr. Bukhari that on the crucial day, on one side, Exh.D2 was attested, whereas on the other side, two rooms of the other house were transferred to Respondent No. 1 through documents of similar nature, but the latters were not challenged, as such, Respondent No. 1 was estopped to challenge Exh.D2 was without merit. The plaintiff (PW-1) in her cross-examination unequivocally denied that any document was executed in her favour with regard to said rooms. In such situation to counter PW-1, the petitioners were required to have examined their mother, the alleged transferor/executant of those instruments or these were confronted to PW-1, but none of the modes was followed, hence the Court was perfect to draw an adverse inference. Moreover, Feroze-ud-Din (DW-3), one of the petitioners in his cross-examination stated as below:--

Had in lieu of subject property, the two rooms been actually transferred to Respondent No. 1, there was no fun to retain its original deeds despite losing their title by the executant. The purported documents registered in favour of Respondent No. 1 might have been executed for the days to come to guard the impugned document (Exh.D2).

1. The next argument on behalf of petitioners that to prove that questioned document was not thumb marked by the ladies, it was obligatory for them to have requested for referring the specimen of their imprints for comparison to the Finger Print Bureau is not tenable. The onus as discussed earlier was shifted upon the petitioners and in such eventuality, they being beneficiaries especially when no direct evidence to prove the questioned document was examined, could avail this alternative mode while making a prayer for the matching test, but no such effort at their end was made and by not resorting to this exercise, they themselves incurred a presumption against them. See Muhammad Qayyum and 2 others vs. Muhammad Azeem through Legal Heirs and another (PLD 1995 SC 381).

2. The emphasis of Advocate for the petitioners that Gift Deed was executed in 1984 and the suit was subsequently filed with the delay of 14 years in 1998, which was badly time barred, is misconceived. In the case in hand, it was specifically pleaded by the plaintiffs that alleged transfer of property had been kept secret from them and for the first time, it came into their knowledge one and half month prior to institution of the suit that through disputed instrument they had been defrauded. There can be no right to sue until an accrual of right is asserted in the plaint and its infringement or clear unequivocal threat to injure that right by the defendant against whom the suit is instituted is also pleaded and in clear terms, it was in the plaint by the plaintiffs, who also prayed for declaring the Gift Deed in dispute as illegal besides that it was fictitious, forged as well as fabricated and on having been proved as such, the same could not be perpetuated, but could be assailed at any point of time. Reliance in this respect can be placed on the case law reported as Abdul Rahim

and another vs. Mrs. Jannatay Bibi and 13 others (2000 SCMR 346) and Khair Din vs. Mst. Salaman and others (PLD 2002 SC 677).

1. The additional setback of the controversy would be that the alleged donors had their siblings as well, but no reason was ever furnished in the memo of gift or pleadings that for what evil deeds they were deprived of the said benefit. See Sadar Abbas vs. Province of Punjab and others (2015 CLC 822), Barkat Ali through Legal Heirs and others vs. Muhammad Ismail through Legal Heirs and others (2002 SCMR 1938), Mst. Manzoor Begum (deceased) through L. Rs. versus Mst. Fateh Bibi, etc. (2016 SCMR 1596), and Allah Ditta and others vs. Manak alias Muhammad Siddique and others (2017 SCMR 402).

2. All it germanes that while dismissing the suit, learned Trial Court failed to appreciate the evidence available on record as well as law on the subject, but his Appellate Court perfectly accumulated and thrashed it in its true perspective to decree the suit, whose judgment being based on reasoning has to be preferred especially when learned counsel for the petitioners was not able to persuade that any wrong was committed and this Court being sanguine feels no hesitation to confirm the impugned judgment and decrees, hence, these Civil Revisions having no merit are bound to fail, which are dismissed accordingly with no order as to cost.

(Y.A.) Civil revision dismissed

PLJ 2019 Lahore 246

Present: Amin-ud-Din Khan, J.

ABDUL KAREEM etc.--Petitioners

versus

MUHAMMAD SALEEM etc.--Respondents

Writ Petition No. 7048 of 2017, heard on 5.9.2018.

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

----S. 42--Civil Procedure Code, (V of 1908), S. 12(2) & O. I, R. 10--Constitution of Pakistan, 1973, Art. 199--Constitutional Petition--Suit for declaration--Decreed--Appeal Dismissed--Civil Revision--Allowed--Application to challenge/validity of decree--Rejected Appeal--Dismissed--Revision petition--Withdrawn--Application for impleading as party--Accepted--Revision petition--Dismissed--Challenge to--During pendency of suit a purchaser has no right to move for impleadment--Order passed by learned trial Court allowing application under Order I Rule 10 of CPC moved by Respondents No. 1 to 3 and impleading them as defendants in suit and order of learned revisional Court dismissing revision petition are without jurisdiction and declared as such--Petition allowed.

[Pp. 248 & 249] A & B

PLD 2011 SC 905 & 1980 SCMR 921, ref.

M/s. Mohammad Shahzad Shaukat and Taha, Advocates for Petitioners.

Nemo for Respondents.

Date of hearing: 5.9.2018.

Judgment

Through this writ petition the petitioners have challenged the order dated 17.01.2017 passed by the learned trial Court whereby an application under Order I Rule 10 of the CPC moved by Respondents No. 1 to 3 for impleading them as defendants in the suit was accepted and the order/judgment dated 25.02.2017 passed by the learned Additional District Judge, Gujranwala whereby the revision petition filed by the petitioners was dismissed.

1. Respondents No. 1 to 3 are already proceeded against ex-parte vide order dated 24.04.2017. Respondents No. 4 and 5 have been served, even P.C. was issued for today but no one is present on their behalf. Therefore, Respondents No. 4 and 5 are proceeded against ex-parte. Whereas Respondents No. 6 and 7 are formal.

2. I have heard the learned counsel for the petitioners at length and also gone through the record minutely.

3. A suit for declaration was filed by the petitioners/plaintiffs on 6.11.2000 in which the injunctive order was granted on 18.5.2001. The suit was ultimately decreed on 8.12.2009. An appeal was preferred by Respondents No. 4 and 5, which was dismissed on 22.01.2011. A Civil Revision No. 1188 of 2011 was filed, which was allowed by this Court and matter was remanded to the learned Senior Civil Judge. During this period the applicants/Respondents No. 1 to 3 moved an application under section 12 (2) of the CPC on 08.01.2010. The reply was filed. They also prayed for grant of interim injunction during the pendency of application, which was refused on 8.04.2011. An appeal there against was also dismissed on 9.3.2012. They filed a revision petition before this Court against that order bearing No. 956 of 2012, which was withdrawn on 02.02.2016. They moved an application under Order I Rule 10 of the CPC in the suit in the post remand proceedings admittedly claiming purchase of suit property during “ut lite pendente nihil innovetur”. The reply was filed but the learned trial Court accepted the application vide order dated 17.01.2017. A revision there against was filed, which was dismissed by the learned revisional Court vide order dated 25.02.2017. Hence, this writ petition.

4. While referring the judgments reported as “Muhammad Ashraf Butt and others versus Muhammad Asif Bhatti and others” (PLD 2011 Supreme Court 905), “Farzand Ali and another versus Khuda Bakhsh and others” (PLD 2015 Supreme Court 187), “Aasia Jabeen and 3 others versus Liaqat Ali and others” (2016 SCMR 1773), “Mst. Tabassum Shaheen versus Mst. Uzma Rahat and others” (2012 SCMR 983), “Dilnawaz Begum and others versus Muhammad Akbar Khan Afridi and others” (2017 CLC 1115) and “Province Of The Punjab through Collector, Sheikhupura and others versus Syed Ghazanfar Ali Shah and others” (2017 SCMR 172) learned counsel for the petitioners argues that the party purchasing the suit property during pendent lite has absolutely no right to move for impleadment and further while relying upon “Ghulam Rasool versus Settlement and Rehabilitation Commissioner and others” (1980 SCMR 921) states that the applicants cannot be joined in the post remand proceedings, therefore stated that application was absolutely not maintainable and the learned trial Court was having no jurisdiction to allow the application and order of dismissal of revision passed by the learned revisional Court is also without jurisdiction. Therefore, prays for acceptance of instant writ petition.

5. I have gone through the case law cited by the learned counsel for the petitioners. During the pendency of suit a purchaser has no right to move for impleadment. Light can be taken from the judgment of august Supreme Court of Pakistan reported as “Muhammad Ashraf Butt and others versus Muhammad Asif Bhatti and others” (PLD 2011 Supreme Court 905). For ready reference the relevant paragraph is reproduced as under:

“It has been held “the doctrine of “lis pendens” is that one who purchases from a party pending suit a part or the whole of the subject-matter involved in the litigation takes it subject to the final disposition of the cause and is bound by the decision that may be entered against the party from whom he derived title.”

Further on the point that in post remand proceedings the applicants cannot be joined. Light can be taken from the judgment of august Supreme Court of Pakistan reported as “Ghulam Rasool versus Settlement and Rehabilitation Commissioner and others” (1980 SCMR 921). In this view of the matter, the order passed by the learned trial

Court dated 17.01.2017 allowing the application under Order I Rule 10 of the CPC moved by Respondents No. 1 to 3 and impleading them as defendants in the suit and the order of petition are without jurisdiction and declared as such. This writ petition is allowed in the above terms.

(Y.A.) Petition allowed

PLJ 2019 Lahore 249

Present: Amin-ud-Din Khan, J.

MUHAMMAD NAWAZ--Appellant

versus

MIAN KHAN, etc.--Respondents

R.S.A. No. 135360 of 2018, heard on 15.11.2018.

Arbitration Act, 1940 (X of 1940)--

----Ss. 20 & 39(2)--Application for making award rule of Court--Accepted--Appeal--Dismissed--Second appeal against levy of penalty and stamp duty--Accepted--Challenge to--It is clear that no second appeal is competent against a judgment passed by learned first appellate Court as one remedy of appeal is provided under Act, which has been exhausted before learned first appellate Court--Revision petition against judgment passed by learned Additional District Judge is not competent. A revision being a substantial right can only be exercised if same is provided under statute--If no power of revision is provided under statute i.e. Arbitration Act, 1940, same forum is not available against appellate judgment rendered in accordance with Section 39 of Arbitration Act, 1940--This Court or learned trial Court as well as first appellate Court cannot sit as an appellate Court on an arbitration award unless misconduct on part of Arbitrator is pleaded--Appeal was dismissed.

[Pp. 250 & 251] A, B & C

Mian Muhammad Raza, Advocate for Appellant.

Malik Sirbuland Khan, Advocate for Respondents.

Date of hearing: 15.11.2018.

Judgment

Through this second appeal the appellant has challenged the judgment and decree dated 17.12.2015 passed by the learned Civil Judge 1st Class, Chiniot whereby an application moved by Respondent No. 1 Mian Khan for making the award dated 24.03.2012 rule of the Court was accepted and the award was made rule of the Court, and the judgment and decree dated 16.10.2017 passed by the learned Additional District Judge, Chiniot whereby the appeal filed by the present appellant was dismissed, whereas the appeal of Mian Khan against the order of levy of penalty and stamp duty passed by the learned trial Court was accepted.

1. I have heard the learned counsel for the parties at full length and also gone through the record minutely with their able assistance.

2. When confronted with the learned counsel for the appellant that how the second appeal is competent; he is unable to assist this Court. In this context, I have to consider Section 39 of the Arbitration Act, 1940 which deals with the appeal, same is reproduced as under:-

“39. Appealable orders---An appeal shall lie from the following orders passed under this Act (and from no others) to the Court authorized by law to hear appeals from original decrees of the Court passing the order:--

(i) superseding an arbitration;

(ii) on an award stated in the form of a special case;

(iii) modifying or correcting an award;

(iv) filing or refusing to file an arbitration agreement;

(v) staying or refusing to stay legal proceedings where there is an arbitration agreement;

(vi) Setting aside or refusing to set aside an award;

Provided that the provisions of this section shall not apply to any order passed by a Small Cause Court.

(2) No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or take away any right to appeal to [the Supreme Court].”

1. It is clear that no second appeal is competent against a judgment passed by the learned first appellate Court as one remedy of appeal is provided under the Act, which has been exhausted before the learned first appellate Court. I am further of the view that even a revision petition against the judgment passed by the learned Additional District Judge is not competent is provided under the statute. If no power of revision is provided under the statute i.e. Arbitration Act, 1940, same forum is not available against the appellate judgment rendered in accordance with Section 39 of the Arbitration Act, 1940. In this eventuality, at the most the orders

impugned through this second appeal could have been challenged through a constitution petition if the same are without jurisdiction. Even it is not the case of appellant that the orders impugned are without jurisdiction. Further I am of the view that even this Court or the learned trial Court as well as first appellate Court cannot sit as an appellate Court on an arbitration award unless misconduct on the part of Arbitrator is pleaded, even the Court cannot scrutinize the reasons for grant of an award as the parties agree to refer the matter to the Arbitrator for its decision and the Arbitrator cannot be presumed to be a Court having all the laws on its sleeves, therefore, conducting the proceedings relating to the procedure and determination of question referred to, arbitrator cannot be adjudged on the basis of standard of adjudication before the Court. In this view of the matter, when an appeal or revision is not competent, the instant second appeal being not competent stands dismissed with no order as to costs.

(Y.A.) Appeal dismissed

PLJ 2019 Lahore 251

Present: Amin-ud-Din Khan, J.

ChaudhryMUHAMMAD SALEEM--Petitioner

versus

ADDITIONAL DISTRICT JUDGE, etc.--Respondents

Writ Petition No. 64308 of 2017, heard on 16.10.2018.

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

----Ss. 4, 7 & 15(11)--Jurisdiction--I agree with view taken by learned Courts below that with regard to mortgage property qua securing loan from a financial institution, exclusive jurisdiction to entertain and try matter is with Banking Court established under Financial Institutions (Recovery of Finances) Ordinance, 2001--Property mortgaged against finance facility with a financial institution, exclusive jurisdiction in lis is with Banking Court and no other Court can entertain and try this issue. [P. 253] A

2012 CLD 483 and 2008 CLC 759 ref.

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

----S. 42--Constitution of Pakistan, 1973, Art. 199--Constitutional Petition--suit for declaration--Sale deed--Property was mortgaged for loan--Application for return of complaint--Accepted--Review petition--Dismissed--Civil revision--Transmitted to D.J.--Dismissed--Jurisdiction--Jurisdictional defect--Challenge to--I have no reason to disagree with view taken by learned Courts below--Case law relied by learned counsel for petitioner is not inconsonance with facts of this case, therefore, not applicable and beneficial for petitioner--Petitioner is bound under law to show that Courts/forums below have exercised jurisdiction not vested in them by law or there is some jurisdictional defect in orders impugned--Learned counsel for petitioner could not show any such defect in orders impugned through this constitutional petition nor I have seen any defect therein, therefore, indulgence of this Court while exercising powers under Article 199 of Constitution is not warranted through constitutional petition in hand--Petition dismissed. [P. 253] B & C

Mr. Alamgir, Advocate for Petitioner.

Ex-parte for Respondents.

Date of hearing: 16.10.2018

Judgment

Through this writ petition the petitioner, who is plaintiff of a suit for declaration, has challenged the judgment dated 03.06.2017 passed by the learned Additional District Judge, Sheikhupura whereby a revision petition filed by the petitioner was dismissed and the order dated 17.02.2016 passed by the learned Civil Judge 1st Class, Sheikhupura whereby the review petition against order dated 29.09.2015 was dismissed and the order dated 29.09.2015 passed by the learned Civil Judge 1st Class, Sheikhupura whereby an application moved by the defendants/Respondents No. 6 and 6-A under Order VII Rule 10 of the CPC was accepted and plaint was returned to present before the proper forum.

1. In a suit filed on 23.07.2012 the plaintiff/petitioner challenged registered sale deeds No. 1275 and 1277 registered on 22.04.2006 with regard to the land fully described in the plaint. The registered sale deeds are on behalf of plaintiff for sale of land in favour of Defendants No. 1 and 2, respectively. The plaintiff also challenged mutations No. 340 and 341 attested on 29.04.2006 on the basis of said sale deeds and mortgage of suit property by Defendants No. 1 and 2 with Respondent No. 3-A (The Bank of Punjab Tufail Road Branch, Lahore) through registered mortgage deed No. 1753 registered on 30.05.2006 for securing the loan against mortgage of property.

2. The Bank moved an application under Order VII Rule 10 of the CPC for return of plaint stating that Banking Court has exclusive jurisdiction to entertain and try the matter, as admittedly the property was mortgaged with the Bank against which loan has been advanced on the basis of mortgage. Learned trial Court accepted the application videorder dated 29.09.2015 and returned the plaint. A review petition was filed before the learned trial Court on 10.12.2015, which too was dismissed vide order dated 17.02.2016. Thereafter a revision petition (Civil Revision No. 1805 of 2016) was preferred before this Court, which was transmitted to the learned District Judge for final hearing after enhancement of pecuniary jurisdiction of learned District Judge. The revision was dismissed by the learned Additional District Judge, Sheikhupura vide judgment dated 3.06.2017. Hence, this writ petition.

3. I have heard the learned counsel for the petitioner at full length and also gone through the record minutely with his able assistance as well as the case law i.e. “Amtex Limited through Director versus Bankislami Pakistan Ltd. and 8 others” (2016 CLD 2007), “Marahaba Pakistan International and others versus Habib Bank Limited and another” (2017 CLD 995), “Messrs Summit Bank Limited through Manager versus Messrs Qasim and Co. through Muhammad Alam and another” (2015 SCMR 1341), “Karachi Electric Provident Fund versus National Investment (Unit) Trust and others” (2003 CLD 1026), “Abdul Rehman Allana versus Citibank” (2003 CLD 1843), “Lahore Beverage Company (Pvt.) Limited through Chief Executive versus Muhammad Javed Shafi and 2 others” (2008 CLC 759) and “Syed Arif Shah versus Abdul Hakim” (PLD 1986 Karachi 189), referred to by the learned counsel for the petitioner.

4. The respondents have been proceeded against ex-parte vide order dated 18.04.2018.

5. I agree with the view taken by the learned Courts below that with regard to mortgage property qua securing the loan from a financial institution, exclusive jurisdiction to entertain and try the matter is with the Banking Court established under the Financial Institutions (Recovery of Finances) Ordinance, 2001. The property mortgaged against finance facility with a financial institution, exclusive jurisdiction in the lis is with the Banking Court and no other Court can entertain and try this issue. Subsection 11 of Section 15 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 clearly reads as under:--

“All disputes relating to the sales of mortgage property including disputes amongst mortgages in respect of distribution of the sale proceeds shall be decided by the Banking Court.”

1. The petitioner has challenged a registered mortgage deed in the suit in favour of financial institution against finance facility pleading that the sale deed by the petitioner/plaintiff in favour of mortgagor is forged and fictitious. The mortgagor was surety and a customer in accordance with definition of “customer” mentioned in Clause (c) of Section 2 of the Financial Institutions (Recovery of Finances) Ordinance, 2001. Further in accordance with Clause (e) of Section 2 of said Ordinance, a mortgage and performance of an undertaking against the mortgagor fell within the ambit of provisions of Financial Institutions (Recovery of Finances) Ordinance, 2001 and by virtue of subsection 4 of Section 7 of the Ordinance a Banking Court is having exclusive jurisdiction in the matter in issue and civil Court was having no jurisdiction. In this context, reliance can be placed upon the judgments reported as “Mst. Arifa Shams through Special Attorney versus Muhammad Imtiaz Ahsan and 2 others” (2012 CLD 483) and “Lahore Beverage Company (Pvt.) Limited through Chief Executive versus Muhammad Javed Shafi and 2 others” (2008 CLC 759).

2. In view of the above circumstances, I have no reason to disagree with the view taken by the learned Courts below. The case law relied by the learned counsel for the petitioner is not inconsonance with the facts of this case, therefore, not applicable and beneficial for the petitioner. Even otherwise, for invoking jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner is bound under the law to show that the Courts/forums below have exercised the jurisdiction not vested in them by law or there is some jurisdictional defect in the orders impugned. Learned counsel for the petitioner could not show any such defect in the orders impugned through this constitutional petition nor I have seen any defect therein, therefore, indulgence of this Court while exercising powers under Article 199 of the Constitution is not warranted through the constitutional petition in hand and as such the instant writ petition being not maintainable stands dismissed.

(Y.A.) Petition dismissed

PLJ 2019 Lahore 255 [Multan Bench, Multan]

Present:Tariq Saleem Sheikh, J.

MUHAMMAD ASGHAR and 3 others--Petitioners

Versus

SHO and 2 others--Respondents

W.P. No. 11435-Q of 2018, decided on 7.2.2019.

Agricultural Pesticides Ordinance, 1971--

----Ss. 21 & 29--Punjab Agricultural Pesticides (Amendment) Act, 2012--Punjab Pesticides Rules, 2018, R. 22--Pesticide laboratories notified by Government--Assistant Director (Plant Protection) and his team inspected aforementioned shop of Petitioner and collected samples of pesticide called Chlorfenapyr 36% SC marketed by Petitioners which were sent to Pesticides Laboratory, Multan, for quality check and was found adulterated--Federal Government framed Agricultural Pesticides Rules, 1973, to operationalize it--In wake of Constitution (Eighteenth Amendment) Act, 2010, Punjab Assembly enacted Punjab Agricultural Pesticides (Amendment) Act, 2012 and adopted Ordinance which is still in force--Subsequently, Punjab Government framed Agricultural Pesticides Rules, 2018, under Section 29 of Ordinance which were published in Punjab Gazette--Controversy in present cases revolves around consequence of Rule 22 or, to put it in another way, whether said Rule is mandatory or directory--There were complaints from all quarters that most of pesticide laboratories notified by Government were not up to mark and there were vast variations in their results--It is in this backdrop that Agricultural Pesticides Rules, 2018, mandate that pesticides laboratory shall be duly certified by ISO--Admittedly, in present cases FIRs were registered on basis of non-ISO certified lab reports--Petitioners cannot be prosecuted on basis thereof--Therefore, Writ Petitions are accepted--FIRs impugned therein are declared to be without lawful authority and are hereby quashed. [Pp. 257, 258263 & 264] A, B, H & J

2018 SCMR 2039 ref.

Rules--

----Effect of--The rules validly made under a statute have same effect as statute itself and are enforced as such. [P. 259] C

AIR 1961 SC 751 ref.

Statute--

----Statute was an authentic expression of legislative will and it was function of Court to interpret that document according to will of people who made it. [P. 259] D

PLD 1992 Lah. 178 ref.

Intention of Lawmaker--

----Purpose of--It is duty of Court to find out intention of lawmaker--whole purpose of interpretation of statute is to ascertain intention of lawmaker and to make it effective. [P. 259] E

PLD 1976 SC 483 ref.

Expressio unius est exclusio alterius--

----Where a mode of performing a duty is laid down by law, it must be performed in that particular manner or not at all--This rule flows from maxim Expressio unius est exclusio alterius. [P. 259 & 260] F

Maxwell on Interpretation of Statutes (Twelfth Edition) at p. 314; In Taxmann’s Interpretation of Statutes (Second Edition) D.P. Mittal; PLD 1974 SC 134; PLD 2012 SC 268; 2012 CLD 337 ref.

Mandatory & Directory Provision--

----Where consequence of failure to comply with a particular provision is not mentioned it is taken as directory and where consequence is expressly mentioned provision is mandatory. [P.261 ] G

PLD 1974 SC 134; 2000 SCMR 1305; PLD 2012 SC 268 ref.

Punjab Pesticides Rules, 2018--

----R. 22 is fundamental to statutory scheme of Ordinance--It is in public interest and safeguards rights of all concerned--Furthermore, it aims at creating confidence of general public in Pesticide Regulatory Laboratories and addressing their complaints about their results--For all these reasons, I hold that Rule 22 is mandatory. [P. 264] I

Malik Ali Muhammad Dhol, Advocate, for Petitioners.

Mahar Nazar Abbas Chawan, Assistant Advocate General Punjab with Imran Faraz, Agriculture Officer, Abdul Hayee Abid, ADA(PP), Shahid Munir and Ashfaq Ahmad, Assistant Agri Chemist, for Respondents.

Date of hearing: 29.11.2018.

Order

Through this single order I intend to decide Writ Petitions Nos. 11435-Q/2018, 13486-Q/2018 and 13700-Q/2018 as a common thread weaves through them. In all these petitions the Petitioners seek quashing of the FIRs registered against them under Section 21 of the Agricultural Pesticides Ordinance, 1971 (the “Ordinance”).

1. The facts of all the three petitions are somewhat similar. However, for the sake of brevity I would refer to those of W.P. No. 11435-Q/2018. In this case Petitioner No. 1 is the vendor of agricultural inputs, including fertilizer and pesticides, and is carrying on business at Chowk Saleem-Abad Aali-Wala, Dera Ghazi Khan, under the name and style of Asghar Traders. Petitioner No. 2 is his Stock Incharge. On 17.7.2018, the Assistant Director (Plant Protection) and his team inspected the aforementioned shop of Petitioner No. 1 and collected samples of the pesticide called Chlorfenapyr 36% SC marketed by Petitioners No. 3 & 4 which were sent to the Pesticides Laboratory, Multan, for quality check and was found adulterated. Consequent thereupon, FIR No. 441/2018 dated 1.8.2018 was registered against the Petitioners at Police Station Kot Chutta, District Dera Ghazi Khan, for an offence under Section 21 of the Ordinance read with the relevant rules.

2. Malik Ali Muhammad Dhol, Advocate, who represented the Petitioners in all these petitions, submitted that the Ordinance inter alia aimed at providing quality pesticides to the farmers and prosecuting those who supplied adulterated or substandard products. In order to achieve this objective, in exercise of the powers conferred under Section 29 of the Ordinance, the Government of the Punjab had framed Punjab Agricultural Pesticides Rules, 2018 (hereinafter referred to as the “Rules”), which prescribed a comprehensive procedure for sampling and laboratory tests. Rule 22 mandated that the pesticides laboratory should be certified by the International Organization for Standardization (ISO). He contended that the laboratory which analyzed the samples in the present cases did not have the requisite certification so its reports had no legal value and the Petitioners could not be prosecuted on the basis thereof and the FIRs registered against them were liable to be quashed.

3. On the other hand, Mahar Nazar Abbas Chawan, Assistant Advocate General, contended that Rule 22 was directory in nature and not mandatory. Its non-compliance does not render any legal action void. Referring to the present cases he submitted that Province of the Punjab had set up four Pesticides Quality Control Laboratories located in Kala Shah Kaku, Faisalabad, Multan and Bahawalpur and one Provincial Pesticides Reference Laboratory at Kala Shah Kaku. All of them were duly notified under Section 13(1) of the Ordinance and were manned by competent staff and had the requisite equipment to perform the tests. They analyzed the samples referred to them as per Rules 43 & 44 by following the Food and Agriculture Organization guidelines. The laboratory at Multan whose reports are impugned in these petitions was also accredited to the Pakistan National Accreditation Council (PNAC) in accordance with the requirements of ISO/IEC 17025:2005 with effect from 2.7.2018. Scope of enhancement (i.e. inclusion of more products for testing under ISO 17025) of an ISO-accredited laboratory was a continuous activity. At the moment the aforesaid accreditation was only for four products/chemistries but 74 more were in the pipeline, including Chlorfenapyr 36% SC, Pyriproxyfen 10% EC and Emainectin Benzoate 1.9 EC, which were involved in these three cases. The learned Law Officer further contended that the Petitioners were supplying substandard and adulterated pesticides to the farmers and were not only exploiting them but also causing loss to the national economy. It was time that they should be dealt with an iron hand. He argued that proper place of procedure in any system of administration of justice was to help people get their rights and not to stand in their way. All technicalities should be avoided unless their compliance was essential on the ground of public policy. He prayed that these petitions be dismissed with costs.

4. I have heard the learned counsel and have perused the record.

5. In the year 1971 the President of Pakistan promulgated the Ordinance to regulate import, manufacture, formulation, sale, distribution and use of pesticides in agriculture throughout the country. Thereafter the Federal Government framed the Agricultural Pesticides Rules, 1973, to operationalize it. In the wake of the Constitution (Eighteenth Amendment) Act, 2010, the Punjab Assembly enacted the Punjab Agricultural Pesticides (Amendment) Act, 2012 (XXV of 2012), and adopted the Ordinance which is still in force. Subsequently, the Punjab Government framed the Agricultural Pesticides Rules, 2018, under Section 29 of the Ordinance which were published in the Punjab Gazette vide Notification No. 79 of 2018 dated 31.5.2018. The controversy in the present cases revolves around the consequence of Rule 22 or, to put it in another way, whether the said Rule is mandatory or directory. For facility of reference, it is reproduced hereunder:

6. Pesticide laboratory.--(1) The pesticide laboratory shall be duly certified by international organization for standardization (ISO) and perform the following functions:

(a) analyze and test samples of pesticides; and

(b) carry out such duties as may be entrusted by the Secretary Agriculture.

1. It is by now well settled that the rules validly made under a statute have the same effect as the statute itself and are enforced as such. The Supreme Court of India highlighted this point in State of Uttar Pradesh and others v. Babu Ram Upadhya (AIR 1961 SC 751) as under:

“Rules made under a statute must be treated for all purposes of construction or obligation exactly as if they were in the Act and are to be of the same effect as if contained in the Act, and are to be judicially noticed for all purposes of construction or obligation.”

In view of the foregoing, the same principles that are followed for interpretation of statutes are employed for construction of rules.

1. In his opinion in Muhammad Shafi v. Deputy Superintendent of Police (Malik Gul Nawaz), Narowal and 5 others (PLD 1992 Lahore 178), Fazal Karim, J. wrote that statute was an authentic expression of the legislative will and it was the function of the Court to interpret that document according to the will of the people who made it. In an earlier case, reported as Province of West Pakistan v. Mahboob Ali and another (PLD 1976 SC 483), the Hon’ble Supreme Court of Pakistan observed that “it is the duty of the Court to find out the intention of the lawmaker. The whole purpose of interpretation of statute is to ascertain the intention of the lawmaker and to make it effective”.

2. The term “intent” has various connotations. In one sense it carries the concept of purpose and signifies the general aim or policy which pervades a statute (60 Har v. L. Rev. 370-375). Therefore, while construing a particular provision the Court would attend to the nature, scope and object of the statute and consider the consequences of interpreting the said provision one way or the other. It would also look at the reason why that enactment was passed. “Perhaps the reason was to remedy some existing evil or correct some difficulty in existing law or to create a new right or a new remedy.” (Crawford on Statutory Construction).

3. Generally speaking, where a mode of performing a duty is laid down by law, it must be performed in that particular manner or not at all. This rule flows from the maxim Expressio unius est exclusio alterius. However, the question arises as to whether non-compliance with the prescribed procedure would invalidate the entire action or proceedings. There is no principle of universal application to categorize a provision as mandatory or directory. It depends upon the intent of the legislature rather than the phraseology used. Maxwell on The Interpretation of Statutes (Twelfth Edition) at p.314 writes:

“It is impossible to lay down any general rule for determining whether a provision is imperative or directory. ‘No universal rule’, said Lord Campbell L.C., ‘can be laid down for the construction of statutes as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of Court of justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be construed’. And Lord Penzance said: ‘I believe, so far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject-matter, consider the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act; and upon a review of the case in that aspect decide whether the matter is what is called imperative or only directory.”

1. Similarly, in Taxmann’s Interpretation of Statutes (Second Edition) D.P. Mittal states:

“There are no ready tests or invariable formula to determine whether a provision is mandatory or directory. The broad principle of the statute is important. The object of a particular provision must be considered. The link between the two is most important. The weighing of the consequences of the holding a provision to be mandatory or directory is vital and more often than not, it is responsible for determination of the very question that the provision is mandatory or directory. Where the design of the statute is the avoidance or prevention of the public mischief, but the enforcement of a particular provision literally to its letter will tend to defeat that design, the provision must be held to be directory, so that proof of prejudice in addition to non-compliance of the provision is necessary to invalidate the act complained of.”

The Hon’ble Supreme Court of Pakistan has approved this view in Niaz Muhammad Khan v. Mian Fazal Raqib (PLD 1974 SC 134) and Apollo Textile Mills Ltd. and others v. Soneri Bank Ltd. (PLD 2012 SC 268 = 2012 CLD 337).

1. Ordinarily the words “shall” or “must” show that the Legislature intended to make the provision mandatory while use of the word “may” would indicate that it wanted to make it directory but they are often used interchangeably. N.S. Bindra’s Interpretation of Statutes (Tenth Edition) says:

“The word ‘shall’ in its ordinary signification is mandatory though there may be considerations which influence the Court in holding that the intention of the legislature was to give discretion. But this word is not necessarily mandatory, not always mandatory. Whether the matter is mandatory or directory only depends upon the real intention of the legislature which is ascertained by carefully attending to the whole scope of the statute to be construed.”

1. Crawford in “The Construction of Statutes” (2014 Edition) at pp.520 to 522 states:

“If the language of the statute, considered as a whole and with due regard to its nature and object reveals that the Legislature intended the words ‘shall’ and ‘must’ to be directory, they should be given that meaning. Similarly, under the same circumstances, the word ‘may’ should be given a mandatory meaning, and especially where the statute concerns the rights, and interests of the public, or where third persons have a claim de jure that a power shall be exercised, or whenever something directed to be done for the sake of justice or the public good, or is necessary to sustain the statute’s constitutionality.”

1. In Muhammad Saleh v. The Chief Settlement Commissioner, Lahore and 2 others (PLD 1972 SC 326), the Hon’ble Supreme Court of Pakistan observed:

“It is now well settled that the words “may” and “shall” in legal phraseology are interchangeable, depending on the context in which they are used, and are not to be interpreted with the rigidity which is attributed to them in ordinary parlance.”

1. As a general rule, it is now firmly settled that where the consequence of failure to comply with a particular provision is not mentioned it is taken as directory and where the consequence is expressly mentioned the provision is mandatory. In Niaz Muhammad Khan v. Mian Fazal Raqib (PLD 1974 SC 134), the Hon’ble Supreme Court of Pakistan held:

“As a general rule however, a statute is understood to be directory when it contains matter merely of direction, but not when those directions are followed up by an express provision that, in default of following them, the facts shall be null and void. To put it differently, if the Act is directory, its disobedience does not entail any invalidity; if the Act is mandatory disobedience entails serious legal consequences amounting to the invalidity of the act done in disobedience to the provision.”

The above view was reiterated in Maulana Nur-ul-Haq v. Ibrahim Khalil (2000 SCMR 1305) and Apollo Textile Mills Ltd, and others v. Soneri Bank Ltd. (PLD 2012 SC 268).

1. In a nub, there is no litmus test to determine whether a statutory provision or rule is mandatory or directory. The Court has to find out the intention of the legislature by adopting the purposive rather than literal approach and would prefer an interpretation which advances the objects of the Act over that which defeats it.

2. In view of the foregoing, it is necessary to understand the legislative intent of the Ordinance and the scope of the Rules. The objective of the Ordinance is well- identified. It seeks to regulate import, manufacture, formulation, sale, distribution and use of pesticides in agriculture and ensure provision of quality pesticides to the farmers. It lays special emphasis on their quality and contains extensive provisions to control it. Sections 13 & 14 obligate the Government to set up a pesticides laboratory and appoint analysts therein. Sections 15 to 17 provide for appointment of Inspectors and empower them to take samples from the pesticides imported, formulated or intended to be sold in the market and despatch them to the pesticides laboratory. Section 18 stipulates that the report of the pesticides laboratory duly signed by the Government Analyst would be a conclusive evidence of the particulars stated therein unless the person from whose possession the sample was taken disputes its correctness in which case he may make a representation to the Government to repeat the test. Section 21 criminalizes sale of adulterated and substandard pesticides and holding them in stock. It is important to note that sampling and their credible laboratory analysis is pivotal in realizing the objective and purpose of the Ordinance.

3. The Rules have been framed under Section 29 of the Ordinance to carry out its purposes. Rules 23 to 37, prescribe the procedure for collection of samples, their transmission to the laboratory and testing. Rule 43 stipulates the analytical methods that are to be adopted for examination of the samples in the pesticides laboratory. Rule 22, however, requires the said laboratory to have ISO Certification.

4. The Agricultural Pesticides Rules, 1973, which were previously in force contained identical provisions so far as analytical methods are concerned. However, there were complaints from all quarters that most of the pesticide laboratories notified by the Government were not up to the mark and there were vast variations in their results. It is in this backdrop that the Agricultural Pesticides Rules, 2018, mandate that the pesticides laboratory shall be duly certified by the ISO. The following excerpt from Paragraph-6 of the report submitted by the Additional Secretary (Task Force) in these constitutional petitions is quite instructive:

“The aforesaid Punjab Agricultural Pesticides Rules were got approved from the Competent Authority during the year 2018 and it became obligatory thereafter to get ISO-17025 Accreditation. Prior to the approval of these rules it was blamed by all the stakeholders particularly by the people from pesticide business that the Pesticide Regulatory Laboratories were incompetent in all respects inclusive of trained manpower viz-a-viz equipment/machinery and Certified Reference Materials(s) etc. Now with the advent of ISO-17025 Certification, labs proved that they have the required potential and professional capabilities in rendering analytical services.”

1. By requiring the pesticide laboratories to have ISO Certification, Rule 22 ensures reliable means to check the quality of the pesticides supplied in the market and punish those who engage in any malpractice. Inasmuch as Section 18(3) attaches evidentiary presumption to the report of the pesticide laboratory, it has to be authentic. If it is not it will not only prejudice an accused being tried for an offence mentioned in the Ordinance but would also defeat his right of fair trial guaranteed under Article 10-A of the Constitution of the Islamic Republic of Pakistan, 1973.

2. In The State through Regional Director FIA v. Imam Bakhsh and others (2018 SCMR 2039) the Hon’ble Supreme Court of Pakistan was confronted with a similar question as has been raised before me in the present petitions. The Control of Narcotic Substances Act, 1997 (the “Act”), has been enacted to control production, processing and trafficking of narcotic drugs and psychotropic substances and provides punishments for contravention. Section 34 of the Act calls for establishing Narcotics Testing Laboratories and Section 36 mandates that the Government Analyst shall deliver a report in the prescribed manner after carrying out tests and analysis of the sample of the narcotics. The said report under Section 36(2) is conclusive and is admissible in evidence without formal proof. The Government has framed the Control of Narcotics Substances (Government Analysts) Rules, 2001, to carry out the purposes of the Act and Rule 6 thereof provides that “the report should contain full protocols of the test applied.” The State urged that Rule 6 was directory as it did not specify any consequence for non-compliance. The Apex Court rejected the contention holding that the rule in question was mandatory. Syed Mansoor Ali Shah, J. speaking for the Court said:

“Our Court has held while determining the status of a mandatory or directory provision that “perhaps the cleverest indicator is the object and purpose of the statute and the provision in question” and to see the ‘legislative intent as revealed by the examination of the whole Act’ …. Non-compliance of Rule 6 can frustrate the purpose of the Act.…The evidentiary assumption attached to a report of the Government Analyst under Section 36(2) of the Act underlines the statutory significance of the report. Therefore, details of the test and analysis in the shape of the protocols applied for the test became fraudulent and go to the root of the statutory scheme. Rule 6 is, therefore, in the public interest and safeguards the rights of the parties. Any report (Form-II) failing to give details of the full protocols of the test applied will be inconclusive, unreliable, suspicious and untrustworthy and will not meet the evidentiary assumption attached to a Report of the Government Analyst under Section 36(2). Resultantly, it will hopelessly fail to support conviction of the accused. This Court has already emphasized the importance of protocols in Ikramullah’s case [2015 SCMR 1002].

1. The ratio of Imam Bakhsh’s case (supra) is fully applicable to the present cases. Rule 22 is fundamental to the statutory scheme of the Ordinance. It is in the public interest and safeguards the rights of all concerned. Furthermore, it aims at creating confidence of the general public in the Pesticide Regulatory Laboratories and addressing their complaints about their results. For all these reasons, I hold that Rule 22 is mandatory. The excerpts from the report of the Additional Secretary (Task Force) reproduced in Paragraph-19, above, not only support my opinion but also admit that the legislative intent was to make ISO Certification mandatory.

2. Admittedly, in the present cases FIRs were registered on the basis of non-ISO certified lab reports. The Petitioners cannot be prosecuted on the basis thereof. Therefore, Writ Petition Nos. 11435-Q/2018, 13486-Q/2018 and 13700-Q/2018 are accepted. The FIRs impugned therein are declared to be without lawful authority and are hereby quashed. No order as to costs.

(K.Q.B.) Petitions accepted

PLJ 2019 Lahore 265 (DB)

Present:Shahid Jamil Khan and Muzamil Akhtar Shabir, JJ.

MUHAMMAD RAMZAN--Applicant

versus

COMMISSIONER INLAND REVENUE etc.--Respondents

STR No. 9296 of 2019, decided on 18.2.2019.

Remand order--

-----Discrepancies in order--Question of--Whether appellant tribunal was importer of scrapor not during tax period under appeal--Validity--Appellate Tribunal has not finally determined anything through a conclusive finding of fact and at this stage there is no assessment order against the petitioner on the record. Such a remand order does not generally give rise to any question of law to be determined by this Court. [P. 267] A

2016 PTD 2548 ref.

Sales Tax Act, 1990 (VII of 1990)--

----S. 47(5)--Remand order--Advisory jurisdiction--Lacunas and cure defect in proceedings--Appellate Tribunal had reached conclusion that certain facts had not been determined by CIR before passing order set aside by Tribunal and matter was remanded for determination of same--Said adjudication was required to be made for proper determination of dispute between assessee and department therefore, afore-referred contention of petitioner is based merely on apprehension and cannot be made basis for setting aside impugned remand order at this stage. [P. 267] B

Rana Mushtaq Ahmed Toor, Advocate for Applicant.

Date of hearing: 18.2.2019.

Order

In this Reference Application under Section 47 of the Sales Tax Act, 1990 (“Act of 1990”), following questions are proposed for our opinion:--

i. Whether in the facts and circumstances of the case, the learned Appellate Tribunal Inland Revenue was justified to remand back the case just to fulfill the lacunas as well as to cure the proceedings as the value addition proceedings were initiated without invoking the relevant provision i.e. Section 7A of the Sales tax Act, 1990?

ii. Whether in the facts and circumstances of the case, the learned Appellate Tribunal Inland Revenue was not authorized to annul the impugned assessment order passed under Section 11(2) of the Sales Tax Act, 1990 as the petitioner did not commit any default with regard to filing of the returns, payments of tax, less than tax payable or got refund erroneously therefore the learned Commissioner Inland Revenue was not competent to pass the impugned order?

iii. Whether in the facts and circumstances of the case, the learned Appellate Tribunal Inland Revenue was not authorized to annul the impugned assessment order as the value addition was made by the Commissioner Inland Revenue without constitution of valuation committee under Section 2(46)(e) of the Sales Tax Act, 1990?”

1. The afore-referred questions are asserted to have arisen out of order dated 04.12.2018 passed by the Appellate Tribunal Inland Revenue, Lahore Bench, Lahore (“Appellate Tribunal”). Relevant part of the said order is reproduced hereunder:

“11. On merits of the case, we find that the learned CIR has not adjudicated the case judiciously and without considering the actual facts of the case. Proper opportunity as envisaged under the law also seems to be not accorded to the appellant as queries raised in the show-cause notice was not properly responded/adjudicated whereas during the course of proceedings the entire focus was on the pending proceedings before the Hon’ble FTO. It is the stance of the appellant before the CIR that they had not declared imported goods/scrap in the sales tax whereas it is the departmental contention that being importer of scrap, the taxpayer was bound to pay 17% value addition tax. If goods imported have been declared then the goods imported has already been subjected to 3% value addition at import stage. Complete procedure for value addition has been provided under Section 2(46) of the Act. The status of the appellant is needs to be ascertained whether it is an importer of scrap or not during the tax periods under appeal? It is also the contention of the learned AR that further tax has been charged illegally when the sales were made to end consumers. It is also the contention of the AR that no closing stocks was sold out of books rather the Annexure-F of the sales tax returns was not filled in properly. Under such circumstances, we are of the opinion that matter needs to be looked into afresh at assessment stage. Order of the CIR is accordingly vacated and matter remanded back to the department for de novo decision in accordance with law after according proper opportunity of hearing to the registered person.”

1. The perusal of afore-referred order reveals that the Appellate Tribunal has pointed out certain discrepancies in order dated 19.06.2018 passed by Commissioner Inland Revenue (“CIR”) by observing that some important facts inter alia, whether the respondent was importer of scrap or not during the tax period under appeal, have not been decided. While passing the remand order, the Appellate Tribunal has not finally determined anything through a conclusive finding of fact and at this stage there is no assessment order against the petitioner on the record. Such a remand order does not generally give rise to any question of law to be determined by this Court. Reliance is placed on Commissioner Inland Revenue, Multan v. Messrs Bank Al-Habib Ltd. (2016 PTD 2548) and Commissioner of Income Tax and Wealth Tax. Sialkot Zone v. Messrs Maqbool Ahmed Gill (2007 PTD 1757). Consequently the reference at this stage is premature, misconceived and not maintainable.

2. As regards the contention of the petitioner that the remand order will operate against the interest of the petitioner as the respondent department will fill in lacunas and cure delect in proceedings is concerned, suffice it to say that the Appellate Tribunal had reached conclusion that certain facts had not been determined by the CIR before passing the order set aside by the Tribunal and the matter was remanded for determination of the same. The said adjudication was required to be made for proper determination of the dispute between the assessee and the department therefore, the afore-referred contention of the petitioner is based merely on apprehension and cannot be made basis for setting aside the impugned remand order at this stage.

3. Since the proposed questions do not arise from order of Appellate Tribunal, therefore, we decline to exercise advisory jurisdiction. Reference Application is decided against the applicant.

4. Office shall send a copy of this order under seal of the Court to the learned Appellate Tribunal Inland Revenue as pet Section 47(5) of the Act, 1990.

(M.M.R.) Application declined

PLJ 2019 Lahore 268

Present:Shahid Waheed, J.

MUHAMMAD MASOOD-UL-HASSAN--Applicant

versus

Maulana MASROOR NAWAZ JHANGVI, etc.--Respondents

C.M. No. 2 of 2019, decided on 4.2.2019.

Representation of the People Act, 1976 (LXXXV of 1976)--

----S. 76-A--Bye-elections--Successful candidate--Concealment of assets--Challenge to--Issuance of notice--Expiry of tenure--Transfer of application--If the; instant application is ultimately allowed on trial as respondent is not continuing as Member of Punjab Assembly on basis of Bye-Election held in December, 2016--In fact relief for setting aside election has been rendered infructuous by lapse of time--If an issue is purely academic in that its decision one way or other would have no impact on position of parties, it would be waste of public time to engage itself in deciding it--Application disposed of. [P. 269] A & B

2014 SCMR 860 and (2005) 12 SCC 211 ref.

Mr. Yousaf Naseem Chandio, Advocate for Applicant.

Mr. Muhammad Khalid Pervaiz Sipra, Advocate for Respondent No. 1.

Nemo for Respondents No. 2 to 25.

Date of hearing: 4.2.2019.

Order

The election of Respondent No. 1, Maulana Masroor Nawaz Jhangvi, as a Member of the Punjab Assembly from constituency PP-78, Jhang-II (old PP-77, Jhang-V) in Bye Election, 2016 has been challenged through this application under Section 76-A of the Representation of the People Act, 1976 on the ground of concealment of assets.

1. The Election Tribunal, comprising Mr. Shahid Rafique, issued notice to Respondent No. 1, who appeared before it and contested the allegation. During pendency of instant application the tenure of the Assembly stood expired. Subsequently, the Election Commission of Pakistan, Islamabad vide Letter No. F-14(3)/2012-Estt-II dated 30th October, 2018 transferred the present application to this Court for decision. Complying with the said letter the Provincial Election Commissioner, Punjab through Letter No. F-17(1)/2018-Law dated 1st November, 2018 directed the Deputy Registrar of the Election Tribunal (GE-2013) to submit complete record of this application in the office of this Court. Pursuant to the direction of the Provincial Election Commissioner, office of this Court received the record of the present case through Letter No. F.1(1)/2018-ETL (GE) dated 6th November, 2018.

2. The term of the election under challenge had expired by efflux of time in 2018; thereafter another General Election was held on 25th July 2018 and another Assembly constituted. Since the term of the Assembly constituted under the impugned election is over, the election of Respondent No. 1 cannot be set aside in the present proceedings even if the instant application is ultimately allowed on trial as the Respondent No. 1 is not continuing as Member of the Punjab Assembly on the basis of Bye-Election held in December, 2016. In fact the relief for setting aside the election has been rendered infructuous by lapse of time. In this view ground raised in the present application for setting aside the election of Respondent No. 1 has been rendered academic. This Court cannot undertake to decide an issue unless it is a living issue between the parties. If an issue is purely academic in that its decision one way or the other would have no impact on the position of the parties, it would be waste of public time to engage itself in deciding it. Lord Viscount Simon in his speech in the House of Lords in Sun Life Assurance Co. of Canda v. Jervis (1944 AC 111) observed:

“I do not think that it would be a proper exercise of the authority which this House possesses to hear appeals if it occupies time in this case in deciding an academic question, the answer to which cannot affect the respondent in any way. It is an essential quality of an appeal fit to be disposed of by this House that there should exist between the parties to a matter in actual controversy which the House undertakes to decide as a living issue.”

1. In the case of Munawar Iqbal Gondal v Mrs. Nasira Iqbal and other (2014 SCMR 860) election to the office of President, Lahore High Court Bar Association was challenged. During pendency of the petition the term of office of the President, Lahore High Court Bar Association elected in terms of election held on 11th July, 2009 expired in February, 2010; and thereafter periodical election of the said office was held. In these circumstances, Hon’ble Supreme Court of Pakistan disposed of the matter with the observation that issue had become

academic. Exactly on the same lines is the ratio of the cases of Kashi Nath Mishra v Vikramaditya Pandey and others (1998) 8.S.C. C. 735) and Mundrika Singh Yadav v Shiv Bachan Yadav and others (2005) 12 S.C. C. 211).

1. Under these circumstances, this application having become infructuous is disposed of.

(Y.A.) Application disposed of

PLJ 2019 Lahore 270

Present: Amin-ud-Din Khan, J.

MAQBOOL HUSSAIN AWAN--Petitioner

versus

ZAIN MALIK--Respondent

C.R. No. 238288 of 2018, decided on 28.9.2018.

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

----S. 115 & O. IX R. 13--Second revision petition--Maintainability--Application for stay proceedings--Declined--Challenge to--Second revision petition is not competent--An order passed u/s 115 of the, CPC by the revisional Court is not further challengeable through a revision petition. In these circumstances, the instant civil revision being not competent stands dismissed in limine. [P. 271] A

2016 SCMR 177, ref.

Ch. Abdul Majeed-III, Advocate for Petitioner.

Date of hearing: 28.9.2018.

Order

Through this civil revision the petitioner has challenged the order dated 22.09.2018 passed by the learned revisional Court i.e. Additional District Judge, Faisalabad, whereby at the time of entertaining the revision petition filed by the petitioner request for stay of proceedings before the learned trial Court was turned down.

1. Learned counsel argues that prayer was that injunctive order be granted with regard to further alienation of suit property and interference into the possession of petitioner as well as stay of proceedings before the learned trial Court.

2. On query of the Court qua maintainability of second revision against the order passed by the learned revisional Court learned counsel relies upon “Anjum Chemical Storage (Pvt.) Ltd. versus Messrs Chenab Limited Nishatabad and others” (2016 SCMR 177).

3. I have gone through the case law referred to by the learned counsel for the petitioner.

4. Through the judgment referred supra the Apex Court has held that along with the appeal an application under Order XLI Rule 5 of the CPC was filed before the learned appellate Court, which was refused, therefore, it is a “case decided” and revision there against u/s 115 of the, CPC was competent. This judgment is absolutely not applicable to the facts of instant case, as the question involved in this petition is not of a “case decided”, rather the question is maintainability of second revision after the order passed by the learned revisional Court. The petitioner filed a revision petition before the learned revisional Court under Section 115 of the, CPC against the acceptance of an application under Order IX Rule 13 of the, CPC moved by the respondents-defendants and along with revision petition an application for stay of proceedings of learned trial Court as well as grant of injunction against the alienation of suit property by the respondents and injunction with regard to interference into the possession of petitioner was moved, which was declined, hence, this revision petition u/S. 115 of the CPC. I am clear in my mind that second revision petition is not competent. An order passed u/s 115 of the, CPC by the revisional Court is not further challengeable through a revision petition filed u/S. 115 of the CPC before this Court. In these circumstances, the instant civil revision being not competent stands dismissed in limine.

(M.M.R.) C.R. dismissed

PLJ 2019 Lahore 271 (DB) [Rawalpindi Bench Rawalpindi]

Present: Muhammad Qasim Khan and Muhammad Tariq Abbasi, JJ.

AHMAD KHAN--Petitioner

versus

ADDITIONAL SESSIONS JUDGE, TALAGANG and 4 others--Respondents

W.P. No. 2531 of 2018, decided on 19.2.2019.

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

----S. 435--Standing Medical Board--Revisional Jurisdiction--An Executive order--Petitioner filed an application before learned Judicial Magistrate, for constitution of Medical Board for re-examination of injured, said application was dismissed, where-after, a criminal revision filed by petitioner also met same fate vide order passed by learned Additional Sessions Judge-Dismissing application for constitution of medical board, is administrative order and thus not revisable under Section 435, Cr.P.C.--An order of Judicial Magistrate allowing or dismissing an application for medical re-examination of injured being an executive order, is not amenable to revisional jurisdiction-both injured persons were medically examined almost seven months ago, injuries sustained by victims are covered under Sections 337-F(i), 337F(ii) and 337-L(ii), PPC, after such long with all probability wounds must have healed up, therefore, it would be a futile effort to get them medically re-examined at this belated stage. [Pp. 273 & 278] A & D

2010 YLR 2772; 2010 PCrLJ 1799; PLD 2007 Lahore 176; PLJ 1997 Lahore 1568; 2017 MLD 1828; 2010 YLR 2772; 2010 PCrLJ 1799; PLJ 2001 Cr.C (Lahore) 355; 1984 PCrLJ 2588; PLD 1985 SC 62; 2004 MLD 1401, ref.

Powers of Magistrate--

----Under Criminal Procedure Code a Magistrate is entrusted with diverse duties and in discharging same, does not always function as a Court, conducts judicial proceedings or is amenable to revisional jurisdiction--Some of his powers and duties under Code are administrative, executive or ministerial and he discharges these duties not as a Court but as a persona designata--Mere name or designation of a Magistrate is not decisive of question because at some times Magistrates perform their duties by applying their judicial minds but these proceedings are administrative in nature and some time their orders are judicial orders and guiding principles have been settled by superior Courts in this respect.

[P. 276] B

Executive Order--

----Re-examination of injured persons--Revisional jurisdiction--An order of Judicial Magistrate allowing or dismissing an application for medical re-examination of injured being an executive order, is not amenable to revisional jurisdiction--Petition was dismissed.

[P. 278] C

Mr. Saad Bin Safdar, Advocate for Petitioner.

Mr. Zaheer Ahmad Malik, Advocate for Respondents.

Mr. Qaisar Abbas Shah, Assistant Advocate General.

Mr. Ansar Nawaz Mirza, Advocate as amicus curiae.

Date of hearing: 19.2.2019

Order

The facts relevant for the decision of instant writ petition are that Mehr Bhari/Respondent No. 3 got lodged an FIR No. 67/2018 dated 1.9.2018 against Ahmad Khan (petitioner) and others, for offences under sections 337-F(i), 337-F(ii), 337-L(ii), 34 PPC at police station Lawa, Tehsil Talagang, alleging that she as well as her daughter Sharifan Khatoon were inflicted injuries by the accused persons with their respective weapons. Sharifan Khatoon and Mehr Bhari were medically examined on 22.7.2018 through MLC No. 318/2018 and MLC No. 319/2018, respectively. The petitioner was of the view that injuries were self inflicted, as such, he filed an application before the learned Judicial Magistrate Section 30-Talagang, for constitution of Medical Board for re-examination of both the injured, the said application was dismissed vide order dated 12.09.2018, where-after, a criminal revision filed by the petitioner also met the same fate vide order dated 17.09.2018 passed by learned Additional Sessions Judge, Talagang, by observing that the order of learned Judicial Magistrate dismissing application for constitution of medical board, is administrative order and thus not revisable under section 435 Cr.P.C. In support of his observations the learned Additional Sessions Judge placed reliance on “Mehmood Ali versus Khadim Hussain alias Bagh Ali and 3 others” (2010 YLR 2772) and “Muhammad Shafi versus Munir Ahmad and another” (2010 P.Crl.L.J.1799)

1. The above two orders have been assailed through the instant writ petition and the learned counsel for the petitioner while arguing the case referred the case “Muhammad Iqbal versus Additional Session Judge, Khanewal and another” (2004 MLD 1401) and contended that in this cited judgment, it has been held that criminal revision filed against an order of Magistrate refusing to constitute a Medical Board, is revisable. Since on the same question of law divergent views of this Court were available, therefore, pursuant to the order dated 25.10.2018 the learned Single Bench referred the matter to the Hon’ble Chief Justice, as a result whereof, the same was ordered to be listed before the Division Bench, hence, this order.

2. We have heard the arguments of learned counsel for the private parties, the learned law officer as well as the learned amicus curiae and also examined the case law cited from respective sides. The gist of cases, wherein, under specific facts and circumstances the orders passed by the Magistrate have been held to be judicial orders, is given below:--

i. “Muhammad Iqbal versus Additional Session Judge, Khanewal and another” (2004 MLD 1401).

This is a case wherein, application for constitution of Medical Board to re-examine the injured moved after 26 days of the medical examination, was dismissed on the ground that after such long time medical board could not be constituted for re-examination; a revision filed against said order was allowed by Additional Sessions Judge. The revisional order was assailed before this Court on the ground that order passed by Ilaqa Magistrate being an executive order, no revision could be filed, but this argument was rejected and writ petition was dismissed.

ii. “Mansab Ali versus Asghar Ali Faheem Bhatti and 3 others” (PLD 2007 Lahore 176)

In this case application for exhumation of grave was dismissed by the Judicial Magistrate, where-against a revision was filed, which was allowed by remanding the case. In post remand proceedings, the said application was accepted by the Judicial Magistrate, which order was again challenged in criminal revision and the same was dismissed by learned Additional Sessions Judge, where-after, a writ petition filed before this Court, was also dismissed. This matter was about exhumation of graveyard and proceedings were carried out under section 176 Cr.P.C., thus the facts of the said case are clearly distinguishable from the facts of the instant case.

iii. “Muhammad Anwar versus Dr. Ghulam Murtaza” (PLJ 1997 Lahore 1568).

This is a case wherein, the matter was directly brought to the High Court through writ petition and in the light of relevant notifications it was held that District Medical Board can only examine such cases on judicial orders of District Magistrate, but no parameters or differences between the judicial or executive orders were discussed.

iv. “Muhammad Rizwan versus The State and others” (2017 MLD 1828)

In this case, application for medical examination of the injured had been turned down by the Magistrate and the criminal revision filed against said order was dismissed by Additional Sessions Judge on the ground of maintainability, however, both the above orders were set-aside by this Court, but the question whether the order of Magistrate is judicial or an executive order and whether criminal revision is maintainable or not, was not discussed in this case and only the question of limitation for moving an application for re-examination of injured, was discussed.

Following are that cases wherein, the orders passed by the Courts have been declared to be executive orders:--

i. “Mehmood Ali versus Khadim Hussain alias Bagh Ali and 3 others” (2010 YLR 2772)

In the cited case, application for re-examination of the injured was dismissed by Judicial Magistrate and criminal revision filed before Additional Sessions Judge had been turned down, where-after, writ petition was filed before this Court on the ground that order passed by the Ilaqa Magistrate is executive order and could not be assailed through revision petition. The writ petition was dismissed but no reasons for it being a judicial order were discussed and the writ petition was decided on the ground that learned counsel for the petitioner could not establish that the order of Magistrate is executive order. It appears that the said writ petition was dismissed in limine, as neither the state was represented nor any counsel for other respondents has been marked present.

ii. “Muhammad Shafi versus Munir Ahmed and another” (2010 P.Cr.L.J. 1799)

This is a case wherein the Magistrate had allowed the injury sustained by the complainant to be verified by the Medical Board. The said order was however, set-aside by Sessions Court while allowing a criminal revision. Ultimately this Court while accepting Criminal Miscellaneous application, set-aside the order of the Sessions Court by holding that the order of Magistrate being an administrative order could not be challenged through a revision petition.

iii. “Nasreen Bibi versus Nazeer Ahmad and another” (PLJ 2001 Cr.C (Lahore) 355).

In this case, when police applied for remand of an accused, the Magistrate converted offence from 354 PPC to 354-A PPC, which order was challenged in criminal revision which was allowed by Additional Sessions Judge and the order of the Magistrate was set-aside. This Court however, while allowing Criminal Miscellaneous application quashed the order of Additional Sessions Judge, by holding that revision against the said order of the Magistrate was not maintainable and that power of revision could be exercised only when a proceeding is pending before any inferior criminal Court

1. After going through the above case law, there remains no doubt that under the Criminal Procedure Code a Magistrate is entrusted with diverse duties and in discharging the same, does not always function as a Court, conducts judicial proceedings or is amenable to the revisional jurisdiction. Some of his powers and duties under the Code are administrative, executive or ministerial and he discharges these duties not as a Court but as a persona designata. Mere name or designation of a Magistrate is not decisive of the question because at some times the Magistrates perform their duties by applying their judicial minds but these proceedings are administrative in nature and some time their orders are judicial orders and the guiding principles have been settled by the superior Courts in this respect.

2. After careful study of case law on the subject, especially the case “Bahadur and another versus The State and another” (PLD 1985 Supreme Court 62) and the definitions provided in Black’s Law Dictionary VIth Edn, we can further summarize the situation in the manner that while drawing bifurcation between the two orders, whether the same are judicial or administrative in nature, the Court must keep in mind the following conditions:--

Traits of Judicial Order.

(i) There must be power to hear and determine a controversy;

(ii) There must be power to make a binding decision (sometime subject to appeal) which may affect the person or property or other rights of the parties involved in the dispute;

(iii) It must involve the doctrine of res-judicata which has been held not to apply to the exercise of administrative powers;

(iv) It must touch the doctrine of functus officio which has been held not to apply to prevent the exercise of administrative powers;

(v) It must be binding and conclusive in so far as it cannot be impeached in collateral proceedings and it cannot in general be rescinded by the tribunal itself.

Traits of Administrative Order.

(i) Administrative functions consist of those activities which are directed towards the regulation and supervision of public affairs and the initiation and maintenance of the public services;

(ii) An administrative order is potentially open to attach for any material error of law or fact in either direct or collateral proceedings;

(iii) It cannot constitute res-judicata;

(iv) It may always be rescinded by the body making it.

Now, when we gauge the impugned order dismissing the application for re-examination of an injured, on the touchstone of above criterion, there remains no ambiguity that it definitely falls in the second category i.e. administrative order, for the reason that while passing such an order by the Court, definitely no lis was pending before the learned Judicial Magistrate, he was not functioning as criminal Court, it was not obligatory for the said Magistrate to hear the parties before making such an order, there was no conclusive decision given and, no finality or irrevocability was attached to it. As such, the order passed by the Ilaqa Magistrate was clearly missing the necessary characteristics of being a judicial order, as a consequence whereof; against the same order the revisional jurisdiction was not available to the learned Additional Sessions Judge.

1. So far as the case “Muhammad Aslam, etc versus The State” (Writ Petition No. 3780 of 2010) authored by one of us, is concerned, I have gone through the entire judgment and observe that the same was based on a judgment reported as “Ghulam Sarwar and another versus The State” (1984 P Cr. L J 2588), wherein, with reference to physical remand order, certain guidelines were setforth, including that the Magistrate shall forward a copy of his order passed under section 167, Cr.P.C. to the Sessions Judge concerned and the Sessions Judge could examine the same under section 439-A Cr.P.C. From perusal of this judgment, it appears that as liberty of the citizen is an important consideration under the law, during investigation delivering custody of the accused to the police, the Magistrates have to be more conscious and it was directed in the judgment that copy of physical remand order be sent to the Sessions Judge and under section 439-A Cr.P.C. read with section 435 Cr.P.C. when record of any proceedings is available

before the Sessions Judge, he could examine its legality and propriety, etc. Therefore, the case referred by the learned counsel for the petitioner has arisen out of specific facts and circumstances, thus, has no binding impact on the facts of the case in hand.

1. For what has been discussed above, we are convinced that an order of Judicial Magistrate allowing or dismissing an application for medical re-examination of the injured being an executive order, is not amenable to revisional jurisdiction. Thus, the order dated 17.09.2018 passed by the learned Additional Sessions Judge, Talagang dismissing the criminal revision filed against the order of the Judicial Magistrate dated 12.09.2018 dismissing application for constitution of medical board, is held to be based on perfect application of law. The instant writ petition is dismissed.

2. Apart from above legal position, it is observed that the alleged occurrence took place on 01.09.2018, both the injured persons were medically examined on 22.07.2018 and now almost seven months have passed, the injuries sustained by the victims are covered under sections 337-F(i), 337F(ii) and 337-L(ii) PPC, after such long with all probability the wounds must have healed up, therefore, it would be a futile effort to get them medically re-examined at this belated stage. However, during the trial the doctor who had medically examined these victims must be appearing before the learned trial Court, where the accused party would have ample opportunity to cross-examine him on the above aspects.

(K.Q.B.) Petition dismissed

PLJ 2019 Lahore 278 (DB)

Present: Qazi Muhammad Amin Ahmed and Ch. Mushtaq Ahmad, JJ.

Mst. IQBAL BANO--Petitioner

versus

HOME DEPARTMENT & 2 others--Respondents

W.P. No. 33857 of 2016, decided on 6.12.2018.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional Petition--Pakistan Penal Code, (XLV of 1860), S. 302(a)--Sentence to death--Criminal appeal dismissed--Review Petition--Dismissed--Death penalty was maintained--Refusal of clemency--Issuance of black warrant--Challenge through write petition--Dismissed--Motion resting regarding mental incapacity before Session Judge--Examined by Medical Board--Opinion of Medical Board--Criminal miscellaneous--Dismissed--It is certainly not for this Court to adjudicate upon \ polemical divide on different sentencing doctrines or morality of death penalty, widely practiced in many judicial systems, however, petitioner’s plea can be gone into without undertaking any academic discussion or exercise.] Amongst corporal sentences, penalty of death has its own unique punitive impact upon its recipient; unlike incarceration it terminates immediately upon its execution; death being ultimate instrument of fear, impending consequences are ante-mortem in nature; not only for condemned prisoner but upon its surroundings as well--Once a case is finally decided by Supreme Court of’ Pakistan, it would be far less than expedient for High Court to reopen issue so as to take a different view on any ground whatsoever--Petition was dismissed. [Pp. 280 & 281] A & B

PLD 2017 SC 18, ref.

Barrister Sarah Belal assisted by Barrister Raja Hashim Javed, Ms. Zainab Mehboob and Mr. Muhammad Iftikhar Ahmad Zubair, Advocates for Petitioner.

Mr. Muhammad Iqbal Sabri, A.A.G. with Muhammad Afsar Khan, Medical Officer, Central Jail.

Date of hearing: 6.12.2018.

Order

Indicted for homicide, petitioner’s son, Khizar Hayat was tried by a learned Addl. Sessions Judge at Lahore; he was returned a guilty verdict vide judgment dated 2-4-2003; convicted under clause (a) of section 302 of the Pakistan Penal Code 1860, he was sentenced to death; his appeal met with no better fate before a learned Division Bench; Murder Reference No. 467 of 2003 was answered in affirmative; Crl. Appeal No. 590 of 2009 filed by the convict before the Supreme Court of Pakistan was dismissed on 23-9-2010; penalty of death was maintained, albeit under clause (b) of the section ibid; his last ditch effort failed to bear fruit when review petition faced dismissal on 20-6-2011. Refusal of clemency by the President foreclosed all temporal avenues. Consequent upon his failures, a black warrant for his execution was finally issued, vires whereof, were challenged through W.P. No. 18275 of 2015, dismissed on 18-6-2015. Once again, on a motion resting upon convict’s stated mental incapacity/trauma, the execution was suspended by the learned Sessions Judge Lahore; the convict was interviewed/examined by a Medical Board comprising of six members; for the convenience of reference, opinion of the board is reproduced below:

“On examination he is communicative, most of his answers to the questions are relevant but gets irrelevant in between. He also exhibited his delusional thoughts during his conversation. However his orientation about time place and person was intact. He has insight into his offence, its repercussions and his judgment is not presently impaired. He has been taking antipsychotic medicines in Jail Hospital. The Board is of the unanimous opinion that he is found to be suffering from psychosis (most probably Schizophrenia). When the questions about “WILL” are asked from him, he is able to comprehend the questions and answers appropriately at present.”

Opinion of the Board was pressed into service to highlight “psychosis” as a factor to ward off execution of death penalty, however, criminal miscellaneous petition moved on convict’s behalf was finally dismissed on 24-10-2016 and it is in this backdrop that petitioner in her second approach to this Court seeks abeyance of her son’s execution till his return to normalcy.

1. Learned counsel for the petitioner contends that various medical examinations conducted by most accomplished psychiatrist unambiguously confirm convict’s suffering from psychosis and as such his execution would not only be a dehumanizing act but also violation of Pakistan Prisons Rules 1978; she argued that convict’s incarceration since the year 2001 has inflicted grievously incisive trauma, irreversible in nature and, thus, given the magnitude of ordeal already suffered, the impugned execution would be most inexpedient in circumstances. The learned Law Officer has contested the plea on the ground that all the tribunals unanimously held the convict guilty of a most heinous crime and thus he cannot escape the consequence of his crime by pleading psychological implications concomitant thereof.

2. Heard. Record perused.

3. Chequered history of the case spreading over almost two decades, by itself does not mitigate the enormity of convict’s guilt; he is awarded a legal sentence, execution whereof, has been delayed by motions on his behalf and, thus, cannot be viewed as a circumstance converging on his side.

It is certainly not for this Court to adjudicate upon polemical divide on different sentencing doctrines or morality of death penalty, widely practiced in many judicial systems, however, petitioner’s plea can be gone into without undertaking any academic discussion or

exercise. Amongst the corporal sentences, penalty of death has its own unique punitive impact upon its recipient; unlike incarceration it terminates immediately upon its execution; death being the ultimate instrument of fear, impending consequences are ante-mortem in nature; not only for the condemned prisoner but upon its surroundings as well; these are viewed retributive as well as deterrent, described as ‘Death Row Phenomena’. Knowledge of befalling death inexorably ignites mental/emotional trauma; it is a journey into the unknown with obsessions shuttling between hope and despair; tales of chivalry notwithstanding, a person bracing the gallows cannot remain oblivious to the uncertainty lurking behind his encounter with fate. This most agonizing experience would inevitably take its toll even on the most strong nerves and, thus, psychosis is an obvious outcome; the longer the period the more profound it is; this most debilitating consequence is the very genesis of death penalty and cannot be cured without abolishing the penalty itself and, thus, cannot be pleaded as a ground for suspension of black warrant till return of normalcy, never to come about during life time of the convict.

The issue came under consideration in the case of Safia Bano vs. Home Department, Government of Punjab and others (PLD 2017 Supreme Court 18) wherein emotional disorders of like nature were not viewed as factors sufficient to impede execution. Even otherwise, once a case is finally decided by the Supreme Court of’ Pakistan, it would be far less than expedient for the High Court to reopen the issue so as to take a different view on any ground whatsoever. W.P. No. 33857 of 2016 fails. Petition dismissed. Copy of this order be transmitted to the learned Sessions Judge Lahore.

(Y.A.) Petition dismissed

PLJ 2019 Lahore 281 (FB)

Present: Muhammad Qasim Khan, Sayyed Mazahar Ali Akbar Naqvi and Ch. Abdul Aziz, JJ.

Mst. NAZIA--Petitioner

versus

STATE through SHO, etc.--Respondents

Office Objection Diary No. 245164 of 2018, decided on 18.3.2019.

Constitution of Pakistan, 1973--

----Art. 199--Pakistan Penal Code, (XLV of 1860), S. 365(b)--Constitutional Petition--Lodging of FIR--Abductee of--Quashing of FIR--Office objection--Maintainability--Jurisdiction Initiation of proceedings--Aggrieved party--There can be no difference of opinion that jurisdiction of this Court is conceived and regulated through Article 199 of Constitution of Islamic Republic of Pakistan, 1973 and it is sine qua non for initiation of proceedings under Article 199 of Constitution that petitioner should have a locus standi to institute proceedings or in other words petitioner should be an aggrieved party from impugned action--Petitioner (abductee) or any witness of FIR, cannot be termed as “aggrieved party” as by no stretch of imagination it can be said that any of their fundamental right is infringed by registration of FIR; they have suffered any loss; they have been wrongfully deprived or refused something which they were legally entitled to, or any restriction has been imposed upon them--Consequently, we hold that abductee/witness do not fall within definition of “aggrieved party” to maintain a writ petition to seek quashing of FIR--Petition was dismissed.

[Pp. 282 & 284] A & B

PLD 1969 SC 223, 2014 SCMR 122 & PLD 2007 SC 52, ref.

Ch. Zulfiqar Ali Vahla, Advocate for Petitioner.

Rana Tassawar Ali Khan, Additional Advocate General and Ch. Sarfraz Ahmad Khatana, Deputy Prosecutor General on Court’s call.

Date of hearing: 18.3.2019.

Order

Mst. Nazia (petitioner) who is an abductee of case FIR No. 565/2018 registered under Section 365-B, PPC at police station Ferozewala, District Sheikhupura, through the instant writ petition has sought quashing of said FIR on multifarious grounds, but the office has raised objection on maintainability of constitutional petition for quashing of FIR, by an abductee/witness. This is the precise question before us.

1. We have heard the respective arguments of learned counsel for the parties.

2. Although the jurisdiction of this Court under Article 199 of the Constitution in the matters relating to quashing of FIRs, is almost settled, but leaving that aspect aside, we would confine ourselves to the legal question (objection) before us. There can be no difference of opinion that jurisdiction of this Court is conceived and regulated through Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 and it is sine qua non for initiation of proceedings under Article 199 of the Constitution that the petitioner should have a locus standi to institute the proceedings or in other words the petitioner should be an aggrieved party from the impugned action. Pivotal judgment of the apex Court on this issue is “Mian Fazal Din v. Lahore Improvement Trust, Lahore” (PLD 1969 SC 223). In another case titled “Dr. Imran Khattak and another v. Ms. Sofia Waqar Khattak, PSO To Chief Justice and others” (2014 SCMR 122) the Hon’ble Supreme Court of Pakistan held as follows:

“It would exercise such jurisdiction under Article 199(l)(a)(i), (ii) and (c) on the application of an aggrieved person while under 199(l)(b)(i) & (ii) on the application of any person whether aggrieved or not, and not on an information or on its own knowledge. In the case of “Tariq Transport Company, Lahore v. Sargodha Bhera Bus Service and others” (PLD 1958 SC (Pak) 437), this Court held that a High Court was not competent merely on an information or on its own knowledge to commence certiorari proceedings or other proceedings of a similar nature under Article 170 of the Constitution of Islamic Republic of Pakistan, 1956. In the case of “Fazl-e-Haq, Accountant General, West Pakistan v. The State” (PLD 1960 SC (Pak) 295), this Court reiterated the view by holding that the extraordinary jurisdiction relating to a writ could only be exercised by the High Court when moved by a party whose legal rights have been denied”

Moreover, in “Hafiz Hamadullah v. Saifullah Khan and others” (PLD 2007 SC 52) the apex Court held as follows:

“With regard to the first objection it may be noted that under Article 199(1) (a) of the Constitutional jurisdiction of the High Court can be invoked by an aggrieved person which denotes a person who has suffered a legal grievance, against whom a decision has been pronounced which has wrongfully deprived him or wrongfully refused him something which he was legally entitled to. It is also the requirement that the person invoking the constitutional jurisdiction under Article 199 of the Constitution has to establish that any of his legal or fundamental right guaranteed under the Constitution has been violated resulting in legal loss”

On the above touchstone, the learned counsel were specifically asked as to how the petitioner is aggrieved of registration of an FIR, wherein, she is alleged to be an abductee or may also be called as prosecution’s star witness but surely not an accused of the occurrence reported therein, but the learned counsel have not been able to come out with any answer. We are however convinced that petitioner (abductee) or

any witness of the FIR, cannot be termed as “aggrieved party” as by no stretch of imagination it can be said that any of their fundamental right is infringed by registration of FIR; they have suffered any loss; they have been wrongfully deprived or refused something which they were legally entitled to, or any restriction has been imposed upon them. Consequently, we hold that abductee/witness do not fall within the definition of “aggrieved party” to maintain a writ petition to seek quashing of FIR. The office objection, therefore, is upheld.

(Y.A.) Order accordingly

PLJ 2019 Lahore 284 (DB)

Present: Shahid Jamil Khan and Asim Hafeez, JJ.

ABDUL GHANI--Appellant

versus

FEDERATION OF PAKISTAN & others--Respondents

I.C.A. No. 98311 of 2017 in W.P. No. 13139 of 2016, decided on 6.2.2019.

Law Reforms Ordinance, 1972 (XII of 1972)--

----S. 3(2)--Sales Tax Act, (VII of 1990), Ss. 11(2)(3), 45-B, 46 & 74--Issuance of--Show cause notice--Allegation of--Tax fraud and masive sales tax evasion during tax period--Determining of tax liability--Extension of time limit--Exercise of Authority--Question whether right of appeal is available under Act against extension of time limit--Determination--Maintainability--Statutory limitations--Challenge to--It transpired that no appeal is provided, either under section 45-B or section 46 of Act against letter dated 25.01.2016 being an original order, impugned in writ petition--It is clear that lapse expiry of limitation curtails a remedy, whereby a past and closed transaction cannot be revived--In this case limitation lapsed was not revived through legislative interference but through an order of executive in garb of powers under section 74 of Act--Respondent No. 2 through purported exercise of authority under section 74 of Act, cannot resurrect a matter, already dead--Wherein reference to “person” or “class of persons” is conspicuously missing - affirm that powers under section 74 can be resorted to for seeking condonation / extension of time limit in cases, already initiated but could not be concluded within specified time period--Section 74 of Act cannot be applied or approached for seeking extension or condonation to revive a past and closed transaction / matter, wherein time-limit had already lapsed--Question of application of time limit under taxing statutes has to be constructed strictly as lapse thereof creates a right in favour of taxpayer, which unless disturbed or taken away by legislature, cannot be placed at discretion of Respondent No. 2--In these circumstances, we declare that letter dated 25.01.2016 is illegal, without jurisdiction and of no legal effect including all actions taken or proceedings initiated on basis thereof--Appeal was accepted.

[Pp. 287, 294 & 295] A, B, C, D, E & F

PLD 1963 SC 322, ref.

Mr. Muhammad Naeem Shah, Advocate for Appellant.

M/s. Ch. Liaqat Ali and Foziya Bukhsh, Advocates for Respondent-Department.

Date of hearing: 5.11.2018.

Judgment

Asim Hafeez, J.--This Intra-Court Appeal (“appeal”) arises out of the order dated 12.10.2017, whereby learned single Judge-in-Chambers dismissed the Writ Petition filed by the appellant.

1. Briefly the facts, necessary for the adjudication of the lis at hand are that a show-cause notice (“notice”) dated 29.02.2016, under sub-section (2) and subsection (3) of section 11 of the Act - as amended through Finance Act 2012- was issued to the appellant, alleging tax fraud and massive Sales Tax evasion during the tax period from July 2001 to June 2005. Notice disclosed that Respondent No. 2, i.e. Federal Board of Revenue, had condoned/extended the time limit under section 74 of the Act vide letter dated 25.01.2016, which was, inter alia, impugned through writ petition. During the pendency of said petition, the Respondent No. 6 passed order-in-original dated 25.04.2016, determining tax liability, whereafter the petition was dismissed vide order dated 12.10.2017, on the ground that an alternate remedy by way of appeal was available under the Act against the Order-in-Original. Hence, this appeal.

2. Learned counsel for the appellant submits that condonation/extension of time limit under section 74 of Sales Tax Act, 1990 in purported exercise of authority by Respondent No. 2 was illegal and without jurisdiction as same had no authority to resurrect matter otherwise time barred. And all subsequent actions are of no legal effect. Learned counsel, added, that writ petition was dismissed without appreciating that no remedy was available in terms of section 45-B or 46 of the Act, against the order / decision of the FBR, purportedly, in the garb of section 74, ibid. Reliance was placed on judgments reported as “The Collector Of Sales Tax, Gujranwala and others vs. Messrs Super Asia Mohammad Din and Sons and others” (2017 PTD 1756), Commissioner Of Income Tax vs. Messrs Eli Lilly Pakistan (Pvt.) Ltd.” (2009 SCMR 1279), “Nagina Silk Mill, Lyallpur vs. The Income-Tax Officer, A-Ward Lyallpur and The Income-Tax Appellate Tribunal, Pakistan” (PLD 1963 SC 322), “Additional Commissioner Inland Revenue, Audit Range, Zone-I and others vs. Messrs Eden Builders Limited and others” (2018 PTD 1474), “Commissioner Inland Revenue FBR through Commissioner Inland Revenue vs. Messrs ICI Pakistan” (2017 PTD 1606) and “Commissioner Inland Revenue vs. Messrs Lucky Plastic Industries (Pvt.) Ltd. and others” (2017 PTD 2284).

3. The learned counsels, appearing for the department/ respondent, at the outset, objected to the maintainability of this appeal in view of proviso to sub-section (2) of section 3 of the Law Reforms Ordinance 1972 (“Ordinance of 1972”), alleging that right of appeal was provided under the Act. Learned counsels argue that the appellant had committed “tax fraud” and was responsible for massive sales tax evasion, by illegally engaging into manufacturing and business of sale of collars; hence, there is no question of limitation. Reliance was placed on following judgments reported as “Messrs Paramount Spinning Mills Ltd. v. Customs, Sales Tax And Central Excise Appellate Tribunal and another”, (2012 SCMR 1860), “Syed Mehmood Ali Shah v. Zulfiqar Ali and 5 others” (PLD 2013 SC 364).

4. Arguments heard. Available record perused.

5. We tend to deal with the objection of maintainability first. In the facts and circumstances of the case, learned counsel’s reliance on proviso to sub-section (2) of section 3 of the Ordinance of 1972, ibid, appears to be misplaced. The simple test, to determine the maintainability of instant appeal, is to find that whether any appeal, revision of review is available under the law applicable - Sales Tax Act 1990 - against the original order - which in this case was the decision by Respondent No. 2 vide letter dated 25.01.2016. In this behalf a reference is made to the relief substantially claimed, besides claiming ancillary / consequential reliefs, by the appellant through the petition, which is reproduced hereunder;

“Under the circumstances it is prayed that Order dated 25/01/2016 passed by Respondent No. 3 may very kindly be declared without lawful, authority and of no legal effect.

(emphasis underlined)

1. Whether right of appeal is available under the Act against condonation/extension of time-limit allowed vide letter dated 25.01.2016 under section 74 of the Act, if so, then issue of maintainability is worth attending. Upon perusal of the Act, it transpired that no appeal is provided, either under section 45-B or section 46 of the Act against the letter dated 25.01.2016 - ‘being an original order -, impugned in the writ petition. For reference sub-section (2) of section 3 of the Ordinance of 1972, section 45-B and 46 of the Act are reproduced hereunder;

“2. An appeal shall also lie to a Bench of two or more Judges of a High Court from an order made by a Single Judge of that Court under [clause (1) of Article 199 of the Constitution of the Islamic Republic of Pakistan] not being an Order made under sub-paragraph(i) of paragraph (b)of that clause:

Provided that the appeal referred to in this sub-section shall not be available or competent if the application brought before the High Court under Article [199] arises out of any proceedings in which the law applicable provided for at least one appeal or one revision or one review to any Court, Tribunal or authority against the original order”, (emphasis supplied)

Section 45-B of the Act:

“45-B. Appeals.--[(1) Any person, other than the Sales Tax Department, aggrieved by any decision or order passed under sections 10,11, 25, 36, or 66, by an officer of Inland Revenue may, within thirty days of the date of receipt of such decision or ordef, prefer an appeal to the Commissioner Inland Revenue (Appeals):

Provided that an appeal preferred after the expiry of thirty days may be admitted by the Commissioner Inland Revenue (Appeals) if he is satisfied that the appellant has sufficient cause for not preferring the appeal within the specified period:

Provided further that the appeal shall be accompanied by a fee of one thousand rupees to be paid in such manner as the Board may prescribe”.

Section 46 of the Act:

“46. Appeals to Appellate Tribunal.-- [(1) Any person including an officer of [Inland Revenue] not below the rank of an Additional [Commissioner], aggrieved by any order passed by--

(a) the [Commissioner Inland Revenue] (Appeals) under section 45B, (b) the [Commissioner Inland Revenue] through adjudication or under any of the provisions of this Act or rules made thereunder, (c) the Board under section 45A, may, within sixty days of the receipt of such decision or order, prefer appeal to the Appellate Tribunal.]

1. In the absence of any appeal provided, this appeal is maintainable. We are fortified in our opinion in view of the judgment by the August Supreme Court of Pakistan reported as “Mst. Wazir Begum v. Member Board Of Revenue/Chief Settlement Commissioner and others” (2000 SCMR 989) and “Secretary To The Government Of Punjab, Revenue Department and others vs. Sajjad Ahmad and others” (2012 SCMR 114) relevant portion thereof is reproduced hereunder:

“6. Sheikh Zamir Hussain, learned Senior Advocate Supreme Court for the respondents when confronted with the question of maintainability of the I.C.A., candidly stated that the remedy of appeal in terms of section 54 of the Act of 1894 was not available to the parties, therefore, dismissal of I.C.A. on this ground qua reference to section 3(2) of the Law reforms Ordinance 1972, was due to erroneous view formed by the learned Division Bench”.

1. The issue is that whether the powers conferred in terms of section 74 of the Act can be stretched to resurrect time-limit - for filling any application or doing anything or act
2. already expired. The controversy hinges on the scope of section 74 of the Act. It is pertinent to mention that notices, in this case, were issued under sub-sections (2) & (3) of section 11 of the Act - substituted by Finance Act 2012 -with respect to tax period from July 2001 to June 2005. In terms of sub-section (5) of section 11 of the Act, no order can be passed by office of Inland Revenue (OIR) unless a show-cause notice is given within five years of relevant date - which in terms of explanation under sub-section (7) of section 11 of the Act means the time of payment of tax or charge as provided under section 6 of the Act. And relevant date, for the purposes of determining / fixing liability for the tax period from July 2001 to June 2005, would be June 2005 in terms of section 11(5), which means that a notice under section 11 of the Act can be issued by or before June 2010, only then sub-sections (2) & (3) of section 11 of Act can be invoked.

In this case notice was issued on 29.02.2016, after time-limit was condoned/extended by Respondent No. 2 under section 74, ibid, through letter dated 25.01.2016. The controversy boils down to one critical question, that whether Respondent No. 2 can condone time-limit for the purposes of issuance notice under sub-sections (2) & (3) of section 11-ibid, - allegedly claiming powers under section 74 of the Act. It is expedient to reproduce it and which reads as;

“74. Condonation of time-limit:--Where any time or period has been specified under any of the provisions of the Act or rules made thereunder within which any application is to be made or any act or thing is to be done, the [Board] may, in any case or class of cases, permit such application to be made or such act or thing to be done within such time or period as it may consider appropriate”.

1. The controversy before us does not extend to the determination of validity/legality of notice dated 29.02.2016 but whether time-limit can be condoned/extended for doing a thing or act after the time limit otherwise provided had already expired. The time-limit prescribed in terms of sub-section (5) of section 11 or for that matter under sub-sections (1) & (2) of erstwhile section 36 of the Act - omitted through Finance Act 2012 - are statutory time limits and must be treated as jurisdictional, as any act beyond time-limit specified, would take said matter out of jurisdiction of an authority or Court, as the case may be. The time limit provided in above-noted sections has to be treated as jurisdictional and not procedural. A paragraph is quoted from a book “Judicial Review of Public Actions” by Justice Fazal Karim, Volume-I page 601, which reads as under:

“For, by ignoring the law of limitation, it will itself be going outside the jurisdiction conferred upon it. The correct view, it is submitted with great respect, is the one expressed by the US Supreme Court in Schacht v. US namely that statutory time-limits must be treated as jurisdictional in the sense that in out-of-time matters the Court is without jurisdiction to hear them”.

Relevant portion of judgment reported as “Daniel Jay Schacht vs. United States” (44 U.S. Supreme Court Reports 26 L Ed 2d) is reproduced hereunder:

“[5] The Government’s brief and argument seriously contend that this Court is without jurisdiction to consider and decide the merits of this case on the ground that the petition for certiorari was not timely filed under Rule 22(2) of the rules of this Court. This Rule provides that a petition for certiorari to review a Court of appeals judgment in a criminal case “shall be deemed in time when ... filed with the clerk within thirty days after the entry of such judgment.” We cannot accept the [398 US 64]

View that this time requirement is jurisdictional and cannot be waived by the Court. Rule 22(2) contains no language that calls for so harsh an interpretation, and it must be remembered that this rule was not enacted by Congress but was promulgated by this Court under authority of Congress to prescribe rules concerning the time limitations for taking appeals and applying for certiorari in criminal cases. See 18 USC 3772; rule 37, Fed Rules Crim Proc. The procedural rules dopted by the Court for the orderly transaction of its business are not jurisdictional and can be relaxed by the Court in the exercise of its discretion when the ends of justice so required”.

1. Interpretation of section 74 of the Act, came under discussion in a recent Judgment by the August Supreme Court of Pakistan reported as Messrs Super Asia Mohammad Din and Sons (2017 PTD 1756), relevant portion whereof is reproduced hereunder;

“12. As regards the reliance placed on section 74 of the Act, it provides that where a time frame has been stipulated in the Act within which an act or thing is to be done, the Board, or the Commissioner notified by the Board, are empowered to permit such act or thing to be done within such time period as they may consider appropriate. Passing an order under section 36(3) of the Act is certainly an act or thing to be done under the Act. Therefore, the Board (which expression shall hereinafter include Commissioner notified by the Board) has the power under Section 74 of the Act to permit the passing of an order under the aforesaid section within such time period as it may consider appropriate. While applying the principles of harmonious construction, we find that the proviso is restricted in its application to the section it is attached to, whereas section 74 of the Act is of general applicability and shall apply to all the provisions of the Act and the rules framed thereunder. This provision will undoubtedly have an overriding effect over the first proviso to Section 36(3) supra and can be held to be an exception thereto. The purpose of section 74 supra is to give a separate overriding power to the Board to permit any act or thing to be done under the statute within such time period as it may deem appropriate, which undoubtedly is independent of any other provision of the Act which provides a time frame. To restrict the time period that can be granted under section 74 supra to the maximum period available under the first proviso to section 36(3) of the Act would render the former absolutely redundant and superfluous, which cannot be countenanced under the settled rules of interpretation which do not allow such redundancy to be attributed to the legislative intent. Therefore, where the Board has permitted the passing of an order under the proviso within a time frame different from that contained therein, this new time frame shall be deemed to be the relevant one. However, this does not mean that in exercise of its power under section 74 of the Act, the Board will have unfettered and unbridled authority to extend time when, and for however long, it feels it expedient to do so. Rather time would only be extended in certain cases, after application of mind and that too for a reasonable amount of time. For the purposes of settling the reasonable time, we hold that after the expiry of two time periods envisaged by the first proviso to section 36(3) of the Act, i.e. forty-five days [within which the order under section 36 of the Act is to be passed] and a further ninety days [extended period under the first proviso to section 36(3) ibid], the Board should have six months within which it may grant extension of time under section 74 supra which (extension) can also not exceed six months. If the reasonable time mentioned above also lapses, then the rule of past and closed transaction shall apply because it is inconceivable in law that:- (a) the Board would have infinite and unlimited time within which it can grant extensions under section 74 supra; and (b) the Board can grant infinite and unlimited extension under section 74 ibid; to obliterate the vested rights that stand created in favour of the taxpayer on account of such lapse of time”.

1. The August Supreme Court of Pakistan had interpreted section 74 of the Act in the context of first proviso to section 36(3) of the Act in the case of Messrs Super Asia Mohammad Din and Sons (supra) and reinforced the rule of past and closed transaction. Section 74 was interpreted in said context. In the instant matter, no case or notice was issued or pending against the appellant, when condonation / extension of time limit was allowed under section 11(5) of the Act. The proceedings in this case commenced, after the lapse of time limit prescribed, merely on the basis of condonation/extension of time limit by Respondent No. 2 subject to legislative interference, the limitation once commenced cannot be curtailed and likewise once limitation is expired no lease of life can be infused to resurrect said time barred matter. A reference is made to a celebrated principle of limitation, reiterated in a judgment by the August Supreme Court of Pakistan, reported as “Nagina Silk Mill, Lyallpur vs. The Income-Tax Officer and The Income-Tax Appellate Tribunal, Pakistan” (PLD 1963 SC 322), relevant portion from said judgment at page 332 is reproduced hereunder:

“It is a well-recognized principle of the law of limitation that once time begins to run from a specified date it cannot be interrupted or extended unless the Legislature intervenes and makes express provision to the contrary”.

1. Guidance can be sought from another recent Judgment by the August Supreme Court of Pakistan, reported as “Additonal Commissioner Inland Revenue, Audit Range, Zone-I and others vs. M/s. Eden Builders Limits and others” [(2018) 117 Tax 509 (S.C.Pak)]”, - relating to the issue of amendment brought in Section 122(2) of the Income Tax Ordinance 2001 by way of Finance Act, 2009 and its impact on the period of limitation - the Apex Court discussed the significance of the law of limitation in the context of taxing statutes, relevant portion whereof is reproduced hereunder;

“6. From the ratio of the above judgment it can be seen that the law of limitation in so far as it regulates the period in which one party can avail a remedy against another is not to be lightly disturbed as the certainty created by limitation is necessary for the success of trade and business, the more so when that limitation governs tax matters. In the matters in hand, the respondents, at the time of filing their tax returns were aware that these tax returns may be amended in terms of section 122(5A) of the I.T.O., 2001 at any time up to five years from the date of filing of the tax return itself. Thus, their planning in terms of their possible amended and/or revised tax liability would extend for a period of five years from the date of filing of their respective tax returns. After the said five years were up, they could be sanguine that their tax return was now final and they could no longer be burdened with an additional demand. This means that a right related to the law of limitation came to vest in the respondents on the date of filing of their respective returns in terms of the provisions of the original section 122(2). However, the effect of the amendment brought about through the Finance Act, 2009 was to change that original date of commencement of limitation. Instead of limitation commencing on the date of filing of the tax return, 30.12.2008 in the case of appellant in C.A. 2148/2016, limitation was now to commence on the last day of the financial year in which the Commissioner has issued or treated to have issued the assessment order to the taxpayer, which in this particular appeal ibid would have been 1.7.2009. This means that the goal posts themselves were changed by the amendment. It was not that the period of limitation was enhanced to for example 6 years. On the contrary, post amendment too, the limitation period remained five years. Instead, the amended to section 122(2) of the I.T.Q., 2001 changed the commencement date for when limitation would begin to run. And this was not permissible as certain rights had already come to vest in the respondents on the date on which they had filed their tax returns under the original section 122(2) ibid. We are fortified in our view by the ratio of the seminal judgment in Nagina Silk Mills’ case (supra) wherein has been held that:

“The limitation in this case under subsection (2) of section 34 of the Act had started running on the 1st of April 1956, and that fixed the terminal date of the period of four years as the 31st of March 1960, with certainty under the law as it then stood. It is a well-recognized principle of the law of limitation that once time begins to run from a specified date it cannot be interrupted or extended unless the Legislature intervenes and makes express provision to the contrary.

The Courts must lean against giving a statute retrospective operation on the presumption that the Legislature does not intend what is unjust. It is chiefly where the enactment would prejudicially affect vested rights, or the legality of past transactions, or impair existing contracts, that the rule in question prevails.

…….the one that saves vested rights would be adopted in the interest of justice, specially where we are dealing with a taxing statute”, [emphasis supplied]

1. Because the terminal date of limitation is not changing through the amendment brought about through the Finance Act, 2009 and because the period of limitation is not being extended per se therefore the authorities cited by the learned counsel for the appellants are of no avail and are distinguishable. In this view of the matter, hold that the various respondents, who filed their tax returns before the section 122(2) of the I.T.O., 2001 was amended through the Finance Act, 2009 will be governed by section 122(2) ibid as it stood before the amendment and the amendment brought about in the said section through Finance Act, 2009 dated 30.06.2009 will not be attracted to their cases”.

2. We have also examined the judgment reported as “Commissioner Inland Revenue vs. Messrs Lucky Plastic Industries (Pvt.) Ltd. and others” (2017 PTD 2284), which also relates to the question of grant of extension of limitation in terms of erstwhile section 36(3) of the Act, wherein the proceedings were commenced but could not be concluded within time limit allowed to enable the Adjudicating Officer to decide the matter though original limitation therein has expired. The case at hand is distinguishable, as no proceedings/case was pending and the matter was started on the basis of condonation/extension granted by Board under section 74 of the Act.

3. From the ratio of the Judgments it is clear that lapse / expiry of limitation curtails a remedy, whereby a past and closed transaction cannot be revived. In this case limitation lapsed was not revived through legislative interference but through an order of the executive in the garb of powers under section 74 of the Act. Respondent No. 2 through purported exercise of authority under section 74 of the Act, cannot resurrect a matter, already dead.

4. Upon bare perusal of section 74 of the Act and more attentively the expressions “in any case” or “class of cases” wherein reference to “person” or “class of persons” is conspicuously missing - affirm that powers under section 74 can be resorted to for seeking condonation / extension of time limit in cases, already initiated but could not be concluded within the specified time period. The expression “case” as defined in Black’s Law Dictionary Ninth Edition means

5. A civil or criminal proceeding, action, suit, or controversy at law or in equity < the parties settled the case

6. Therefore, section 74 of the Act cannot be applied or approached for seeking extension or condonation to revive a past and closed transaction / matter, wherein time-limit had already lapsed. It is evident from letter dated 25.01.2016 that condonation / extension allowed to initiate proceedings under section 11(5) of the Act, which construction of section 74 if allowed to prevail the statutory time-limit under section 11(5), ibid, - to be ascertained from the relevant date in terms of section 11(7) of the Act-would make the statutory limitation redundant and superfluous. It cannot be the intent of the legislature to make section 11(5) of the Act redundant by conferring power on the Board, in terms of section 74, to bulldoze statutory limitations.

7. The question of application of time limit under taxing statutes has to be constructed strictly as lapse thereof creates a right in favour of taxpayer, which unless disturbed or taken away by legislature, cannot be placed at the discretion of Respondent No. 2. Even otherwise, conferment of such unstructured and arbitrary discretion unto respondent, to pick and choose person(s) at its

will/discretion would offend the principles laid down in case reported as Waris Mean v. The State (1957 PLD SC 157).

1. In these circumstances, we declare that letter dated 25.01.2016 is illegal, without jurisdiction and of no legal effect including all the actions taken or proceedings initiated on the basis thereof.

2. Consequently, this appeal is accepted and order dated 12.10.2017 is set-aside.

(M.M.R.) Appeal accepted

PLJ 2019 Lahore 295 [Rawalpindi Bench Rawalpindi]

Present: Ch. Muhammad Masood Jahangir, J.

UNITED BANK LIMITED--Petitioner

versus

PUNJAB LABOUR APPELLATE TRIBUNAL, etc.--Respondents

W.P. No. 2366 of 2011, decided on 19.2.2019.

Constitution of Pakistan, 1973--

----Art. 199--Industrial Relations Ordinance, 2002, S. 46 2(xxx)--Constitutional Petition--Retirement after superannuation--Receiving of pensionary benefits without objection--Grievance petition--Allowed--Appeal--Dismissed--Jurisdiction--Challenge to--There is no denial that under Section 46 of Ordinance ibid only a Workman as defined under Section 2(xxx) of said Ordinance can invoke jurisdiction of learned Punjab Labour Court--Whereas admittedly Respondent No. 2 was never dismissed, discharged, retrenched and laid-off or otherwise removed from service, rather he remained in job till date of his superannuation, therefore, he was not falling within definition of Worker or Workman, hence learned Labour fora definitely lacked jurisdiction to entertain and decide Grievance Petition, whose orders impugned herein being unlawful, nullity and having no legal authority cannot be sustained--Petition was allowed. [Pp. 296 & 297] A & B

Mr. Faisal Mehmood Ghani, Advocate for Petitioner.

Kh. Muhammad Arif, Advocate for Respondents.

Date of hearing: 19.2.2019.

Judgment

Undeniably, Ch. Muhammad Qayyum, Respondent No. 2 was employed by the writ petitioner, who on attaining superannuation was retired as Officer Grade-Ill from service on 12.07.2007. Pursuant thereto, the pensioner benefits so calculated were received by him without any objection. However, subsequently he filed a Grievance Petition before the learned Labour Court, which was granted on 11th June, 2009 and the Appeal filed by the petitioner to assail it before the Punjab Labour Appellate Tribunal, Lahore was dismissed on 14th June, 2011, hence this Constitutional Petition.

1. The sole argument of learned counsel for the petitioner is that the learned Labour Court lacked jurisdiction to adjudicate upon Grievance Petition of Respondent No. 2, who being a retired employee did not fall within the definition of Workman in terms of Section 2 (XXX) of the Industrial Relations Ordinance, 2002, which was controverted by the learned counsel for Respondent No. 2 with emphasis that both the learned Courts below have already tackled this issue eminently and they were perfect to allow the Grievance Petition of the appellant.

2. There is no denial that under Section 46 of the Ordinance ibid only a Workman as defined under Section 2 (XXX) of the said Ordinance can invoke the jurisdiction of learned Punjab Labour Court and it would be advantageous to reproduce said provision here:

“Worker” and “Workman” means any and all persons not falling within the definition of employer who is employed in an establishment or industry for remuneration or reward either directly or through a contractor, whether the terms of employment be express or implied, and for the purpose of any proceedings under this Ordinance in relation to an industrial dispute includes a person, who has been dismissed, discharged, retrenched, laid-off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay-off or removal has led to that dispute but done not include any person who is employed mainly in a managerial or administrative capacity.”

Its bare perusal has left no doubt in my mind that only an employee in the establishment or industry, who was dismissed, discharged, retrenched, laid-off or otherwise removed from the employment in connection with or as a consequence of some dispute or whose dismissal, discharge, retrenchment, lay-off or removal led to that dispute, whereas admittedly Respondent No. 2 was never dismissed, discharged, retrenched and laid-off or otherwise removed from service, rather he remained in job till date of his superannuation, therefore, he was not falling within the definition of Worker or Workman, hence the learned Labour fora definitely lacked jurisdiction to entertain and decide the Grievance Petition, whose orders impugned herein being unlawful, nullity and having no legal authority cannot be sustained.

1. Consequently, the Writ Petition in hand is allowed, orders under challenge are set aside and the Grievance Petition of Respondent No. 2 is also dismissed, however, the latter may avail his remedy before the available forum.

(Y.A.) Petition allowed

PLJ 2019 Lahore 297

Present: Shujaat Ali Khan, J.

MUHAMMAD HASSAN MUAWIYAH--Petitioner

versus

INSPECTOR GENERAL OF POLICE, PUNJAB, etc.--Respondents

W.P. No. 214966 of 2018 and C.M. No. 2 of 2018, decided on 5.3.2019.

Punjab Holy Quran (Printing and Recording) Act, 2011--

----Ss. 4, 6 & 9--Publication of Questionable material by Non-Muslims--Error free publication of Holy Quran--Responsibility of Punjab Quran Board for recommendation to ensure error free printing and publication--To ensure error-free publication of Holy Qur’an, Qur’an Board is responsible to prepare a standard copy of Holy Qur’an to be used by printers/publishers--In this backdrop, Punjab Qur’an Board inter-alia has most vital role towards error- free printing and publication of Holy Qur’an--As per Section 6 of Act, 2011, any person, publisher or community intentionally found involved in literal distortion of text of an Ayah, is liable to punishment provided under Section 9 of Act, 2011.

[Pp. 313 & 314] A & B

Punjab Holy Quran (Printing and Recording ) Act, 2011--

----R. 8, (14)--Publication of Holy Quran and other religious books of Muslims--Preempting any misadventure on part of non-muslims against pre reservations of original text of holy Quran--A non-Muslim publication of Holy Qur’an--As per mandate of Rule 8(14) ibid neither a non-Muslim by himself can associate with printing/publication of Holy Qur’an nor any publisher can be allowed to associate a non-Muslim in process of printing or publication of Holy Qur’an. [P. 314] C

Constitution of Pakistan, 1973--

----Art. 260(3)--Defination--Muslim and non Muslim Determination--Ahmadis/Lahoris/Quadianis fall within definition of non-Muslims, thus, they are debarred to publish/print religious material by using name of books of Muslims alongwith names of Muslim authors.

[P. 315] D

Punjab Holy Quran (Printing and Recording ) Act, 2011--

----R. 8(11)--Publication of Holy Quran and other religious books of Muslim with names of Muslim Authors--Legislature cognizant of such act--No person, publisher, stockist, proprietor of a recording company can import such material without getting NOC from government--If such material is being imported in Pakistan without such NOC State functionaries are under obligation to have strict check and stern action against person(s)/organization(s) involved in such activities. [P. 316] E

Constitution of Pakistan, 1973--

----Arts. 20 & 36--Fundamental rights--Entitlement of--Fundamental rights being enjoyed by citizens of country are subject to certain restrictions imposed by Constitution itself and other enactments--Further, under garb of freedom of every citizen to follow or propagate his own religion or faith, non-Muslims cannot be allowed to use distinctive characteristics of Muslims to camouflage their identity. [P. 316] F

Pakistan Penal Code, 1960 (XLV of 1860)--

----S. 298(b), (c)--Act of non muslims to use distinctive characteristics of muslim as a cognizable offence--Act of non-Muslims in particular Quadianis, Lahoris and Ahmadis to pose themselves as Muslim or to preach or propagate their faith while showing themselves to be Muslims has also been declared as a cognizable offence. [P. 317] G

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

----S. 154--Restrictions against non-muslim--Public functionaries--Departmental proceedings--It is pathetic state of affairs that despite enactment of various provisions regarding restriction against non-Muslims to print/publish books while using religious books of Muslims and their authors, in particular Holy Qur’an, inaction on part of public functionaries is sufficient to establish that they have failed to discharge their duty--It is well established by now that a Police Officer, who comes across any cognizable offence through any source, is bound to take immediate action under section 154, Cr.P.C. and in case Police Officer fails to comply with said provision he puts himself at mercy of departmental proceedings. [P. 319] H & I

Constitution of Pakistan, 1973--

----Art. 20--Source of recovering resentment--Using of destinctive feature of muslims--It goes without saying that printing and publishing of books by non-Muslims while using names of Muslim authors and their books against original context is a source of recurring resentment, thus, fundamental rights guaranteed in favour of minorities are subject to certain restrictions inasmuch as non-Muslims can follow their religion but without posing themselves to be Muslims or using distinctive features of Muslims which otherwise are meant only for Muslims. [Pp. 319 & 320] J

Constitution of Pakistan, 1973--

----Art. 36--Obligation of--When any community or individual member of said community claims a right under a codified law (Constitution) he is bound to fulfill his obligation in respect of other citizens under said enactment. [P. 320] K

Implementation of Act 2011 and Rules 2011--

----Cognizant of--Performing of duties--Unlawful activities--Direction to--This Court is cognizant of fact that a person who seeks equity must do equity but said principle is not applicable in instant case for reason that petitioner is not claiming anything for his personal benefit rather he is before this Court seeking a direction to public functionaries to perform their duties towards implementation of Act, 2011 as well as Rules, 2011--Departments/agencies concerned are at liberty to bring proceedings against petitioner, if any, to their logical conclusion but no adverse inference can be drawn against petitioner just owing to filing of this petition wherein a sensitive issue has been highlighted--This Court is fully cognizant of fact that while performing their duties public functionaries are bound to ensure protection/sanctity of a dwelling place but said restriction cannot be used to enable an accused person to wash away evidence qua his involvement in illegal/unlawful activities--In this backdrop, Qur’an Board is required to be made more vibrant and efficient--Neither non-Muslims, in particular Ahmadis/Quadianis/Lahoris, can pose themselves as Muslims nor can they publish any material by using names of books of Muslims, in particular Holy Qur’an, with names of Muslims authors just to portray that same belongs to Muslims--Further, they have no right to use Muslims epithets to make others to believe that they are Muslims--Consequently, this petition is disposed of--with directions that--

i. Federal as well as Provincial Government shall ensure availability of a standard copy of Holy Qur’an alongwith its literal meaning, at Federal, Provincial, District and Tehsil levels, duly approved by respective Qur’an Boards to use it as a specimen to determine as to whether any subsequent publication qualifies test of authenticity of original text of Holy Qur’an and its literal meaning or not;

ii. Federal as well as Provincial government shall take steps to ensure that only printers/publishers, authorized by Qur’an Board, are allowed to print Holy Qur’an and other religious books of Muslims--Further, authorized printers/publishers be bound down to give specific Bar/QR code as well as distinct serial number against each copy of every religious book, in particular Holy Qur’an, to know authenticity of said book and to fix responsibility in case of any omission/commission on part of any publisher/printer--Furthermore, each page of Holy Qur’an be embossed with name of publisher/company in order to eliminate possibility of replacement of any page at subsequent stage;

iii. in view of ever increasing importance of Information Technology, Federal Government, in collaboration with other stakeholders, in particular Pakistan Electronic Media Regulatory Authority (PEMRA) and Pakistan Telecommunication Authority (PTA) shall take measures that search engines/ websites showing proscribed religious material are blocked--Further, only websites which are registered with PTA and possess certificate from Qur’an Board regarding authenticity of religious material, in particular Holy Qur’an, be allowed to display online Holy Qur’an and other religious books of Muslims--Moreover, all other unregistered websites, displaying such religious material against its original text and literal meaning, be blocked forthwith--For purpose, Federal as well as Provincial Government shall display at conspicuous places, in particular web portals owned and operated by government, registered/approved websites for information of public-at-large;

iv. Federal Government shall ensure that e-copy of Holy Qur’an, duly approved by Qur’an Board, is available at Google Play Store, App Store and Windows Store etc. for reference--Further, Ministry of Foreign Affairs should take up matter with managers/owners/operators of application stores to remove every application containing unauthentic text of Holy Qur’an and other religious books of Muslims;

v. every printer/publisher be bound down to put a certificate at end of each copy of Holy Qur’an to effect that same is 100% compliant with copy approved by Qur’an Board--Moreover, contact numbers (telephone, e-mail id & Facebook id etc.) of Qur’an Board should be available on each and every copy of Holy Qur’an to facilitate reader to highlight any issue relating to printing and publication of religious material of Muslims in particular Holy Qur’an;

vi. in case of surfacing of any book even with name of Holy Qur’an but with distorted text or mutilated translation same be confiscated forthwith and individuals/communities or corporate bodies/companies involved in publication of said book be taken to task while implementing provision of Act, 2011 and Rules made thereunder;

vii. Qur’an Board at Provincial and Federal level be made more efficient to have vigilant eye on publication and printing of any religious material in particular Holy Qur’an against its original text or authentic meaning.

viii. all communities, companies, bodies corporate, publishers and individuals be bound down to give free access to Chairman of Qur’an Board, at any time, for inspection of site used for publication of Holy Qur’an and other religious books;

ix. all public functionaries, in particular law enforcement agencies, shall ensure that no religious material is imported from abroad without issuance of NOC in terms of 8(11) of Rules, 2011 and if any importer, stockist, bookseller or recording company is found involved in selling/delivery of any banned material, firstly, importer be taken to task and secondly recipient of said material be also proceeded against in terms of Rule 9 ibid;

x. all non-Muslim communities be sensitized about repercussions of printing/publication of material by using names of religious books of Muslims, in particular Holy Qur’an, using name of Muslim authors--Further, non-Muslims in particular Ahmadis/Lahoris/Quadianis be restrained to use epithets of Muslims;

xi. all wings of Law Enforcement Agencies be mobilized to curb printing/publication of any proscribed material by non-Muslims;

xii. necessary measures be taken for interfaith harmony amongst citizens representing different religions, communities, clans and localities;

xiii. necessary measures be taken for safeguarding rights of minorities in terms of Articles 20 and 36 of Constitution provided they are not involved in any activity which offends against any provision of legislations discussed supra;

xiv. Quran Board, Cabinet Subcommittee on Law and Order in province, Committee Muthida Ulma Board Punjab, Police Department, Auqaf and Religious Affairs Department Government of Punjab, Association of Publishers and Traders of Religious Books Punjab and Information Technology Department shall coordinate inter- se with regular intervals and their deliberations shall be shared with Ministry of Religious Affairs and Interfaith Harmony, Government of Pakistan to formulate a uniform policy/SOP for entire country to curb printing and publication of proscribed religious material;

xv. Federal as well as Provincial Government shall ensure that before accepting copy of Holy Qur’an, Paras and Surahs, as defined under Section No. 2(d) of Act, 2011 in any mosque, shrine, institution religious or otherwise, head/owner/ operator/organizer of above institutions, shall confirm that same is in line with standard copy of Holy Qur’an;

xvi. Federal as well as Provincial government shall ensure that Holy Qur’an and other religious material being taught in different institutions conforms with standard copy duly certified by Qur’an Board and

xvii. Federal as well as Provincial Government shall ensure that conditions for printing/publication of Holy Qur’an, as enshrined under Rule 8 of Rules, 2011, are strictly adhered to and any person/ authority/community/company etc. found involved in violation of said rule be awarded punishment provided under rule 9 ibid.

Before parting with this order, it is directed that Registrar of this Court shall arrange for Urdu translation of this order and to ensure circulation of this order, alongwith its Urdu translation, to Secretary, Government of Punjab, Home Department, Lahore for its further circulation amongst heads of Police at provincial/divisional/district/tehsil levels as well as Police Stations--He shall further transmit a copy of this order, alongwith its Urdu translation to Secretary, Government of Pakistan, Ministry of Religious Affairs and Interfaith Harmony, Islamabad for information--Petition was disposed of.

[Pp. 320, 321, 323, 324, 325 & 326] L, M, N, O, P & Q

Mr. Shahid Tasawar Rao, Advocate with Petitioner.

Sheikh Usman Karim-ud-Din, Advocate for Applicant (in C.M. No. 2/2018).

Mr. Zahid Sikandar, Assistant Attorney General with Mr. Inam-ul-Haq, Deputy Secretary, Ministry of Religious Affairs and Interfaith Harmony.

Rana Shamshad Khan, Additional Advocate General with Mr. Tariq Mehmood Javed, Special Secretary to Govt. of Punjab, Home Department.

Mr. Zulfiqar Ghumman, Secretary Govt. of Punjab, Auqaf Department.

Maulana Abu-al-Zafar Ghulam Muhammad Sialvi, Chairman Punjab Quran Board.

Mr. Amjad Javed Saleemi, Inspector General of Police Punjab; Mr. Jawad Dogar, DIG (Legal); Mr. Muhammad Anwar Khetran, DPO Chiniot; Mr. Ahmad Mohiyuddin SSP CTD Faisalabad; Mr. Saif-ul-Murtaza SP (Legal); Mr. Muhammad Salim DSP (Legal) and Mr. Zafar Iqbal SHO PS Chanab Nagar.

Date of hearing: 5.3.2019.

Order

C.M. No. 2 of 2018.

Through this application the applicant has prayed for his impleadment as party in the titled Writ Petition.

1. Learned counsel for the applicant submits that though countless allegations have been levelled against Ahmadi community but it has not been arrayed as party. Adds that without impleading the applicant as party in the main petition, no effective order can be passed. Further adds that the applicant is a proper party due to the fact that any order passed in the instant Writ Petition has to affect the community being represented by the applicant.

2. Learned counsel appearing on behalf of the writ- petitioner has opposed this application by submitting that since no relief has been claimed against the community, being represented by the applicant, he is not a necessary party.

3. After hearing learned counsel for the parties and going through the contents of the Writ Petition as well as the document annexed therewith, I have observed that in pith and substance the writ-petitioner has voiced grievance against the inaction on the part of the public authorities to take action against the individuals/ communities involved in printing/publication of Holy Qur’an and other religious books of the Muslims by using names of the Muslim authors with distorted text and mutilated translation. In particular a reference has been made to various activities of Quadianis/Lahoris/Ahmadis in that regard. In this backdrop, the applicant has right of audience. Consequently this application is allowed and the applicant is allowed to present his view-point.

MAIN CASE.

1. To begin with firm belief in the one-ness and unity of the Allah Almighty, absolute unqualified finality of the Prophethood of Hazrat Muhammad (P.B.U.H.) and the absolute finality of the Holy Qur’an as the last Divine Book of Allah Almighty. The Allah Almighty in order to convey His message to the humanity, sent thousands of Prophets/Messengers in this world. Further, with a view to enlighten their (Prophets/Messengers) hearts with the divine commands, the Allah Almighty bestowed divine material upon His pious persons in the shape of holy books and scripts etc. The said process was completed with the revelation of Holy Qur’an upon our beloved Prophet Hazrat Muhammad (P.B.U.H) with the clear message that it would be the complete code of life for the humanity till the Day of Judgment. Since the revelation of Holy Qur’an, some unfortunate people have been making abortive attempts either to deface its Arabic text or to mutilate its literal meanings for their personal benefits. To counter said obnoxious attempts, the Muslims have been making tireless efforts towards preservation of the Holy Qur’an since the times immemorial. The present petition is also part of said noble struggle wherein the petitioner has agitated against inaction on the part of the public functionaries to take action against individual(s)/publisher(s)/ community(ies)/ organization(s) involved in preparation/publication of books by using the names of religious books of the Muslims, in particular Holy Qur’an and their Muslim authors or similar names having distorted Arabic text or mutilated translation or both.

2. Learned counsel for the petitioner submits that though the Government has enacted the Punjab Holy Quran (Printing and Recording) Act, 2011 (the Act, 2011) in addition to framing Punjab Holy Quran (Printing and Recording) Rules, 2011 (the Rules, 2011) for error-free publication of the Holy Qur’an but the same enactments are not being implemented in letter and spirit. Adds that the publication of questionable material by the non-Muslims is part of their attempts to mislead the world about the true concept of Islam on the one hand and on the other to tarnish the belief of the Muslims in particular. Further adds that though the petitioner has been agitating the issue before different authorities but till date no concrete step has been taken seemingly for the reason that the persons involved in such despicable activities have good liaison with the persons at the helm of the affairs in the government.

3. Learned Additional Advocate General, while supporting the plea raised by the petitioner, states that being Muslims it is our prime duty to ensure the publication of Holy Qur’an with original text and authentic translation. Adds that in view of the sensitivity of the issue all public functionaries at provincial level are trying their level best to implement the provisions of the Act, 2011 as well as the Rules, 2011 and if anybody is still violating the provisions of the said legislation, the public functionaries at provincial level are ever ready to take appropriate action.

4. The Provincial Police Officer, while supplementing the contentions urged by the learned Additional Advocate General, submits that prior to taking charge as Inspector General of Police, Punjab, he remained posted in district Jhang in different capacities and tried his level best to have strict check against publication of such banned material. Adds that in compliance with the orders passed by this Court, he took the field-staff on board and according to the reports submitted by them no person, at present, is undertaking any such activities. Further adds that as and when any such activity is brought to notice of the Police the same would be curbed with full vigour by confiscating material published in violation of the Act, 2011 as well as the Rules, 2011 in addition to registration of criminal case(s) against the culprit(s). Submits that while implementing the provisions of the Act, 2011 as well as the Rules, 2011 a number of criminal cases have already been registered against the persons/publishers/communities involved in publication of the Holy Qur’an with distorted text or mutilated translation and a number of such accused have been convicted whereas proceedings against the others are pending at different levels. Concluding his submissions, he has ensured the Court that he would leave no stone unturned to safeguard the sanctity of Holy Qur’an.

5. Maulana Abu-al-Zafar Ghulam Muhammad Sialvi, Chairman Punjab Quran Board, has apprised the Court that upon information regarding publication of proscribed material he visited the place highlighted in the instant petition to unveil proscribed activities, as alleged by the petitioner, but no such material was recovered from the spot. Submits that he, being the head of the Punjab Quran Board, is ready to visit every corner of the Province for implementation of the provisions of the Act, 2011 as well as the Rules, 2011.

6. Mr. Zahid Sikandar, Assistant Attorney General, on the instructions imparted by the Deputy Secretary, Ministry of Religious Affairs and Interfaith Harmony, Islamabad, states that upon highlighting of the issue, under discussion, the Federal Government took up the matter with the Provincial Authorities but till date no response has been given by them in particular the Auqaf department. Adds that to ensure error-free printing of the Holy Qur’an and its translation with exact literal meanings, the legislation at the Federal level is in the offing which is expected to be enacted within a month or two.

7. Sheikh Usman Karim-ud-Din, Advocate representing Sadar Anjuman Ahmadia Pakistan states that though allegations of general nature have been levelled against a particular community (Ahmadis) of the country but it has not been arrayed as party. Adds that equitable relief cannot be granted in favour of a person who does not possess clean character inasmuch as not only number of criminal cases have been registered against the petitioner but also he was found involved in preparation of bogus letters on behalf of Police functionaries to take action against the said community. Further adds that if an individual or community is involved in such activities, it should be specified but nobody can be allowed to damage the image of a particular community whose members being citizens of the country enjoy equal fundamental rights.

8. While exercising his right of rebuttal, learned counsel for the petitioner submits that the statement of the Provincial Police Officer that at present neither any such material is being published nor the same is available in the market stands negated from the snaps managed by the petitioner from different parts of the country according to which the books authored by the non-Muslims, using the names of the books of the Muslims as well as their authors, are available for sale in every corner of the country. Adds that stance of the Chairman, Punjab Qur’an Board that he did not find any such proscribed material at the site is worthless for the reason that he visited the site by giving prior information to the persons involved in preparation of prohibited material. Further adds that according to the news being published in weekly “Al-Fazal International” a particular community is involved in such activities which are being highlighted as a sign of pride. Submits that non- Muslims cannot be allowed to publish any material by using the names of the Muslim writers or their religious books. While referring to the judgment, reported as Mulana Allah Wasya and others v. Federation of Pakistan through Secretary Ministry of Law and Justice and others (PLD 2019 Islamabad 62) learned counsel contends that non- Muslims, in particular the Quadianis, Lahoris and Ahmadis, have been prohibited to use even the names of the Muslims, thus, they cannot be allowed to publish material by using the names of the Muslim Scholars and their books. On the said point, learned counsel has further relied upon the cases reported as Zaheer Uddin and others v. The State and others (1993 SCMR 1718) and Mujibur Rehman and 3 others v. Federal Government of Pakistan and another (PLD 1985 FSC 8).

9. In furtherance of above noted submissions of his counsel, the petitioner himself states that involvement of non-Muslims in such forbidden activities is established from the fact that not only such books are being printed and published in the country against their original text with mutilated translation by using names of Muslim Authors and their books but also the same are being imported from abroad without any hindrance. Further submits that the height of lethargic attitude on the part of the public functionaries, in particular the Police, is abundantly clear from the fact that such books/material are/is being delivered in different parts of the country via Pakistan Post. In support of his contentions, the petitioner has presented following books published by non-Muslims while using the name of Qur’an and other religious books of the Muslims:-

In addition to the above, the petitioner has also appended with this petition the copies of the following books written by non-Muslims while using the name of Holy Qur’an and other religious books of the Muslims:-

The petitioner adds that he has no personal vendetta against anybody despite the fact that learned counsel appearing on behalf of the applicant in C.M. No. 2/2018 has tried to malign his character only for the reason that he is before this Court to highlight the inaction on the part of the public functionaries to eliminate the publication of Holy Qur’an and other religious books by the non-Muslims with distorted Arabic Text and mutilated translation just to damage the belief of the Muslims. Further asserts that if the community, being represented by Sh. Usman Karim-ud-Din Advocate, is not involved in such activities instead of opposing this petition the members of said community should come forward and share the efforts of the Muslim to expose the person(s)/community(s) involved in such activities.

1. In view of the sensitivity of the issue, I have given anxious attention to the respective view points of the parties and have also gone through the material appended with this petition coupled with that presented during the course of arguments as well as that forming part of the report and parawise comments submitted on behalf of the respondents in addition to the case-law cited at the bar.

2. The Allah Almighty foreknowing the human folly to tinker with the Holy material, as was done by the earlier nations with the previous holy books, Himself ensured the preservation of Holy Qur’an. In this regard, following Ayahs of Holy Qur’an can be quoted for reference:-

Surah Al-’A’lá (87), Verse No. 6, Para No. 30:-

“We will make you recite so you shall not forget”

Sura Al-Hijr (15), Ayah No. 9, Para No. 13:-

“Surely We have revealed the Reminder and We will most surely be its guardian.”

Surah Ha’meem Al-Sajda (41), Ayah No. 42, Para No. 24:-

“Falsehood shall not come to it from before it nor from behind it; a revelation from the Wise, the Praised One.”

A perusal of the afore-quoted verses renders it crystal clear that in view of the fact that the Holy Qur’an is complete code of life till the Day of Judgment the Allah Almighty has ordained that it shall remain intact in originality till the last day as He has taken the responsibility to safeguard it from any human intrusion aiming at to garble its original text. In the afore-quoted verses plural form (we) has been used which connotes to the fact that alongwith the Allah Almighty, His Prophet, Hazrat Muhammad (P.B.U.H.) shared the responsibility to safeguard the Holy Qur’an in its original form.

1. The Holy Prophet, Hazrat Muhammad (P.B.U.H.) in his lifetime inter-alia took the following measures to preserve the Holy Qur’an:-

· Transcription of the revealed verses on sheets and storage of said sheets at safe places.

· Supervision of the transcription of Holy Qur’an.

· Separation of chapters and awarding them a title.

· Asking the scribes to read what they had written so that possibility of any error may be eliminated.

· Preservation of Holy Qur’an through the honest memorization of Holy Qur’an, which took place as per His advice. A large number of people became engrossed in memorizing the Holy Qur’an and some of them succeeded in learning the whole Holy Qur’an by heart and they came to be called as those who knew the whole Quran by heart (Huffaz).

After departure of the Holy Prophet Hazrat Muhammad (P.B.U.H) from this impermanent world the task to preserve the Holy Qur’an was completed by the pious Caliphs, namely, Hazrat Abu Bakar Siddique (R.A.), Hazrat Umar-e-Farooq (R.A.), Hazrat Usman (R.A.) and Hazrat Ali (R.A.). After their death, this obligation has been discharged by the Muslim rulers and other pious Muslims all over the world. Since the creation of our beloved country was based on two-nation theory the Legislators made the Objective Resolution as part of the Constitution of Islamic Republic of Pakistan, 1973 (the Constitution) through insertion of Article 2-A according to which the sovereignty belongs to the Allah Almighty and the basis for creation of Pakistan was to provide an atmosphere where the Muslims could lead their lives according to the injunctions of Islam. Further, the law-makers, as per Article 31 of the Constitution, have mandated encouragement of Islamic way of life for the Muslims citizens of the country. The said Article for convenience of reference is reproduced herein below:-

“31. Islamic way of life.-

(1) Steps shall be taken to enable the Muslims of Pakistan, individually and collectively, to order their lives in accordance with the fundamental principles and basic concepts of Islam and to provide facilities whereby they may be enabled to understand the meaning of life according to the Holy Quran and Sunnah.

(2) The State shall endeavour, as respects the Muslims of Pakistan,--

(a) to make the teaching of the Holy Quran and Islamiat compulsory, to encourage and facilitate the learning of Arabic language and to secure correct and exact printing and publishing of the Holy Quran;

(b) to promote unity and the observance of the Islamic moral standards; and

(c) to secure the proper organisation of Zakat, ushr, auqaf and mosques.” (emphasis provided)

According to the afore-quoted Article it is bounden duty of the State to encourage Islamic way of life as embodied in the Holy Qur’an and practiced by Hazrat Muhammad (P.B.U.H.). Further, as a step towards encouragement of Islamic way of Life, the State has to ensure error-free publication of Holy Qur’an as it is one of the authentic sourcesqua Divine Commands. To discharge its liability the Government of the Punjab has enforced the Act, 2011 in addition to framing the Rules, 2011. As per Section 4 of the Act, 2011 the Punjab Quran Board comprising permanent Ulamas, Huffaz and Qaries of all Schools of thought amongst the Muslims has been constituted. The said Board is responsible for recommendations to ensure error-free printing and publication of the Holy Qur’an. To ensure error-free publication of Holy Qur’an, the Qur’an Board is responsible to prepare a standard copy of Holy Qur’an to be used by the printers/publishers. In this backdrop, the Punjab Qur’an Board inter-alia has most vital role towards error- free printing and publication of the Holy Qur’an.

1. As per Section 6 of the Act, 2011, any person, publisher or community intentionally found involved in literal distortion of the text of an Ayah, is liable to punishment provided under Section 9 of the Act, 2011. Likewise, under Section 7 of the Act, 2011 an embargo has been imposed against the non-Muslims to translate or interpret the Holy Qur’an contrary to the belief of the Muslims and in the eventuality of violation of said provision, the perpetrator is liable to penalty/punishment provided under Section 9 of the Act, 2011. Moreover, according to Section 10 of the Act, 2011 if a company/body corporate, proprietor, director, manager, or other office bearer of a company or body corporate is found involved in violation of Sections 6 & 7 ibid they are also liable to same penalty specified for individuals under Section 9 ibid. A conjunctive reading of Sections 6, 7, 9 & 10 of the Act, 2011 makes it crystal clear that neither any Muslim is permitted to literally distort the text of an Ayah nor a non- Muslim is allowed to translate or interpret the Holy Qur’an contrary to the belief of Muslims nor any company/ publisher/body corporate/community is allowed to indulge in such activity.

2. While pre-empting any misadventure on the part of non-Muslims against preservation of original text of Holy Qur’an or its literal meanings the law-makers under Rule 8(14) of the Rules, 2011 have clarified that a non-Muslim cannot associate or to be associated in printing or publication of the Holy Qur’an. As per mandate of Rule 8(14) ibid neither a non-Muslim by himself can associate with the printing/publication of Holy Qur’an nor any publisher can be allowed to associate a non-Muslim in the process of printing or publication of Holy Qur’an. Since the afore-referred provisions of Law/Rules hold field till date, all the public functionaries, at Federal as well as Provincial level, are duty bound to ensure their implementation in letter and spirit and in case any individual(s) or community, irrespective of its affiliation with the persons at the helm of the affairs of the State, are found involved in violation of said provisions, they should be taken to task by awarding penalty/punishment in terms of Section 9 ibid.

3. The next question which surfaces for determination by this Court is the definition of “Muslims” and “non- Muslims”. In this regard, we have to make a reference to Article 260(3) of the Constitution which reads as under:-

“260 (3). In the Constitution and all enactments and other legal instruments, unless there is anything repugnant in the subject or context,--

a. “Muslim” means a person who believes in the unity and oneness of Almighty Allah, in the absolute and unqualified finality of the Prophethood of Muhammad (peace be upon him), the last of the prophets, and does not believe in, or recognize as a prophet or religious reformer, any person who claimed or claims to be a prophet, in any sense of the word or of any description whatsoever, after Muhammad (peace be upon him); and

b. “non-Muslim” means a person who is not a Muslim and includes a person belonging to the Christian, Hindu, Sikh, Buddhist or Parsi community, a person of the Quadiani Group or the Lahori Group (who call themselves ‘Ahmadis’ or by any other name) or a Bahai, and a person belonging to any of the Scheduled Castes.”(emphasis provided)

A cursory glance over the afore-quoted Article leaves no ambiguity that Ahmadis/Lahoris/Quadianis fall within the definition of non-Muslims, thus, they are debarred to publish/print religious material by using the name of books of the Muslims alongwith names of Muslim authors. The Hon’ble Supreme Court of Pakistan in the case of Zaheer Uddin and others (Supra) while dealing with the repercussions of an act of the non-Muslim to use Muslim epithets etc. has inter-alia observed as under:-

“Before proceeding with the contentions as raised, it appears necessary to say, if the general law applied so far, gives everyone a right to the use of any word, name and epithet etc. or, do there exist any recognised restrictions already? It will be appreciated that some of the epithets, descriptions and titles etc., as given in Section 298-B have been used by Qur’an for specific personages (See 33: 32, 33: 54 and 9: 100) while others undoubtedly and rather admittedly are being used by the Muslims, for those mentioned there, exclusively, for the last about 1400 years. These epithets carry special meaning, are part of the Muslim belief and used for reverence. Any person using them for others, in the same manner, may be conveying impression to others that they are concerned with Islam when the fact may be otherwise.

It is to be noted that it is not only in Pakistan but throughout the World, that laws protect the use of words and phrases which have special connotations or meaning and which if used for other may amount to deceiving or misleading the people ……..”

1. During the course of arguments, the petitioner agitated that in addition to publishing the Holy Qur’an and other religious books of the Muslims with the name of Muslim authors, certain individuals and communities are also importing such material from abroad without any hindrance. The Legislator, being cognizant of such act under Rule 8(11) of the Rules, 2011 has mandated that no person, publisher, stockist, proprietor of a recording company can import such material without getting NOC from the government. If such material is being imported in Pakistan without such NOC the State functionaries are under obligation to have strict check and stern action against the person(s)/organization(s) involved in such activities. During the course of hearing, the petitioner in addition to annexing copies of certain religious books with the writ petition has also produced the afore-quoted original books to show that not only the same are being published in the country but are also being imported from abroad and are being distributed all over the country through State agencies without any hindrance. It is height of inaction on the part of public functionaries that they have failed to perform their duties casted by the Act, 2011 as well as the Rules, 2011. Though the Provincial Police Officer, while addressing the Court, has stated in clear cut words that neither any such material is being published in the country nor the same is being imported from abroad but the delivery of books, through Pakistan Post (a State owned agency), is sufficient to negate his stance. The said fact also lends support to the plea of the petitioner that the public functionaries, who have the responsibility to ensure implementation of the provisions of the Act, 2011 as well as the Rules, 2011, are reluctant to take action against the delinquents on account of their say in the power corridors of the government. If we collectively fail to curb such activities, perhaps, the very basis to have a separate country to lead our (Muslims) lives according to the commands of Allah Almighty would become redundant.

2. This Court is fully in agreement with Sh. Usman Karim-ud-Din, Advocate that all the communities, irrespective of their creed, religion or race are entitled to fundamental rights enshrined under Articles 20 & 36 of the Constitution, however, at the same time it is equally true that the fundamental rights being enjoyed by the citizens of the country are subject to certain restrictions imposed by the Constitution itself and other enactments. Further, under the garb of freedom of every citizen to follow or propagate his own religion or faith, the non-Muslims cannot be allowed to use the distinctive characteristics of the Muslims to camouflage their identity. In this regard, the law-makers have enacted certain provisions under Chapter X of, PPC. Section 298-B, PPC has declared the act of the non-Muslims to use the distinctive characteristics of the Muslims as a cognizable offence, which for convenience of reference is reproduced herein below:-

“298- B. (1) Any person of the Quadiani group or the Lahori group (who call themselves ‘Ahmadis’ or by any other name) who by words, either spoken or written, or by visible representation, (a) refers to, or addresses, any person, other than a Caliph or companion of the Holy Prophet Muhammad (peace be upon him), as ‘Ameer-ul-Mumineen,’ ‘Khalifa-tul- Mumnineen’, Khalifa-tul-Muslimeen, ‘Sahaabi’ or ‘Razi Allah Anho’;

(b) refers to, or addresses, any person, other than a wife of the Holy Prophet Muhammad (peace be upon him), as ‘Ummul- Mumineen’;

(c) refers to, or addresses any person, other than a member of the family (Ahle-bait) of the Holy Prophet Muhammad (peace be upon him), as Ahle-bait; or

(d) refers to, or names, or calls, his place of worship as ‘Masjid’:

shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.

(2) Any person of the Quadiani group or Lahori group (who call themselves ‘Ahmadis’ or by any other name) who by words, either spoken or written, or by visible representation, refers to the mode or form of call to prayers followed by his faith as ‘Azan’, or recites Azan as used by the Muslims, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.”

Further, the act of the non-Muslims in particular Quadianis, Lahoris and Ahmadis to pose themselves as Muslim or to preach or propagate their faith while showing themselves to be Muslims has also been declared as a cognizable offence under Section 298C, PPC which reads as under:-

“298-C. Person of Quadiani group, etc., calling himself a Muslim or preaching or propagating his faith.--Any person of the Quadiani group or the Lahori group (who call themselves ‘Ahmadis’ or by any other name), who, directly or indirectly, poses himself as a Muslim, or calls, or refers to, his faith as Islam, or preaches or propagates his faith, or invites others to accept his faith, by words, either spoken or written, or by visible representations, or in any manner whatsoever outrages the religious feelings of Muslims, shall be punished with imprisonment of either description of a term which may extend to three years and shall also be liable to fine.”

One of the reasons for banning the use of epithets/distinctive characteristics of Muslims by non-Muslims is to desist them from posing themselves to be Muslims. For example, the expressions Ummul Mumineen (mother of the Muslims), Ameer-ul-Momineen, Khalifatul Muslimeen, Khalifa-tul-Momineen (all denoting Head or Chief of the Muslim Ummah) include the words Momineen (Muslims) or Muslimeen which may deceive the people that the bearers of such names are or call themselves Muslims. Likewise, the expression ‘Razi Allah Anho’ is used in the Holy Qur’an as a form of blessing for the companions of the Holy Prophet Hazrat Muhammad (P.B.U.H.) or at the most for the Muslims. Similarly, the words ‘Sahabi’ and ‘Ahl-e-Bait’ are used by the Muslims for the companions and members of the family of the Holy Prophet Hazrat Muhammad (P.B.U.H.) respectively. The use of such terms in respect of the companions or members of the family of non-Muslims in particular Ahmadis/ Quadianis/Lahoris means that they are posing themselves as Muslims.

Considering from another angle, the words “Ahadees”, “Rawayat”, “Sunnah” etc. are exclusively used by the Muslims. In case, non-Muslims compile books by using said names in addition to the names of the Muslim writers/scholars the same would mislead the public-at-large about the true belief of the Muslims. The books produced by the petitioner, during the course of arguments as well as those appended with this petition, are proof positive of the fact that non-Muslims are printing/publishing books while using the names of the books of the Muslims as well as their authors with different text/context. While taking note of said activities of non-Muslims the Apex Court of the country in the case of Zaheer Uddin and others (Supra) has inter-alia concluded as under:-

“As regards ‘Shaa’ir of Islam’ (distinctive characteristics), the Court held that Islamic Sharia does not allow a non-Muslim to adopt them and if an Islamic State in spite of its being in power, allows a non-Muslim to adopt them (without embracing Islam), it will be its failure to discharge its duties. An Islamic State, like a Secular State, thus has the power to legislate, to prevent non-Muslims from adopting Shaa’ire-Islam, to propagate their own beliefs. As said above, such restriction will be meant to prevent unscrupulous and fraudulent non- Muslims from using the effective and attractive features of Islam in order to attract other non-Muslims not to Islam but to their own heretic fold. It was further held that claim could not be allowed to be pressed on the basis of the Fundamental Rights.”

If the issue agitated by the petitioner is considered in the light of the afore-referred judgment of the Hon’ble Supreme Court of Pakistan there leaves no ambiguity that neither the non-Muslims can print/publish any material by using the name of the books of the Muslims and their authors nor can they use distinctive characteristics which relate to the Muslims to the exclusion of any other non-Muslim community.

It is pathetic state of affairs that despite enactment of various provisions regarding the restriction against non-Muslims to print/publish books while using religious books of the Muslims and their authors, in particular the Holy Qur’an, the inaction on the part of the public functionaries is sufficient to establish that they have failed to discharge their duty. It is well established by now that a Police Officer, who comes across any cognizable offence through any source, is bound to take immediate action under Section 154, Cr.P.C. and in case the Police Officer fails to comply with the said provision he puts himself at the mercy of departmental proceedings.

1. Insofar as plea raised by Sh. Usman Karim-ud-Din, Advocate regarding damage to the reputation of a particular community (Ahmadis) is concerned, suffice it to note that Islam teaches absolute tolerance in matters of religion and leaves it to the conscience of a man to accept the religion of Islam. No compulsion in this respect is allowed in Islam. Even the Holy Prophet Hazrat Muhammad (P.B.U.H.) was not empowered to interfere with belief of anyone rather His function was to convey the message of Allah Almighty. However, the non-Muslims, who are involved in activities to encroach upon the rights and privileges of the Muslim community to the utter disintegration of the Ummah, cannot be left unbridled on account of immunity provided under the Constitution.

2. During the course of arguments, Sh. Usman Karim-ud-Din, Advocate, while referring to Article 20 of the Constitution argued that the Constitution ensures liberty to all the citizens to profess or practices one’s religion. There is no cavil with the preposition that the Constitution guarantees liberty to the non-Muslims in respect of their faith and belief but the said liberty is subject to law, public order and morality. It goes without saying that printing and publishing of books by the non-Muslims while using names of the Muslim authors and their books against the original context is a source of recurring resentment, thus, the fundamental rights guaranteed in favour of the minorities are subject to certain restrictions inasmuch as the non- Muslims can follow their religion but without posing themselves to be Muslims or using distinctive features of Muslims which otherwise are meant only for the Muslims. Reliance in this regard is placed on the case reported as Mirza Khurshid Ahmad and another v. Government of Punjab and others (PLD 1992 Lahore 1).

3. Insofar as protection to minorities in terms of Article 36 of the Constitution is concerned, suffice it to say that when any community or individual member of the said community claims a right under a codified law (the Constitution) he is bound to fulfill his obligation in respect of other citizens under the said enactment. At the cost of repetition it is noted that since the Quadianis/ Ahmadis/ Lahoris have been declared non-Muslims as per Article 260 ibid they cannot perform any act to portray themselves as Muslims and in case they are found involved in such activities the law has to take its course.

4. Sh. Usman Karim-ud-Din Advocate, while portraying the petitioner as a man of shadowy character on account of his involvement in criminal cases, submitted that the petitioner is not entitled to equitable relief under Article 199 of the Constitution. To substantiate his plea, learned counsel has referred to certain criminal cases registered against the petitioner in addition to a communication allegedly prepared by him at the behest of the Police functionaries to take action against the persons involved in violation of the Act, 2011 as well as the Rules, 2011. This Court is cognizant of the fact that a person who seeks equity must do equity but the said principle is not applicable in the instant case for the reason that the petitioner is not claiming anything for his personal benefit rather he is before this Court seeking a direction to the public functionaries to perform their duties towards implementation of the Act, 2011 as well as the Rules, 2011.

As far as registration of criminal cases against the petitioner and his involvement in preparation of bogus letters at the behest of the Police is concerned, suffice it to observe that the departments/agencies concerned are at liberty to bring the proceedings against the petitioner, if any, to their logical conclusion but no adverse inference can be drawn against the petitioner just owing to filing of this petition wherein a sensitive issue has been highlighted.

1. While replying to a Court’s query as to what steps have been taken to confiscate and ban the publication of the books, referred in Notification, dated 20.01.2016, issued by the Secretary to Government of the Punjab, Home Department, Mr. Tariq Mehmood Javed, Special Secretary to Govt. of the Punjab, Home Department states that all the stakeholders in the Province were directed to forfeit the said books as and where the same were found but he failed to specify as to the number of books confiscated by the public functionaries pursuant to said Notification and the action taken against the delinquents. The said fact lends support to the plea of the petitioner that the public functionaries, instead of taking any action against the delinquents, are passing the buck from one department to another shying away from performing their duties. It is sorry state of affairs that the Home Department which otherwise is responsible for maintaining the law and order situation in the Province, through various law enforcement agencies, is not abreast about the gravity of the issue agitated in this petition. Mere issuance of a Notification to the authorities at local level is not sufficient rather hot pursuit is need of the hour to save the interfaith harmony and religious serenity.

2. The Chairman Qur’an Board apprised the Court that pursuant to the filing of the applications by the petitioner and other citizens he visited the disputed sites with prior arrangements with the District Administration as well as the proprietors/owners of said places. It appeals to a man of prudent mind that if some public functionary chooses to inspect a site under prior notice/intimation to its proprietors/owners, the said public functionary would not be able to lay hands on such material for the reason that an accused does not leave any mark of his act which otherwise is against any law for the time being in force. This Court is fully cognizant of the fact that while performing their duties the public functionaries are bound to ensure protection/ sanctity of a dwelling place but the said restriction cannot be used to enable an accused person to wash away the evidence qua his involvement in illegal/unlawful activities. In this backdrop, the Qur’an Board is required to be made more vibrant and efficient.

3. During the course of arguments, learned counsel for the petitioner has referred to certain material which offends against the provisions of the Act, 2011 as well as the Rules, 2011. Additionally submits that the said material is also available on-line in Pakistan. Since a number of enactments have already been enforced to cope with the offences relating to cyber-crimes the government has the responsibility to make efforts for removal/banning of said material in the country in addition to taking criminal action against the citizen(s)/community(ies) involved in said activities, under the relevant Statute.

4. The petitioner, on number of times, has referred to a report submitted by the Counter Terrorism Department (CTD) regarding printing, publication of proscribed material by the non-Muslims and its sale at various points in the country. He further agitated that the authorities in CTD refused to succumb before the allurement of non- Muslims to harmonize the wording of said report to their benefit and to dissuade them to take action against the culprits who are involved in violation of the provisions of the Act, 2011 as well as the Rules, 2011. To fortify his plea, the petitioner read over the report submitted by the CTD. The inaction on the part of the relevant authorities to proceed against the hoodlums in line with the report of CTD is condemnable.

5. While unveiling the tricks being played by the non- Muslims in particular Quadianis, Lahoris and Ahmadis to dissuade the petitioner to pursue his noble cause, the petitioner states that one of his companions has been got murdered by the members of the said community and the criminal case registered in respect of said murder has already been closed without any concrete effort by the agencies to apprehend the accused persons. Adds that during pendency of this petition, the petitioner has been receiving threats of dire consequences from different quarters but he, with a view to continue the mission of the Holy Prophet Hazrat Muhammad (P.B.U.H) towards preservation of the Holy Qur’an, has refused to surrender before the illegitimate demands of the various quarters and he would be satisfied if the public functionaries are directed to stop the publication of religious books of the Muslims, in particular the Holy Qur’an, with the name of Muslim scholars with distorted text and mutilated translation.

Since according to own showing of the petitioner a criminal case has already been registered qua murder of his companion, in case he is aggrieved of any act of the public functionaries he can resort to appropriate proceedings but no order can be passed in this petition which otherwise revolves around a question relating to the publication of material by non-Muslims by using the names of the Muslim authors and their books.

1. Learned Assistant Attorney General has apprised the Court that in view of sensitivity of the issue the efforts of the Federal Government to bring a codified law to eliminate the publication of any proscribed material by the non- Muslims in the country are at final stage and the same is expected to be enforced within two or three weeks. This Court lauds the efforts, being made by the Federal Government, to tackle issue of such important nature.

2. As a necessary corollary to the above discussion I am of the considered view that neither the non-Muslims, in particular Ahmadis/Quadianis/Lahoris, can pose themselves as Muslims nor can they publish any material by using the names of the books of the Muslims, in particular Holy Qur’an, with the names of the Muslims authors just to portray that the same belongs to Muslims. Further, they have no right to use Muslims epithets to make the others to believe that they are Muslims. Consequently, this petition is disposed of with the directions that–

i. the Federal as well as the Provincial Government shall ensure availability of a standard copy of Holy Qur’an alongwith its literal meaning, at Federal, Provincial, District and Tehsil levels, duly approved by the respective Qur’an Boards to use it as a specimen to determine as to whether any subsequent publication qualifies the test of authenticity of original text of Holy Qur’an and its literal meaning or not;

ii. the Federal as well as Provincial government shall take steps to ensure that only the printers/publishers, authorized by the Qur’an Board, are allowed to print Holy Qur’an and other religious books of the Muslims. Further, the authorized printers/publishers be bound down to give specific Bar/QR code as well as distinct serial number against each copy of every religious book, in particular the Holy Qur’an, to know the authenticity of the said book and to fix responsibility in case of any omission/commission on the part of any publisher/printer. Furthermore, each page of the Holy Qur’an be embossed with name of the publisher/company in order to eliminate the possibility of replacement of any page at subsequent stage;

iii. in view of the ever increasing importance of the Information Technology, the Federal Government, in collaboration with other stakeholders, in particular Pakistan Electronic Media Regulatory Authority (PEMRA) and the Pakistan Telecommunication Authority (PTA) shall take measures that the search engines/ websites showing proscribed religious material are blocked. Further, only the websites which are registered with PTA and possess certificate from the Qur’an Board regarding authenticity of the religious material, in particular the Holy Qur’an, be allowed to display online Holy Qur’an and other religious books of the Muslims. Moreover, all other unregistered websites, displaying such religious material against its original text and literal meaning, be blocked forthwith. For the purpose, the Federal as well as the Provincial Government shall display at conspicuous places, in particular the web portals owned and operated by the government, the registered/approved websites for information of the public-at-large;

iv. the Federal Government shall ensure that the e-copy of Holy Qur’an, duly approved by the Qur’an Board, is available at Google Play Store, App Store and Windows Store etc. for reference. Further, the Ministry of Foreign Affairs should take up the matter with the managers/owners/operators of the application stores to remove every application containing unauthentic text of the Holy Qur’an and other religious books of Muslims;

v. every printer/publisher be bound down to put a certificate at the end of each copy of Holy Qur’an to the effect that the same is 100% compliant with the copy approved by the Qur’an Board. Moreover, the contact numbers (telephone, e-mail id & Facebook id etc.) of the Qur’an Board should be available on each and every copy of the Holy Qur’an to facilitate the reader to highlight any issue relating to printing and publication of religious material of Muslims in particular the Holy Qur’an;

vi. in case of surfacing of any book even with the name of Holy Qur’an but with distorted text or mutilated translation the same be confiscated forthwith and the individuals/communities or the corporate bodies/ companies involved in publication of said book be taken to task while implementing the provision of the Act, 2011 and the Rules made thereunder;

vii. the Qur’an Board at Provincial and Federal level be made more efficient to have vigilant eye on publication and printing of any religious material in particular the Holy Qur’an against its original text or authentic meaning.

viii. all the communities, companies, bodies corporate, publishers and individuals be bound down to give free access to the Chairman of the Qur’an Board, at any time, for inspection of the site used for publication of Holy Qur’an and other religious books;

ix. all the public functionaries, in particular law enforcement agencies, shall ensure that no religious material is imported from abroad without issuance of NOC in terms of 8(11) of the Rules, 2011 and if any importer, stockist, bookseller or recording company is found involved in selling/delivery of any banned material, firstly, the importer be taken to task and secondly the recipient of said material be also proceeded against in terms of Rule 9 ibid;

x. all non-Muslim communities be sensitized about the repercussions of printing/publication of material by using names of the religious books of the Muslims, in particular the Holy Qur’an, using the name of the Muslim authors. Further, the non-Muslims in particular Ahmadis/Lahoris/Quadianis be restrained to use the epithets of the Muslims;

xi. all the wings of the Law Enforcement Agencies be mobilized to curb printing/publication of any proscribed material by the non-Muslims;

xii. necessary measures be taken for interfaith harmony amongst the citizens representing different religions, communities, clans and localities;

xiii. necessary measures be taken for safeguarding the rights of minorities in terms of Articles 20 and 36 of the Constitution provided they are not involved in any activity which offends against any provision of the legislations discussed supra;

xiv. the Quran Board, Cabinet Subcommittee on Law and Order in the province, Committee Muthida Ulma Board Punjab, Police Department, Auqaf and Religious Affairs Department Government of Punjab, Association of Publishers and Traders of Religious Books Punjab and Information Technology Department shall coordinate inter- se with regular intervals and their deliberations shall be shared with the Ministry of Religious Affairs and Interfaith Harmony, Government of Pakistan to formulate a uniform policy/SOP for the entire country to curb printing and publication of proscribed religious material;

xv. the Federal as well as the Provincial Government shall ensure that before accepting copy of Holy Qur’an, Paras and Surahs, as defined under Section No. 2(d) of the Act, 2011 in any mosque, shrine, institution religious or otherwise, the head/owner/operator/organizer of the above institutions, shall confirm that the same is in line with the standard copy of the Holy Qur’an;

xvi. the Federal as well as the Provincial government shall ensure that the Holy Qur’an and other religious material being taught in different institutions conforms with the standard copy duly certified by the Qur’an Board and

xvii. the Federal as well as the Provincial Government shall ensure that the conditions for printing/publication of Holy Qur’an, as enshrined under Rule 8 of the Rules, 2011, are strictly adhered to and any person/ authority/community/company etc. found involved in violation of the said rule be awarded punishment provided under Rule 9 ibid.

1. Before parting with this order, it is directed that the Registrar of this Court shall arrange for Urdu translation of this order and to ensure circulation of this order, alongwith its Urdu translation, to the Secretary, Government of the Punjab, Home Department, Lahore for its further circulation amongst the heads of the Police at provincial/divisional/district/tehsil levels as well as Police Stations. He shall further transmit a copy of this order, alongwith its Urdu translation to the Secretary, Government of Pakistan, Ministry of Religious Affairs and Interfaith Harmony, Islamabad for information.

2. The Assistant Registrar, Media and Publication of this Court, is directed to share this order, alongwith its Urdu translation, with the media persons for its circulation/publication in the print/electronic media.

(Y.A.) Petition disposed of

PLJ 2019 Lahore 327 (DB)

Present:Muhammad Sajid Mehmood Sethi and Muzamil Akhtar Shabir, JJ.

COMMISSIONER INLAND REVENUE--Applicant

versus

AMEER ABDULLAH KHAN ROKHARI--Respondent

PTR No. 83 of 2012, heard on 13.3.2019.

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

----S. 133(1)--Assessing officer--Proportionated total amount and added a sum of Rs. 20,000,000/- as income for each tax year--Respondent taxpayer was filed an appeal before CIT--Dismissed--Second appeal before AT--Accepted--Demand of tax--Burden of proof--Non-competition amount as income--Challenge to--It is well settled law that anything which is not income cannot be treated as income--It, therefore, follows that receipt is not sole test of chargeability--The initial burden to show that a receipt is income taxable under law, is on applicant- department--This burden of proof cannot be shifted on respondent-taxpayer to quote any provision of law, which specifically declares that sum received by respondent- taxpayer was exempt from income tax instead of specifying charging provision purportedly covering it--Needless to say that in revenue cases one must look at substance of thing and not at manner in which account is stated. [P. 330] A

1996 SCMR 1470 and PLD 1985 SC 109.

Income Tax Ordinance, 1979 (the Repealed Ordinance)--

----S. 22(c)--Non-competition fee--Question of--Whether non-competition fee falls within mischief of charging provision as claimed or not--Determination--Under law, non-competition fee is considered a capital receipt--Unlike a revenue receipt, which is a substitution of income and is chargeable to tax, whereas a capital receipt is received in exchange for source of income and is not chargeable to tax unless specifically made taxable by charging provision of taxing law--Applicant-department has failed to show that compensation received by respondent-taxpayer for non-competition has nexus with any source of income taxable under law, and is, thus not covered under any charging provision of repealed Ordinance of 1979--Non-competition fee, received by assessee, is a capital receipt which is not chargeable to income tax under provisions of repealed Ordinance of 1979.

[Pp. 331 & 334] B, D & E

1999 PTD 3270 ref.

Capital Receipt--

----A capital receipt, which is not covered under clear language of charging provisions, cannot be termed as income and subjected to income tax. [P. 334] C

M/s. Mubashir Ali (vice Mian Yousaf Umar), Ch. Shakeel Ahmad (vice Sarfraz Ahmad Cheema) and Muhammad Yasin Zahid, Advocates for Applicant.

Mian Ashiq Hussain, Advocate for Respondent.

Date of hearing: 13.03.2019.

Judgment

Muhammad Sajid Mehmood Sethi, J.--This consolidated judgment shall decide instant Reference Application under Section 133 (1) of the Income Tax Ordinance, 2001 (“the Ordinance of 2001”), along with following connected cases, as common questions of law and facts are involved in these cases:-

1. PTR No. 84 of 2012 titled Commissioner Inland Revenue v. Ameer Abdullah Khan Rokhari

2. PTR No. 85 of 2012 titled Commissioner Inland Revenue v. Ameer Abdullah Khan Rokhari

3. PTR No. 86 of 2012 titled Commissioner Inland Revenue v. Ameer Abdullah Khan Rokhari

4. PTR No. 87 of 2012 titled Commissioner Inland Revenue v. Mst. Begum Mumtaz Niazi

5. PTR No. 121 of 2012 titled Commissioner Inland Revenue v. Sh. Muhammad Ashraf

6. PTR No. 122 of 2012 titled Commissioner Inland Revenue v. Sh. Muhammad Ashraf

7. CTR No. 01 of 2004 titled Aamer Hayat Khan Niazi v. Taxation Officer of Income Tax, Lahore

8. ITR No. 193 of 2016 titled Commissioner Inland Revenue v. M/s. Coca Cola Beverages, Pakistan Limited, Lahore

9. ITR No. 194 of 2016 titled Commissioner Inland Revenue v. M/s. Coca Cola Beverages, Pakistan Limited, Lahore

10. The following questions of law, asserted to have arisen out of the impugned order dated 27.09.2011 passed by learned Appellate Tribunal Inland Revenue, Lahore Bench, Lahore (“Appellate Tribunal”), have been proposed for our opinion:-

i. Whether on the facts and in the circumstances of the case, the learned Appellate Tribunal Inland Revenue was justified to hold the non-competition fee, received by the assessee under the agreement as capital receipt, while it is recurring annually (for five years) and is rightly assessed in the hands of the assessee as income?

ii. Whether under the facts and in the circumstances of the case, the learned ATIR was justified to hold the non-competition fee, received by the assessee as capital receipt, ignoring the fact that it is a consideration and not compensation for any loss under the subject agreement?

iii. Whether under the facts and in the circumstances of the case, the learned ATIR was justified to hold the non-competition fee, received by the assessee as capital receipt and not covered under any provision of Ordinance?

1. Brief facts of this case are that respondent-taxpayer was director in M/s. Adil Beverages Company (Pvt.) Ltd. and M/s. Duranni Bottling Company (Pvt.) Ltd. Both the companies were franchisees of a foreign company, namely M/s. Coca Cola Export Corporation Ltd., for manufacturing and marketing beverages under the brand names of Coca Cola, Fanta and Sprite. In the year 1998, the foreign company changed its sale policy and formed a new company for manufacturing and marketing the products of the company, namely M/s. Coca Cola Beverages Pakistan Ltd., which purchased the assets of all the franchise holders of the country. It also entered into agreement with respondent-taxpayer on 08.01.1998. Similar agreements were executed with the other persons running those franchisee companies to refrain from engaging directly or indirectly in the business of production, distribution or sale of the said soft drinks in Pakistan for five years. The Assessing Officer proportionated total amount received against the said non-competition agreement for five years and accordingly added a sum of Rs.20,000,000/- as income for each tax year. Feeling aggrieved, respondent-taxpayer filed appeal before CIT (Appeals), which was dismissed vide order dated 30.06.2005. Being dissatisfied, respondent-taxpayer preferred second appeal before learned Appellate Tribunal, which was accepted vide order dated 27.09.2011 and demand of tax raised by treating non-competition amount as income, was deleted. Hence, this Reference Application.

2. Learned counsel for applicant-department submits that the non-competition fee is not capital receipt, therefore, it was rightly assessed as income by the assessing officer as well as CIT (Appeals). He further submits that non-competition fee is a consideration, not compensation for any loss under the subject agreement. He adds that the material aspects of the matter have not been correctly appreciated by learned Appellate Tribunal while passing impugned order, thus, same is not sustainable in the eye of law.

3. Conversely, learned counsel for respondent-taxpayer defends the impugned order and submits that the non-competition fee, received by respondent-taxpayer under the agreement, is capital receipt, which is not covered under any charging provision of the Ordinance of 1979. In support of his contention, he has relied upon judgment dated 16.03.2011, passed by the Hon’ble Supreme Court of India in a judgment reported as Guffic Chem (P) Ltd. v. C.I.T., Belgaum & Anr. [(2011) 4 SCC 254]. In the end, he submits that applicant-department has failed to point out any illegality or legal infirmity in the impugned order, thus, same is liable to be upheld.

4. Arguments heard. Available record perused.

5. It is well settled law that anything which is not income cannot be treated as income. It, therefore, follows that receipt is not the sole test of chargeability. The initial burden to show that a receipt is income taxable under the law, is on the applicant- department. This burden of proof cannot be shifted on the respondent-taxpayer to quote any provision of law, which specifically declares that the sum received by the respondent- taxpayer was exempt from income tax instead of specifying the charging provision purportedly covering it. Needless to say that in revenue cases one must look at the substance of the thing and not at the manner in which the account is stated. Reference in this regard can be made to Pakistan Industrial Development Corporation v. Pakistan through the Secretary, Ministry of Finance (1992 PTD 576), Commissioner of Income Tax v. Smith Kline & French of Pakistan Ltd. and two others [(1991) 64 TAX 37 (S.C. Pak.)], B.P. Biscuit Factory Ltd., Karachi v. Wealth Tax Officer and another (1996 SCMR 1470) and Messrs Habib Insurance Co. Ltd. v. Commissioner of Income-Tax (Central), Karachi (PLD 1985 Supreme Court 109).

6. Learned counsel for applicant department has argued that the amount received by the respondent-taxpayer is a benefit arising from business on which tax is chargeable under clause (c) of Section 22 of the repealed Income Tax Ordinance, 1979 (“the repealed Ordinance”). In the present case, the applicant- department has not impugned the genuineness of the transaction. It is also not disputed that the amount received by the respondent- taxpayer under the agreement with M/s. Coca Cola Beverages Pakistan Ltd. is a non-competition fee received for agreeing to refrain from carrying on competitive business. We have gone through the charging provision under the repealed Ordinance of 1979 to see whether non-competition fee falls within the mischief of charging provision, as claimed, or not. Section 22 ibid is reproduced hereunder:

“22. Income from business or profession. The following incomes shall be chargeable under the head “Income from business or profession”, namely:--

(a) profits and gains of any business or profession carried on, or deemed to be carried on, by the assessee at any time during the income year;

(b) income derived by any trade, professional and similar association from specific services performed for its members; and

(c) value of any benefit or perquisite, whether convertible into money or not, arising from business or the exercise of a profession.”

According to the learned counsel for the applicant department, the phrase “arising from business” includes negative covenant of not doing business, and comes within the scope of afore-referred provision of law for the purposes of taxing the non- competition fee.

1. Under the law, non-competition fee is considered a capital receipt. Unlike a revenue receipt, which is a substitution of income and is chargeable to tax, whereas a capital receipt is received in exchange for the source of income and is not chargeable to tax unless specifically made taxable by the charging provision of the taxing law. Reference, in this regard, can be made to Oberoi Hotel (Pvt.) Ltd. v. Commissioner of Income-Tax (1999 PTD 3270) and Commissioner of Income Tax (East) Karachi v. Forbes Campbell & Co. Ltd. [(1979) 39 Tax 21 (H.C. Kar.)]. Hon’ble Sindh High Court, in Forbes Campbell & Co. Ltd. (supra), while dealing with a similar issue, has observed as under:

“10. ……. It is not disputed that if the compensation was paid for agreeing not to compete with the principal’s business, it would prima facie be a capital receipt. It is true that the letter of 17th November 1962, setting out the terms of the new arrangement did not categorically provide for compensation for refraining from competing with the principal. But, the sum of Rs.60,000 was offered to the respondent on condition that it accepted the offer to become a main dealer. The letter also provided that each main dealer was to be exclusive dealer of “Exide” batteries within his own territory. Reading the two provisions together, there is no difficulty in holding that by agreeing to become one of the main and exclusive dealers, the respondent had agreed not to compete with the business of the principal. In the Gillanders Arbuthnot case, above-quoted, it has been held that compensation paid for agreeing to refrain from carrying on competitive business in the commodities in respect of the agency terminated is, prima facie, of the nature of a capital asset.”

In the instant case, respondent-taxpayer had lost the source of its income for five years on account of non-competition agreement qua sale/production/manufacturing of cold drinks and, therefore, the amount received by the respondent-taxpayer for the loss of the source of income is capital receipt. Unless this capital receipt is hit by charging provision of the repealed Ordinance of 1979, it cannot be subjected to tax.

1. Since the applicant-department has treated the noncompetition fee received by the respondent-taxpayer as a benefit arising out of business under Section 22(c) of the repealed Ordinance of 1979, it would be appropriate to have a look at clause (iv) of Section 28 of the Indian Income Tax Act, 1961 which is similar to clause (c) of Section 22 of the repealed Ordinance of 1979. Section 28(iv) of the Indian Income Tax Act, 1961 is reproduced below for ready reference:

“28. The following income shall be chargeable to income-tax under the head “Profits and gains of business or profession”:-

i) …

(ii) …

(iii) …

(iv) the value of any benefit or perquisite, whether convertible into money or not, arising from business or the exercise of a profession”

In the case of Guffic Chem P. Ltd. (supra), the Supreme Court of India, while discussing the chargeability of non- competition fee under the Income Tax Act, 1961, held that payment received as non-competition fee under a negative covenant was always treated as a capital receipt till the assessment year 2003-04. It is only with effect from 1.4.2003 that the said capital receipt was made taxable under Section 28(va) of the Income Tax Act, 1961, inserted vide Finance Act, 2002, which reads as under:

“28. The following income shall be chargeable to income-tax under the head “Profits and gains of business or profession”:-

(i) …

(ii) …

(iii) …

(iv) …

(v) …

(va) any sum, whether received or receivable, in cash or kind, under an agreement for--

(a) not carrying out any activity in relation to any business; or

(b) …

Provided that sub-clause (a) shall not apply to--

(i) any sum, whether received or receivable, in cash or kind, on account of transfer of the right to manufacture, produce or process any article or thing or right to carry on any business, which is chargeable under the head “Capital gains”;

(ii) any sum received as compensation, from the multilateral fund of the Montreal Protocol on Substances that Deplete the Ozone layer under the United Nations Environment Programme, in accordance with the terms of agreement entered into with the Government of India.”

Insertion of Section 28(va) in Indian Income Tax Act, 1961vide Finance Act, 2002 itself proves that during the relevant assessment year compensation received by the assessee under non- competition agreement was a capital receipt, not taxable under clause (iv) of the Section 28 of the Act of 1961. It became taxable only after insertion of Section 28(va) in the Act of 1961. Therefore, it can safely be held that non-competition fee received by the respondent-taxpayer is not hit by the charging provisions of the repealed Ordinance of 1979.

1. Under the law, it is the duty of applicant-department to establish the chargeability of the receipt as income. A capital receipt, which is not covered under the clear language of the charging provisions, cannot be termed as income and subjected to income tax. According to Maxwell:

“It is well-settled rule of law 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 not to be taxed unless the language of the statute clearly imposes the obligation and language must not be strained in order to tax a transaction which, had the legislature thought of it, would have been covered by appropriate words.”

(See Maxwell on the Interpretation of Statutes, Twelfth Edition, p.256).

Applicant-department has failed to show that the compensation received by the respondent-taxpayer for non-competition has nexus with any source of income taxable under the law, and is, thus not covered under any charging provision of the repealed Ordinance of 1979.

1. In view of the above, our answer to the proposed questions is that non-competition fee, received by the assessee, is a capital receipt which is not chargeable to income tax under the provisions of the repealed Ordinance of 1979, hence, this Reference Application, along with connected Reference Applications, is decided against the applicant-department and in favour of respondent-taxpayer.

2. Office shall send a copy of this order under seal of the Court to learned Appellate Tribunal as per Section 133 (5) of the Ordinance of 2001.

(M.M.R.) Reference application accepted.

PLJ 2019 Lahore 335

Present:Muzamil Akhtar Shabir, J.

ASAD ALI KHAN--Petitioner

versus

SPECIAL JUDGE RENT etc.--Respondents

W.P. No. 252439 of 2018, decided on 8.2.2019.

Punjab Rented Premises Act, 2009 --

----S. 15--Constitution of Pakistan, 1973, Art. 199--Ejectment petition--Allowed with direction to vacate within thirty days--Appeal--Dismissed--Remanded to trial Court for payment of pagri--Period of rent deed was 11 months--Extendable with mutual consent of parties--Pagri was not mentioned in rent deed--Determination--It is settled by now that where period of tenancy has expired, tenant who relies upon its extension has to establish through cogent evidence time period for which it has been extended otherwise, oral extension would be tantamount to extension of one month only and such tenancy has got to be extended on each and every successive month and terminable at one month’s noticed--Petitioner has failed to establish extension of tenancy, therefore, Courts below were justified to pass ejectment order against him as expiry of period of tenancy is a ground to pass such an order--No exception can be taken to same--Question of “pagri” cannot be clubbed with question of expiry of period of tenancy in this case and both are to be dealt with separately--Consequently, appellate Court was justified in maintaining order of eviction and separately remanding matter relating to “pagri” for determination by trial Court--No illegality has been pointed out in impugned judgment, therefore, no exception can be taken to same--Petition was dismissed.

[Pp. 337 & 338] A, B & C

2016 MLD 1095; 2015 CLC 1187 and 2011 YLR 2205 ref.

M/s. Asif Iqbal and Abdullah Chaudhry, Advocates for Petitioner.

Mr. Aurangzaib Mirza, Advocate for Respondent No. 3.

Date of hearing: 8.2.2019.

Order

Through this constitutional petition the petitioner has challenged the judgment dated 06.08.2018 passed by learned Additional District Judge, Lahore, whereby appeal filed by the petitioner was dismissed and the order dated 07.10.2017 passed by the Special Judge (Rent), Lahore was upheld with modification.

1. The brief facts of the case are that Ch. Muhammad Saeed, predecessor-in-interest of Respondent No. 3 was owner in possession of Shop No. 13, Plot No. 08, Azmat Plaza Main Commercial Zone, Allama Iqbal Town, Lahore. After his death on 23.10.1989, his widow rented out the said shop to petitioner for rent of Rs.1400/- per month vide written tenancy agreement dated 22.01.1990 and presently the monthly rent of the shop is Rs.8,007/-per month. It was settled between the parties that tenancy will continue after expiration of initial period without any amendment in settled rent conditions and the landlord cannot evict the petitioner on any ground except his failure to pay the rent of two continuous months subject to prior notice. After the death of the landlady and expiry of the tenancy period, the present landlord/Respondent No. 3 (“respondent”) approached the petitioner for vacation of the said shop who refused to do so. Consequently, the respondent filed an ejectment petition which was allowed by the Special Judge (Rent) vide his order dated 07.10.2017 with a direction to the petitioner to vacate the premises within a period of 30 days. Feeling aggrieved of the said order, the petitioner preferred an appeal by raising the ground that question of “pagri” has not been properly considered and prayed for setting-aside of the impugned order. The said appeal was dismissed by the appellate Court vide judgment dated 06.08.2018 with a direction to the petitioner to vacate the premises within a period of four months. However, to the extent of payment of “pagri” the matter was remanded to the trial Court for decision afresh. The said judgment is under challenge through instant constitutional petition to the extent of ejectment order only.

2. Learned counsel for the petitioner has contended that both the Courts below have not properly appreciated the facts and material available on record and have passed the impugned order/judgment in a slipshod manner without properly considering and deciding the question of “pagri” raised by the petitioner in defence to the ejectment petition, therefore, both the order and judgment of the Courts below are liable to be set-aside.

3. Conversely, learned counsel appearing on behalf of Respondent No. 3 has defended the impugned orders on the ground that “pagri” was not mentioned in the rent agreement and the said plea was raised by the petitioner as an afterthought just to delay and prolong the proceedings.

4. Heard. Record perused.

5. The tenancy between the parties through original rent deed dated 22.01.1990 is admitted which was initially for a period of 11 months. Although it is claimed by the petitioner that said tenancy agreement was thereafter extended for an unlimited period and payment of “pagri” was made by the petitioner, no such document has been placed on the record to substantiate the said claim. Admittedly, “pagri” is not mentioned in the original agreement and the petitioner claims to have paid the same subsequently and states that unless the question of “pagri” is determined, ejectment petition could not have been decided. For that purpose relies upon judgment reported as ZaheerAhmed Babar vs. Additional District Judge, Lahore and 2 others (2015 YLR 1617). In the afore referred judgment, the rent agreement specifically mentioned that “pagri” had been given whereas in this case the rent agreement is silent to that extent and “pagri” is claimed to have been subsequently given. Consequently, the facts of the said case are distinguishable from the case in hand and would not be applicable to it.

6. The initial period of tenancy was for 11 months which was extendable by mutual consent of the parties. The respondent claims that the said tenancy was orally extended for unlimited period and he had paid “pagri” for the same. However, (it is settled by now that where the period of tenancy has expired, the tenant who relies upon its extension has to establish through cogent evidence the time period for which it has been extended otherwise, oral extension would be tantamount to extension of one month only and such tenancy has got to be extended on each and every successive month and terminable at one month’s noticed. Reliance in this behalf is placed on Muhammad Nayab vs. Additional District Judge, Rawalpindi and 2 others (2016 MLD 1095), Muhammad Taufeeq vs. Muhammad Nawaz & 2 others (2015 CLC 1187) and AftabAhmad Raja vs. Malik Faizullah Khan Afridi & others (2011 YLR 2205). The filing of ejectment petition is itself a notice for termination of tenancy. Reliance is placed on SardarMuhammad vs. Khawaja Muhammad Nazar (2004 CLC 289). In view of the afore referred judgments it was for the petitioner to show the extension of tenancy on monthly basis after the expiry of initial period of tenancy and each successive month would give a cause of action to the respondent to file ejectment petition. The petitioner has failed to establish extension of tenancy, therefore, the Courts below were justified to pass ejectment order against him as expiry of period of tenancy is a ground to pass such an order. No exception can be taken to the same. As regards the ground of the petitioner that because the matter relating to “pagri” has been remanded, thereby it would be presumed that application for leave to contest had been partially allowed in his favour, therefore, matter should have been remanded to the trial Court in its entirety for decision. Suffice it to say that to be granted leave to contest for the entire case the petitioner was to establish that as per terms and conditions of the agreement, tenancy could not be terminated without refund of “pagri”. However, the agreement in the present case is silent to that effect and “pagri” is claimed to have been subsequently paid, therefore, the question of “pagri” cannot be clubbed with the question of expiry of period of tenancy in this case and both are to be dealt with separately. Consequently, the appellate Court was justified in maintaining the order of eviction and separately remanding the matter relating to “pagri” for determination by the trial Court. No illegality has been pointed out in the impugned judgment, therefore, no exception can be taken to the same.

7. For what has been discussed above, this constitutional petition being devoid of any merit is dismissed.

(Y.A.) Petition dismissed

PLJ 2019 Lahore 338

Present: Amin-ud-Din Khan, J.

UMAIR SALEEM--Appellant

versus

IMTIAZ ARSHAD--Respondent

F.A.O. No. 210161 of 2018, heard on 8.4.2019.

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

----O. XLIII, R. 1 R/W S. 104--Fast Food Business--Agreement regarding use of franchise name Application for temporary injunction--Allowed--Appeal--Dismissed--Challenge to--Plaintiff-respondent is having registration of trade mark under Class 29 that too with disclaimer and with regard to registration of Class 43 applications of both parties are in process--Order dated 14.4.2018 passed by learned Presiding Officer, Intellectual Property Tribunal at Lahore is not sustainable under law--Appellant-defendant cannot be restrained from using mark “Al-maida” for services for providing food and drinks--Appeal was allowed. [P. 342] A

Pir Muhammad Masood Chishti, Advocate assisted by Mr. Barjees Bhatti, Advocate, Mr. Sheraz Khalid and Mr. Qamar Hayyat Bhutta, Advocate for Appellant.

Mr. Zubda-tul-Hassan, Advocate assisted by Mr. Khalil Haider, Advocate for Respondent.

Date of hearing: 8.4.2019

Judgment

Through this First Appeal filed under Order XLIII Rule 1 of the CPC read with Section 104 of the CPC appellant has challenged the order dated 14.4.2018 passed by the learned Presiding Officer, Intellectual Property Tribunal at Lahore whereby in a suit filed by the plaintiff-respondent while deciding application for grant of temporary injunction appellant was restrained from using the Mark “Almaida”.

1. Brief facts of the case are that plaintiff-respondent is running a business of providing/serving fast foods, burger, pizza under a trade mark/trade name “Almaida” with unique logo and color scheme and to strengthen his right he has procured registration of this trade mark and copyright in respect of artistic work, get up, style, color scheme, associated with the trade mark, that he permitted defendant-appellant vide franchise agreement dated 24.5.2006 to use this mark without any legal permission which amount to infringement of his trade mark and copyright. The suit as well as application for temporary injunction are being contested by the defendant-appellant. In the written statement the defendant-appellant denies the franchise agreement and claims that this mark was created and adopted by him in 2006 and since then he has been doing business in bonafide and continuously without any interference and his business has earned reputation of its own due to high quality of his service. It is also denied that he is copying artistic work of plaintiff-respondent. He has also denied that plaintiff-respondent holds any valid registration trade mark in Class 43 which deal with provision of services and has requested for dismissal of the suit and rejection of application.

2. Learned counsel for the appellant has reiterated the grounds mentioned in the appeal and while relying upon case law reported as “Muhammad Ashraf alias Makkhan versus Muhammad Akram” (2016 MLD 389) prays for acceptance of this appeal.

3. On the other hand, learned counsel for the respondent While relying upon “Messrs Tabaq Restaurant versus Messrs Tabaq Restaurant” (1987 SCMR 1090), “Pioneer Cement Limited through Company Secretary versus Fecto Cement Limited through Chief Executive Officer and 3 others” (PLD 2013 Lahore 110), “Messrs Hilal Confectionary (Pvt) Ltd. Versus Messrs Naveed Enterprises and another” (2018 CLD 1) and “Ghulam Mujtaba Paracha versus Muhammad Saleem” (2010 CLD 311) prays for dismissal of the appeal.

4. I have heard learned counsel for the parties at length, gone through the record appended with this appeal as well as case law cited by learned counsel for the parties.

5. The upshot of the arguments is that plaintiff-respondent is having a registered trade mark under Class 29 with a disclaimer with the following words:--

“with disclaimer of letter “AFC” AL-MAIDA and all other descriptive words and feature appearing as label.”

Admittedly Class-29 is as follows:--

“Meat, fish, poultry and game;

Meat extracts;

Preserved, frozen, dried and cooked fruits and vegetables;

Jellies, jams, compotes;

Eggs, milk and milk products;

Edible oils and fats.”

Whereas for registration under Class 43 both the parties have moved their respective applications which are still pending. Learned counsel for the appellant has relied upon the judgment reported as “Muhammad Ashraf alias Makkhan versus Muhammad Akram” (2016 MLD 389). The relevant paragraphs are Para No. 6 and Para No. 9 which are reproduced respectively:--

1. Section 21 of the Trade Marks Ordinance, 2001 deals with the treatment of registrations which are subject to disclaimer. The said section for ease of reference is reproduced as hereunder:--

2. Registration subject to disclaimer.--If a trade mark contains:--

(a) any part not separately registered as a trade mark in the name of the proprietor;

(b) any part for the separate registration of which no application has been mark; or

(c) any matter common to the trade, or otherwise of a non-distinctive character, the Tribunal, in deciding whether the trade mark shall be entered or shall remain on the register, may require, as a condition of its being on the Register, that the proprietors shall either disclaim any right to the exclusive use of such part or of all or any portion of such matter, as the case may be, to the exclusive use of which the Tribunal holds him not to be entitled, or make such other disclaimer as the Tribunal may consider necessary for the purpose of defining the rights of the proprietor under the registration:

Provided that no disclaimer shall affect any rights of the proprietor of a trade mark except such as arise out of the registration of the trade mark in respect of which the disclaimer is made.”

It is, therefore, quite apparent that a disclaimer would be imposed by the Registrar on any part of trademark, as a condition for allowing registration, where the Registrar finds that the said part is, inter alia, common to trade or otherwise of a non-distinctive character and the Tribunal (registrar) holds the appellant not to be entitled to the exclusive right to use thereof. A disclaimer, thus, limits the extent of the exclusive rights, which a registration may give to trademark owner. Therefore, in view of the disclaimer noted in para 5 supra, it is manifest that the appellant has himself disclaimed any exclusive right to the words “MAKKHAN SWEET & BAKERS”. As such, in the absence of having an exclusive right on the use of the word “MAKKHAN”, he cannot be held to be entitled to be considered to have made out a prima facie case on the basis of Registration No. 247678 in class 30.

1. ---

2. ---

3. The appellant has failed to show that he has a prima facie case and the balance of convenience is also in his favour and that he will suffer an irreparable loss by the continuation of business by the respondent by selling his goods under the word “MAKKHAN” considering what has been stated above. In view of the aforesaid findings, the order dated 09.02.2015, passed by the learned Additional District Judge, is within its legal boundary and this Court finds no occasion to interfere therein. Appeal is dismissed.”

4. In these circumstances, now the picture comes that plaintiff-respondent is having registration of trade mark under Class

29 that too with disclaimer and with regard to registration of Class 43 the applications of both the parties are in process. In these circumstances, the order dated 14.4.2018 passed by the learned Presiding Officer, Intellectual Property Tribunal at Lahore is not sustainable under the law. The appellant-defendant cannot be restrained from using the mark “Al-maida” for services for providing food and drinks. The case law cited by learned counsel for the respondent is distinguishable from the facts of this case, therefore, not beneficial for the respondent. Resultantly, instant appeal is allowed, the order dated 14.4.2018 impugned in the appeal is set aside and the application for grant of temporary injunction stands dismissed.

(M.M.R.) Appeal allowed

PLJ 2019 Lahore 342 (DB) [Multan Bench, Multan]

Present: Masud Abid Naqvi and Mirza Viqas Rauf, JJ.

AGRICULTURAL & RESEARCH DEPARTMENT through Secretary and 2 others--Appellants

versus

MUHAMMAD TARIQ JAVED, etc.--Respondents

I.C.A No. 390 of 2017 in W.P. No. 2464 of 2009, decided on 15.3.2018.

Limitation Act, 1908 (IX of 1908)--

----Art. 151--Application for post of tubewell operator--Declaration as successful candidate--Non issuance of appointment letter--Writ petition--Allowed--Delay in filling of appeal--Application for--Condonation of delay--Law is well settled that limitation of 20 days provided under Article 151 of Limitation Act, 1908 for filing appeal mentioned therein would start running from date of decree or order passed by High Court in its original jurisdiction--There is no ambiguity or disparity in Article 151 of Limitation Act, 1908 for reckoning said period--Application was dismissed. [P. 344] A

1998 SCMR 179 & PLD 2011 Lah. 490, ref.

Limitation Act, 1908 (IX of 1908)--

----S. 3--Duty of Court--Limitation--In terms of Section 3 of The Limitation Act, 1908, it is the bounden duty of every Court to take notice of the question of limitation, even if not raised in defence by the contesting party. [Pp. 344 & 345] B

Rana Muhammad Hussain, Assistant Advocate General for Applicants-appellants.

Mr. Muhammad Khalid Mehmood Ayaz, Advocate for Respondent No. 1.

Hafiz Muhammad Nasrullah, Agronomist & Muhammad Luqman, Assistant Research Office, Agronomic Research Station, Khanewal.

Date of hearing: 15.3.2018

Order

C.M. NO. 02 OF 2017.

This application in terms of Section 5 of The Limitation Act, 1908 seeks condonation of delay in filing the appeal, which is barred by 31 days.

1. Learned Law Officer submits that delay in filing of appeal is the result of non-availability of certified copies of necessary documents as well as delayed sanction to file the Intra Court appeal. He added that law favours the adjudication on merits and the government could not be penalized on account of act of delinquent officials. In support of his contentions, learned Law Officer has placed reliance on “Government of Khyber Pakhtunkhwa through Secretary Industries Commerce and Mineral Development, Peshawar and others v. Frontier Chemicals Industries Ram Bagh, Mardan” (2016 SCMR 1410).

2. We have heard learned Law Officer at some length and perused the record.

3. The respondent/writ petitioner filed a writ petition averring therein that he applied for the post of Tubewell Operator in Agronomic Research Centre, Khanewal and after completion of the process, he was declared as successful candidate as per merit list dated 19th September, 2017 securing highest marks but due to imposition of ban on recruitments after 31st December, 2007, no appointment letter was issued in his favour. The writ petition was allowed by the learned Single Judge in Chamber vide judgment dated 11th September, 2017, which is impugned herein.

4. It is an admitted fact that the writ petition was allowedvide judgment dated 11th September, 2017 directing the appellants to issue appointment letter in favour of Respondent No. 1 within 30 days on the basis of recommendations dated 19th September, 2007 prepared by the departmental selection committee.

5. In view of stance taken by the learned Law Officer, we have gone through the record, which reflects that copy of the judgment was applied on 24th October, 2017, which was delivered on 25th October, 2017 whereas the Intra Court Appeal was filed on 3rd November, 2017. Article 151 of The Limitation Act, 1908 provides 20 days for filing an appeal from a decree or order of a High Court in exercise of its original jurisdiction. As already observed that judgment was passed on 11th September, 2017 whereas application for obtaining certified copies was moved on 24th October, 2017 after 43 days of the passing of the judgment. Period of 20 days prescribed under Article 151 of The Limitation Act, 1908 was clearly elapsed on 1st October, 2017 and the copies were thus applied after lapse of 23 days of the limitation period.

6. Law is well settled that limitation of 20 days provided under Article 151 of The Limitation Act, 1908 for filing appeal mentioned therein would start running from the date of decree or order passed by the High Court in its original jurisdiction. There is no ambiguity or disparity in Article 151 of The Limitation Act, 1908 for reckoning the said period. Thus, the time spent in obtaining certified copies of the relevant record would not be excludable from the period prescribed for filing the Intra Court Appeal. In the case of “Khawaja Muhammad Afzal and another v. Sh. Muhammad Sadiq and others” (1998 SCMR 179), the Hon’ble Supreme Court of Pakistan, while dilating upon the issue in hand, held as under:

“It is well established that once time has begun to run it does not stop. The time for filing the Letters Patent Appeal having already expired neither the time spent in pursuing the review application nor the time spent in obtaining copy of the order passed by the Single Judge could be deducted from the period of 20 days. Similarly the time spent in obtaining copy of the order rejecting the review application could not be deducted as under the Rule it was not necessary to file copy of that order alongwith the memorandum of the Letters Patent Appeal. In computing the time for filing the Letters Patent Appeal the High Court had thus fallen in error.”

The above view was adopted by this Court in the case of “Ashiq Hussain Sabri v. Secretary Health, Government of the Punjab” (PLD 2011 Lah. 490)

1. In the case of “Ministry of Defence and 3 others v. Muhammad Athar” (2013 MLD 1284) while dealing with scope and the impact of Article 151 and Sections 12, 14 of The Limitation Act, 1908, it was held as under:

2. “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. Column No. 3 of the said Schedule is meant for mentioning of time from which period begins to run and against Serial No. 151 in Column No. 3, the starting period is given as “the date of the decree or order” and the present filing of appeal is not given any relaxation for exclusion of the period spent in obtaining the certified copies of the relevant record.”

3. The judgment passed by the learned Single Judge was delivered on 6-5-2011. On behalf of the appellants, an application for obtaining certified copies of the relevant record was made on 12-5-2011 and the record was prepared in shape of certified version on 17-5-2011. CPLA was filed on 9-7-2011, which was the 58th day of passage of the judgment by the learned Single Judge of this Court in Writ Petition No. 7537 of 2009.

4. The Hon’ble Supreme Court of Pakistan when disposed of the said CPLA, made certain 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. The order was passed by the Hon’ble Supreme Court of Pakistan on 24-9-2012 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. It is also noteworthy that when the CPLA was ordered to be converted into ICA, it was ordered to be sent back to the High Court for “decision in accordance with law subject to all just and valid objections”.

5. The CPLA was allowed to be converted into ICA and at the cost of repetition the date of filing CPLA is once again provided viz. 9-7-2011. When the CPLA was converted into ICA and the same is being heard by us as ICA, the date of filing CPLA must be taken as a date of filing of ICA. As noted earlier, the date of filing of CPLA was the 58th day from the date, when the learned Single Judge passed the judgment in Chambers on 6-5-2011.

6. Although there is no concept of exclusion of the time spent in obtaining the certified copies of the relevant record in case an ICA is to be filed, nevertheless after exclusion of the said period of six days (from 12-5-2011, the date of submission of form in Copying Agency for obtaining certified copies of relevant record to 17-5-2011; when the copies were prepared), even then, it would become 52nd day, when the ICA was considered to have been filed. Keeping in view the period of limitation provided under Article 151 of the Limitation Act, 1908 the ICA was thus barred by 132 days on the date of its filing.

7. The Hon’ble Supreme Court of Pakistan while converting the CPLA into ICA and by remitted the same back to the Court, 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 objection raised by the respondent with regard to the limitation.

The Hon’ble Supreme Court of Pakistan in case of “Mst. Khadija Begum and 2 others v. Mst. Yasmeen and 4 others (PLD 2001 Supreme Court 355) while dealing with the question of limitation has 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.

1. 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 proceedings in accordance with law.”

2. A party, while seeking condonation on account of limitation, has to explain delay of each and every day as the question of limitation is as important as the jurisdiction of the Court. In terms of Section 3 of The Limitation Act, 1908, it is the bounden duty of every Court to take notice of the question of limitation, even if not raised in defence by the contesting party. Reliance in this respect, if need, can be placed on “United Bank Limited and others v. Noor-un-Nisa and others” (2015 SCMR 380).

3. While adverting to the contention of learned Law Officer that lenient view shall be taken while pressing the hurdle of limitation in the way of government, it is observed that each and every case has its own facts. The Courts are obliged to decide the lis on the basis of available material and keeping in view the conduct of the parties in the said matter. No cavil that in case of “Government of Khyber Pakhtunkhwa through Secretary Industries Commerce and Mineral Development, Peshawar and others v. Frontier Chemicals Industries Ram Bagh, Mardan” (2016 SCMR 1410), the Hon’ble Apex Court condoned the delay of 41 days in filing the petition by the Government of Khyber Pakhtunkhwa but while going through the facts of the said case, we are in agreement that the same are clearly distinguishable to the facts in hand. In the present case, though a plea has been taken that delay in filing of appeal is the result of non-availability of certified copies of necessary documents as well as delayed sanction to file the Intra Court appeal but no cogent material is available to this effect and only a general and bald assertion is made, which is not sufficient for extending the discretion in each and every case where the Government is confronted with the question of limitation.

4. While examining the question of limitation on the above prospective, we have noted that the only reason assigned in the application is that time was consumed due to non-supply of the necessary certified copies as well as delayed sanction from the concerned quarters. The reason so pleaded is apparently fallacious and without substance as the copies were even applied after the expiry of limitation prescribed under Article 151 of The Limitation Act, 1908. Mere bald and general assertions are not sufficient justifying condonation of delay on the part of Government or its functionaries.

5. There can be no distinction between an ordinary litigant and the Government Institutions in the matter of limitation. Every statute is meant to eliminate the discrimination and Government institutions cannot be given preferential status before a Court of law. We are cognizant of the fact that principles of natural justice are founded on the equality of the citizens, which is even guaranteed under Article 25 of The Constitution of Islamic Republic of Pakistan, 1973. The State or Government cannot be treated differently unless such privilege is extended through a lawful statute. Reference in this respect can be made to “Federation of Pakistan through Secretary, Ministry of Foreign Affairs, Government of Pakistan, Islamabad and 5

others v. Jamaluddin and others” (1996 SCMR 727), “Federation of Pakistan through Secretary, Ministry of Finance v. Niaz Ahmad” (1997 PLC (C.S.) 750) and “Pakistan Railway Advisor and Consultancy Services (PRACS) Railway Burt Institute v. Ch. Muhammad Hussain”(2003 CLC 81).

1. The nutshell of above discussion is that instant application is without any substance. Resultantly the same is dismissed.

C.M.NO.01 OF 2017

1. This application seeks interim relief.

2. For the reasons recorded in order of even date passed in C.M. No. 02 of 2017, instant application has become infructuous. The same is accordingly dismissed.

MAIN APPEAL.

1. For the reasons recorded in order of even date passed in C.M.No. 02 of 2017, instant Intra Court Appeal is dismissed in limine being barred by time.

(Y.A.) Appeal dismissed

PLJ 2019 Lahore 348

Present: Abid Aziz Sheikh, J.

MUHAMMAD RAFIQUE, etc.--Petitioners

versus

SECRETARY SCHOOLS, GOVT. OF PUNJAB LAHORE, etc.--Respondents

W.P. No. 126194 of 2017, heard on 26.9.2018.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional Petition--Recruitment Policy of 2017-18 for Educators--Eligibility criteria--3rd Divisioner in their entire career was not eligible to apply against posts advertised--Challenge to--Question of--Whether at all such restriction was a reasonable restriction--Determination--Violation of Fundamental Rights--Court has to bear in mind that nature of rights infringed through such restriction should be proportionate to urgency of evil sought to be remedied by said restriction--Impugned condition, same is not only found to be unreasonable but also harsh and irrational--According to impugned condition an applicant who has 3rd division once in her/his entire career will not be eligible to apply against post advertised means that it is presumed that a candidate who has secured 3rd division once in his/her life time can never improve his/her educational career in future--This presumption is not only absurd rather against dignity of such candidates and students--By way of illustration even in present case petitioners who got 3rd division in B.A. have not only got first division in their M.A Physical Education, which was prescribed qualification for job but according to petitioners they also stood second position in entire district Sialkot in their NTS test--Situation would have been different if policy was that a person having 3rd division of prescribed qualification shall not be eligible for posts advertised--But impugned condition is that a candidate, who had 3rd division in his/her entire career would not be eligible to apply for posts advertised--This means that a candidate who due to some unavoidable, financial or family circumstances etc could not get 1st or 2nd division in his/her initial academic career, will not be able to improve his/her entire subsequent academic career of education--It is not case of respondents that 3rd division amounts to fail in a particular academic course--Once it is admitted that 3rd divisioner amounts to passing of a particular academic class and same also entitled students to promote in next class, then imposing a condition that such candidate will not even be eligible to apply for post is absolutely irrational unreasonable and harsh--No doubt ordinarily Courts should not interfere in policy matters, however, if policy is in conflict with any provision of law of is violative of fundamental right of citizens same can be called in question in constitutional jurisdiction of this Court--Recruitment policy, 2017-2018 is declared to be ultra vires of Constitution, hence, struck down and petitioners shall be entitled to apply for posts advertised--However, recruitment shall be subject to fulfilment of other prescribed conditions, qualifications and on open merit basis.

[Pp. 353, 354 & 358] B, C, D, E & H

2011 SCMR 1621 & PLD 2011 Lah. 120, ref.

Constitution of Pakistan, 1973--

----Arts. 4, 9, 14, 25-A, 37(a) & 37(d) Fundamental Rights--Right of Education--Right to life--Right of livelihood--Duty of State--Every citizen has a right of quality education and State is under an obligation to establish best educational institutions to enable its citizens to ensure said right--State is neither providing best educational institutions nor it is in a position to meet demand of quality education in entire country--In given circumstances on one hand, when State/government is not in a position to provide quality education to citizens especially in rural areas then there is no justification to impose a condition that a candidate who ever secured 3rd division in his/her entire educational career will not be eligible to even apply against post advertised by Education Department--Indeed State could impose such condition if it could show that government is providing best academic qualification throughout country or province of Punjab, with quality educational institutions and despite said quality education particular candidates have secured 3rd division in his/her career--It is also admitted position between parties that impugned condition has only been imposed in Education Department, whereas apparently in no other government department such condition is being imposed, which amounts to violative of Article 25 of Constitution--Impugned condition also violative of right of livelihood, which being part of right to life as guaranteed under Article 9 of Constitution, a candidates despite having prescribed qualifications will not be in a position to even apply for posts advertised--Just because he/she had 3rd division in his/her entire educational career--Petitions were allowed. [P. 358] F & G

Constitution of Pakistan, 1973--

----Art. 18--Right to join lawful profession--Article 18 of Constitution shows that every citizen has right to enter upon any lawful occupation or profession subject to qualification as may be prescribed by law. [P. 353] A

PLD 2005 SC 193, ref.

Mr. Muhammad Iqbal Mohal and Malik Muhammad Zarar Iqbal Awan, Advocates for Petitioner (in Writ Petition No. 126194 of 2017).

Mr. Saif-ur-Rehman Jasra, Advocate for Petitioner (in connected Writ Petition No. 127099 of 2017).

Mr. Muhammad Nasir Umer, Advocate for Petitioner (in connected Writ Petition No. 115197 of 2017).

Mr. Amar Sanaullah, AAG for Respondents.

Mr. Imran Aslam Kharal & Malik Muhammad Zarar Iqbal Awan, Advocate for Respondents.

Date of hearing: 26.9.2018.

Judgment

This judgment will also decide Writ Petition Nos.127099 and 115197 of 2017 as common questions of law and facts are raised in these constitutional petitions. Through these constitutional petitions the petitioners have mainly challenged the condition in the Recruitment Policy, 2017-2018 for Educators and AEO dated 13.10.2017 (Policy), whereby in qualification eligibility criteria, it is prescribed that applicants having any 3rd division in their entire career, will not be eligible to apply against the posts advertised under the said policy (the said condition herein after be referred as impugned condition).

1. Because of commonality of the legal questions involved in these writ petitions, it is not necessary to narrate or advert to the facts of each case separately. However, to illustrate the factual aspects upon which these petitions are founded, facts of instant writ petition No. 127099 of 2017 are that the government of the Punjab Schools Education department advertised number of posts of SESE-PET (BS.14) in daily Jang on 19.11.2017 and invited applications. The required qualification for the said post was M.A. Physical Education. The petitioners who were M.A. (B.Ed) in 1st Division possessed the requisite qualification and being eligible applied for the said posts. After the scrutiny of documents, the applicants were intimated about NTS test through SMS but surprisingly subsequently petitioners informed that they are not being called for NTS test, being 3rd divisioners in B.A. under impugned condition of recruitment Policy, 2017-2018. The petitioners being aggrieved filed these constitutional petitions. This Court as an interim measure allowed them to participate in NTS test and interview. Resultantly, petitioners appeared in NTS test and interview and were declared successful both in NTS test and interview but their names were not shown in the final merit list due to the pendency of these writ petitions filed against impugned condition in the recruitment policy. It is also pointed out that out of total 115 candidates appeared in NTS test only 21 candidates including petitioners were declared successful.

2. Learned counsel for the petitioners argued that the impugned condition of recruitment policy is violative of Articles 4 and 9 of the Constitution of Islamic Republic of Pakistan, 1973 (Constitution), as same amounts to deny the petitioners right of job and livelihood, which is also part of right to life. Learned counsel submits that as the petitioners fulfilled the required qualification of M.A. Physical Education through their degrees in 1st Division and also cleared the NTS test and interview, they could not be denied the opportunity to apply for the job just because in their entire career they once acquired 3rd Division. Learned counsel submits that the impugned recruitment policy is unreasonable, harsh, arbitrary and offensive to human dignity. Submits that if once the petitioners got 3rd Division in their entire career it does not means that they cannot improve their academic qualification in future and become eligible for the posts in the Education Department. Further submits that this condition is introduced for the first time in year 2017-2018, when the petitioners already became over aged and cannot retake the exam of B.A. to improve their academic qualification. Learned counsel submits that under Articles 25-A and 37 of the Constitution, it is the responsibility of the State to provide quality education to the students but this responsibility is not fulfilled by the State and by imposing this condition, the respondents have now also deprived those students, to even compete for the job in the Education Department, which is absolutely unjustified and irrational. Learned counsel finally argued that the fundamental right of livelihood and to compete for job in Government department is a vested right of the petitioners, which cannot be taken away through executive order by way of policy but could only be effected through the Act of Parliament. Learned counsel further submits that the impugned policy is also discriminatory as this policy is only made applicable to the Education Department, whereas in no other Government department the impugned condition of 3rd Division in entire career has been applied.

3. On the other hand, learned counsel for the respondents argued that the impugned recruitment policy is purely a policy matter and it is the prerogative of the department to frame policies as per its job requirement. Learned counsel further submits that this Court has no jurisdiction to interfere in the policy matters. Further submits that no fundamental right of the petitioners has been violated under the policy, as there are other departments of the government where the petitioners can apply for recruitment.

4. I have heard learned counsel for the parties and perused the record with their able assistance. The moot legal issue involved in these cases is regarding the vires of impugned condition prescribed under clause 4(a)(III) of the Recruitment Policy, 2017-2018. For convenience the said impugned condition is reproduced hereunder:

“Applicant having any 3rd division in his/her entire career will not be eligible to apply against the posts advertised under the policy ibid.”

Plain reading of above impugned condition shows that a restriction has been imposed against recruitment in the Education Department for the applicants having 3rd division in his/her entire academic career.

1. Article 18 of the Constitution guarantees freedom of lawful trade, profession and occupation, which for convenience is reproduced as under:

“Freedom of trade, business or profession.--Subject to such qualifications, if any, as may be prescribed by law, every citizen shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business:

Provided that nothing in this Article shall prevent--

(a) the regulation of any trade or profession by a licensing system; or

(b) the regulation of trade, commerce or industry in the interest of free competition therein; or

(c) the carrying on, by the Federal Government or a Provincial Government, or by a corporation controlled by any such Government, of any trade, business, industry or service, to the exclusion, complete or partial, of other persons.

Plain reading of Article 18 of the Constitution shows that every citizen has right to enter upon any lawful occupation or profession subject to qualification as may be prescribed by the law. The august Supreme Court in Arshad Mahmood’s case (PLD 2005 SC 193) held that the restriction imposed under Article 18 of the Constitution is not only required to be imposed by law but the said restriction must also be reasonable. The impugned condition which restricted the applicants having 3rd division in their entire career, to even apply for the posts advertised under the policy, is not prescribed by any Act of the Parliament nor same is shown to be backed by any provision of law. The said condition has been prescribed through an administrative decision by way of policy, which on the face of it is not permissible under Article 18 of the Constitution.

1. The next question is whether at all such restriction is a reasonable restriction. There are not strict standards or general patterns of reasonableness, while determining the reasonableness of a particular restriction under law or policy. The Court has to bear in mind that the nature of the rights infringed through such restriction should be proportionate to the urgency of the evil sought to be remedied by said restriction. This Court in case reported as “City School Private Limited v. Government of the Punjab and others” (PLD 2018 Lahore 509) held that restriction on fundamental rights can only be upheld if it is established that its seeks to impose reasonable restriction in the interest of general public and as less drastic restriction will not have ensured the interest of the general public.

2. The above test of reasonableness when applied to the impugned condition, the same is not only found to be unreasonable but also harsh and irrational. According to the impugned condition an applicant who has 3rd division once in her/his entire career will not be eligible to apply against the post advertised means that it is presumed that a candidate who has secured 3rd division once in his/her life time can never improve his/her educational career in future. This presumption is not only absurd rather against the dignity of such candidates and students. By way of illustration even in the present case the petitioners who got 3rd division in B.A. have not only got first division in their M.A Physical Education, which was prescribed qualification for the job but according to petitioners they also stood second position in the entire district Sialkot in their NTS test. The situation would have been different if the policy was that a person having 3rd division of prescribed qualification shall not be eligible for the posts advertised. But the impugned condition is that a candidate, who had 3rd division in his/her entire career would not be eligible to apply for the posts advertised. This means that a candidate who due to some unavoidable, financial or family circumstances etc could not get 1st or 2nd division in his/her initial academic career, will not be able to improve his/her entire subsequent academic career of education.

3. It is not the case of the respondents that 3rd division amounts to fail in a particular academic course. Once it is admitted that 3rd divisioner amounts to passing of a particular academic class and same also entitled the students to promote in the next class, then imposing a condition that such candidate will not even be eligible to apply for the post is absolutely irrational unreasonable and harsh.

4. No doubt ordinarily the Courts should not interfere in the policy matters, however, if the policy is in conflict with any provision of law or is violative of the fundamental right of the citizens the same can be called in question in constitutional jurisdiction of this Court. In this context the august Supreme Court in judgment reported as “Al-Raham Travels and Tours (Pvt). Ltd. and others v. Ministry of Religious Affairs, Hajj, Zakat and Ushr through Secretary and others” (2011 SCMR 1621) held as under:

“As regards the contention of the learned counsel that the High Court cannot interfere with the policy matters in its jurisdiction, we have some reservations, as if the policy is in conflict with any provision of law or is violative of the fundamental rights of a citizen, the same can be called in question before the High Court in its writ jurisdiction. Reference can be made to Watan Party v. Federation of Pakistan (PLD 2006 Supreme Court 697) and Shaheen Cotton Mills v. Federation of Pakistan (PLD 2011 Lahore 120).”

Similarly, in judgment reported as “Messrs Shaheen Cotton Mills, Lahore and another v. Federation of Pakistan, Ministry of Commerce through Secretary and another” (PLD 2011 Lahore 120) it was held that:

“However, it may not be correct to hold that there is an absolute bar to the exercise of judicial review by this Court in all. matters pertaining to a policy of the Government. The Hon’ble Supreme Court of Pakistan in the judgment reported as: Muhammad Iqbal Rafi v. The Province of Punjab (1986 SCMR 680) was pleased to hold as follows:

“Whatever be the thinking on either side, the Government has the right of laying down the policy and if it chooses to do so and there is no law on the subject which it offends, it is not the right of any Court to throw it out, other than hold, in any genuine case, that the same is unreasonable or arbitrary.”

In Arshad Mehmood’s case the Hon’ble Supreme Court of Pakistan has observed as follows:--

If any law is promulgated in derogation of fundamental rights, it would be declared void because at the cost of fundamental rights guaranteed by the Constitution, the executive Government is not empowered to frame a policy.

Thus, in cases where the policy collides with the Law or the Constitution or it arbitrary or unreasonable, this Court, in view of the aforequoted judgments of the Hon’ble Supreme Court of Pakistan, can intervene though it may not substitute the policy of the Government by laying down a new policy on the subject. Thus, this Court is not persuaded to hold that it has no jurisdiction to examine the offending Order/notification or the policy of the. Government that it manifests. Even in policy matters, this Court can always exercise its powers of judicial review so as to ascertain that the said policy does not violate any law or the Constitution and that the same is not arbitrary or unreasonable.

Policies in the ultimate analysis tend to be translated into Executive action. It is equally settled law that Executive has no inherent power to pass any order or take any action, as has been repeatedly held by the Hon’ble Supreme Court of Pakistan including in the judgment reported as: Pakistan Muslim League (N) through Khawaja Muhammad Asif, M.N.A. and others v. Federation of Pakistan through Secretary Ministry of Interior and others (PLD 2007 SC 642) in the following terms:

“There is no inherent power in the Executive, except what has been vested in it by law, and that law is the source of power and duty.”

Therefore, executive action would necessarily have to be such that it could not possibly violate a Fundamental Right. The only power of the Executive to take action would have to be derived from law and the law itself would not be able to confer upon the executive any power to deal with a citizen or other persons in Pakistan in contravention of a Fundamental Right. Functionaries of State, are to function strictly within the sphere allotted to them and in accordance with law. No Court or Authority is entitled to exercise power not vested in it and all citizens have an inalienable right to be treated in accordance with law. Therefore, an action of an Authority admitted to be derogatory to law and Constitution, is liable to be struck down.”

1. In case reported as “Asaf Fasihuddin Khan Vardag v. Government of Pakistan and others” (2014 SCMR 676), Hon’ble Supreme Court held as under:

“It is well settled by now that this Court has wide powers in terms of Article 184(3) of the Constitution to ensure that acts/actions of the other organs of the state, namely, Executive and Legislature do not breach the fundamental rights guaranteed by the Constitution. Under the principle of trichotomy of powers, the Judiciary is entrusted with the responsibility of enforcement of Fundamental rights, which calls for an independent and vigilant system of judicial administration so that all acts and actions leading to infringement of Fundamental Rights are nullified and the rule of law upheld in the society. The discharge of constitutional duty by the State functionaries in deviation to the spirit of the Constitution is anathema to the Constitution and is challengeable on diverse grounds including mala fide and colourable exercise of power for ulterior motive. It is not possible for judiciary to confer validity and immunity to the acts or actions which suffers from mala fide in exercise of power of judicial review.”

In another case reported as “Salahuddin Dharaj v. Province of Sindh through Secretary, Local Government Department and 4 others” (PLD 2013 Sindh 236), it was held as under:

“We may endorse here that there can be no cavil to deny the legally established position that dispensation of justice is not alone the function of the Court but public functionaries are equally responsible to act fairly and keeping in view the law, relevant rules, regulations, notification or the policy etc. in view because the public functionaries are the trustees of the public power hence are required to act accordingly. It is not always that each and every affected person has the courage and resources to approach the Court challenging the vires, implication or ramification of law, rule etc. by an authority.

The Honourable Supreme Court of Pakistan in the case of “M/s Al-Raham Travels and tours (Pvt.) Ltd. and others v. Ministry of Religious affairs”, reported in 2011 SCMR 1621, in paragraph 33, has held that:--

In the same case, at paragraph 50, it was further held that:--

“If policy is in conflict with any provision of law or is violative of fundamental rights of a citizen the same can be called in question before High Court in writ jurisdiction”.

Bare perusal of case law it is clear that even a policy can be called in question in writ jurisdiction if the same is either in conflict with any provision of law or same is in violation of fundamental rights of a citizen.”

1. There is another important aspect of the matter which relates to the duty of the State relating to the education and academic qualification. The right of education strictly flows from right to life guaranteed under Articles 9 and 14 of the Constitution. The right of education is also guaranteed under Article 37(a) and 37(d) of the Constitution and now after 18th amendment in the Constitution the right of education has been made as an independent fundamental right under Article 25A of the Constitution. In view of the above Articles, every citizen has a right of quality education and State is under an obligation to establish best educational institutions to enable its citizens to ensure the said right. However, hard reality is that State is neither providing best educational institutions nor it is in a position to meet the demand of quality education in entire country. In the given circumstances on one hand, when the State/government is not in a position to provide quality education to the citizens especially in rural areas then there is no justification to impose a condition that a candidate who ever secured 3rd division in his/her entire educational career will not be eligible to even apply against the post advertised by the Education Department. Indeed the State could impose such condition if it could show that government is providing best academic qualification throughout the country or province of Punjab, with quality educational institutions and despite the said quality education the particular candidates have secured 3rd division in his/her career.

2. It is also admitted position between the parties that the impugned condition has only been imposed in the Education Department, whereas apparently in no other government department such condition is being imposed, which amounts to violative of Article 25 of the Constitution. The impugned condition also violative of right of livelihood, which being part of right to life as guaranteed under Article 9 of the Constitution, a candidates despite having prescribed qualifications will not be in a position to even apply for the posts advertised. Just because he/she had 3rd division in his/her entire educational career.

3. I have also found substance in the arguments of learned counsel for the petitioners that imposing such condition at this stage when the petitioners are not in a position to improve their past academic qualification due to over age or other circumstances beyond their control is harsh and unreasonable.

4. In view of the above discussion, these constitutional petitions are allowed to the extent that impugned condition in the recruitment policy, 2017-2018 is declared to be ultra vires of the Constitution, hence, struck down and petitioners shall be entitled to apply for the posts advertised. However, recruitment shall be subject

to fulfilment of other prescribed conditions, qualifications and on open merit basis.

(M.M.R.) Petitions allowed

PLJ 2019 Lahore 359

Present: Muzamil Akhtar Shabir, J

WASEEM IJAZ--Petitioner

versus

ADDITIONAL DISTRICT JUDGE, LAHORE & another--Respondents

W.P. No. 2729 of 2019, decided on 18.02.2019

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Permission to allow wife of respondent to proceed Canada alongwith minors--Surety on behalf of wife of respondent--Issuance of bailable warrants without service of notices--Orders of--Initiation of proceedings for attachment of property of surety bond--Violation of fundamental principle of natural justice--Opportunity of hearing--Challenge to--Although learned counsel for respondent has supported impugned order on various grounds, he has not been able to satisfy this Court that any service of notice was effected upon petitioner before adopting coercive measures or objections raised by petitioner had been decided by appellate Court--It is an inalienable right of a party to be provided a right of hearing which includes his right to be available before Court, for which purpose Court is required to ensure that proper notice has been served to that party requiring him to appear before Court and present his case--It is not case of respondent that petitioner despite service of notice had not appeared before appellate Court and had waived his right to be heard--Consequently it appears that adverse order has been passed against petitioner without providing him proper hearing and decisions suffer from violation of fundamental principle of natural justice which is to be read as part of every statute--I am not inclined to agree with objection raised by learned counsel for respondent that constitutional petition is not competent against an interim order, because such bar is not absolute and where an interim order appears to suffer from some jurisdictional defect causing prejudice to rights of a party (non-provision of right of hearing in present case before passing adverse order against him) this Court under Article 199 of Constitution is empowered to rectify same--Petition was allowed. [Pp. 361 & 362] A, B & C

1998 CLC 2065 & 2005 SCMR 678, ref.

Ms. Hina Jillani, Advocate for Petitioner.

Mr. Agha Abdul Hassan Arif, Advocate for Respondent No. 2.

Date of hearing: 9.8.2018

Order

CMNo. 05 of 2019

This is an application filed on behalf of the petitioner to amend the petition.

1. Learned counsel for Respondent No. 2 has no objection, if amendment is allowed. The application is allowed subject to all just and legal exceptions. Alongwith this application, an amended petition has been filed, The same shall be made part of this file. Office to place it at its appropriate place.

CMNo. 06 of 2019

1. This is an application for placing certain documents on record. Allowed subject to all just and legal exceptions. CM stands disposed of.

CMNo. 07 of 2019

1. Dispensation sought is allowed subject to all just and legal exceptions. CM stands disposed of.

Main Case

1. The petitioner, who stood as surety on behalf of wife of Respondent No. 2/Ms. Mirjam Aberras Lahdeaho, (“wife of respondent”) in a petition under Section 7 of the Guardian and Wards Act, 1890, for her appointment as guardian of her two sons subject to furnishing of surety bonds in the sum of Rs.10-million, has called in question orders dated 03.01.2019 and 14.01.2019 passed by Addl: District Judge, Lahore, whereby the said Court, for non-compliance of its orders, initiated proceedings against the petitioner.

2. The learned counsel appearing on behalf of the petitioner has argued that it is an admitted fact that the petitioner stood as surety for wife of respondent, however, the learned trial Court vide its order dated 01.06.2018 allowed the wife of the respondent to proceed to Canada alongwith the minors. The order dated 08.06.2018 passed by the appellate Court, whereby the afore referred order was suspended, was conveyed neither to the petitioner nor wife of the respondent before she proceeded to Canada, who is now being represented in the appeal before the Court through her counsel. It has been claimed that without service of notice relating to the afore referred order passed in the appeal and directing the wife of the respondent to produce the minors before the Court, proceedings cannot be initiated against the petitioner who merely stood as surety for wife of the respondent as per the orders of the trial Court, wherein they were permitted to proceed abroad. The petitioner raised said objection before the appellate Court which without determining the same and other grounds raised by the petitioner has initiated proceedings against the petitioner, whereby through order dated 03.01.2019, bailable warrants of arrest of the petitioner were issued to appear in the Court and submit his defence and subsequent order dated 14.01.2019 whereby the petitioner was released on personal surety of his friend and ordered the petitioner’s property mentioned in the surety bond to be attached.

3. Conversely, the learned counsel for respondent states that the liability of a surety is coextensive with the principal, therefore, there was no need to pass an order to the wife of the respondent to produce minors in the Court before proceedings against the petitioner.

4. Both the parties have been heard.

5. Inter-alia, the main argument of the learned counsel for the petitioner is that as the trial Court had itself permitted the wife of the respondent to proceed to Canada alongwith her children, therefore, he cannot be proceeded against without deciding the objections raised by the petitioner’s counsel about maintainability of proceedings against him and determining the effect of the fact that he was neither previously served in the matter nor wife of the respondent, for whom he stood as surety, was conveyed the order for producing the minors in the appellate Court. Consequently, prays that the impugned orders, whereby coercive measures have been adopted by the Court are liable to be set-side. Although the learned counsel for the respondent has supported the impugned order on various grounds, he has not been able to satisfy this Court that any service of notice was effected upon the petitioner before adopting coercive measures or objections raised by the petitioner had been decided by the appellate Court. It is an inalienable right of a party to be provided a right of hearing which includes his right to be available before the Court, for which purpose the Court is required to ensure that proper notice has been served to that party requiring him to appear before the Court and present his case. The said party is entitled for decision of any legal objection if raised by the said party through a speaking order. The said procedure does not appear to have been properly followed by the Court. It is not the case of the respondent that petitioner despite service of notice had not appeared before the appellate Court and had waived his right to be heard. Consequently it appears that adverse order has been passed against the petitioner without providing him proper hearing and the decisions suffer from violation of fundamental principle of natural justice which is to be read as part of every statute. Reliance is placed on the judgment reported as Hazara (Hill Track) Improvement Trust through Chairman and others vs. Mst. Qaisra Elahi and others (2005 SCMR 678) wherein it has been held that violation of principle of natural justice enshrined in the maxim “Audi Alteram Partem”would be enough to vitiate even most solemn proceedings as the said principle originated from Islamic System of Justice and would be read/considered as part of every statue in the interest of justice.

6. I am not inclined to agree with the objection raised by the learned counsel for the respondent that constitutional petition is not competent against an interim order, because such bar is not absolute and where an interim order appears to suffer from some jurisdictional defect causing prejudice to the rights of a party (non-provision of right of hearing in the present case before passing adverse order against him) this Court under Article 199 of the Constitution is empowered to rectify the same. Reliance in this regard is placed on the judgments reported as Messrs Bashir Engineering Industries Limited and others vs. Messrs Muslim Commercial Bank Limited and others (1998 CLC 2065), Irfan Ahmed vs. II-Judicial Magistrate East, At Karachi and another (2006 MLD 135) and Jaffar Mehmood Malik vs. Ch. Khalid Hussain and others (2006 YLR 1516).

7. Keeping in view the facts and circumstances of the case, this Court deems it appropriate to set-aside the impugned orders passed by the appellate Court and remand the matter to the Court of District Judge, Lahore for decision of the same afresh after providing opportunity of hearing to both the parties and also taking into consideration the grounds and objections raised by them preferably within a period of 60 days from receipt of the order of this Court. In order to regulate further proceedings, the parties are directed to appear in the Court of District Judge, Lahore on 11.03.2019.

8. In the foregoing terms, this petition is allowed.

(Y.A.) Petition allowed

PLJ 2019 Lahore 363

Present: Muzamil Akhtar Shabir, J

TANVEER SALAMAT--Petitioner

versus

LEARNED ADDL. DISTRICT JUDGE, etc.--Respondents

W.P. No. 945 of 2019, decided on 10.1.2019

Constitution of Pakistan, 1973--

----Art. 199--Constitutional Petition--Muslim Family Law Ordinance, 1961, Ss. 8, 9 & 10--Suit for recovery of maintenance allowance dowry articles and dissolution of marriage--Partially decreed--Appeal--Dismissed to extent of petitioner accepted to extent of respondent--Exclusive Jurisdiction--It was duty of petitioner to prove that what was his financial status and earning capacity, which onus he has not discharged and burden of proving same cannot be shifted on stranded wife, therefore, learned appellate Court was justified to decide matter on basis of evidence available on record, whereby she was held entitled to recover maintenance allowance at rate of Rs. 3000/- per month from petitioner since institution of suit till she is in Nikah of petitioner--No exception can be taken to same--It is custom of our society that parents give dowry articles to their daughter even beyond their financial capacity--It cannot be assumed that parent of respondent have given no dowry articles to their daughter--Learned counsel for petitioner has failed to point out any misreading, non-reading or illegality in impugned judgment--Assessment and appraisal of evidence is function of Family Court, which is vested with exclusive jurisdiction in this regard--This Court while exercising constitutional jurisdiction does not ordinarily reappraise evidence produced before Courts below to substitute findings of facts recorded by said Courts, nor can give its opinion regarding quality or adequacy of evidence unless any misreading, non-reading of record or any illegality is pointed out, which have not been established on record, hence, there is no ground to set-aside said findings of fact--Petition was dismissed. [Pp. 365 & 366] A, B & C

Rai Aamir Rehman Kharal, Advocate for Petitioner.

Date of hearing: 10.1.2019

order

Through this constitutional petition, the petitioner has called in question the judgment and decree dated 10.10.2018 passed by learned Addl. District Judge, Kamalia and judgment and decree dated 16.05.2018 passed by learned Judge Family Court, Kamalia, whereby the Courts below have partially allowed the family suit filed by Respondent No. 3.

1. Briefly stated facts of the case are that the respondents filed a suit for recovery of maintenance allowance Rs. 10,000/- per month and dowry articles as per list attached valuing Rs. 5,60,900/- as well as dissolution of marriage in the learned trial Court, which was contested by the petitioner by filing written statement and leading his evidence. On conclusion of the trial, the learned Judge Family Court partially allowed the claim of the respondent qua maintenance allowance for Rs. 3000/- per month in case of ‘Abadi’ unless she remains faithful to her husband after rehabilitation and perform her marital obligation and also entitled to recover dowry articles as per list attached with plaint excluding articles at Sr. No. 38 to 43 or its alternate price of Rs. 1,10,000/-. Feeling dissatisfied, both the parties preferred appeals. The appeal to the extent of the petitioner-defendant was dismissed, whereas the appeal of the plaintiff-respondent was accepted with the modification that she would recover maintenance allowance from the petitioner at the rate of Rs. 3000/- per month since the institution of the suit without any condition till she is in the ‘Nikah’ of the petitioner. Hence, this petition.

2. Learned counsel for the petitioner has argued that the impugned judgments and decrees are based on conjectures and surmises. The Respondent No. 3 is not ready to settle with the petitioner and her conduct is like a disobedient wife and she is not entitled to receive any maintenance allowance. Further the dowry articles as decreed by the Courts below is beyond the paying capacity of the respondent’s family as the father of the respondent is a beggar and they do not own their own land and they did not provide her any dowry articles at the time of marriage. Finally prays that the impugned judgment and decree be set-aside.

3. Heard. Record perused.

4. During the course of arguments, learned counsel for the petitioner has relied upon para 8 of the petition filed before the learned trial Court whereby the plaintiff stated that she has developed hate for the petitioner and is not willing to settle with him and prayed for dissolution of marriage to argue that the plaintiff herself is not willing to rehabilitate with the petitioner, therefore, the findings recorded by the Courts below regarding maintenance allowance of the plaintiff are not in accordance with law, and the evidence furnished by the parties. Admittedly, the Respondent No. 3 is legally wedded wife of the petitioner. The petitioner’s claim that the respondent is a disobedient wife, not entitled to receive maintenance allowance was required to be proved through some confidence inspiring evidence. It is noticed that the petitioner did not make any attempt to rehabilitate the respondent in his house by filing a suit for restitution of conjugal rights and the respondent claims that the maintenance allowance has also not been paid for quite some time, therefore, it could not be concluded that the respondent is a disobedient wife and not entitled to maintenance allowance. Consequently, being husband the petitioner is under obligation to maintain her. As far as the quantum of maintenance allowance is concerned, the petitioner claims that he is a labourer and he earns Rs. 5/6 thousand per month and on the other hand, the respondent asserts that the petitioner earns one lac rupees per month from his cattle, agricultural sector and art of ‘Qawal’. It was the duty of the petitioner to prove that what was his financial status and earning capacity, which onus he has not discharged and the burden of proving the same cannot be shifted on the stranded wife, therefore, the learned appellate Court was justified to decide the matter on the basis of evidence available on the record, whereby she was held entitled to recover maintenance allowance at the rate of Rs. 3000/- per month from the petitioner since the institution of the suit till she is in the Nikah of the petitioner. No exception can be taken to the same.

5. As far as alternate price of dowry articles and alternate price thereof as decreed by the Courts below is concerned, the petitioner claims to have received no dowry articles at his home at the time of marriage whereas the respondent in her plaint as well as by leading her oral evidence has claimed dowry articles worth Rs. 5,60,900/-. The list Exh. P.I attached with the plaint reflects that most of the items are of daily use, some of which may have been destroyed or lost their face value with the efflux of time. It is the custom of our society that parents give dowry articles to their daughter even beyond their financial capacity. It cannot be assumed that the parent of the respondent have given no dowry articles to their daughter. Therefore, the Courts below were justified in decreeing the claim of the respondent qua recovery of dowry articles for an amount of Rs. 1,10,000/- by keeping in view the wear and tear factor and period of the parties resided together.

6. Learned counsel for the petitioner has failed to point out any misreading, non-reading or illegality in the impugned judgment. The assessment and appraisal of evidence is the function of the Family Court, which is vested with exclusive jurisdiction in this regard. This Court while exercising constitutional jurisdiction does not ordinarily

reappraise the evidence produced before the Courts below to substitute findings of facts recorded by the said Courts, nor can give its opinion regarding quality or adequacy of the evidence unless any misreading, non-reading of record or any illegality is pointed out, which have not been established on the record, hence, there is no ground to set-aside the said findings of fact.

1. For what has been discussed above, this petition being devoid of any merits dismissed.

(Y.A.) Petition dismissed

PLJ 2019 Lahore 366 [Bahawalpur Bench Bahawalpur]

Present: Ch. Muhammad Masood Jahangir, J

Mst. ZENAB BIBI--Petitioner

versus

AHMAD YAR--Respondent

C.R. No. 17-D of 2012, heard on 16.05.2018

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

----S. 115--Suit for specific performance of agreement--Concurrently decreed--Jurisdiction--Challenge to--Although, scope thereof is limited, but such findings can be distressed by this Court, if Courts below appeared to have either misread evidence on record or while assessing evidence had omitted from consideration some important piece of evidence, which had direct bearing on issue involved--It can safely be concluded that both Courts below while misconstruing evidence of parties to lis decreed suit of respondent, who designed Exh.P1 to deprive landlady of her valuable property and verdicts of Courts below being classic example of misreading and non-reading of evidence on record are illegal, unlawful and corum non judice, which cannot be sustained in eye of law--Resultantly, instant Civil Revision is allowed. [Pp. 372 & 373] H & I

2014 SCMR 914, 2016 SCMR 24, ref.

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

----O. XX, R. 5 & XLI, R. 31--Concurrent findings--Without sensing pleadings and evidence--It was achy for me to observe that both Courts below without sensing pleadings and evidence of parties in its true perspective rendered their concurrent findings in favour of respondent in complete derogation of Order XX rule 5 as well as Order XLI rule 31 of Code, 1908. [P. 369] A

Cross-examination--

----Statement of witnesses--It was claim of respondent that bargain was settled on 10.01.2003 and advance amount was paid then and there and in lieu thereof possession changed hands before witnesses, but respondent/beneficiary being PW2 omitted to disclose date of transaction in his statement-in-chief and when he was specifically questioned about it in his cross/examination, he again failed to tell date when sale was struck--This was again surprising that respondent for first time disclosed in his statement that transaction was spontaneously struck through Ghulam Ali at Court premises of Haroon Abad, but one of marginal witnesses, Muhammad Zaman (PW3) antipodal to plaintiff (PW2) stated that sale was settled at Basti Khatal--Disparity with regard to venue among them could neither be treated as minor contradiction nor it can be lightly ignored--Moreover, not only plaintiff (PW2) rather other attesting witness, Baqir Ali (PW4) in their cross-examination exposed that day when stamp paper was purchased, not only advance amount was paid, rather contract was also written then and there, but this fact was totally negated by agreement (Exh.P1), recital of which proved stance of petitioner that its stamp paper was issued by Stamp Vendor on 07.01.2003, whereas it was scribed on 10.01.2003--This glaring contradiction was sufficient to disbelieve case of respondent--Baqir Ali (PW4) was also fair enough to depose that bargain was settled by plaintiff before their arrival--Both of marginal witnesses (PW3 and 4) were not residents of locality either where vendor resided or suit plot was located and even where contract was executed. [Pp. 370 & 371] B & E

Marginal Witnesses--

----Position of marginal witnesses of agreement was also not different--Among them, Muhammad Khan (DW3) mentioned that about seven years earlier, it was settled, whereas other Baqir Ali (PW4) uttered that six or seven years prior to his deposition, sale was struck--When every concerned signatory is found to’ be unaware of date, month and year of transaction besides writing of document relating to it, then how discretionary relief against an ignorant and illiterate lady, who from day first after commencement of trial was calling it a fictitious and forged document could be awarded. [P. 370] C

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

----O. VI, R. 2 & O.VIII, R. 2--Principle of “Secundum allegata et probata”--It is well settled proposition of law that if any fact is not asserted in pleadings, then no evidence can be led to prove it, however, even if recorded, that has to be ignored as per principle of “secundum allegata et probata” which means that a fact has to be pleaded first in plaint or written statement by a party before it is allowed to be proved. [P. 370] D

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

----Art. 80--Documentary record--Validity--Bare perusal of agreement was again an affirmation that CNIC numbers of vendor and alleged marginal witnesses were not entered on it either by Scribe or by Stamp Vendor, who issued its stamp paper--Now there left statement of Muhammad Anwar, (PW1), Stamp Vendor, despite fact that he explicitly disclosed that relevant Register was consigned to Record Room after its due completion, it was not summoned through Record Keeper concerned--It could be best independent documentary record to authenticate issuance of stamp paper to petitioner to rebut her allegation that she did not appear before Vendor for its purchase, but it was deliberately withheld, as such adverse inference was to be drawn, had it been examined that would have proved allegations of petitioner--Civil revision was allowed. [P. 371] F & G

2013 SCMR 868 & PLD 1990 SC 642, ref.

Mr. Muhammad Saleem Faiz, Advocate for Petitioner

Mr. Shah Muhammad Khokhar, Advocate for Respondent

Date of hearing: 16.5.2018

Judgment

Instant Civil Revision has been filed by lady petitioner to throw challenge on concurrent judgments and decrees dated 08.09.2009 and 23.11.2011 rendered by the Courts below, whereby suit for specific performance of agreement instituted against her by the respondent was decreed and appeal of the former failed.

1. In concision, facts of the case were that petitioner was exclusive titleholder of the suit plot situated in urban area of Bahawalnagar. The respondent with regard to it instituted suit for specific performance of contract on 14.07.2005, contending therein that he purchased the disputed plot against consideration of Rs.60,000/- and after making payment of Rs.50,000/-, not only the contract dated 10.01.2003 (Exh.P1) was scribed, but the possession also changed hands in his favour before the witnesses. For ease, it would be better to reproduce his stance as disclosed in para-1 of the plaint, which is as under:--

It was also pleaded in para-2 that not only personally, rather through Punchayat, efforts were made to pay the rest of the sale price, but the promisor was found to be reluctant, forcing the promisee/respondent to approach the Court for having a decree of performance of his contract (Exh.P1). The petitioner defended the suit through her written statement alleging therein that she neither ever settled a bargain nor received advance amount. She also claimed that Exh.P1 was a fake, forged and fictitious document, which was prepared collusively to deprive her of the valuable property. She in the inception of the litigation specifically highlighted the factors in her pleadings to prove that Exh.P1 was a counterfeited document for the counts; firstly, that had the bargain been settled on 10.01.2003, there was no occasion to purchase the stamp paper of Exh.P1 three days prior to its execution and secondly that the respondent was even not aware of the name of her husband, who disclosed the name of her ex-husband in spite of that he had divorced her five years prior to alleged contract, whereas prior to the day of alleged execution of contract, she had already contracted second marriage with Muhammad Arshad, but disclosure of petitioner being wife of a person, who was no more her husband, was a solid proof that the contract was fakely constructed. After settlement of issues both the parties led evidence, however it was achy for me to observe that both the Courts below without sensing the pleadings and evidence of the parties in its true perspective rendered their concurrent findings in favour of respondent in complete derogation of Order XX rule 5 as well as Order XLI rule 31 of the Code, 1908 and it was very simple for this Court to remand the suit on this count, but having entire material before me, I opted to decide it on merit at my end rather than to throw the parties to face agony of another round of litigation.

1. Arguments heard and record perused.

2. There is no cavil to conclude that agreement to sell (Exh.P1) neither generates nor quenches right, title or interest in the immovable property and being beneficiary, it was imperative upon respondent to have proved its valid execution as well as transaction cited therein. As observed supra, it was the claim of respondent that bargain was settled on 10.01.2003 and advance amount was paid then and there and in lieu thereof possession changed hands before the witnesses, but the respondent/beneficiary being PW2 omitted to disclose the date of transaction in his statement-in-chief and when he was specifically questioned about it in his cross/examination, he again failed to tell the date when the sale was struck. The position of the marginal witnesses of the agreement was also not different. Among them, Muhammad Khan (DW3) mentioned that about seven years earlier, it was settled, whereas the other Baqir Ali (PW4) uttered that six or seven years prior to his deposition, the sale was struck. When every concerned signatory is found to’ be unaware of the date, month and year of the transaction besides writing of the document relating to it, then how discretionary relief against an ignorant and illiterate lady, who from the day first after the commencement of trial was calling it a fictitious and forged document could be awarded. Moreover, rest of his (PW2) entire statement to the effect that petitioner after settling the oral contract fled away with Muhammad Arhsad to Haroon Abad, where on having been approached by him along with witnesses, she agreed to execute the agreement, which was scribed there, was contrary to the contents of his plaint. It is well settled proposition of law that if any fact is not asserted in the pleadings, then no evidence can be led to prove it, however, even if recorded, that has to be ignored as per principle of “secundum allegata et probata” which means that a fact has to be pleaded first in the plaint or written statement by a party before it is allowed to be proved. This principle is enunciated by Order VI rule 2 and Order VIII rule 2 of the Code 1908, which has also been affirmed by the apex Court in judgments reported as Pakistan Vs. Abdul Ghani (PLD 1964 SC 68) and Hyder Ali Bhimji Vs. VITH Additional District Judge, Karachi (South) & another (2012 SCMR 254).

This was again surprising that respondent for the first time disclosed in his statement that transaction was spontaneously struck through Ghulam Ali at Court premises of Haroon Abad, but one of the marginal witnesses, Muhammad Zaman (PW3) antipodal to the plaintiff (PW2) stated that sale was settled at Basti Khatal. The disparity with regard to venue among them could neither be treated as minor contradiction nor it can be lightly ignored. Moreover, not only plaintiff (PW2) rather the other attesting witness, Baqir Ali (PW4) in their cross-examination exposed that the day when stamp paper was purchased, not only advance amount was paid, rather contract was also written then and there, but this fact was totally negated by the agreement (Exh.P1), the recital of which proved the stance of the petitioner that its stamp paper was issued by the Stamp Vendor on 07.01.2003, whereas it was scribed on 10.01.2003. This glaring contradiction was sufficient to disbelieve the case of respondent. Baqir Ali (PW4) was also fair enough to depose that bargain was settled by the plaintiff before their arrival. Both of the marginal witnesses (PW3 and 4) were not residents of the locality either where the vendor resided or the suit plot was located and even where the contract was executed.

1. The other setback of the case was that admittedly contract was neither scribed by a regular Deed Writer nor signed by the person, who wrote it. Moreover, the Scribe was also not examined, however, on query it was disclosed by learned counsel for the respondent that he had already passed away, but he was forced by the record to admit that none familiar with his writing was summoned as per requirement of Article 80 of the Order, 1984. The bare perusal of agreement was again an affirmation that CNIC numbers of the vendor and the alleged marginal witnesses were not entered on it either by the Scribe or by the Stamp Vendor, who issued its stamp paper. It was kept in dark by the respondent who identified the lady before the Vendor and the Scribe. Now there left statement of Muhammad Anwar, (PW1), the Stamp Vendor, despite the fact that he explicitly disclosed that relevant Register was consigned to Record Room after its due completion, it was not summoned through the Record Keeper concerned. It could be the best independent documentary record to authenticate the issuance of stamp paper to the petitioner to rebut her allegation that she did not appear before the Vendor for its purchase, but it was deliberately withheld, as such adverse inference was to be drawn, had it been examined that would have proved the allegations of the petitioner.

2. The other salient feature of the case was that admittedly petitioner was ignorant and illiterate lady, who specifically denied settlement of bargain as well as receipt of consideration and in such scenario, it was sine qua non for the beneficiary/respondent to have established that petitioner had independent advice, who settled the transaction voluntarily with full knowledge and import of what the transaction was meant for. The argument of learned counsel for the respondent that petitioner was not parda observing lady and as such she was not entitled for the treatment extended to such class was not well founded. The petitioner being ignorant as well as illiterate lady was to be equated with pardanasheen lady and equally entitled for the same treatment, which is available to such group of women. Despite the fact that PW2 and PW4 stated in their cross-examination that the petitioner was in the company of a male, but he was not associated elsewhere, when Exh.P1 was constructed. As such contract and the transaction being militant to the judgments of the superior Courts rendered in the cases reported as Mt. Farid-un-Nisa Vs. Munshi Mukhtar Ahmad and another (AIR 1925 P.C 204), Chainta Dasya Vs Bhalku Das (AIR 1930 Cal. 591), Jannat Bibi Vs. SikandarAli and others (PLD 1990 S.C 642), Mian Allah Dita through LRs Vs. Mst Sakina Bibi and others (2013 SCMR 868), Ghulam Farid and another Vs. Sher Rehman through L.Rs (2016 SCMR 862) and Phul Peer Shah Vs. Hafeez Fatima (2016 SCMR 1225) could not be given any weight.

3. At the fag end of his arguments, stress of learned counsel for respondent/plaintiff that concurrent findings recorded by both the Courts below cannot be interfered with by this Court while invoking jurisdiction under Section 115 of the Code, 1908, is also without any force. Although, the scope thereof is limited, but such findings can be distressed by this Court, if Courts below appeared to have either misread evidence on record or while assessing evidence had omitted from consideration some important piece of evidence, which had direct bearing on the issue involved. In arriving at such conclusion this Court is fortified by the dictum laid down in the judgments reported as Muhammad Nawaz alias Nawaza and others Vs. Member Judicial Board of Revenue and others (2014 SCMR 914) and Nazim-ud-Din and others Vs. Sheikh Zia-ul-Qamar and others (2016 SCMR 24). It is obvious and clear that no Court in the country has the jurisdiction to decide about the rights of the parties wrongly and in violation of law and the Revisional Court has no exception to this rule. Even otherwise it has also been held by the Superior Courts that a Court could not pass an order of its liking, solely on the basis of its vision and wisdom, rather it was bound and obligated to render decisions in accordance with law and the law alone. So, this Court can decide, in which cases, the interference is warranted.

4. In such facts and circumstances, it can safely be concluded that both the Courts below while misconstruing the evidence of the parties to the lis decreed the suit of respondent, who designed Exh.P1 to deprive the landlady of her valuable property and verdicts of the Courts below being classic example of misreading and non-reading of the evidence on record are illegal, unlawful and corum non judice, which cannot be sustained in the eye of law. Resultantly, instant Civil Revision is allowed, impugned judgments and decrees of the Courts below are set aside and the suit of respondent is dismissed with coste throughout.

(M.M.R.) Civil revision allowed

PLJ 2019 Lahore 373

Present: Muzamil Akhtar Shabir, J

ALTAF SHAFI & another--Petitioners

Versus

GOVERNMENT OF PUNJAB through Secretary Local Governments Punjab, Lahore and 9 others--Respondents

W.P. No. 256791 of 2018, decided on 19.12.2018

Punjab Local Government Act, 2013--

----Ss. 35 & 144--Punjab Local Government (Vote of No Confidence) Rules, 2018, R. 4(1)--Constitution of Pakistan, 1973, Art. 199--Constitutional Petition--No confidence motion was moved by members--Issuance of notices for meeting--Declaration as chairman and vice chairman--Filling of reference by vice chairman--Issuance of notice for personal hearing to chairman and vice chairman--Opportunity of hearing--Challenge to--Purpose of order dated 10.12.2018 passed by this Court was to direct Deputy Director to decide matter in accordance with law and rules and was not to circumvent timeframe prescribed by Rule 4(1) for decision of matter--Therefore, order of this Court has sufficiently been complied with and no exception to order passed by Deputy Director can be taken on ground that said order had been passed prior to date fixed by this Court for Respondent No. 9 to appear in his office--Where a law requires a thing to be done in a particular manner, it had to be done in that manner alone and such dictate of law could not be termed a mere technicality for extending timeframe fixed by Rules even if some date subsequent to said date was fixed by Court for appearance of concerned parties before relevant officer--Petition was dismissed. [P. 380] B & C

PLD 2016 SC 995 & PLD 2013 SC 255, ref.

Punjab Local Government (Vote of No Confidence) Rules, 2018--

----Rr. 2(c) & 5--Presiding Officer--As an officer appointed under Rule 5 of Rules to preside over meeting to consider motion of no confidence which as per Rule 5(b) in case of a Municipal Committee is to be Deputy Director, Local Government of concerned District. [P. 378] A

M/s. Hassan Iqbal Warriach and Muhammad Rafique Jathol, Advocate for Petitioner.

Mr. Muhammad Arshad Manzoor, AAG.

Ch. Mushtaq A. Khan, Advocate for Respondent No. 9.

Mr. Muhammad Iqbal Mohal, Advocate for Respondent No. 10.

Date of hearing: 19.12.2018

Order

Through instant constitutional petition, the petitioners have prayed as follows:

“It is, therefore, most humbly and respectfully prayed that instant writ petition may kindly be accepted and impugned letters dated 12.12.2018 for so-called no confidence motion be declared against the law and facts and in the consequence of letters dated 12.12.2018, the holding of special meeting on 22.12.2018 in Committee Hall, Pasrur may very kindly be declared illegal, unlawful, void ab-initio and while setting aside the letters dated 12.12.2018, in the supreme interest of justice.

It is further prayed that entire proceedings of motion, agenda, meeting and presiding of the house by the designated appointee may very kindly be declared as illegal and against the facts, law and rules.”

1. The brief facts of the case are that the petitioners were elected as councilors in Local Government Elections, 2015 from their respective Wards at Pasrur Municipal Committee, District Sialkot, where-after elections for the executive body of Municipal Committee, Pasrur were held in which the petitioners contested for the seats of Chairman and Vice-Chairman respectively and were declared as returned candidates. On 16.11.2018 Respondent No. 10 moved an application for summoning meeting of the house for considering requisition for vote of no confidence against the petitioners which was subsequently withdrawn by him on 04.12.2018. Thereafter, Respondent No. 9 moved an application for the same purpose on 06.12.2018 with Respondent No. 3 whereupon the said respondent issued notices to the petitioners. During pendency of the said application, Respondent No. 9 filed WP No. 254685 of 2018 before this Court which was disposed ofvide order dated 10.12.2018 with a direction to Respondent No. 3 to decide the matter in accordance with law directing Respondent No. 9 to appear before the said respondent on 17.12.2018. However, Respondent No. 3 issued the impugned letter dated 12.12.2018 for convening meeting regarding consideration of no confidence motion against the petitioners for 22.10.2Q18, hence, this petition.

2. Learned counsel for the petitioners has contended that without following the law and mandatory procedure prescribed under the Punjab Local Governments (Vote of No Confidence) Rules, 2018 (“Rules”) and order passed by this Court on 10.12.2018, Respondent No. 3 has issued notice for convening the meeting for considering no confidence motion against the petitioners even before the date of hearing before the said respondent fixed by this Court, consequently, the said notice is liable to be set-aside.

3. Conversely, learned AAG as well as learned counsel for Respondent Nos. 9 and 10 have defended the order passed by Respondent No. 3 dated 12.12.2018 by claiming that the same has been passed in accordance with law.

4. Heard. Record perused.

5. The admitted facts are that the petitioners are Chairman and Vice-Chairman of the Municipal Committee, Pasrur (“MC”) and a no confidence motion has been moved by some of the members of the MC against them. On receipt of requisition by the members for no confidence motion against the petitioners, the Deputy Director, Local Government and Community Development Department, Sialkot in his capacity as Presiding Officer issued notice to the members on 12.12.2018 on the subject to meeting regarding consideration of vote of no confidence against the Chairman in the following, terms:

“MEETING REGARDING CONSIDERATION OF VOTE OF NO CONFIDENCE AGAINST MR. ALTAF SHAFI, CHAIRMAN, MUNICIPAL COMMITTEE, PASRUR DISTRICT SIALKOT.

With reference to the application submitted by Rana Zahid Hussain, General Councilor and signed by 24 Councilors of Municipal Committee, Pasrur District Sialkot dated 6th December, 2018 in this office, and Writ Petition No. 254685 of 2018 titled Rana’Zahid Hussain vs. Secretary Local Government etc and other the Honourable Justice Muzamil Akhtar Shabir, Lahore High Court Lahore has directed to decide the afore said application of the petitioner in accordance with law, rules and policy on the above subject.

Whereas, an application filed to consider of vote for no confidence against Mr. Altaf Shaft, Chairman, Municipal Committee, Pasrur District Sialkot, under Punjab Local Government (Vote of no Confidence) Rules, 2018 notified on dated 04.06.2018, a meeting for the purpose has been called for on 22.12.2018 (Saturday) at 10.00 A.M in the Municipal Committee Hall, Pasrur under the convenorship of the undersigned as Presiding Officer.

You are hereby called upon to participate in the meeting on the above referred said date time and venue for the purpose.

“A notice under Rule 6(4) of Punjab Local Government (No Confidence Motion) Rules, 2018 has already been sent to the Chairman Municipal Committee, Pasrur District Sialkot vide this office letter No. DDLG-18/3047 Dated 07.12.2018 for offering personal explanation regarding allegation contained in no confidence motion application.

Note: A copy of application of no confidence motion is attached herewith.”

A Similar notice was also issued in relation to vote of no confidence against the Vice-Chairman. In the afore referred notice, reference has been made to office letter No. DDLG-18/3047 dated 07.12.2018 whereby notice for offering personal explanation was issued to the Chairman and Vice-Chairman in the following terms:

“APPLICATION TO CONSIDER VOTE OF NO CONFIDENCE MOTION AGAINST THE CHAIRMAN, MUNICIPAL COMMITTEE, PASRUR.

It is to inform that Rana Zahid Hussain, Member Municipal Committee Pasrur alongwith other 24 members (copy enclosed) has moved an application on 06.12.2018 for No Confidence Motion against you leveling allegations misconduct and nepotism.

In pursuance of 6(4) of the Punjab Local Govt. (VOTE OF NO CONFIDENCE) Rules, 2018, you are hereby informed that you have the right to offer your personal explanation either verbally or in writing about the above said requisition before or in the meeting to the Presiding Officer, the date of meeting which will be intimated later on.”

The afore referred notices dated 12.12.2018 have been, called in question before this Court in its constitutional jurisdiction having been issued without following the proper procedure as prior to issuance of said notices, the petitioners were not provided opportunity of hearing.

1. The question for determination before this Court is that whether the petitioners were to be provided an opportunity of hearing, before placing the said no confidence motion against them before the House. To determine the said question, reference may be made to Section 35 of the Punjab Local Government Act, 2013 (“Act”) which is reproduced below:

“Section 35: Vote of no-confidence.--(1) Subject to this section, a Mayor, Deputy Mayor, Chairman or Vice-Chairman of a local government, other than that of an Authority and of a Union Council, shall cease to hold office if a vote of no-confidence is passed against him in the prescribed manner by two-third majority of the total number of members of the local government.

(2) A motion of no-confidence shall not be moved before the expiry of one year of his assumption of office as the Mayor, Deputy Mayor, Chairman or Vice-Chairman.

(3) Where a motion of no-confidence against the Mayor, Deputy Mayor, Chairman or Vice-Chairman has been moved and fails for want of the requisite majority of votes in a meeting, no similar motion shall be moved against him before the expiry of one year from the date when such motion was moved.”

1. Section 35 ibid refers to vote of no confidence to be passed in a prescribed manner. Section 144 of the Act provides that the government may subject to previous publication and by notification in the official gazette make rules for carrying out the purpose of this Act and such rules may provide for all or any of the matters specified in part 1 of 7th Schedule wherein entry No. 1 provides for framing of rules for local government for conduct of elections, entry No. 13 for conduct of elected officials and entry No. 17 provides for framing of any other set of rules necessary for implementation of this Act. In exercise of powers conferred by Section 144 of the Act, the Governor of the Punjab has been pleased to make rules relating to no confidence motion against an elected official by the nomenclature “the Punjab Local Governments (Vote of No Confidence) Rules, 2018”. The Rule 2(e) of the Rules defines Presiding Officer as an officer appointed under Rule 5 of the Rules to preside over meeting to consider motion of no confidence which as per Rule 5(b) in case of a Municipal Committee is to be the Deputy Director, Local Government of the concerned District. The Rule 3 prescribes for requisition for convening of meeting which provides that a requisition in writing signed by not less than one half of the total number of members of a local government, may be moved for convening a meeting to consider the motion of no-confidence against Chairman and Vice-Chairman of the concerned authority mentioned in sub-rule (2) which in case of a Municipal Committee is Deputy Director of a Local Government concerned. No reason is required to be provided for moving a requisition for meeting to consider the motion for no-confidence. Rule 4 of the Rules provides that the Deputy Director of the Local Government on receipt of requisition under Rule 3 is required to convene a meeting of Local Government within 07 days to consider motion of no confidence, for which 07 days prior notice is required to be given to the members of the Local Government which is to be served in the manner provided in Sub-rule 3 of Rule 4. Rule 6 provides that any member who had signed the requisition may move a motion for no confidence against the Chairman or the Vice-Chairman and if motion is seconded, it shall be considered by the Local Government. The Sub-rule 4 provides that Chairman or Vice-Chairman against whom a motion of no confidence is moved shall have a right to offer a personal explanation either verbally or in writing and where a written explanation is offered it shall be circulated amongst the members and form part of the record of proceedings of the meeting where after voting shall be carried out in terms of Rule 7 and result is to be declared in terms of Rule 8.

2. Learned counsel for the petitioner has stressed upon the fact that before requisitioning the meeting of the house of the Local Government for convening the meeting for the purpose of considering no confidence motion, they have not been provided opportunity of hearing in terms Rule 6(4) of the Rules. Besides it is argued that there was express direction passed by this Court in WP No. 254685 of 2018 on 10.12.2018 to provide hearing to all the concerned before deciding the application filed by Respondent No. 9 to requisition the meeting of the house, therefore, the said order is liable to be set-aside. As regards that first contention of the petitioners is concerned that they have not been provided opportunity of being heard in terms of Rule 6(4) of the Rules before placing the matter before the house for consideration of no confidence motion, suffice it to say that the said Rule is not applicable to proceedings before the Presiding Officer under Rule 4(1) of the Rules when he is to decide on which date the meeting is to be called for considering the motion, however, the said Presiding Officer is to notify the person against whom no confidence motion is to be placed before the house to defend himself which notices have already been issued to the petitioners requiring them to defend themselves in the meeting to be held on 22.12.2018. Moreover, proceedings under Rule 4(1) do not require issuance of notice for hearing to the person against whom no confidence motion is filed before taking a decision within 07 days prescribed by rules for fixing date of convening the meeting. However, the meeting is to be convened after at least 07 days prior notice to members of the Local Government including the persons against whom the motion for no confidence is under consideration, which requirement has been sufficiently complied with through notices dated 12.12.2018 and 07.12.2018 intimating the members of fixation of the meeting on 22.12.2018 and informing the petitioners in terms of Rule 6(4) of the Rules to offer personal explanation either verbally or in writing about the said requisition before or in the meeting. Consequently, issuance of notice to the petitioners before fixing a date for considering the motion of no confidence against them was not a legal requirement, non-compliance of which would render the impugned notice as illegal or without jurisdiction.

3. The second submission of learned counsel for the petitioners is that this Court vide order dated 10.12.2018 had directed Respondent No. 3 to provide hearing to all concerned including the petitioners before passing order on application filed by Respondent No. 9 to requisition meeting which has not been complied with. The said order of this Court is reproduced below:

“Submits that the petitioner has moved an application, available at page 18 (Annexure “B”) of this petition, with Respondent No. 2 for convening meeting to consider motion of no confidence against Respondent Nos. 3 and 4 which is not being processed without any legal justification. Seeks a direction for early disposal of the same.

1. In view of the above, Respondent No. 2/Deputy Director, Local Government and Community Development Department, Sialkot is directed to decide the afore referred application of the petitioner in accordance with law, rules and policy after providing opportunity of hearing to the petitioner and all the other concerned within a period of 15 days from receipt of the order of this Court. In order to regulate further proceedings, the petitioner shall appear in the office of the said respondent on 17.12.2018 at 11:00 a.m.

2. With these observations, this petition stands disposed of.”

The said order clearly provides that the application filed by Respondent No. 9 is to be decided in accordance with law and rules and concerned persons be heard before passing any order.’ As already stated above, Rule 4(1) provides for decision on application for requisitioning meeting by the Presiding Officer, Deputy Director in this case, within 07 days of receipt of the same. The law does not provide for deciding the said application through a hearing process wherein all the members including persons against whom requisition has been made are to be heard. Therefore in terms of Rule 4(1) ibid the petitioners were not the concerned persons entitled for a prior hearing in terms of order earlier passed by this Court. Consequently, non-provision of hearing to them before passing the order by the Deputy Director is of no consequence. Even otherwise, this Court to regulate further proceedings had directed Respondent No. 9 to appear in the office of the Deputy Director on 17.12.2018 to regulate further proceedings in case the said officer had not further processed the matter but that fixation of date did not prevent the Deputy Director to decide the matter in terms of Rule 4(1) requiring him to pass an order within 07 days even prior to the date fixed by this Court for Respondent No. 9 to appear in his office. Besides the purpose of the order dated 10.12.2018 passed by this Court was to direct the Deputy Director to decide the matter in accordance with law and rules and was not to circumvent the timeframe prescribed by Rule 4(1) for decision of the matter. Therefore, the order of this Court has sufficiently been complied with and no exception to the order passed by the Deputy Director can be taken on the ground that said order had been passed prior to the date fixed by this Court for Respondent No. 9 to appear in his office. Moreover, where a law requires a thing to be done in a paiticular manner, it had to be done in that manner alone and such dictate of law could not be termed a mere technicality for extending the timeframe fixed by the Rules even if some date subsequent to said date was fixed by Court for appearance of the concerned parties before the relevant officer. Reliance in this regard is placed on Shahida Bibi and others vs. Habib Bank Limited and others (PLD 2016 SC 995) and Muhammad Anwar and others vs. Mst. Ilyas Begum and others (PLD 2013 SC 255). Besides no prejudice would be caused to the petitioners because they have the right to defend the no confidence motion filed against them before the house in the meeting fixed for the said purpose. Consequently, no ground to interfere in the impugned order is made out.

1. For what has been discussed above, this petition being devoid of any merit is dismissed.

(Y.A.) Petition dismissed

PLJ 2019 Lahore 381 [Multan Bench, Multan]

Present: Muhammad Sajid Mehmood Sethi, J.

MUHAMMAD SALMAN--Petitioner

versus

ELECTION COMMISSION OF PAKISTAN, ISLAMABAD and others--Respondents

W.P. No. 16234 of 2018, decided on 26.2.2019.

Election Act, 2017 (XXXIII of 2017)--

----S. 9--Constitution of Pakistan, 1973, Arts. 62, 199, 212, 225--Election of chairman and vice chairman--Notification of returned candidate--Notification was withdrawn--Order to conducts of re-election--Alternate remedy--Jurisdiction--Exercise of Powers--Maintainability--Challenge to--Petitioner has already filed an appeal before Hon’ble Supreme Court wherein all grounds enumerated in submissions of petitioner have already been taken and Hon’ble Apex Court while taking cognizance of matter has already issued notices to respondents for comments/written statements--It is trite law that appeal lies against an order without jurisdiction in same manner as an appeal against an order with jurisdiction--Article 199 of Constitution opens with words to effect that High Court may exercise its powers under said Article only “if it is satisfied that no other adequate remedy is provided by law”--Petition was dismissed. [P. 388] A, B & C

PLD 1995 Supreme Court 66.

M/s. Muhammad Shehzad Shaukat, Barrister Taha Shaukat, Taha Asif, Syed Fayyaz Hussain Zaidi and Muhammad Saad Iqbal Sial, Advocates for Petitioners.

M/s. Barrister Malik Muhammad Yousaf Hanjra, Assistant Attorney General, Ch. Pervaiz Akhtar Gujjar, Ch. Hasan Murtaza Mann, Ali Mumtaz, Khawaja Waseem Abbas, Imran Humayun Cheema, Barrister Sajeel Sheryar and Muhammad Bilal Butt, Advocates for Respondents.

Date of hearing: 13.2.2019.

Judgment

This consolidated judgment shall dispose of instant writ petition along with following connected writ petition as common questions of law and facts are involved in these cases:--

W.P. No. 14893 of 2018 titled Muhammad Salman v. Election Commission of Pakistan, Islamabad & others

1. Through instant petition, petitioner has assailed order dated 01.10.2018, passed by Respondent No. 1 / Chairman, Election Commission of Pakistan (“ECP”), whereby the election of petitioner / returned candidate from PP-217 Multan-VII was declared void and his notification as returned candidate was withdrawn with direction to conduct re-election in the whole constituency. The operative part of said order is reproduced hereunder:

“16. In the light of the entire discussion above, the Commission holds that the respondent Muhammad Salman, on the date of filing nomination papers on 6.6.2018 was not eligible to contest election being below the age of 25. That his date of birth throughout shown as 28.1.1994, was correct and the one now changed to 1.2.1993, is a result of manipulations and interpolations. The election of Muhammad Salman, returned candidate from PP-217 Multan-VII is hereby declared void, under section 9 of the Election Act, 2017 and all enabling provisions of the Constitution and the law. His notification as returned candidate is withdrawn and it is hereby directed that re-election be conducted in the whole constituency PP-217 Multan-VII.”

1. Learned counsel for petitioner submit that Section 9 of the Elections Act, 2017 (“the Act of 2017”) relates to such grave illegalities or violations as may have materially affected the result of the “poll”. They add that said provision has no application in the case of petitioner and appeal available under Section 9(5) of the Act ibid is of no use to petitioner, however, appeal has been filed as an abundance of caution. They further submit that no appeal lies to the Supreme Court against the impugned order, passed by respondent- ECP in the exercise of powers under “all other enabling provisions in this behalf.” They add that the last portion of Section 9(1) of the Act of 2017 clearly spells out that in case, such illegalities or violations were found to have taken place, the respondent-ECP will make a declaration accordingly and thereafter, shall call upon the voters in the concerned polling station(s) to recast their votes in the manner provided for bye-elections. They further submit that in the instant case, respondent-ECP claims to have disqualified the petitioner under Article 62 of the Constitution of the Islamic Republic of Pakistan, 1973 (“the Constitution”), therefore, the question of calling upon the voters of the constituency to recast their votes does not arise. They argue that material factual and legal aspects of the matter have been overlooked while passing the impugned order. They add that petitioner is entitled to fair trial as per Article 10-A of the Constitution. They maintain that the provisions of Section 9 of the Act of 2017 and Section 103-AA of the Representation of the People Act (“ROPA”), 1976 are completely different and are not pari materia. They add that Section 9 clearly relates to poll, whereas Section 103-AA of ROPA, 1976 had an extended application. They further submit that powers of the respondent-ECP are not absolute. They add that there are disputed questions of facts involved in the matter, which could not have been resolved in a summary manner. They further submit that even otherwise, in such cases, benefit of doubt is to be given to the candidate. They further contend that respondent-ECP cannot pass a short order as after expiry of sixty days from the notification, it could neither issue nor sign the detailed judgment. In the end, they submit that Article 225 of the Constitution acts as a complete bar to the jurisdiction of any Court or Authority except an Election Tribunal, duly constituted in accordance with law. In support of their submissions, they have relied upon Muhammad Saeed and 4 others v. Election Petitions Tribunal, West Pakistan & others (PLD 1957 Supreme Court 91), Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others (PLD 1970 Supreme Court 1), Shah Muhammad v. Ghulam and another (PLD 1970 Supreme Court 196), The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others (PLD 1972 Supreme Court 279), Khan Muhammad Yusuf Khan Khattak v. S.M. Ayub and 2 others (PLD 1973 Supreme Court 160), Sind Employees’ Social Security Institution v. Dr. Mumtaz Ali Taj and another (PLD 1975 Supreme Court 450), Ibrahim v. Mohammad Hussain (PLJ 1975 Supreme Court 331), Syed Saeed Hassan v. Pyar Ali and 7 others (PLD 1976 Supreme Court 6), Mirza Abdul Hameed and others v. Member, Board of Revenue-II (1986 SCMR 257), Election Commission of Pakistan through its Secretary v. Javaid Hashmi and others (PLD 1989 Supreme Court 396), Habibullah Jan and 3 others v. Muhammad Hassan Khan and 6 others (PLD 1991 Supreme Court 93), Ghulam Mustafa Jatoi v. Additional District & Sessions Judge / Returning Officer, N.A. 158, Naushero Feroze and others (1994 SCMR 1299), Khiali Khan v. Haji Nazir and 4 others (PLD 1997 Supreme Court 304), The State v. Asif Adil and others (1997 SCMR 209), Regional Commissioner of Income Tax, Corporate Region, Karachi and others v. Shafi Muhammad Baloch (1998 SCMR 246), Muhammad Tufail v. The State (1999 SCMR 1981), Farzand Raza Naqvi and 5 others v. Muhammad Din through Legal Heirs and others (2004 SCMR 400), Muhammad Safdar Abbasi v. Aamir Yar Malik and 3 others (2004 SCMR 1602), Syed Nayyar Hussain Bukhari v. District Returning Officer, NA-49, Islamabad and others (PLD 2008 Supreme Court 487), Syed Fakhar Imam v. Chief Election Commission of Pakistan and others (PLD 2008 Supreme Court 730), Aurangzeb Khan v. Election Commissioner of Pakistan, Islamabad through Secretary and others (PLD 2010 Supreme Court 34), Rana Aftab Ahmad Khan v. Muhammad Ajmal and another (PLD 2010 Supreme Court 1066), Dr. Muhammad Shahid Mian and another v. Faiz-ur-Rehman Faizi (PLD 2011 Supreme Court 676), Dr. Sohrab Ahmed Khan Sarki v. Mir Hassan Khoso and others (2011 SCMR 1084), Babar Hussain Shah and another v. Mujeed Ahmed Khan and another (2012 SCMR 1235), Reviews on behalf of Justice (Retd.) Abdul Ghani Sheikh and others (PLD 2013 Supreme Court 1024), Malik Umar Aslam v. Mrs. Sumaira Malik and others (2014 SCMR 45), Dr. Raja Aamer Zaman v. Omar Ayub Khan and others (2015 SCMR 1303), Lt.-Col. (Rtd.) Ghazanfar Abbas Shah v. Mehr Khalid Mehmood Sargana and others (2015 SCMR 1585), Muhammad Siddique Baloch v. Jehangir Khan Tareen and others (PLD 2016 Supreme Court 97), Ch. Muhammad Ashraf Warraich and another v. Muhammad Nasir Cheema and others (2016 SCMR 998), Raja Shaukat Aziz Bhatti v. Major (R) Iftikhar Mehmood Kiani and another (PLD 2018 Supreme Court 578), Mst. Sumaira Malik v. Malik Umar Aslam Awan and others (2018 SCMR 1432), Order dated 16.03.2007, passed by Hon’ble Supreme Court in C.P. No. 2060-L of 2003 titled Aziz-ud-Din Ahmed Khan v. Zafar Ullah Khan etc., Ajmal Hussain v. K.M.Hussain Darabu (1992 CLC 1073), National Development Finance Corporation v. Wafaqi Mohtasib, Islamabad and others (2004 CLD 260), Messrs Popular Boards (Pvt.) Ltd. v. Customs, Excise and Sales Tax Appellate Tribunal and another (2007 MLD 157), Riaz Mehmood Sheikh v. Shamsher Alam Khan and another (2009 CLC 862), Col. (Retd.) S. Maqbul Illahi through Attorney v. Pakistan Defence Officers Housing Authority through Administrator (2009 YLR 282), Moulvi Saifullah Memon and another v. Province of Sindh and others (2011 CLC 1004), Sh. Tariq Mehmood and others v. E.T.P.C., and others (2011 YLR 2850), Shabbir Ahmed v. Kiran Khursheed and 8 others (2012 CLC 1236), Muhammad Saleem v. Province of Punjab through Administrator Town Municipal Administration, District Gujranwala and 2 others (2014 CLC 1259), Messrs National Highway Authority v. Province of Punjab and others (2014 CLC 1578), Muhammad Nawaz Khan v. Election Commission of Pakistan through Secretary and 5 others (2018 CLC 784), United Bank Limited v. Federation of Pakistan and others (2018 CLD 587) and Karim Haider Shah and 3 others v. Faqir and 2 others (1992 CLC 25).

2. Conversely, learned Law Officer as well as learned counsel for respondents contend that as per Section 9 of the Act of 2017, alternate remedy of appeal against the order passed by respondent- ECP, lies directly to the Hon‟ble Supreme Court, which is adequate, efficacious and effective, therefore, writ is not competent. They add that writ jurisdiction can only be invoked when the order is not only without jurisdiction and void, but also leaves the petitioner without any equally efficacious remedy. They further contend that it is not the discretion of a party to leave the statutory remedy and resort to the constitutional jurisdiction of this Court, which is even otherwise extraordinary in nature. They add that it is the duty of respondent- ECP under Article 218(3) of the Constitution to ensure that corrupt practices in the conduct of election are guarded against. They further contend that short order / order of the Court is, in fact, the judgment of the Court, thus, same is valid even in the absence of any supporting reasons as a Tribunal can pass a short order and reasons can be given later. In the end, they contend that once a disqualification is always a disqualification, hence, instant petition, being incompetent, is not maintainable. In support of their contentions, they have referred to The Tariq Transport Company, Lahore v. The Sargodha-Bhera Bus Service, Sargodha & others (PLD 1958 Supreme Court 437), Mian Muhammad Shahbaz Sharif v. The State (1998 SCMR 763), Khalid Mehmood v. Collector of Customs, Customs House, Lahore (1999 SCMR 1881), Mst. Nusrat Batool v. Federation of Pakistan through Secretary, Establishment Division, Government of Pakistan, Islamabad and others (1999 SCMR 2811), Messrs Punjab Beverage Company (Pvt.) Ltd. through General Manager (Administration) v. Central Board of Revenue and 4 others (2001 PTD 3929), Syed Match Company Ltd. through Managing Director v. Authority under Payment of Wages Act and others (2003 SCMR 1493), Nawabzada Iftikhar Ahmad Khan Bar v. Chief Election Commissioner, Islamabad and others (PLD 2010 Supreme Court 817), Muhammad Rizwan Gill v. Nadia Aziz and others (PLD 2010 Supreme Court 828), Muhammad Abbasi v. S.H.O. Bhara Kahu and 7 others (PLD 2010 Supreme Court 969), Rana Aftab Ahmad Khan v. Muhammad Ajmal and another (PLD 2010 Supreme Court 1066), Workers’ Party Pakistan through Akhtar Hussain, Advocate, General Secretary and 6 others v. Federation of Pakistan and 2 others (PLD 2012 Supreme Court 681), Mian Najeeb-ud-Din Owasi and another v. Amir Yar Waran and others (PLD 2013 Supreme Court 482), Reviews on behalf of Justice (Retd.) Abdul Ghani Sheikh and others (PLD 2013 Supreme Court 1024), Abdul Ghafoor Lehri v. Returning Officer, PB-29, Naseerabad-II and others (2013 SCMR 1271), Allah Dino Khan Bhayo v. Election Commission of Pakistan, Islamabad and others (2013 SCMR 1655), D.-G. A.N.F. Rawalpindi and others v. Munawar Hussain Manj and others (2014 SCMR 1334), District Bar Association, Rawalpindi v. Federation of Pakistan (PLD 2015 Supreme Court 401), Muhammad Raza Hayat Hiraj and others v. The Election Commission of Pakistan and others (2015 SCMR 233), Ch. Muhammad Ashraf Warraich and another v. Muhammad Nasir Cheema and others (2016 SCMR 998), Muhammad Hanif Abbasi v. Jahangir Khan Tareen and others (PLD 2018 Supreme Court 114), Sher Alam Khan v. Abdul Munim and others (PLD 2018 Supreme Court 449), Raja Shaukat Aziz Bhatti v. Major (R) Iftikhar Mehmood Kiani and another (PLD 2018 Supreme Court 578), Election Commission of Pakistan and another v. Bibi Yasmeen Shah and others (PLD 2018 Supreme Court 732), Judgment dated 25.03.2015, passed by Hon’ble Supreme Court in Civil Appeal No. 91 of 2015 titled Abdul Waheed Chaudhry v. Rana Abdul Jabbar and others, Judgment dated 17.10.2018, passed by Hon’ble Supreme Court in Suo Motu Case No. 8 of 2018 and Civil Misc. Application No. 649-L of 2018 in Suo Motu Case No. 8 of 2018 regarding dual nationality of Parliamentarians, Mian Sultan Ali Nanghiana v. Mian Nur Hussain (PLD 1949 Lahore 301), Affan Khalid v. Abdul Razzaq and another (2006 CLC 1881), Pervaiz Iqbal v. Tehsil Nazim and others (2007 CLC 583), Syeda Waheeda Shah v. Election Commission of Pakistan through Chief Election Commissioner and 4 others (PLD 2013 Sindh 117), Engro Foods Ltd. v. C.D.G. and others (2016 CLC 234), Haider Gabol through Lawful Attorney v. Province of Sindh and others (2017 CLC Note 118), Hassan Shahjehan v. FPSC through Chairman and others (PLD 2017 Lahore 665) and Malik Taj Ahmad v. Malik Muhammad Nawaz, Member of Provincial Assembly (MPA), Punjab and others (PLD 2018 Lahore 723).

3. Arguments heard. Available record perused.

4. The precise submission of the learned counsel for the petitioner is that Article 225 of the Constitution acts as a complete bar to the jurisdiction of any Court or authority except an Election Tribunal, and Section 9 of the Act of 2017 is concerned with the polls or polling, hence the impugned order passed by the ECP is without jurisdiction. Neither said provisions of law were attracted nor was such an order appealable before the Hon’ble Supreme Court but the appeal has been filed as an abundance of caution, and, according the learned counsel, the only remedy of petition under Article 199 is available to the petitioner. It is the stance of petitioner that Section 9 is relatable to such grave illegalities and violations as may have materially affected the result of the poll. However, the impugned order is concerning the eligibility of petitioner to contest the elections on the day when he submitted his nomination papers. For facility of reference, Section 9 of the Act of 2017 is reproduced hereunder:-

“9. Power of the Commission to declare a poll void.--(1) Notwithstanding anything contained in this Act, if, from facts apparent on the face of the record and after such enquiry as it may deem necessary, the Commission is satisfied that by reason of grave illegalities or such violations of the provisions of this Act or the Rules as have materially affected the result of the poll at one or more polling stations or in the whole constituency including implementation of an agreement restraining women from casting their votes, it shall make a declaration accordingly and call upon the voters in the concerned polling station or stations or in the whole constituency as the case may be, to recast their votes in the manner provided for bye-elections.

Explanation.– If the turnout of women voters is less than ten percent of the total votes polled in a constituency, the Commission may presume that the women voters have been restrained through an agreement from casting their votes and may declare, polling at one or more polling stations or election in the whole constituency, void.

(2) Notwithstanding the powers conferred on it by sub-section (1), the Commission may order filing of complaint under this Act before a Court of competent jurisdiction against persons who entered into the agreement referred to in sub-section (1).

(3) Notwithstanding the publication of the name of a returned candidate under section 98, the Commission may exercise the powers conferred on it by sub-section (1) before the expiration of sixty days after such publication; and, where the Commission does not finally dispose of a case within the said period, the election of the returned candidate shall be deemed to have become final, subject to the decision of an Election Tribunal on an election petition, if any.

(4) While exercising the powers conferred on it by sub-section (1), the Commission shall be deemed to be an Election Tribunal to which an election petition has been presented and shall, notwithstanding anything contained in Chapter IX, regulate its own procedure.

(5) Any person aggrieved by a declaration of the Commission under this section may, within thirty days of the declaration, prefer an appeal to the Supreme Court.”

1. Admittedly, petitioner has already filed an appeal before the Hon’ble Supreme Court wherein all the grounds enumerated in the submissions of the petitioner have already been taken and the Hon’ble Apex Court while taking the cognizance of the matter has already issued notices to the respondents for comments / written statements. The grounds so taken can well be adjudicated upon by the highest forum in the hierarchy of adjudicatory process of this country. It is trite law that appeal lies against an order without jurisdiction in the same manner as an appeal against an order with jurisdiction. Reference in this regard can be made to the esteemed judgments of Hon’ble Supreme Court of Pakistan reported as (PLD 1995 Supreme Court 66) Pir Sabir Shah v. Shad Muhammad Khan, Member Provincial Assembly, N..W.F.P. and another, (PLD 1973 Supreme Court 368) Muhammad Ashfaq v. The State and (PLD 1976 Supreme Court 315) Abrar Hasan v. Government of Pakistan.

Even otherwise, Article 199 of the Constitution opens with the words to the effect that High Court may exercise its powers under said Article only “if it is satisfied that no other adequate remedy is provided by law”. Adequacy of the alternate remedy, therefore, if there is another remedy available, should always attract the attention of the Court. There are other matters however, where the constitutional jurisdiction under Article 199 cannot be so readily resorted to. One such, falling in this category, would be matters amenable to the jurisdiction of an exclusive tribunal, mandated by the Constitution. Another, which readily comes to the mind, would be disputes under a statute, postulating the appellate or revisional jurisdiction to reside either in the High Court itself or directly in the Supreme Court. An example essentially relevant to the first would be the Service Tribunal, where the tribunal is mandated by the Constitution of Pakistan namely, Article 212, thereof and where an appeal lies directly from the tribunal‟s decision to the Supreme Court. More or less similar principle applies where an exclusive tribunal or a regular Court has jurisdiction in a matter but the legislation creating such Court or forum or conferring jurisdiction on the same also ends up by providing appellate or revisional jurisdiction. Same rule applies to Election Tribunal which has been created under Article 225 of the Constitution. It is also worth mentioning that as per sub-section (4) of the Section 9 of the Act of 2017, while exercising the powers conferred on the Commission by sub-section (1) of Section 9, the Commission is deemed to be an Election Tribunal to which an election petition has been presented. Hence constitutional jurisdiction in all the cases cannot be invoked as a matter of right, course or routine, rather such jurisdiction has certain circumventions which the Court is required to keep in view while exercising its extraordinary discretionary powers, as the condition mentioned in the said Article are obviously meant for the purposes of regulation of the Court’s jurisdiction and the availability of the “other remedy” is one of such limitations.

1. The issue to this extent has already been settled by Hon’ble Islamabad High Court, Islamabad vide judgment dated 28.07.2017, passed in W.P. No. 2604 of 2017. The writ petition was dismissed being not maintainable by observing that writ petition complaining against the order of a tribunal would not be entertained in the absence of an adequate explanation as to why the petitioner did not avail the remedy of appeal provided to him against the impugned order, especially in view of sub-section 4 of Section 103-AA of the ROPA, 1976. The aforesaid order was upheld by the Apex Court in the case of Raja Shaukat Aziz Bhatti supra. The relevant observations of afore-referred judgment dated 28.07.2017, passed by Hon’ble Islamabad High Court, are reproduced as under:--

“21. There are innumerable cases of absence or excess of jurisdiction or where the impugned order suffers from illegality on the face of the record, where a certiorari has been granted even though the right of statutory appeal had not been availed by a petitioner. Other instances where the High Courts assume writ jurisdiction in petitions where an alternative remedy is available to the petitioner under the law, are where the order impugned is based on extraneous or malafide considerations, or where the rules of natural justice have been violated, or where the alternative remedy was not adequate or was onerous or where the provision of law under which the impugned order was passed is itself unconstitutional. In none of the cases that I have come across, the High Court has exercised Constitutional jurisdiction where the remedy of an appeal as of right to the Hon’ble Supreme Court is available under the law to a petitioner. Where a statute provides a remedy of an appeal to the High Court or the Hon’ble Supreme Court to a writ petitioner, the High Court ought to decline exercising its jurisdiction under Article 199 of the Constitution.

1. …

2. …

3. …

4. The petitioner in the instant writ petition is essentially seeking the issuance of a writ of certiorari against the order dated 20.06.2017 passed by the E.C.P. The petition has been filed under Article 199 of the Constitution. This Court is to exercise jurisdiction under Article 199 of the Constitution only “if it is satisfied that no other adequate remedy is provided by law”. Now, due to the addition of sub-section (4) to Section 103-AA of R.O.P.A. there is a remedy of an appeal against an order passed by the E.C.P. under Section 103-AA of R.O.P.A. For this Court to assume jurisdiction in this matter by altogether ignoring sub-section (4) to Section 103-AA of R.O.P.A. as well as the mandate of Article 199 (1) of the Constitution would be tantamount to reading the law with contempt.

5. …

6. The petitioner is at liberty to agitate the grounds taken in this petition in his appeal before the Hon’ble Supreme Court, should he decide to file one. The appellate forum will be better equipped to consider and decide the questions of facts in this case, since it has jurisdiction over questions of fact as well as of law. The High Court while adjudicating upon a writ petition is not properly equipped to deal with questions of fact, especially if they are disputed.

7. For the above reasons, I am of the view that there are no exceptional circumstances to persuade me to depart from the normal rule that a writ petition complaining against the order of a tribunal (in this case an order of the E.C.P. passed under Section 103-AA of R.O.P.A.) would not be entertained in the absence of an adequate explanation as to why the petitioner does not avail the remedy of appeal provided to him against the impugned order by sub-section (4) of Section 103-AA of R.O.P.A. Since I do not find this petition to be maintainable in the presence of the remedy of an appeal to the Hon’ble Supreme Court available to the petitioner against the impugned order dated 20.06.2017, there is no need to give any finding on the second objection of Respondent No. 2.

8. The writ petition is, therefore, dismissed as not maintainable, but in the circumstances without any order as to costs.”

9. Learned counsel for petitioner has argued that the said judgment by the Hon’ble Islamabad High Court was passed while interpreting ROPA which has extended application. There is no merit in this argument for the reason that both the above provisions are pari materia at least to the extent of remedy of appeal before the Hon’ble Supreme Court against an order passed by ECP, therefore, in presence of pending appeal before the Hon’ble Apex Court, this petition is not competent.

10. In view of the above, instant petition, along with connected petition, being not maintainable, is hereby dismissed with no order as to costs.

(Y.A.) Petition dismissed

PLJ 2019 Lahore 391 [Rawalpindi Bench Rawalpindi]

Present: Raja Shahid Mehmood Abbasi, J

RAFAQAT ALI & others--Petitioners

versus

DEPUTY COMMISSIONER, RAWALPINDI and 3 others--Respondents

W.P. Nos. 38, 39, 41, 43, 62, 63, 64, 71, 83, 94, 96, 97 & 102 of 2019 heard on 15.1.2019

Maintenance of Public Order Ordinance, 1960 (XXXI of 1960)--

----Ss. 3(1) & 26--Constitution of Pakistan, 1973, Arts. 2(A), 3, 4, 9, 10, 10(A), 14 & 15--Instigation of General Public to creation of law and order situation--Detension Orders--Extension of detension orders--Fundamental rights--Alternate remedy--Substantial evidence--Requirements of law--Maintainability--Jurisdiction--Challenge to--In normal course of circumstances, aggrieved person should exhaust alternate remedies, if any available to him, before knocking doors of this Court, but this Court while exercising writ jurisdiction cannot refuse to safeguard fundamental rights merely on technical grounds particularly when matter entails right of liberty, security, dignity and freedom of any person, which has been fully protected and safeguarded by provisions of Chapter-I, Part-II of Constitution of Islamic Republic of Pakistan, 1973--Alternate remedies are not as efficacious as that of filing constitutional petition for determination of validity of impugned detention orders and as such legal objection raised by learned Law Officer on maintainability of writ petitions is turned down--It appears from reports of respondent that stereotype detention orders passed by detaining authorities/Deputy Commissioners are not based on any substantial piece of evidence, because, neither any material was produced before detaining authorities nor was taken into consideration and apparently impugned orders were passed only on basis of police reports without assessing that whether those reports were backed by any tangible material or not--No conclusive proof is available that the; detenues were previously involved in any anti-State government activities--Likewise, respondents have failed to bring on record any material whatsoever which infer that detenues have links with any proscribed organization or they had been instigating followers of any political party or general public to create law & order situation by blocking roads/traffic--Petitioners have successfully established that impugned detention orders had been passed without observing basic requirements of law and principles laid down by Apex Supreme Court of Pakistan in this regard--Petitions allowed. [Pp. 395, 396, 397 & 398] A, B, C, D & E

PLD 2003 SC 442, ref.

M/s. Sajjad Akbar Abbasi, Siddique Akbar Abbasi, Sajid Ali Malik, Tanveer-ul-Islam, Muhammad Nazar-ul-Islam, Ch. Nasir Abbas Minhas, Advocates. for Petitioners

Mr. Irfan Khan Niazi, Assistant Advocate General for State

Date of hearing: 15.1.2019

Judgment

Through this single judgment, I intend to decide Writ Petition No. 38 of 2019 alongwith Writ Petition No. 39 of 2019, Writ Petition No. 41 of 2019, Writ Petition No. 43 of 2019, Writ Petition No. 62 of 2019, Writ Petition No. 63 of 2019, Writ Petition No. 64 of 2019, Writ Petition No. 71 of 2019, Writ Petition No. 83 of 2019, Writ Petition No. 94 of 2019, Writ Petition No. 96 of 2019, Writ Petition No. 97 of 2019 and Writ Petition No. 102 of 2019 as the petitioners in all these petitions have sought release of their close relatives detained by law-enforcing agencies under the provisions of West Pakistan Maintenance of Public Order Ordinance 1960 with the apprehension that they would create law & order situation by instigating general public to participate in the protest against the government. The description of the detenues, in each case, is as under:

| | | | | --- | --- | --- | | Sr. No | Case No. | Name(s) of Detenue(s) | | 1. | Writ Petition No. 38 of 2019 | Kamran Masood | | 2. | Writ Petition No. 39 of 2019 | Azeem Tariq | | 3. | Writ Petition No. 41 of 2019 | Muhammad Younas | | 4. | Writ Petition No. 43 of 2019 | Usman Zafar | | 5. | Writ Petition No. 62 of 2019 | Ali Hassan | | 6. | Writ Petition No. 63 of 2019 | Qasim Ramzan | | 7. | Writ Petition No. 64 of 2019 | Ilyas Javaid @ Awais Mughal | | 8. | Writ Petition No. 71 of 2019 | Adnan Qayyum | | 9. | Writ Petition No. 83 of 2019 | Amir Ali | | 10 | Writ Petition No. 94 of 2019 | Muhammad Qadeer | | 11. | Writ Petition No. 96 of 2019 | Muhammad Saleem | | 12. | Writ Petition No. 97 of 2019 | Shehzad Hussain | | 13. | Writ Petition No. 102 of 2019 | Muhammad Asif |

1. Briefly, the facts of the case are that the above said detenues were arrested by law-enforcing agency in pursuance of their detention orders bearing different numbers and dates, issued by the Deputy Commissioners of Districts Rawalpindi and Jhelum under Section 3(1) read with Section 26 of the Maintenance of Public Order Ordinance, 1960 on the ground that they, being the activists of Tehreek-e-Labbaik Ya Rasool Allah, were instigating the followers of their party as well as the general public to create law & order situation by blocking roads/traffic, due to which any untoward incident was likely to occur. Later on, the detention period of detenues was further extended by the Home Department, Government of the Punjab for 30-days vide Notification No. SO(IS-I) 3-1/2018 dated 21.12.2018.

2. Learned counsel for the petitioners emphatically contended that the detaining authorities have miserably failed to follow and obey the settled provisions of law as well as the principles laid down by the Hon’ble Supreme Court of Pakistan while passing the impugned detention orders, which caused grave miscarriage of justice towards the detenues and their poor families as well; that the detenues are law-abiding citizens of the country and they could never think to create unrest in the society because neither they belong to any activist group nor are involved in any illegal activity; that liberty of the detenues has been curtailed without assigning any plausible reason and bringing on record any substantial piece of evidence or material against the detenues, which negates the sanctity and legal worth of the impugned detention orders; that the whole proceedings in respect of issuance of detention orders as well as the notification of extension in period of detention are based on mala fide intention and ulterior motive; that the authorities have violated the law and deprived the detenues from their fundamental rights as guaranteed by Articles 2-A, 3, 4, 9, 10, 10-A, 14, 15 and 25 of the Constitution of Islamic Republic of Pakistan; that the keeping the detenues behind the bars without any valid reason is of no avail rather it amounts to miscarriage of justice; that the detenues had no concern whatsoever with any illegal activities, but they have been made scapegoats by the respondents in order to show unwarranted efficiency and to please their high ups. Lastly prayed that the impugned detention orders passed by the Deputy Commissioners of Districts Rawalpindi and Jhelum as well as the notification issued by the Secretary, Government of the Punjab, Home Department, for the extension of period of detention may be declared illegal and consequently be set aside and the detenues may be directed to be released forthwith from the custody of police/jail.

3. Learned Assistant Advocate General, while appearing on behalf of the State, converted the contentions raised by learned counsel for the petitioners and submitted that the detaining authorities have exercised the powers vested in them in a proper way and have passed the well-reasoned detention orders which need no interference by this Court. Goes on to maintain that validity of the impugned detention orders as well as the notification of extension cannot be questioned through constitutional petition and if the detenues are aggrieved by their detention orders, they have the alternate remedies of filing, representation and thereafter appeal before the Secretary, Govt. of the Punjab, Home Department, Lahore. He next contended that the detenues are active members of Tehreek-e-Labbaik Ya Rasool Allah ﷑ and they instigated the general public to protest against the government and to create law & order situation; that the activities of the detenues were highly detrimental to the social fabric, public peace and tranquility and under the prevailing situation created by none other than the detenues themselves, the authorities were quite justified to pass the detention orders after adopting the due process of law, hence, prayed that the writ petitions, having no force, may be dismissed.

4. The arguments pro and cons have been heard and the reports submitted by the Deputy Commissioners of Districts Rawalpindi and Jhelum have been perused with care and caution. As far as the legal objection raised by learned Law Officer that the petitioners have purposely skipped to avail the alternative remedies of filing representations before the Deputy Commissioners concerned against the impugned detention orders and thereafter they may have had filed appeals/representations before the Secretary, Government of the Punjab, Home Department, Lahore and without availing these legal remedies, their writ petitions are not maintainable is concerned, I may observe here that in normal course of circumstances, the aggrieved person should exhaust the alternate remedies, if any available to him, before knocking the doors of this Court, but this Court while exercising writ jurisdiction cannot refuse to safeguard the fundamental rights merely on technical grounds particularly when the matter entails the right of liberty, security, dignity and freedom of any person, which has been fully protected and safeguarded by the provisions of Chapter-I, Part-II of the Constitution of Islamic Republic of Pakistan, 1973. This Court being a constitutional Court has legal and constitutional obligation to safeguard the fundamental rights guaranteed by the Constitution to every citizen of the country and failure of the detenues to make representation to the executive authorities is no bar on the constitutional jurisdiction of this Court. In this regard, reference is respectfully made to the case of “Federation of Pakistan through Secretary, Ministry of Interior, Islamabad, versus Mrs. Amatul Jalil Khawaja and others” (PLD 2003 Supreme Court 442), wherein the Hon’ble Supreme Court of Pakistan, has been pleased to observe as under:

S. 3(1)--Constitution of Pakistan (1973), Arts. 199 & 10--Preventive detention--Judicial review--Scope--Right of a person to a petition for habeas corpus--Extent--If the arrest of a person cannot be justified in law, there is no reason why that person should not be able to invoke the jurisdiction of the High Court immediately for the restoration of his liberty which is his basic right-- jurisdiction of High Court it is always by means of judicial review and cannot be treated as appeal or revision--Court cannot substitute its discretion for that of administrative agency and the only function of the Court in such cases is to see whether or not order of detention is reasonable and objective.

The right of a person to a petition for habeas corpus is a high prerogative right and is a Constitutional remedy for all matters of illegal confinement. This is one of the most fundamental rights known to the Constitution. There being limitation placed on the exercise of this right, it cannot be imported on the actual or assumed restriction which may be imposed by any subordinate legislation. If the arrest of a person cannot be justified in law, there is no reason why that person should not be able to invoke the jurisdiction of the High Court immediately for the restoration of his liberty which is his basic right. In all cases where a person is detained and he alleges that his detention is un-Constitutional and in violation of the safeguards provided in the Constitution, or that it does not fall within the statutory requirements of the law under which the detention is ordered, he can invoke the jurisdiction of the High Court, under Article 199 and ask to be released forthwith.”

The above guidelines laid down by the Apex Court as well as the facts and circumstances of the case according to which the detaining authorities have already acted against the detenues by issuing their detention orders and thereafter further extending the same for a period of one-month, calls for interference into the matter by this Court and if the detenues are again left at the mercy of said authorities, no fruitful purpose is expected except that their detention period would expire in the meantime. I am, therefore, of the view that alternate remedies are not as efficacious as that of filing constitutional petition for determination of validity of the impugned detention orders and as such the legal objection raised by learned Law Officer on the maintainability of writ petitions is turned down.

1. Adverting to the merits of the case, it is worthwhile noticeable that in the supra-referred judgment i.e. PLD 2003 Supreme Court 442, the Apex Court has set a criteria that every preventive detention order has to satisfy the following requirements:--

(i) the Court must be satisfied that the material before the detaining authority was such that a reasonable person would be satisfied as to the necessity for making the order of preventive detention.

(ii) that satisfaction should be established with regard to each of the grounds of detention, and, if one of the grounds is shown to be bad, non-existent or irrelevant, the whole order of detention would be rendered invalid.

(iii) that initial burden lies on the detaining authority to show the legality of the preventive detention, and

(iv) that the detaining authority must place the whole material, upon which the order of detention is based, before the Court notwithstanding its claim of privilege with respect to any document, the validity of which claim shall be within the competence of the Court to decide.

There is no cavil to the proposition that the legality and propriety of the detention orders impugned in these writ petitions are to be seen on the touchstone of above settled principles. In this case, it appears from the reports of the respondents that stereotype detention orders passed by the detaining authorities/Deputy Commissioners are not based on any substantial piece of evidence, because, neither any material was produced before the detaining authorities nor was taken into consideration and apparently the impugned orders were passed only on the basis of police reports without assessing that whether those reports were backed by any tangible material or not. The only reason available with the respondents for the detention of detenues is that they, being the active members of Tehreek-e-Labbaik Pakistan, had instigated its followers as well as the general public to participate in the protest against the Government and to create unrest in the society, but the respondents have not brought on record any material to establish connection of the detenues with Tehreek-e-Labbaik Pakistan, which otherwise is a political party registered with the Election Commission of Pakistan. Suffice to observe here that strong cogent and convincing evidence was required for the issuance of detention orders, but the respondents/authorities, while issuing the impugned detention orders, have acted mechanically in the aid of police and they were miserably failed to apply their independent minds while curtailing the fundamental right of liberty of the detenues that too without any specific allegation or proof that they were involved in any sort of agitation or had any means or influence upon the general public to instigate them for creating law & order situation and as such the impugned detention orders amount to misuse of the authority and use of powers bestowed to the detaining authorities in the wrong way. Even while addressing arguments, learned Assistant Advocate General frankly conceded that except the police reports wherein apprehension had been shown that the detenues were likely to create law & order situation by blocking the roads/traffic, no other material whatsoever is available against them which could be justifiably made basis to curtail their liberty. It is not out of place to mention here that according to learned Law Officer, the detenues are involved in a criminal case but it is equally an admitted fact that they have been allowed post-arrest bail in that criminal case and none of them has ever been convicted by any Court of law, so unless any detenue is proved guilty of the offence, his liberty cannot be curtailed merely due to the registration of criminal case against him. It is also an admitted position of the case that no conclusive proof is available that the detenues were previously involved in any anti-State/Government activities. Likewise, the respondents have failed to bring on record any material whatsoever which infer that the detenues have links with any proscribed

organization or they had been instigating the followers of any political party or the general public to create law & order situation by blocking the roads/traffic.

1. As a result of above discussion, I have come to the conclusion that the respondents have failed to bring on record any material in support of the impugned detention orders of the detenues mentioned in Paragraph No. 1 above. On the other hand, the petitioners have successfully established that the impugned detention orders had been passed without observing the basic requirements of law and the principles laid down by the Apex Supreme Court of Pakistan in this regard. Resultantly, these writ petitions are allowed and the impugned detention orders as well as the notification for the extension of detention period for further one-month to the extent of the detenues named in paragraph No. 1 above are hereby set aside and they are ordered to be released forthwith, if not required to be detained in connection with any other case.

(Y.A.) Petition allowed

PLJ 2019 Lahore 398

Present: Muzamil Akhtar Shabir, J

SYED SAJJAD HUSSAIN--Petitioner

versus

JUDGE FAMILY COURT, etc.--Respondents

W.P. No. 8244 of 2019, decided on 13.2.2019

Constitution of Pakistan, 1973--

----Art. 199--Constitutional Petition--Muslim Family Law Act, 1964, S. 10 & 14--Suit for recovery of deferred dower--Decreed--Suit for institution of conjugal rights--Dismissed--Appeal to extent of dower article dismissed--Challenge to--Payment of dower by petitioner has not been established on record--Trial Court in such circumstances was justified to decree suit filed by respondent for recovery of deferred dower and said finding cannot be reversed regardless of fact that dissolution of marriage has been established or not--Petition was dismissed. [Pp. 401 & 402] A

Mr. Ijaz Ahmad Janjua, Advocate for Petitioner.

Ms. Zarish Fatima, Assistant Attorney General and Mr. Muhammad Javaid Iqbal Sabri, AAG. On Court’s call.

M/s. Nasrullah Khan Babar, Ch. Muhammad Naseer Ms. Uzma Razzaq Khan, Advocates/Amicus curiae.

Date of hearing: 13.2.2019

Order

Through this constitutional petition, the petitioner has called in question the judgment and decree dated 26.10.2018 passed by learned Judge Family Court, Ferozewala whereby the suit for recovery of dower filed by Respondent No. 2/wife (“respondent”) was decreed in her favour whereas the suit for restitution of conjugal rights filed by the petitioner was dismissed.

1. Brief facts of the case are that marriage between the parties was solemnized on 10.07.2011 in lieu of deferred dower amounting to Rs.1,00,000 Subsequently Respondent No. 2, claiming to have been divorced by the petitioner in June-2014, filed a suit for recovery of aforesaid deferred dower. The petitioner denied the said facts through contesting written statement also filed a suit for restitution of conjugal rights. Both the afore referred suits were consolidated and the learned trial Court vide its judgment and decree dated 26.10.2018 decreed the suit filed by the respondent for recovery of Rs. 1,00,000/- as deferred dower whereas the petitioner’s suit was dismissed. Feeling aggrieved of the said judgment and decree, the petitioner filed appeal before the appellate Court, which vide order dated 07.12.2018 declared the appeal to the extent of recovery of dowry articles as not maintainable in view of bar provided under Section 14 of the Family Courts Act, 1964 (‘Act’), however has entertained the appeal against the dismissal of petitioner’s suit for dissolution of marriage. The petitioner has filed this constitutional petition to challenge the decree for recovery of dower passed by the trial Court.

2. Learned counsel for the petitioner has argued that the petitioner has not divorced the respondent, therefore she could not claim deferred dower during the subsistence of marriage; that the petitioner has already paid deferred dower to the respondent, hence, the learned trial Court has erred in law while decreeing the suit filed by the respondent by assuming that marriage had been dissolved.

3. Learned Law Officers as well as amicus curiae appointed by this Court have argued that without commenting upon the fact that whether the marriage had actually been dissolved or not, as the petitioner claims to have paid dower to the respondent during the subsistence of marriage, therefore, the contention of the petitioner that deferred dower could not be claimed by the respondent before dissolution of marriage would be without justification in the given circumstances of the case.

4. Heard. Record perused.

5. The main question to be determined by this Court is whether in the given circumstances of the case in view of the petitioner’s claim that dissolution of marriage has not been established on the record through any cogent evidence, the Court had rightly decreed the respondent’s claim for payment of deferred dower.

6. It is an admitted fact that respondent was married to the petitioner on 10.07.2011 in lieu of deferred dower amounting to Rs. 1,00,000/- and from the said wed lock two minor children were born. The respondent claims that the petitioner had divorced him in June, 2014 therefore he is liable to pay deferred dower. The petitioner denies the said facts and claims to have already paid dower to the respondent in two installments of Rs.50,000/- each in the month of February and May-2012 and nothing is due and outstanding against him. On the one hand, the petitioner claims that payment of deferred dower has not become due as marriage is still intact and on the other hand claims to have paid the same during the subsistence of marriage. Both the afore referred positions cannot co-exist and the pleas of the petitioner are contradictory and self-destructive. Deferred dower is usually not payable immediately at the time of performance of marriage ceremony/Nikah as required in case of prompt dower and is referred to as deferred because its payment if reserved to be made later the however, the codified law does not prescribe when the deferred dower becomes payable and the law has left same to be decided by the parties themselves. Deferred dower becomes payable to the wife on the fixed date, expiry of time period, on the occurrence of any event or fulfilment of pre-condition fixed for payment of the same in the Nikahnama or otherwise and if neither such date or period is fixed nor any condition is imposed, the same becomes payable on the dissolution of marriage by death or divorce. Reliance in this behalf is placed on the judgment reported as Saadia Usman and another vs. Muhammad Usman Iqbal Jadoon and another (2009 SCMR 1458), wherein it is observed as under:

“It is clear from the passages just quoted from the book titled “Kitab-al-Fiqh al-al-Madhahab-al-arba’a” that the Hanafi jurists allow both categories of Mahr. Mu’ajjal, (prompt, i.e immediately payment) and Mu’wajjal (deferred i.e. payment later, after a certain time). However, where a part of the dower is described as Mu’wajjal, i.e. deferred but no time limit is fixed for its payment, according to some jurists, the condition is valid and the time of the deferred payment is either death or divorce.”

1. In the present case although in the Nikahnama no such date, time period or condition for payment has been fixed, however, the petitioner claims to have paid the same in the year 2012. Non-fixation of any condition date or time period for payment of deferred dower in Nikahnama does not preclude the parties for subsequently fixing the same through consent or conduct. Even otherwise, in the absence of any agreed stipulation relating to time of payment of deferred dower, the husband who has to make payment of the same, can bilaterally or unilaterally, expressly or impliedly through his conduct, waive the condition of waiting till the dissolution of marriage for making such payment by tendering dower or agreeing to tender the same immediately or on a future date, expiry of some time period or on the happening of some event or fulfilment of a fixed condition for which purpose subsistence or dissolution of marriage would be irrelevant. Therefore without commenting upon the fact of subsistence or dissolution of marriage lest it may prejudice the appeal filed by the petitioner against the dismissal of his suit for restitution of conjugal rights, the Court on the basis of petitioner’s plea that dower had already been paid would be justified to presume that the parties through their conduct had modified the condition for payment of dower on the dates in February and May-2012 when the petitioner claims to have paid the same on the respondent’s demand instead of waiting for the dissolution of marriage through divorce or death. Although all presumptions are rebuttable, unless treated as conclusive proof by law, the petitioner was required to show through some cogent and confidence inspiring evidence that either he had not agreed to pay the deferred dower in the months of February and May-2012 or after having agreed to pay the same he had actually made the said payment. As the petitioner claims to have paid dower on the asking of the respondent and that too during the subsistence of marriage, therefore, at this stage he is estopped by his conduct to claim that deferred dower was not payable during the subsistence of marriage and in view of the aforesaid position taken by him, he had to establish the fact of such payment through cogent evidence which has not been done as the petitioner’s own witness Syed Munawar Hussain Shah, who appeared in his support as DW-2, has although deposed that dower had been paid but his statement is sketchy and he did not state that he was a witness to the said payment, hence, the payment of dower by the petitioner has not been established on the record. The trial Court in such circumstances was justified to decree the suit filed by the respondent for recovery of deferred dower and the said finding cannot

be reversed regardless of the fact that the dissolution of marriage has been established or not.

1. For the reasons recorded above, this constitutional petition being devoid of any force is dismissed.

(Y.A.) Petition dismissed

PLJ 2019 Lahore 402

Present: Muzamil Akhtar Shabir, J

HANZLA KHALID, etc.--Petitioners

versus

KHALID PARVAIZ, etc.--Respondents

W.P. No. 10200 of 2019, decided on 21.2.2019

Muslim Family Law Ordinance, 1961--

----S. 19--Constitution of Pakistan, 1973--Art. 199--Suit for recovery of maintenance allowance and delivery expenses--Exparty proceedings--Appeal partially decreed--Modification of decree--Enhancement of maintenance allowance--Absence of documentary evidence--Financial status--Challenge to--It is noticed that at trial no documentary evidence has been brought on record by petitioners to prove their claim regarding respondent living for earning in Greece and sound financial status of respondent--Petitioners were required to prove their stance and negate stance taken by respondent by producing some evidence on record but same has not been done and there is word of mouth of petitioner’s side only without any material to substantiate same--Learned counsel for petitioner has failed to point out any misreading, non-reading or illegality in impugned judgments--Assessment and appraisal of evidence is function of Family Court, which is vested with exclusive jurisdiction in this regard--This Court while exercising constitutional jurisdiction does not ordinarily reappraise evidence produced before Courts below to substitute findings of facts recorded by said Courts, nor gives its opinion regarding quality or adequacy of evidence unless any misreading, non-reading of record or any illegality is pointed out, which have not been established on record, hence, there is no ground to set-aside said findings of fact--Petition was dismissed. [Pp. 403 & 404] A, B & C

Qazi Shahid Rasheed, Advocate for Petitioners.

Date of hearing: 21.2.2019

Order

Through this constitutional petition, the petitioners, who were plaintiffs in a family suit for recovery of maintenance allowance, etc., have assailed the findings recorded by the learned Courts below dated 30.11.2018 and 17.09.2018, whereby the said Courts have partially decreed the claim of the petitioners/plaintiffs and seek decree of the suit as prayed for.

1. Briefly stated facts of the case are that marriage between Respondent No. 1 and Petitioner No. 5 was solemnized on 12.01.2003 and from the said wedlock minor Petitioners No. 1 to 4 were born. On 14.10.2017, the petitioners/plaintiffs filed a family suit for recovery of maintenance allowance, medical expenses of Petitioner No. 1 and delivery expenses against the Respondent No. 1/defendant, in response to which the respondent filed contesting written statement. On 09.07.2018, the respondent was proceeded against ex-parte. On conclusion of the ex-parte evidence, vide judgment and decree dated 17.09.2018, the learned trial Court held the petitioners entitled to receive Rs. 2500/- each as maintenance from the respondent. The petitioners preferred appeal. The learned appellate Court vide judgment and decree dated 30.11.2018 modified the decree of the learned trial Court and held the minor Petitioners No. 1 to 4 entitled to receive maintenance allowance @ Rs. 3500/- each from the date of institution of the suit till their legal entitlement with 10% annual increment, whereas the Petitioner No. 5 was held entitled to receive Rs. 4000/- per month as maintenance from the institution of the suit till subsistence of marriage or in case of divorce till “iddat” period. Both the afore-referred judgments and decrees are under challenge through this constitutional petition.

2. Heard. Record perused.

3. The ground agitated by the counsel for the petitioners is that the maintenance allowance decreed by the learned appellate Court is not in accordance with the actual financial position of the respondent and stated that respondent is working in Greece and earning 2000 Euro per month and can easily pay maintenance allowance of the petitioners @ Rs. 15,000/- per month each. It is noticed that at trial no documentary evidence has been brought on the record by the petitioners to prove their claim regarding the respondent living for earning in Greece and sound financial status of the respondent. Although the respondent was proceeded against ex-parte vide order dated 09.07.2018 by the learned trial Court yet the written statement of the respondent is available on the record which clearly denies the claim of the petitioners and it is stated by the respondent in

the written statement that he is living in Pakistan now and he is agriculturist by profession and earns Rs. 15,000/- per month. The petitioners were required to prove their stance and negate the stance taken by the respondent by producing some evidence on the record but the same has not been done and there is word of mouth of the petitioner’s side only without any material to substantiate the same. In absence of any documentary evidence, the learned appellate Court was justified in partially decreeing the claim of the same.

1. Learned counsel for the petitioner has failed to point out any misreading, non-reading or illegality in the impugned judgments. The assessment and appraisal of evidence is the function of the Family Court, which is vested with exclusive jurisdiction in this regard. This Court while exercising constitutional jurisdiction does not ordinarily reappraise the evidence produced before the Courts below to substitute findings of facts recorded by the said Courts, nor gives its opinion regarding quality or adequacy of the evidence unless any misreading, non-reading of record or any illegality is pointed out, which have not been established on the record, hence, there is no ground to set-aside the said findings of fact.

2. For what has been discussed above, this petition being devoid of any merits dismissed in limine.

(Y.A.) Petition dismissed

PLJ 2019 Lahore 404

Present: Muzamil Akhtar Shabir, J.

SyedMUHAMMAD TAQI RAZA NAQVI--Petitioner

versus

JUDGE FAMILY COURT, etc.--Respondents

W.P. No. 673 of 2019, decided on 10.1.2019.

Family Courts Act, 1964 (XXXV of 1964)--

----S. 17-A--Constitution of Pakistan, 1973, Art. 199--Constitutional Petition--Suit for recovery of maintainance allowance--Interim Order regarding fixation of interim maintenance allowance--Jurisdiction--Question of--Whether after fixing interim maintenance of minors Judge family Court was rested with powers to subsequently fix interim maintainance allowance of wife or same would be barred by constructive res judicata--Determination--Challenge to--”17A. Suit for maintenance.--(1) In a suit for maintenance, Family Court shall, on date of first appearance of defendant, fix interim monthly maintenance for wife or a child and if defendant fails to pay maintenance by fourteenth day of each month, defence of defendant shall stand struck off and Family Court shall decree suit for maintenance on basis of averments in plaint and other supporting documents on record of case--Petition was dismissed. [P. 406] A

Family Courts Act, 1964 (XXXV of 1964)--

----S. 17-A--Suit for maintenance allowance--Jurisdiction res-judicata--Maintainability--As per mandate of Section 17-A (supra), Family Court is bound to fix monthly interim maintenance allowance of wife or a child on first date of appearance of defendant--No party can be allowed to suffer for any act or omission of Court--Even otherwise, a Family Court is competent to adopt any procedure and pass any order to regulate its own proceedings unless same is barred under some law and in case Court had not earlier passed an order fixing interim maintenance allowance for wife, it retained jurisdiction to pass said order later on as said procedure was not barred under law--Question of maintenance is a recurring cause of action, which can be raised on every successive occasion when right to sue arises and interim maintenance allowance is to be fixed on monthly basis, therefore, argument of order dated 23.11.2018 being barred by constructive res judicata is misconceived--It is held that fixation of interim maintenance allowance of minors on one date would not debar Court from fixing interim maintenance allowance of wife on subsequent date orvice versa--It would not be appropriate to comment on merits of case lest decision of trial Court be prejudiced on that account. Consequently, this petition against interim order to that extent is not maintainable.

[Pp. 406, 407 & 408] B, C, D, E & F

Sh. Usman Karim-ud-Din, Advocate for Petitioner.

Ms. Zarish Fatima, Assistant Attorney General. On Court’s call.

Mr. Muhammad Arshad Manzoor, AAG. On Court’s call.

M/s. Nasrullah Khan Babar, Ch. Muhammad Naseer and Ms. Uzma Razzaq Khan, Advocates/Amicus curiae.

Date of hearing: 10.1.2019

Order

Through this Constitutional petition, petitioner who is defendant in the suit filed by Respondents No. 2 to 5 for recovery of maintenance allowance, has called in question order dated 23.11.2018 passed by Respondent No. 1/Judge Family Court, Lahore whereby interim maintenance allowance of Respondent No. 2 (wife of the petitioner) has been fixed at the rate of Rs.8000/- per month.

1. The learned counsel for petitioner relies on Section 17-A of the Family Courts Act, 1964 (‘Act’) to argue that Judge Family Court could pass order for interim maintenance allowance only once, which he had done by fixing the maintenance allowance of the minors/ Respondents No. 3 to 5 (‘minors’) on 22.09.2018 and had no jurisdiction to subsequently pass an order to fix the interim maintenance allowance of the wife/respondent no. 2 on 23.11.2018, which was barred by constructive res-judicata.

2. Heard, record perused.

3. The question for determination before this Court is whether after fixing interim maintenance of the minors the Judge Family Court was vested with the powers to subsequently fix the interim maintenance allowance of the wife or the same would be barred by constructive res-judicata.

4. In order to determine the afore-referred question, reference to Section 17-A of the Act may be made which is reproduced below:

“17A. Suit for maintenance.--(1) In a suit for maintenance, the Family Court shall, on the date of the first appearance of the defendant, fix interim monthly maintenance for wife or a child and if the defendant fails to pay the maintenance by fourteenth day of each month, the defence of the defendant shall stand struck off and the Family Court shall decree the suit for maintenance on the basis of averments in the plaint and other supporting documents on record of the case.

…………………..”

1. As per the mandate of Section 17-A (supra), the Family Court is bound to fix monthly interim maintenance allowance of the wife or a child on the first date of appearance of the defendant. In the present case the Respondent No. 2 as wife and Respondents No. 3 to 5 as minor children of petitioner filed a suit for recovery of maintenance allowance against him on 11.07.2018 by stating that he earns Rs.80,000/- per month and is liable to maintain them, which was contested by the petitioner by filing written statement. The learned trial Court on 22.09.2018 after hearing the arguments fixed the interim maintenance allowance of Respondents No. 3 and 4 (minors) at the rate of Rs.7000/- per month each and for Respondent No. 5 (minor) at the rate of Rs.6000/- per month, whereas nothing was mentioned about interim maintenance allowance of Respondent No. 2 (wife). Subsequently, on 06.11.2018 the matter was adjourned to 19.11.2018 for personal appearance of the parties for pre-trial reconciliation proceedings and for payment of interim maintenance allowance of the minors. On 19.11.2018, Respondent No. 2 appeared in the Court and got recorded her statement that she wants to reconcile with the petitioner subject to payment of maintenance allowance to her; the petitioner also got recorded his statement on the same date that he wants to reconcile with the Respondent No. 2, whereafter, the matter was adjourned to 23.11.2018 for further proceedings but on the said date, petitioner did not appear in the Court despite the fact that Respondent No. 2 remained present in the Court and awaited for petitioner’s arrival for reconciliation proceedings from 11:00 a.m. onward till the closing time of the Court; consequently, the Court in the absence of the petitioner fixed the interim maintenance allowance of Respondent No. 2 at the rate of Rs.8000/- per month and directed the petitioner to make payment of the same.

2. Although the learned counsel for petitioner states that non-passing of order relating to grant of interim maintenance allowance in favour of Respondent No. 2 (wife) at the time of fixation of interim maintenance allowance of the minors would amount to refusal of the same but I am not inclined to agree with the said argument of the petitioner for the reason that it was the duty of the Court to fix the interim monthly maintenance allowance of the minor and the wife on the first date of appearance of the petitioner/defendant but the Court while fixing the maintenance allowance of the minors did not consider and decide the matter relating to the wife, consequently the same could not be deemed to have been refused. Suffice it to say that/no party can be allowed to suffer for any act or omission of the Court. Even otherwise, a Family Court is competent to adopt any procedure and pass any order to regulate its own proceedings unless the same is barred under some law and in case the Court had not earlier passed an order fixing interim maintenance allowance for the wife, it retained the jurisdiction to pass the said order later on as the said procedure was not barred under the law. It is the case of the petitioner that the interim maintenance allowance of the wife had been impliedly refused at the time of fixation of interim maintenance allowance of the minors but the said assertion is not supported by the record as the order dated 22.09.2018 is silent about the case of the wife, which was not considered at all at that stage and consequently it cannot be held that the Court had refused to fix interim maintenance allowance for the wife. Besides, constructive res judicata bars any claim from being raised in a later proceedings if the said claim ought to have been raised and decided in an earlier proceedings but was not raised or if raised no relief was allowed; whereas, in the present case, the matter was still pending with the Family Court who had not expressed its opinion about taking the said claim into consideration. Even otherwise, question of maintenance is a recurring cause of action, which can be raised on every successive occasion when right to sue arises and interim maintenance allowance is to be fixed on monthly basis, therefore, the argument of order dated 23.11.2018 being barred by constructive res judicata is misconceived. Besides, mandate of Section 17-A of the Act directing the Court to pass order of interim monthly maintenance allowance in favour of wife or minor on the first date of appearance of the petitioner/defendant does not divest the Court of power and jurisdiction to pass such an order on a subsequent date and use of word “or” between “wife” or “child” in the afore referred Section authorizes the Court to pass separate orders at any stage relating to fixation of interim monthly maintenance allowance for the wife and the child. Consequently it is held that fixation of interim maintenance allowance of the minors on one date would p not debar the Court from fixing interim maintenance allowance of the wife on subsequent date orvice versa.

3. The petitioner also challenges the quantum of interim maintenance allowance fixed by the Court. The said order is an interlocutory order against which appeal is not available to petitioner and Constitutional petition filed before this Court cannot be treated as its substitute unless some illegality or erroneous exercise of jurisdiction is pointed out which has not been established in the instant case. Besides, the time fixed in order dated 23.11.2018 for payment of interim maintenance allowance had also expired before the petitioner approached this Court in Constitutional petition, therefore, it would not be appropriate to comment on merits of the case lest the decision of the trial Court be prejudiced on that account. Consequently, this petition against interim order to that extent is not maintainable.

4. For what has been discussed above, this petition being devoid of any merit is accordingly dismissed.

(Y.A.) Petition dismissed

PLJ 2019 Lahore 409 [Bahawalpur Bench, Bahawalpur]

Present: Muzamil Akhtar Shabir, J.

JAM MEERAN--Petitioner

versus

ADJ etc.--Respondents

W.P. No. 9021 of 2018/BWP, decided on 18.10.2018.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Execution of decree--Other property as dower instead of property which decree was passed--Amendment in decree--Property decreed as dower was not available for transfer--Alternate for satisfaction of decree--Maintainability--Challenge to--Where property decreed as dower was not available for transfer, Court was justified to fix its value of price to be paid in alternate for satisfaction of decree--Besides, appellate Court has observed that question of value of price of gold ornaments may be raised before Court of first instance, therefore, this Court need not comment on said aspect of matter--Consequently, there is no ground to interfere in impugned orders and this constitutional petition is not maintainable--Petition was dismissed. [P. 410] A & B

Rao Nasir Mehmood Khan, Advocate for Petitioner.

Date of hearing: 18.10.2018

Order

Through instant constitutional petition, the petitioner challenges the orders dated 19.07.2018 and 10.10.2018 passed by executing Court and the appellate Court, whereby both the Courts below in proceedings for execution of decree refused the prayer of the petitioner to allow him to give some other property as dower instead of the property for which decree was passed and directed him to pay price of the decreed property in the alternate.

1. It has been argued that both properties have equal value so the property may be substituted instead of directing to pay the alternate price of the decreed property.

2. Substituting the property would amount to the executing Court amending the decree, which is not permissible in law. As the executing Court cannot go behind the decree, therefore, this Court while hearing constitutional petition against an order passed in execution petition can also not vary the terms of the decree, which can

only be done by consent of the parties which has not been given by the respondents. Where the property decreed as dower was not available for transfer, the Court was justified to fix its value of price to be paid in the alternate for the satisfaction of decree. Besides, the appellate Court has observed that the question of value of price of gold ornaments may be raised before the Court of first instance, therefore, this Court need not comment on said aspect of the matter. Consequently, there is no ground to interfere in the impugned orders and this constitutional petition is not maintainable. It is accordingly dismissed in limine.

(Y.A.) Petition dismissed

PLJ 2019 Lahore 410 Multan Bench Multan

Present: Muzamil Akhtar Shabir, J.

MULTAN ELECTRIC POWER COMPANY through Chief Executive, Multan--Appellants

versus

MUHAMMAD ISLAM--Respondent

F.A.O. No. 234 of 2011, decided on 24.5.2018.

Punjab Consumer Protection Act, 2005--

----Ss. 13, 14, 25, 28, 30 & 31(k)--Use of dogmatic meter for commercial purposes--Disconnection of meter--Filling of complaint--Accepted--Question of whether consumer Court possessed jurisdiction to take cognization--Determination--Challenge to--District Consumer Court cannot entertain dispute relating to supply of energy to brother of respondent for commercial purposes through a domestic meter and declare respondent as not a defaulter and restore his electricity connection--Court under Section 13 of Act, could only determine liability of service provider to consumer for damages proximately caused by provision of services that have caused damage or under Section 31(k) of Act direct appellants to cease to provide defective or faulty service until required standards were achieved, which was not dispute under determination in present case and learned Consumer Court has exercised jurisdiction in excess of jurisdiction vested in it by law, therefore, order dated 26.10.2011 was passed without jurisdiction and is liable to be set aside--Appeal was allowed. [Pp. 415 & 416] A & B

2016 CLC 1417 & 2016 CLC 1104, ref.

Mr. Aamer Aziz Qazi, Advocate for Appellants

Ex-parte order dated 16.1.2018 vide for Respondent.

Date of hearing: 24.5.2018

Judgment

The appellants are aggrieved of the order dated 26.10.2011 passed by Presiding Officer, District Consumer Court, Multan, whereby the complaint filed by the respondent was accepted by holding that the respondent is not a defaulter and the appellants were directed to reinstall the electricity meter of the respondent and restore connection immediately.

1. Brief facts of the case are that the respondent filed a complaint against the appellants under Section 13 of the Punjab Consumer Protection Act, 2005 (‘Act’), contending therein that he is consumer of electricity provided by MEPCO and he is not a defaulter but his meter has been disconnected due to some amount outstanding as electricity charges against his brother Umar Draz. The appellants were summoned by the learned Presiding Officer, District Consumer Court, Multan and they submitted their detailed written reply. The learned Presiding Officer vide order dated 26.10.2011 accepted the complaint filed by the respondent with the direction to the appellant to reinstall the meter of the respondent and restore electricity connection immediately with further observation that in case the respondent is a defaulter then the meter should not be again disconnected without giving prior notice to the respondent in accordance with law. The said order is under challenge through this appeal.

2. It has been argued on behalf of the appellants that the District Consumer Court does not have jurisdiction to entertain the matter regarding re-installation of the electricity meter disconnected on the ground that the respondent is a defaulter as he was providing electricity for the commercial purposes to his brother Umar Draz from his domestic meter in violation of the agreement with the appellants and for the said reason meter of the petitioner has been disconnected and removed in accordance with law. It is also argued that the order of restoration of electricity connection is without jurisdiction and is consequently liable to be set aside.

3. Heard. Record perused.

4. It has been noticed that the respondent has been proceeded against ex-parte vide order dated 16.01.2018 passed by this Court and the said order still holds the field.

5. The appellants distribute and supply electricity to a large number of customers within its territorial jurisdiction under a Distribution License granted by National Electric Power Regulatory Authority (‘NEPRA’) pursuant to the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997, whereas the respondent is their consumer and customer having got installed the electricity meter and connection for receiving electricity supply from them. The appellants disconnected the electricity connection of the petitioner on the ground that through the domestic meter installed at his premises, he was supplying electricity to his brother for his shop for commercial purposes and the petitioner was consequently treated as a defaulter. The respondent through a complaint filed under the Act took the matter relating the disconnection before the consumer Court, which has passed the order directing the appellants for restoration of the electricity supply to the respondent. The pivotal question to be resolved by this Court is whether the Consumer Court possessed the jurisdiction to take cognizance of the matter in hand. As per the preamble of the Act, the Punjab Consumer Protection Act, 2005 has been promulgated to provide protection and promotion of the rights and interests of the consumers and the claim before the learned Consumer Court is filed under Section 25 of the Punjab Consumer Protection Act, 2005, which reads as under:

6. Filing of Claims. A claim for damages arising out of contravention of any provision of this Act shall be filed before a Consumer Court set up under this Act.

Section 13 of the Punjab Consumer Protection Act, 2005 provides for liability for faulty or defective service, which reads as under:

1. Liability for faulty or defective services. A provider of services shall be liable to a consumer for damages proximately caused by the provision of services that have caused damage.

Section 14 of the Punjab Consumer Protection Act, 2005 provides for standard of provision of services, which reads as under:

1. Standard for provision of services. (1). Where the standard of provision of a service is regulated by a special law, provincial or federal, the standard of service shall be deemed to be the standard laid down by such special law.

(2). Where the standard of a service has not been provided for in any law or by the professional or trade body concerned, the standard shall be that which at the time of the provision of the service, a consumer could reasonably expect to obtain at that time in Pakistan.

1. Section 14 provides for the standard of service, which is to be according to the law to which the dispute relates, which is the present case is the Electricity Act, 1910 and Section 13 provides for liability for faulty services. Section 25 of the Punjab Consumer Protection Act, 2005 provides that a claim for damages arising out of contravention of any provision of this Act shall be filed before a Consumer Court set-up under this Act. This Section has to be read in conjunction with Section 28 of the Act which provides a mechanism for settlement of claims. Section 30 provides procedure of receipt of complaint and further proceedings in the matter and Section 31 deals with the nature of relief which can be ordered by the Consumer Court. The Section 31 of the Act is reproduced as under:

“31. Order of Consumer Court.--If, after the proceedings conducted under this Act, the Consumer Court is satisfied that the products complained against suffer from any of the defects specified in the claim or that any or all of the allegations contained in the claim about the services provided are true, it shall issue an order to the defendant directing him to take one or more of the following actions, namely--

(a) to remove defect from the products in question;

(b) to replace the products with new products of similar description which shall be free from any defect;

(c) to return to the claimant the price or, as the case may be, the charges paid by the claimant;

(d) to do such other things as may be necessary for adequate/and proper compliance with the requirements of this Act;

(e) to pay reasonable compensation to the consumer for any loss suffered by him due to the negligence of the defendant;

(f) to award damages where appropriate;

(g) to award actual costs including lawyers’ fees incurred on the legal proceedings;

(h) to recall the product from trade or commerce;

(i) to confiscate or destroy the defective product;

(j) to remedy the defect in such period as may be deemed fit; or

(k) to cease to provide the defective or faulty service until it achieves the required standard.”

The Consumer Court established under the Punjab Consumer Protection Act, 2005 is not a Court of general jurisdiction and has to confine itself to the dispute pending adjudication before it if the same falls within the jurisdiction of the said Court. It is the duty of the said Court to examine the allegations raised in the complaint and also take into consideration the defence of the other party in order to determine whether the dispute is within its jurisdiction. Even if the question of jurisdiction has not been raised, the Court was under obligation to decide as to whether the facts of the case referring to the matter confer jurisdiction upon the Court to entertain and decide the same. As and when the Consumer Court steps out of four corners of Punjab Consumer Protection Act, 2005, order passed by it would be a result of defective exercise of jurisdiction.

1. Perusal of the contents of the complaint suggest that grievance of the respondent was that he is not a defaulter and the appellants did not serve him any notice prior to removal of meter and did not provide any opportunity of hearing. Allegation by the appellants is that the respondent was supplying the electricity to his brother Umar Draz for commercial purpose through the domestic meter and in fact was involved in dishonest abstraction of energy amounting to theft. In case there is a charge on the consumer for theft of energy through the metering equipment, then the matter would fall within the jurisdiction of the Electricity Inspector otherwise if the theft is not through the metering equipment, the same falls within the jurisdiction of the Civil Courts. Reliance is placed on PLD 2006 Supreme Court 328 (Multan Electric Power Company Ltd. Through Chief Executive and another versus Muhammad Ashiq and others) and PLD 2012 Supreme Court 371 (Water and Power Development Authority and others versus Kamal Food (Pvt.) Ltd. and others).The relevant portion of the case of Muhammad Ashiq (supra) on the said subject is reproduced below:

‘The question as to the scope of Sections 26-A and 26(6) of Act No. IX of 1910, in a case of theft of energy came under examination of a learned Full Bench of the Lahore High Court in Water and Power Development Authority and others v. Mian Muhammad Riaz and another PLD 1995 Lahore 56 and it was held as follows:

“The jurisdiction of the Electric Inspector is the provision of Section 26(6) with reference to the meter or the maximum demand indicator or the measuring apparatus, supplied for ascertaining the supply of energy consumed at the premises. The amount of the bill for dishonest abstraction and the method adopted, would not be challengeable in contemplation of Section 26-A before the Electric Inspector as the consumer who wishes to challenge the same will have to seek his remedy under the general civil law by initiating appropriate proceedings before the Civil Court of plenary jurisdiction. The Electric Inspector by straining the language cannot assume the jurisdiction which the legislature has not conferred on him and in its wisdom has left the parties to avail of the remedy under the General law from the judicial forum itself which forum having the plenary jurisdiction is best suited to decide the question after holding proper enquiry and on the basis of proper evidence.”

1. From the perusal of the afore-referred judgment it is observed that the dispute relating to electricity supply is determinable by either the Electric Inspector or the Civil Court of Plenary jurisdiction according to the content of the actual dispute between the parties. The question arises whether in the presence of the said remedies provided by law, whether the Consumer Court would have jurisdiction to try the said dispute. Section 31 of the Punjab Consumer Protection Act, 2005 provides for the nature of relief which can be granted by the Consumer Court. The bare perusal of Section 31 of the Act would make it explicit that District Consumer Court cannot entertain the dispute relating to supply of energy to the brother of the respondent for commercial purposes through a domestic meter and declare the respondent as not a defaulter and restore his electricity connection. When the afore-referred relief could not be entertained and decided by the Consumer Court, then instead of exercising its jurisdiction to pass the final order it should have first determined the question of its own jurisdiction to entertain the dispute as a preliminary legal issue. Reliance in this behalf is placed on Sub-Divisional Officer (Operation), FESCO vs. Muhammad Ilyas (2016 CLC 1417), wherein it is laid down as under:

“A perusal of the above provisions shows that in order to invoke the jurisdiction by the Consumer Court, it must have satisfied that the products complained against suffered from any of the defects specified in the claim or that any or all of the allegations contained in the claim about the services provided are true, then it could issue direction in the above said manner. However, from the bare reading of the complaint filed by the respondent before the learned Consumer Court, one can find that it is not regarding any defective product or a faulty service rather the dispute raised by the appellant related to correction of detection bill, which falls within the exclusive jurisdiction of Civil Court in view of dictum laid down in PLD 2006 SC 328, rightly relied upon by the learned counsel for the appellant. “

1. In case titled FESCO and others vs. Sh. Muhammad Jamil (2016 CLC 1104), this Court observed as under:

“The respondent in his application questioning the impugned demand of electricity as exorbitant has sought for perpetual injunction restraining the appellants from disconnecting his electricity connection and mandatory injunction for restoration of the previous connection. The Consumer Court is not vested with the jurisdiction to take the cognizance of the respondent’s grievance. The relief prayed for by the respondent could not be granted by the Consumer Court under the Act of 2005. In view of the above the learned Consumer Court had not jurisdiction to issue any permanent or mandatory injunction against the appellants therefore, the impugned order dated 19.08.2013 being without jurisdiction is not tenable and liable to be set aside. “

1. In the present case, the electricity connection of the petitioner was disconnected and the meter was removed on the allegation of supplying energy to his brother for commercial purposes through domestic meter, thereby dishonestly abstracting energy which amounted to theft and the petitioner sought relief of declaration that he is not a defaulter and mandatory injunctions for restoration of his electricity connection, which relief was provided by the said Court without even properly considering the real controversy in issue and determining whether the said power vested in the Court, whereas the said power did not actually vest with the consumer Court. The Court under Section 13 of the Act, could only determine liability of the service provider to the consumer for damages proximately caused by the provision of services that have caused damage or under Section 31 (k) of the Act direct the appellants to cease to provide the defective or faulty service until required standards were achieved, which was not the dispute under determination in the present case and the learned Consumer Court has exercised the jurisdiction in excess of the jurisdiction vested in it by the law, therefore, the order dated 26.10.2011 was passed without jurisdiction and is liable to be set aside.

PLJ 2019 Lahore 417

Present: Muzamil Akhtar Shabir, J.

NUSRAT BIBI etc.--Petitioners

versus

ZEESHAN AHMAD etc.--Respondents

W.P. No. 964 of 2019, decided on 10.1.2019.

Family Courts Act, 1964 (XXXV of 1964)--

----Ss. 14(3) & 17-A--Constitution of Pakistan, 1973, Art. 199--Suit for recovery of maintenance allowance--Application for fixation of interim maintenance allowance--Dismissed--Interlocutory order--Alternate remedy--Question of--Whether impugned orders are of nature of interlocutory orders or amount to “a decision given” in terms of Section 14 of act making same amenable to jurisdiction of appellate Court by way of filling appeal--Determination--Maintainability--Challenge to--A decision given by family Court is appealable provided said decision is not an interim order as provided in Sub Section 3 of Section 14 ibid--Every order passed during pendency of a family suit cannot be treated merely as an interlocutory order if said order finally determines an issue--Dismissal of, application filed by petitioner for fixing interim maintenance allowance of minor under Section 17-A of Act is tantamount to decline relief of interim maintenance allowance permissible to minor during pendency of suit, which amounts to final determination of claim to that extent and hence cannot be treated merely as an interim/interlocutory order that does not finally determine anything--Thus said order would amount to ‘a decision given’ in terms of Section 14 of Act--Hence, this constitutional petition is not maintainable due to availability of alternate remedy, and same is dismissed as such--In case an appeal is filed by petitioner, appellate Court, while deciding same on its own merits, shall take into consideration fact that petitioner had invoked constitutional jurisdiction of this Court to seek relief under impression that appeal was barred under Section 14(3) of Act--Petition was dismissed. [Pp. 421 & 425] A, B, C & D

Mr. Muhammad Amin Ashraf Khan, Advocate for Petitioner.

Ms. Zarish Fatima, Assistant Attorney General On Court’s call.

Mr. Muhammad Arshad Manzoor, AAG On Court’s call.

M/s. Nasrullah Khan Babar, Ch. Muhammad Naseer and Ms. Uzma Razzaq Khan, Advocates/Amicus curiae.

Date of hearing: 10.1.2019

Order

Through this constitutional petition, the petitioner has called in question the orders dated 28.11.2017 and 13.10.2018 passed by learned Judge Family Court, Kasur whereby the said Court dismissed the application filed by the petitioner for fixing interim maintenance allowance of minor Rizwan.

1. Brief facts of the case are that Petitioner No. 1, Nusrat Bibi (“petitioner”) filed a suit for recovery of maintenance allowance for herself and her son Rizwan minor/Petitioner No. 2 (“minor”) alongwith delivery expenses and dowry articles. The said suit was contested by Respondent No. 1 (“respondent”) who denied the paternity of the minor. Vide order dated 28.11.2017, the Judge Family Court, Kasur did not fix the interim maintenance allowance of the minor and adjourned the matter for pre-trial reconciliation. Subsequently, the petitioner filed an application on 01.10.2018 requesting the Court to fix interim maintenance allowance of the minor which was contested by the respondent and the trial Court dismissed the same vide order dated 13.10.2018. Both the said orders are under challenge through instant constitutional petition.

2. Learned counsel for the petitioner has argued that the minor is legitimate son of petitioner, therefore, the respondent is obliged to make payment of interim maintenance allowance to the minor and the orders passed by the trial Court dismissing the said application are non-speaking and liable to be set-aside.

3. Conversely, learned Law Officers as well as amicus curiae appointed by this Court have argued that although appeal is not maintainable against an interim/interlocutory order, if the said order finally determines an issue or dispute, the same cannot be treated as merely an interlocutory order as the same would amount to a decision given” in terms of Section 14 of the Family Courts Act, 1964 (“Act”) against which an appeal would be maintainable.

4. Heard. Record perused.

5. Learned counsel for the petitioner when confronted with the question of maintainability of this constitutional petition, has argued that the afore-referred orders are interlocutory in nature and appeal against the same is barred under sub-section (3) of Section 14 of the Act, therefore, the petitioner has approached this Court in its constitutional jurisdiction to protect the rights of the minor.

6. The question that arises for determination is whether the impugned orders are of the nature of interlocutory orders or amount to “a decision given” in terms of Section 14 of the Act making the same amenable to the jurisdiction of appellate Court by way of filing an appeal. To resolve the controversy, it would be appropriate to reproduce relevant portions of the orders dated 28.11.2017 and 13.10.2018:

“28.11.2017:

Written statement alongwith fard pata, Schedule of witnesses and list under Order VII Rule 14, CPC has been filed on behalf of the defendant. Perusal of written statement shows that the defendant challenged the dependent of the minors therefore the interim maintenance allowance of the minors has not been fixed at the present stage and case is adjourned for pretrial reconciliation proceedings for 13.12.2017.

“13.10.2018:

…………

1. The Plaintiff No. 1 has also filed another application for fixation of interim maintenance of minor Plaintiff No. 2. Confronting with the record it reveals that Mst. Maria Shehzadi, learned predecessor of this Court, vide order dated 28.11.2017 has not fixed the interim maintenance of minor which order is still intact. The aggrieved party may assail this order under the law, if recommended. This application is dismissed.

………….”

1. Vide order dated 13.10.2018, the application filed by the petitioner for fixing interim maintenance allowance of the minor has been dismissed by making reference to the earlier order dated 28.11.2017. Perusal of order dated 28.11.2017 shows that through said order the Court had not decided anything and without fixing the interim maintenance allowance of the minor at the said stage had adjourned the matter for pretrial reconciliation proceedings, the effect of which was that the said matter had been kept pending for decision in subsequent proceedings. The earlier order dated 28.11.2017 merged into the subsequent order dated 13.10.2018, whereby the application of the petitioner seeking fixation of interim maintenance allowance during pendency of the suit has been finally decided by dismissing the same and nothing remains pending relating the said issue. The right of a wife and minor to seek interim maintenance allowance from husband/father is provided under Section 17-A of the Act and the Family Court by mandate of the said section is obliged to pass an order fixing the same if the parties are otherwise found entitled to the same in the given circumstances of the case. The non-compliance of such an order has penal consequences, therefore, the Court is required to apply judicious mind in passing such an order and in appropriate cases can refuse to fix interim maintenance allowance is the situation so requires. The said section is reproduced below:

“17A. Suit for maintenance,--(1) In a suit for maintenance, the Family Court shall, on the date of the first appearance of the defendant, fix interim monthly maintenance for wife or a child and if the defendant fails to pay the maintenance by fourteenth day of each month, the defence of the defendant shall stand struck off and the Family Court shall decree the suit for maintenance on the basis of averments in the plaint and other supporting documents on record of the case.

(2) In a decree for maintenance, the Family Court-may:

(a) fix an amount of maintenance higher than the amount prayed for in the plaint due to afflux of time or any other relevant, circumstances; and

(b) prescribe the annual increase in the maintenance.

(3) If the Family Court does not prescribe the annual increase in the maintenance, the maintenance fixed by the Court shall automatically stand increased at the rate of ten percent each year.

(4) For purposes of fixing the maintenance, the Family Court may summon the relevant documentary evidence from any organization, body or authority to determine the estate and resources of the defendant.”

The trial Court has, while dismissing the application for interim maintenance allowance, declined the claim of the minor for entitlement to receive interim maintenance allowance during the pendency of suit permissible under Section 17-A of the Act. To determine whether the said order is appealable, Section 14 of the Act which relates to appeals is reproduced below:--

1. Appeals.--(1) Notwithstanding anything provided in any other law for the time being in force, a decision given or a decree passed by a Family Court shall be appealable--

(a) to the High Court, where the Family Court is presided over by a District Judge an Additional District Judge or a person notified by Government to be of the rank and status of a District Judge or an Additional District Judge; and

(b) to the District Court, in any other case, (2)….

(3) No appeal or revision shall lie against an interim order passed by a Family Court.”

1. From the perusal of Section 14 it is observed that a decision given by the family Court is appealable provided the said decision is not an interim order as provided in sub-section (3) of Section 14 ibid. Every order passed during the pendency of a family suit cannot be treated merely as an interlocutory order if the said order finally determines an issue. Reliance in this regard may be placed on the judgment reported as Muhammad Zaffar Khan versus Mst. Shehnaz Bibi and 2 others (1996 CLC 94), the relevant portion is reproduced below:

“Regarding the first question, I am of the opinion that every order passed by a Family Court during the pendency of a suit cannot be treated interlocutory, unless the nature of such order reflects so. To test whether an order passed on any application by a Family Court be treated interlocutory or not the Appellate Court must find out what possible orders could be passed by the Judge Family Court on such applications. If the nature of an order appears to be final then it may not be treated interlocutory.

……..

In the light of above discussion, I am of the view that if an order of dismissal or allowance passed on an application in respect of any issue has finally decided the said issue, then such an order possesses the characteristic of finality notwithstanding to the pendency or final disposal of the case on the basis of that order and an appeal against such an order would be maintainable. If no final order regarding an issue has been passed on an application and the point raised by any party has been deferred for the time being, then such order, can be termed as “interlocutory”.

It may not be out of place to mention that the words “Interlocutory” in its dictionary meaning means “not final or definitive”, pronounced during the course of a suit pending final decision as “an interlocutory divorce decree.” (Websters’ New Universal Unabridged Dictionary). Therefore, an order passed on an application cannot be treated interlocutory if the Court has given a final or definitive decision on an issue relating to the maintainability of a suit or the jurisdiction of the Court.”

1. In case reported as Imtiaz Ahmad Khan vs. Mst. Aqsa Manzoor and others (PLD 2013 Lahore 241), the question for determination before the Court was maintainability of an Intra Court Appeal under Section 3 of Law Reforms Ordinance, 1972 arising out of suit for maintenance and return of dowry articles on the ground that whether dismissal of application under Section 11, CPC would amount to an appealable decision in terms of Section 14 of the Act or not. The Division Bench declared the dismissal of said application as ‘a decision given’ by observing as under:

“The basic question to be resolved is, whether the order dated 12.11.2009 dismissing the petitioner’s application seeking the dismissal of respondent’s suit is a decision given or an interlocutory order, the two terms used in Section 14 of the West Pakistan Family Courts Act, 1964.

The order dated 12.11.2009 impugned in the writ petition was passed on the application made by the applicant. The question whether the Court could try the subsequent suit when the earlier one had already dismissed for want of evidence was finally decided vide the above referred order. No further order was to be passed on the said application. The order passed falls within the term of “a decision given”. Reliance is placed on Rao Muhammad Owais Qarani v. Mst. Tauheed Aisha and others. 1991 MLD 1097. In view of the ratio of the referred judgment the order assailed in writ petition finally decides the application made by the appellant cannot be termed to be an interlocutory order. It is a decision given and is appealable. The instant Intra Court Appeal arising out of the proceedings whereby the law provides a remedy by way of an appeal or revision is not competent. This appeal is dismissed.”

In Rao Muhammad Owais Qarni’s case (Supra), the question before the Court for determination was whether the order of the trial Court in allowing the application filed by a party to recall the witnesses of other party for the purposes of cross-examination would amount to ‘a decision given’ or not and whether it is appealable. The Court observed as under:

“With regard to the question as to whether or not the impugned order of the learned Court was appealable, it seems that in view of the several decisions referred to by the parties it is almost settled that the word ‘decision’ used in Section 14 of the Act does not include every interlocutory order of the family Court, but covers only such orders as are passed under some provision of the Act and this, it appears, would imply the final or temporary determination of a matter forming part of some issue involved in the case. Applying this test, the order dated 6.8.1990 passed by the trial Court would, in my view, not be ‘decision’ for purposes of Section 14 of the Act and therefore, not appealable.”

In Mst. Naureen vs. Ehsan Sabir, Family Judge, Faisalahad and 2 others (2010 C.L.R. 110), the petitioner wife had challenged the decision of the appellate Court whereby her appeal had been dismissed as not maintainable in view of Section 14 of the Act. The matter under consideration before the Court was that whether appeal would be maintainable against an order of the Judge Family Court allowing the husband to resile from his previous offer to decide the case on the basis of oath to be taken by the wife when the offer had been accepted and she was willing to take the oath. This Court observed as under:

“The word ‘‘decision” not only covers the final judgment but also interlocutory order, therefore, in such situation, the appeal would be maintainable while having a look of a different meaning and definition is broad enough to cover both final judgments and interlocutory orders and although, it is some times limited to the sense of judgment and sometimes understood as meaning simply the first step leading to u judgment. Lastly, the word “decision” may include various rulings as well as orders.

In this case, the offer was made by the respondent to decide the lis on oath hut subsequently backed out without any reason. Had the offer made by the respondent been materialized, the case would have been decided either way, therefore, it can safely he held that the act of the respondent is leading to a final judgment, therefore, in any case, it was a decision and the appeal was competent.”

1. In the case reported as Nargis Naureen vs. Judge Family Court, Multan and others (PLD 2018 Lahore 735) the question for determination before the Court was whether dismissal of an application for seeking interim relief by the Family Court would be an appealable order, the Court observed that dismissal of application filed under Section 21-A of the Act is tantamount to decline the relief of preservation and protection of property that may be available to a party (if it was otherwise entitled to the same) during the pendency of suit, which amounts to a final determination of a claim to that extent and hence cannot be treated as merely an interlocutory order that does not finally determine anything, thus said order would amount to a decision given in terms of Section 14 of the Act. Consequently, an appeal against the same would be available before the appellate Court. Similar principle has been laid down in the judgments reported as Tassadaq Nawaz vs. Masood Iqbal Usmani and others (PLD 2018 Lahore 830), Rahim Bakhsh vs. Mst. Shahzadi & others (2018 CLC 1789) and Memoona Ilyas vs. Additional District Judge and others (2017 CLC 1747).

2. There is another aspect of the matter that where an application for interim maintenance allowance filed by or on behalf of the minor is dismissed on merits, the minor whose lifeline depends upon the maintenance allowance provided by his father and is aggrieved of the said order on the basis of any available ground cannot be kept in waiting for an indefinite period for determination of his right to receive maintenance allowance and that too for entire period consumed for decision of the main case. Although this Court has got jurisdiction to entertain the said dispute in its constitutional jurisdiction regardless of availability of alternate remedy of appeal, this Court ordinarily does not exercise such jurisdiction on the ground that the said aspect of the matter may require determination of some disputed facts and the appellate Court being empowered to do so should be approached in the first instance so that the remedy before an available forum may not be lost.

3. Keeping in view the afore-referred verdicts, the position of law that emerges is that appeal under Section 14 of the Act is not barred against every interlocutory order and remedy of appeal, unless

specifically barred, would be available against a decision relating to a right or a remedy provided under the law subject to the condition that finality is attached to such an order or decision and nothing remains to be further decided between the parties on the said issue. In view of the above, without commenting upon the merits of the case lest the decision of the Courts below be affected by the same, it is observed that dismissal of application filed by the petitioner for fixing interim maintenance allowance of the minor under Section 17-A of the Act is tantamount to decline the relief of interim maintenance allowance permissible to the minor during the pendency of suit, which amounts to final determination of claim to that extent and hence cannot be treated merely as an interim/interlocutory order that does not finally determine anything. Thus said order would amount to ‘a decision given’ in terms of Section 14 of the Act. Consequently an appeal against the same would be available before the appellate Court in case the minor is aggrieved of the same on any available ground. Hence, this constitutional petition is not maintainable due to availability of alternate remedy and the same is dismissed as such. The petitioner may, if advised, seek remedy by way of filing an appeal before the appellate Court. However, before parting with this decision, it is observed that in case an appeal is filed by the petitioner, the appellate Court, while deciding the same on its own merits, shall take into consideration the fact that the petitioner had invoked the constitutional jurisdiction of this Court to seek relief under the impression that appeal was barred under Section 14(3) of the Act.

(Y.A.) Petition dismissed

PLJ 2019 Lahore 425 (FB)

Present: Muhammad Qasim Khan, Sayyed Mazahar Ali Akbar Naqvi & Ch. Abdul Aziz, JJ.

Mst. FARHAT BIBI etc.--Petitioners

versus

SHO, etc.--Respondents

Office Objection Diary No. 220363 of 2018, decided on 18.3.2019.

Constitution of Pakistan, 1973--

----Art. 199--Pakistan Penal Code, (XLV of 1860), S. 365-B--Constitutional Petition--Quashing of FIR--Official Objection--Abductee of case--Aggrieved party--Maintainability--It is not requirement of any law that petitioner before approaching this Court in its constitutional jurisdiction for quashing of FIR may firstly obtain bail from a Court of competent jurisdiction--For what has been discussed above, office objection being alien in scheme of law, is not sustainable and is overruled. [P. 426] A & B

Mr. Afrasiab Mohal, Advocate for Petitioner.

Rana Tassawar Ali Khan, Additional Advocate General and Ch. Sarfraz Ahmad Khatana, Deputy Prosecutor General on Court’s call.

Date of hearing: 18.3.2019

Order

Mst. Farhat Bibi (petitioner) who is an abductce of case FIR No. 178/2018 registered under Section 365-B, PPC at Police Station Shah Pur Sadar, Sargodha, through the instant writ petition has sought quashing of said FIR on multifarious grounds, but the office has raised objection on maintainability of constitutional petition for quashing of FIR without bringing on file the copy of bail granting order.

1. We have heard the respective arguments of learned counsel for the parties.

2. This Court in another Office Objection No. 245164 of 2018 “Mst. Nazia versus State through SHO. etc” vide an order of even date has held that abductee/witness in an FIR, is not an “aggrieved party” within the meaning of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, as such, writ petition for quashing of same FIR on their behalf is not maintainable. However, in the instant case office has not raised same objection, rather has raised an objection requiring the petitioner (irrespective whether he/she is abductee, witness or accused) to bring on file copy of bail granting order before approaching this Court to seek quashing of FIR through writ petition. We are afraid, though it may be a practice for facility or preference but surely it is not the requirement of any law that petitioner before approaching this Court in its constitutional jurisdiction for quashing of FIR may firstly obtain bail from a Court of competent jurisdiction.

3. For what has been discussed above, the office objection being alien in the scheme of law, is not sustainable and is overruled.

(Y.A.) Objection overruled

PLJ 2019 Lahore 427

Present : Amin-ud-Din Khan, J.

SALEEM SHAHADAT--Appellant

versus

Mst. NOOR JEHAN & another--Respondents

R.S.A. No. 42077 of 2017, heard on 26.2.2019.

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

----Ss. 8, 12 & 52--Civil Procedure Code, 1908, S. 100 & O. XXXIX, R. 1 & 2--Agreement to sell--Suit for specific performance, possession and injunction--Dismissed--R.F.A.--Allowed and case was remanded--Direction to--Trial Court again dismissed suit--Appeal Dismissed--Concurrent findings--Challenge to--Token receipt Ex.P-1 is an admitted document by parties--Caption of this document is token receipt--Needless to observe here that it is body of document and not caption, which is considered for intention of parties--I think it necessary to note that court has to judge document keeping in view whole facts, pleadings, evidence produced by parties and evaluate matter in light of codified law as well as principles of interpretation of statute and law declared by this Court and august Supreme Court of Pakistan--In light of above, Ex.P-1 is an agreement to sell, sentence "اور باقاعدہ اقرار نامہ معاہدہ بیع لیں گی"indicates intention of parties that same will be written on stamp paper--Case pleaded by defendants that agreement Ex.P-1 was between Muhammad Ashraf and defendants is against document Ex.P-1--Furthermore said Muhammad Ashraf appeared in witness box as P.W-2 and stated that he is a property dealer and through Ex.P-1 parties to suit entered into agreement of sale of suit property through his professional assistance--Needless to note here that written terms of an agreement cannot be denied through oral assertions--Even defendant No.2 as D.W-1 admitted that in Ex.P-1 name of plaintiff is written--Story narrated by plaintiff that defendants were demanding more amount for writing of agreement on stamp paper seems to be correct--In these circumstances, pay order for Rs.40,00,000/- was got prepared in name of defendants on 24.04.2004 but same was not received by defendants--This bundle of facts leads to conclusion that there were defendants who violated terms of agreement for sale of property--Language of token receipt has been admitted by D.W-1 and it is also admitted fact that she signed document after perusal of same, which clearly shows that a certain amount was agreed as full consideration amount and further receipt of earnest money and admission thereof clearly shows acceptance on part of defendants--Only question remains for determination of court that who is at fault--If an agreement was to be written on a stamp paper and if that has not been written and plaintiff has come to court for specific performance, in this eventuality, court was to determine that who is at fault in performance of further terms of said contract--If plaintiff is at fault, certainly he will not be entitled for specific performance and if defendants are at fault, then plaintiff was having no other remedy with him except to file a suit for specific performance--A pay order of Rs.4 Million was got prepared by plaintiff on 24.04.2004 in name of defendants but as per plaintiff, defendants refused to receive same dishonestly on ground that some third party offered more amount than plaintiff to defendants of suit property.

[Pp. 434, 440, 441 & 442] A, F, H, I & K

2002 MLD 1063 & 2017 SCMR 98, ref.

Documentary Evidence--

----It is settled principle that documentary evidence cannot be negated through oral evidence--Document Ex.P-1 clearly shows that both ladies entered into an agreement of sale of suit property with plaintiff, Saleem Shahadat through a token receipt getting token money of Rs.500,000/- but in written statement agreement was not clearly admitted by defendants nor clearly denied but it was pleaded that there is no agreement with plaintiff--In Ex.P-1 it is clearly mentioned that defendants agreed to sell suit property in favour of Saleem Shahadat plaintiff. [Pp. 434 & 441] B & J

Statement of defendant--

----As per pleadings both defendants are house hold ladies but scrutiny of statement of defendant No.2 who appeared as D.W-1, only evidence produced by defendants, clearly shows that she is not a simpliciter household lady--She is very sharp and experienced (جہاں دیدہ) lady when she has refused to answer some questions put to her during cross-examination--Above discussion clearly leads to conclusion that defence taken by defendants was dishonest and they were at fault--Plaintiff himself appeared as P.W-1 and marginal witnesses of Ex.P-1 were produced as P.W-2 and P.W-3, who are consistent with plaintiff and Ex.P-1 and against this evidence sole statement of D.W-1 defendant No.2 is available, that too against written document Ex.P-1, therefore, defendants miserably failed to rebut evidence of plaintiff--Statement made by one of defendants as D.W-1 against admitted document Ex.P-1, in these circumstances, I have no hesitation to hold that D.W-1 told a lie in her statement when she stated that agreement was not with plaintiff--When it is held that it was defendants who came in court with dishonest defence refusing agreement with plaintiff against written document Ex.P-1 and further plaintiff/appellant even came to court within four weeks form day of writing of Ex.P-1, whereas final payment was to be made within thirteen weeks of document Ex.P-1--One of defendants when appeared in court as D.W-1 being sole witness and against oral as well as documentary evidence of plaintiff/appellant no evidence was produced by defendants except statement of D.W-1 telling a lie and it was defendants who caused delay of performance, therefore, defendants to suffer in this eventuality. [Pp. 435, 442, 443 & 444] C, L & M

Interpretation of Contract--

----Bare perusal of document Ex.P-1 shows that it is an agreement and its plain language shows that it is a contract when offer, acceptance, detail of property, full consideration amount, mode of payment, period of payment, amount of earnest money and receipt thereof is admitted fact--For purpose of interpretation of contracts, intention of parties is meaning of contract--There is no intention independent of that meaning. [Pp. 435 & 436] D & E

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

----O. XI, R/W O. XIII & S. 151--Application for production of original documents--Original documents i.e. Token Receipt and Pay Order for Rs.4.0 Million dated 24.04.2004 were brought before court on 07.07.2004 under orders of court and same were examined by learned counsel for defendants as noted in interim order of said date--Further when at time of evidence original document Ex.P-1 was lost and permission was sought from court for production of secondary evidence, which was grantedvide order dated 12.05.2011 and same was produced under orders of court, therefore, finding of learned courts that Photostat copy of receipt has been placed is also a fact when courts below fell in error by ignoring legal position and evidentiary value of document--Even otherwise it is a complete contract containing offer, acceptance, specification of suit property and terms of payment--In these circumstances, findings of learned trial court that neither it is an agreement nor contract are against law--Finding of both courts that Ex.P-1 is neither an agreement nor a contract is absolutely against legal position--Appeal was allowed.

[P. 440] G

M/s. Khalid Ishaq, Syed Moazzam Ali Shah, Abid Sial, Babar Afzaal, Adeel Shahid Kareem, Wajahat Ali and Ahmed Saeed, Advocates for Appellant.

Mr. Alamdar Hussain, Advocate for Respondents.

Date of hearing : 26.2.2019.

Judgment

Through this second appeal the appellant has challenged the judgment & decree dated 04.05.2017 passed by the learned Additional District Judge, Lahore whereby first appeal filed by the appellant was dismissed and the judgment & decree dated 03.06.2014 passed by the learned Civil Judge 1st Class, Lahore whereby the suit for specific performance filed by the appellant/plaintiff was dismissed.

1. The brief facts of this case are that the appellant- plaintiff on 25.05.2004 filed a suit for specific performance, possession and injunction on the basis of an agreement dated 23.04.2004 of suit property Bungalow No.10, Plot No.14, Survey No.191/P measuring 1318.50 square yards i.e. 1102.40 square meters, situated at Shami Road, Lahore Cantt for total consideration of Rs.2,30,00,000/- fully detailed in Para No.1 of the plaint . The written statement was filed by the defendants on 14.06.2004. Various preliminary objections were raised. In objection No.3 it was mentioned that a token receipt can, in no way, be considered as a valid contract, same is the preliminary objection No.4. It is stated that merely an intention/indication on the part of the parties that they are interested in dealing with the property suit is not competent. The preliminary objection No.6 is very important, which relates to alternate plea. The defence of the defendants was that they received earnest money of Rs.500,000/- from Mr. Muhammad Ashraf and not from the plaintiff and receipt was issued. It is mentioned in reply to Para 2 of the plaint that the receipt, which is attached with the plaint, shows the signatures of plaintiff were affixed later on. In reply to sub-para (i) of Para 2 it is admitted that Rs.3.5 Million was to be paid on or before April 26, 2004. In reply to sub-para (ii) of Para 2 it is stated that after payment of Rs.3.5 Million further terms were to be agreed.

Learned trial court framed the issues on 07.07.2004. The suit was dismissed for want of evidence on 25.01.2010. A Regular First Appeal No.134 of 2010 was filed by the plaintiff- appellant, which was allowed by this Court vide judgment dated 05.04.2010 and the case was remanded to the learned trial court with a direction to record evidence and decide the suit on merits. After remand the evidence was recorded. An amount of Rs.1,12,50,000/- (one cror twelve lacs and fifty thousand) was deposited with the learned trial court, as per the order dated 08.03.2010 passed in C.M.No.2-C of 2010 moved in R.F.A.No.134 of 2010. The said amount was invested by the learned trial court vide order dated 15.06.2010 in the profit bearing scheme under the orders of this Court. After recording the evidence of the parties learned trial court was again pleased to dismiss the suit vide judgment & decree dated 03.06.2014. The plaintiff/appellant preferred first appeal before the learned appellate court, which was also dismissed by the learned Additional District Judge, Lahore vide judgment & decree dated 04.05.2017. Hence, this second appeal.

3.Learned counsel for the appellant argues that learned both the courts below ignored the principle of interpretation of contract while dismissing the suit as well as the first appeal. Learned first appellate court has wrongly referred the oral as well as documentary evidence and even the number of P.Ws have wrongly been mentioned, which shows that learned appellate court has not even bothered to go through the evidence, rather the findings of learned trial court have been affirmed. Further argues that both the courts below seem to be influenced by the judgment of august Supreme Court of Pakistan reported as “Mst. Gulshan Hamid versus Kh. Abdul Rehman and others” (2010 SCMR 334). States that the law declared through the said judgment is no more in the field in the light of judgment of Hon’ble Apex Court reported as “Muhammad Sattar and others versus Tariq Javaid and others” (2017 SCMR 98). Argues that the agreement Ex.P-1 is though noted as token receipt but it is a complete contract. States that if anything extra is written in the contract over and above the terms of the contract which is not the condition of the contract, it is an expression of desire that how the party will proceed further and the document is to be read as a whole and not bifurcating the same. Further argues that a party cannot take the benefit of its own wrong and further that it is a principle of interpretation that a document is to be saved and not destroyed. Learned counsel argues that the defense taken in the written statement as well as the statement made before the court when one of the defendants appeared as D.W-1 clearly proves the case pleaded by the plaintiff/appellant.

Learned counsel for the appellant has produced the Interpretation of Contracts By Sir Kim Lewison, the Law of Contract By G.H.Treitel, Contract Cases & Materials By H. G. Beale, W. D. Bishop, M. P. Furmston and the Construction of Contracts (an analysis of Objectivity and Subjectivity within Contractual transactions By Joseph Dance). Learned counsel has also relied upon “Muhammad Sattar and others versus Tariq Javaid and others” (2017 SCMR 98), “Muhammad Matoob and 10 others versus jamshed k. Marker and 2 others” (PLD 2006 Karachi 523), “Mrs. Shabeena Farhat versus Highway Housing Project and 2 others” (2006 CLC 430),“Messrs pakistan state oil co. Ltd. Versus Muhammad Tahir Khan and others” (PLD 2001 Supreme Court 980), “Saudi-Pak Industrial And Agricultural Investment Company (Pvt.) Ltd., Islamabad versus Messrs Allied Bank of Pakistan and another” (2003 CLD 596), “House Building Finance Corporation versus Shahinshah Humayun Cooperative House Building Society and others” (1992 SCMR 19), “Uniprix Inc. versus Gestion Gosselin Et Berube Inc. and another” (2017 SCMR 1734), “Messrs Power Construction Corporation of China Limited through Authorized Representative versus Pakistan Water And Power Development Authority through Chairman and 2 others” (PLD 2016 Lahore 637), “Union Insurance Company Of Pakistan Ltd. Versus Hafiz Muhammad Siddique” (PLD 1978 Supreme Court 279), “Akhtar Iqbal versus The State” (2015 SCMR 291), “Liaqat Hussain Zia versus Muhammad Din and others” (PLD 2013 Lahore 277), “Munir Ahmad Kahloon versus Rana Muhammad Yousaf” (PLD 2003 Lahore 173), “Masood Pervez Sajid versus Mst. Nawash Fatima and 2 others” (2005 MLD 579), “Mst. Safia versus Mst. Bibi and 14 others” (2005 MLD 646) and “Mst. Zaitoon Begum versus Nazar Hussain and another” (2014 SCMR 1469), “Aloka Bose v. Parmatma Devi & Ors.” (AIR 2009 Supreme Court 1527), “Elahi Bakhsh through Legal Heirs and others versus Muhammad Iqbal and another” (2014 SCMR 1217), “Messrs Jamal Jute Baling & Co., Dacca versus Messrs M. Sarkies & Sons, Dacca” (PLD 1971 Supreme Court 784), “Muhammad Ayub versus Miss Ambreen Naz” (2016 YLR 100), “Haji Adam Ali Agaria versus Asif Hussain and 2 others” (1996 MLD 322), “Fateh Muhammad through L.Rs and others versus Fida Hussain Shah through L.Rs” (2007 CLC 1885), “Mst. Baswar Sultan versus Mst. Adeeba Alvi” (2002 SCMR 326), “Karachi Gas Co. Ltd. Versus Dawood Cotton Mills Ltd.” (PLD 1975 Supreme Court 193), “State of Haryana and others versus Messrs Malik Traders” (2012 SCMR 1222), “The Trustees of the Port of Karachi versus Messrs Muhammad Bakhsh & Sons” (PLD 1959 (W.P.) Karachi 658), “Messrs M. A. Khan & Co. through Sole Proprietor Muhammad Ali Khan versus Messrs Pakistan Railway Employees Cooperative Housing Society Ltd. Through Principal Officer/Secretary, Karachi” (2006 SCMR 721), “Messrs Ashiq Hussain & Sons versus Cantonment Board, Sargodha and others” (2002 MLD 1063) and “Subhanallah and 2 others versus Mst. Maryam and another” (1988 CLC 890). Prays for acceptance of the instant second appeal, setting aside the impugned judgments & decrees passed by both the learned courts below and decree of the suit.

1. On the other hand, learned counsel for the respondents argues that there is no valid contract for sale of impugned property between the parties, plaintiff has not paid the amount of Rs.3.5 Million on 26.04.2004 as agreed through Ex.P-1 the receipt of token money. Further that third party has deposited part of the remaining consideration amount and not by the plaintiff-appellant under the orders passed by this Court in R.F.A.No.134 of 2010. Further that the witness of the plaintiff i.e. P.W-2 Muhammad Ashraf has admitted that now the value of the property is Rs.40 Million and further that there are concurrent findings of fact recorded by two courts below. Relies upon “Hamood Mehmood versus Mst. Shabana Ishaque and others” (2017 SCMR 2022), “Khuda Bakhsh Anwar and another versus Mst. Sharif Bibi and 2 others” (2012 YLR 291), “Bashir and 6 others versus Lal Arnold and 11 others” (2003 MLD 310), “Imtiaz Hussain versus Muhammad Anwar Khetani” (2009 MLD 785), “Naseer Ahmed Siddique through Legal Heirs versus Aftab Alam and another” (PLD 2011 Supreme Court 323), “State Life Insurance Corporation of Pakistan and another versus Javaid Iqbal” (2011 SCMR 1013), “Muhammad Sharif and others versus Nabi Bakhsh and others” (2012 SCMR 900), “Matloob Hussain and others versus Alamgir and others” (2016 MLD 1372) and “Muhammad Rashid and others versus Shahid Aziz and others” (2003 SCMR 789). Therefore, prays for dismissal of the appeal.

2. I have heard the learned counsel for the parties at full length and also gone through the record minutely as well as the findings recorded by both the learned courts below and the interpretation of statute and the case law referred to by the learned counsel for the parties.

3. Though there are concurrent findings of fact recorded by two courts below but the question is whether the same are in accordance with law and true interpretation of evidence available on the file. I am conscious of the fact that this Court while dealing with the matter under section 100 of the CPC is to scrutinize the matter in the light of grounds mentioned under section 100 of the CPC. Both the courts below have non- suited the plaintiff/appellant on the grounds that:--

(i) Ex.P.1 token receipt is not an agreement to sell between the parties.

(ii) Ex.P.1 is not signed by the plaintiff, therefore suit is not competent in the light of judgment of august Supreme Court of Pakistan reported as “Mst. GULSHAN HAMID versus Kh. ABDUL REHMAN and others” (2010 SCMR 334).

The third point which is very pivotal and important in this case is recorded as below:--

(iii) Who is at fault in performance of terms of Ex.P.1.

1. I take up the first point noted supra for determination. The token receipt Ex.P-1 is an admitted document by the parties. The caption of this document is token receipt. Needless to observe here that it is the body of the document and not the caption, which is considered for intention of the parties. I think it necessary to note that the court has to judge the document keeping in view the whole facts, the pleadings, the evidence produced by the parties and evaluate the matter in the light of the codified law as well as the principles of interpretation of statute and the law declared by this Court and the august Supreme Court of Pakistan.

2. The case pleaded by the plaintiff is that the defendants agreed to sell the suit property in his favour through Ex.P.1 the receipt of token money. The term mentioned therein"باقاعدہ اقرار نامہ معاہدہ بیع"was for writing of the same terms on the requisite stamp paper only. Against the version of the plaintiff there is defence that they did not agree to sell the property in favour of the plaintiff and agreement was yet to be written. The matter requires scrutiny of both the claims that who is with dishonest assertion or defence. It is settled principle that the documentary evidence cannot be negated through oral evidence. The document Ex.P-1 clearly shows that both the ladies entered into an agreement of sale of suit property with the plaintiff, Saleem Shahadat through a token receipt getting token money of Rs.500,000/- but in the written statement the agreement was not clearly admitted by the defendants nor clearly denied but it was pleaded that there is no agreement with the plaintiff, Saleem Shahadat. Hence, it will be beneficial if preliminary objection No.6 is reproduced, which is as under:

“That in the alternative, if the token receipt is considered as an enforceable contract, it has already been frustrated as the payment of Rs.3.5 Million as mentioned in the token receipt has not been made by 26/04/2004. Even if the plea of the Plaintiff regarding the payment to be made on 26/04/2004 is accepted, the contract stands frustrated as the term of payment of Rs.3.5 Million has not been made by the Plaintiff nor is it alleged that the Plaintiff or anyone on his behalf visited the defendants to make such payment.”

It was stated that with one Muhammad Ashraf they intended to agree, when one of the defendants appeared as D.W-1, who admitted that she signed the token receipt Ex.P-1 after reading the said document and her sister also signed the same in her presence. She identified her signatures and the signatures of her sister. A question for cross-examination put to P.W-3 is the most important, which is reproduced as under:--

"یہ درست ہے کہ سلیم شہادت آصفہ بانو اور نور جہاں کے لیے اجنبی تھا۔ اس معاہدے سے پہلے وہ اجنبی تھے۔"

This very important fact, when the counsel for the defendants put this question, indicates that Saleem Shahadat was available on that date at the time of writing of the token receipt Ex.P-1, which is termed as agreement. The statement of defendant No.2 who appeared in the witness box as D.W-1, she stated that she is unmarried and subsequently in the cross-examination admitted that she is divorcee, shows the truthfulness of the defendants. Defendant No.1 neither appeared nor she appointed her sister as her attorney in the suit to make statement on her behalf. The written statement does not clearly deny the agreement as I have quoted supra the preliminary objection No.6 of the written statement, which is very important. Though as per the pleadings both the defendants are house hold ladies but scrutiny of statement of defendant No.2 who appeared as D.W-1, the only evidence produced by the defendants, clearly shows that she is not a simpliciter household lady. She is very sharp and experienced (جہاں دیدہ) lady when she has refused to answer some questions put to her during the cross-examination.

1. Now I come to the point of interpretation of the contract. The bare perusal of the document Ex.P-1 shows that it is an agreement and its plain language shows that it is a contract when offer, acceptance, the detail of property, the full consideration amount, the mode of payment, the period of payment, amount of earnest money and the receipt thereof is admitted fact. The sentence mentioned that:

"اور باقاعدہ اقرار نامہ معاہدہ بیع لیں گی"

Though grammatically the aforesaid sentence is meaningless but as per the learned counsel for the appellant it shows that on the stamp paper the agreement will be written. This interpretation seems to be reasonable. Even in the pleadings as well as in the oral evidence or through any other document no case has even been introduced by the defendants that there were any other terms of the agreement except mentioned in the token receipt. The struggle and preparation by the learned counsel for the appellant for interpretation of the Contract, if not referred herein, will be to ignore the efforts of learned counsel for the appellant. The reference of interpretation of Contract argued before the Court, is as follows:-

(1) The Interpretation of Contracts by By Sir Kim Lewison, A Lord Justice of Appeal, 5th Edition:

WHAT IS INTENTION?

2.05 For the purpose of the interpretation of contracts, the intention of the parties is the meaning of the contract. There is no intention independent of that meaning.

CONSTRUINGTHEDOCUMENTASA WHOLE

7.02 In order to arrive at the true interpretation of a document, a clause must not be considered in isolation, but must be considered in the context of the whole of the document.

In Chamber Colliery Ltd v Twyerould, Lord Watson said:

“I find nothing in this case to oust the application of the well-known rule that a deed ought to be read as a whole, in order to ascertain the true meaning of its several clauses; and that the words of each clause should be so interpreted as to bring them into harmony with the other provisions of the deed, if that interpretation does no violence to the meaning of which they are naturally susceptible.”

PARTY NOT TO TAKE ADVANTAGE OF OWN WRONG

7.10 A contract will be construed so far as possible in such a manner as not to permit one party to it to take advantage of his own wrong.

This principle has a long history, and can be traced back to Lord Coke’s day.

In Rede v Farr a tenant who had failed to pay his rent asserted that by reason of a proviso for re-entry which said that the lease would be void in the event of breach of obligation his lease was at an end. Lord Ellenborough said:

“In this case, as to this proviso, it would be contrary to an universal principle of law, that a party shall never take advantage of his own wrong, if we were to hold that a lease, which in terms is a lease for twelve years, should be a lease determinable at the will and pleasure of the lessee; and that a lessee by not paying his rent should be at liberty to say that the lease is void.”

This formulation suggests that it is a rule of law. However, the decision could be justified on the basis that the court was construing the word “void” in the proviso for re-entry as meaning “voidable”. In New Zealand Shipping Co v Societe des Ateliers et Chantiers de France, Lord Atkinson seems to have treated it as a matter of construction. He said:

“It is undoubtedly competent for the two parties to a contract to stipulate by a clause that the contract shall be void upon the happening of an event over which neither of the parties shall have any control, cannot bring about, prevent or retard…. But if the stipulation be that the contract shall be void on the happening of an event which one or other of them can by his own act or omission bring about, then the party, who by his act or omission brings that event about, cannot be permitted either to insist upon the stipulation himself or to compel the other party, who is blameless, to insist upon it, because to permit the blameable party to do either would be to permit him to take advantage of his own wrong, in the one case directly, and in the other case in a roundabout way, but in either way putting an end to the contract.”

In Decoma UK Ltd v Haden Drysys International Ltd the Court of Appeal held that the words of a “crystal clear” clause in a contract could not be overridden by the principle. In Petroplus Marketting AG v Shell Trading International Ltd Andrew Smith J. said:

“It is a general principle of construction that prima facie it will be presumed that the parties intended that neither should be entitled to rely on his own breach of duty to obtain a benefit under a contract, at least where the breach of duty is a breach of an obligation under that contract: see Chitty on Contracts, Vol 1 at para 12-082. This is sometimes presented not as a matter of contractual construction but an implied contractual term that a right or benefit conferred upon a party shall not be available to him if he relies upon his own breach of the contract to establish his claim: Chitty on Contracts Vol 1 at para 13-012. However analysed, the principle is not inflexible or absolute: it may be displaced by express contractual provision or by the parties’ intention to be understood from the express terms: Richco International Ltd. V Alfred C. Toepfer International GMBH.”

SAVING THE DOCUMENT

7.16 Where two constructions of an instrument are equally plausible, upon one of which the instrument is valid, and upon the other of which it is invalid, the court should lean towards that construction which validates the instrument.

This principle is based on the proposition that “the parties are unlikely to have intended to agree to something…legally ineffective.” It is expressed in the Latin maxim verba ita sunt intelligenda ut res magis valeat quam pereat. One suggested translation is “validate if possible”. In Langston v Langston Lord Brougham L.C. said:

“If there are two modes of reading an instrument, and one destroys the instrument and the other preserves it, it is the rule of law and of equity following the law in this respect…that you should lean towards that construction which preserves, rather than towards that which destroys. Ut res magis valeat quam pereat is a rule of common law and common sense, and much the same principle ought surely to be adopted where the question is, not between two rival constructions of the same words appearing in the same instrument, but where the question is on so ready an instrument as that you may either take it verbally and literally, as it is, or with a somewhat larger and more liberal construction, and by so supplying words as to read it in a way in which you have every reason to believe that the maker of it intended it should stand. Thus, again, according to the rule ut res magis valeat quam pereat, to supply, if you can safely and easily do it, that which he per incuriam omitted, that which instead of destroying preserves the instrument, and, instead of putting an end to the instrument and defeating the intention of the maker of it, tends rather to keep alive and continue and give effect to that intention.”

In more modern times, the principle was described by Lord Wright in Hillas (W.N.) & Co v Arcos as follows:

“Business men often record the most important agreements in crude and summary fashion; modes of expression sufficient and clear to them in the course of their business may appear to those unfamiliar with the business far from complete or precise. It is accordingly the duty of the court to construe such documents fairly and broadly, without being too astute or subtle in finding defects; but, on the contrary, the court should seek to apply the old maxim of English law, verba ita sunt intelligentda ut res magis valeat quam pereat. That maxim, however, does not mean that the court is to make a contract for the parties, or go outside the words they have used, except in so far as there are appropriate implications of law.”

In the same case Lord Tomlin said:

“The problem for a court of construction must always be so to balance matters, that, without the violation of essential principle, the dealings of men may as far as possible be treated as effective, and that the law may not incur the reproach of being the destroyer of bargains.”

INTERNAL INCONSISTENCY

9.08 If a clause in a contract is followed by a later clause which destroys the effect of the first clause, the later clause is to be rejected as repugnant and the earlier clause prevails. If, however, the later clause can be read as qualifying rather than destroying the effect of the earlier clause, then the two are to be read together, and effect given to both.

INCONSISTENCY WITH MAIN OBJECT

9.09 Words and even whole clauses may be rejected if they are inconsistent with the main object of the contract, as ascertained from a reading of it as a whole.

(2) THE LAW OF CONTRACT by SIR GUENTER TREITEL, Q.C., D.C.L., F.B.A.

Honorary Bencher of Gray’s Inn Formerly Vinerian Professor of English Law.

11th Edition

(3) Contract Cases & Materials

H G Beale, W D Bishop & M P Furmston

(4) Construction of Contracts:

An Analysis of Objectivity and Subjectivity within Contractual Transactions

Joseph Dance

1. In the light of above, Ex.P-1 is an agreement to sell, the sentence "اور باقاعدہ اقرار نامہ معاہدہ بیع لیں گی" indicates the intention of parties that same will be written on the stamp paper. The case pleaded by the defendants that agreement Ex.P-1 was between Muhammad Ashraf and defendants is against the document Ex.P-1. Furthermore said Muhammad Ashraf appeared in the witness box as P.W-2 and stated that he is a property dealer and through Ex.P-1 the parties to the suit entered into agreement of sale of suit property through his professional assistance. Needless to note here that written terms of an agreement cannot be denied through oral assertions. Even defendant No.2 as D.W-1 admitted that in Ex.P-1 name of plaintiff is written.

The resume of above discussion is that Ex.P-1 is an agreement to sell enforceable under the law and if it does not contain the signatures of plaintiff in the light of “Muhammad Sattar and others versus Tariq Javaid and others” (2017 SCMR 98), even then the absence of formal signatures did not affect the validity or enforceability of the contract.

1. It is on the record that the defendants moved an application under Order 11 read with Order 13 and section 151 of the CPC on 14.06.2004 for production of original documents. The original documents i.e. Token Receipt and Pay Order for Rs.4.0 Million dated 24.04.2004 were brought before the court on 07.07.2004 under the orders of the court and the same were examined by the learned counsel for the defendants as noted in the interim order of the said date. Further when at the time of evidence the original document Ex.P-1 was lost and permission was sought from the court for the production of secondary evidence, which was granted vide order dated 12.05.2011 and the same was produced under the orders of the court, therefore, the finding of the learned courts that Photostat copy of the receipt has been placed is also a fact when the courts below fell in error by ignoring the legal position and evidentiary value of the document. Even otherwise it is a complete contract containing the offer, acceptance, specification of the suit property and the terms of payment. In these circumstances, the findings of learned trial court that neither it is an agreement nor the contract are against the law. The finding of both the courts that Ex.P-1 is neither an agreement nor a contract is absolutely against the legal position discussed supra.

2. Now I take up the third point noted supra, the suit was filed on 25.05.2004. In accordance with the token receipt (agreement) which is dated 23.04.2004 next payment of Rs.35,00,000/- was to be made on 26.04.2004, whereas the original pay order of Rs.4 Million in the name of defendants was got prepared by the plaintiff on 24.04.2004 and the original of receipt Ex.P-1 were shown to the learned counsel for the defendants in the court on 07.07.2004 as noted in the interim order. The Photostat copy of the pay order is available on the file, which is dated 24.04.2004 as the original record is available before the court. A notice can be taken of the fact that it was not denied that pay order was got prepared in the name of defendants by the plaintiff/appellant on 24.04.2004 when on 26.04.2004 further amount of Rs.35,00,000/- was to be paid to the defendants. The story narrated by the plaintiff that the defendants were demanding more amount for writing of the agreement on the stamp paper seems to be correct. In these circumstances, pay order for Rs.40,00,000/- was got prepared in the name of the defendants on 24.04.2004 but same was not received by the defendants. This bundle of facts leads to the conclusion that there were the defendants who violated the terms of the agreement for sale of the property.

3. The language of token receipt has been admitted by D.W-1 and it is also admitted fact that she signed the document after perusal of the same, which clearly shows that a certain amount was agreed as full consideration amount and further receipt of earnest money and admission thereof clearly shows the acceptance on the part of the defendants. The only question remains for determination of the court that who is at fault. If an agreement was to be written on a stamp paper and if that has not been written and the plaintiff has come to the court for specific performance, in this eventuality, the court was to determine that who is at fault in performance of further terms of the said contract. If the plaintiff is at the fault, certainly he will not be entitled for specific performance and if the defendants are at fault, then the plaintiff was having no other remedy with him except to file a suit for specific performance.

4. Now comes the question that whether the plaintiff has come to the court dishonestly or it is the defendants who are dishonest in their defence. Ex.P-1 is an admitted document. The plaintiff terms it an agreement, whereas the defendants term it as token receipt merely an intention/indication on the part of parties that they are interested in dealing with the property but pleaded that Muhammad Ashraf was the party and not the plaintiff whereas in the Ex.P-1 it is clearly mentioned that the defendants agreed to sell the suit property in favour of Saleem Shahadat plaintiff. Here some original texts from the statement of D.W-1 are necessary, which are as follows:--

میں 1948 میں پیدا ہوئی۔ رسید مورخہ 23.04.2004جو کہ Exh-P1 ہے اس کی تحریر کے وقت میری عمر تقریباً 56سال تھی ۔ میری تعلیم میٹرک ہے۔ میں اُردو کی تحریر پڑھ سکتی ہوں۔ Ex-P1پر میرے دستخط ہیں جو کہ Exh-D/1ہے۔Exh-P1میرے گھر 14شامی روڈ پر لکھا گیا تھا۔ 23.04.2004کو جائیدادمتدعویہ پر میں اکیلی رہتی تھی۔ یہ درست ہے کہ Exh-P1پر میری بہن نور جہاں بیگم کے دستخط ہیں جو کہ انہوں نے میرے سامنے کیے تھے۔جو کہExh.-D/2 ہیں یہ درست ہے کہ یہ دستخط ہم نے اپنی مرضی سے کیے تھے یہ بھی درست ہے کہ 23.04.2004کو جب یہ تحریر لکھی تھی تب ہم نے 5,00,000/-پانچ لاکھ روپے وصول کیے تھے ۔ یہ پانچ لاکھ روپے اس لیے وصول کیے تھے کیوں کہ ہم نے جائیداد متدعویہ کو فروخت کرنا تھا۔ یہ بھی درست ہے کہ اس ادائیگی کے وقت میری بہن نورجہاں بھی موجود تھی۔ یہ درست ہے کہ Exh-P1 کو دستخط کرنے سے پہلے پڑھا تھا۔ یہ غلط ہے کہ مجھے 5,00,000/-پانچ لاکھ روپے سلیم شہادت سے وصول ہوئے تھے۔ یہ درست ہے کہ Exh-P1پر سلیم شہادت کا نام درج ہے۔"

"یہ درست ہے کہ محمد اشرف نے جائیداد متدعویہ کو خود نہیں خریدنا تھا"

"سوال کیا یہ درست ہے کہ اگر سلیم شہادت ہمیں جائیداد متدعویہ کی قیمت 2,30,00,000/-)دو کروڑ تیس لاکھ روپے( ہمیں ادا کر دیتا تو ہم جائیداد کو سلیم شہادت کے نام منتقل کر دیتے؟ جواب کوئی جواب نہ دینا ہے۔"

"میں نے مورخہ 23.04.2004 کو5,00,000/-روپے جو وصول کیے تھے وہ محمد اشرف کو واپس کرنے کی کوشش کی۔ مجھے یاد نہ ہے کہ میں نے کب محمد اشرف کو 5,00,000/-روپے واپس کرنے کی کوشش کی۔"

Against a document the oral evidence has no value. At the time of execution of Ex.P-1 on 23.04.2004 an amount of Rs.500,000/- was paid and on 26.04.2004 thirty five lacs were to be received by the defendants and from receiving one crore ninety lacs rupees, an amount of twenty five lacs rupees was to be received within six weeks and final remaining amount of one crore sixty five lacs within thirteen weeks from the date of this document was to be received. A pay order of Rs.4 Million was got prepared by the plaintiff on 24.04.2004 in the name of defendants but as per the plaintiff, the defendants refused to receive the same dishonestly on the ground that some third party offered more amount than the plaintiff to the defendants of the suit property. The plaintiff filed the suit on 25.05.2004 i.e. before the target date of third amount and defendants filed written statement on 14.06.2004 and denied the performance and contested the suit. The above discussion clearly leads to the conclusion that the defence taken by the defendants was dishonest and they were at fault. The plaintiff himself appeared as P.W-1 and marginal witnesses of Ex.P-1 were produced as P.W-2 and P.W-3, who are consistent with the plaintiff and Ex.P-1 and against this evidence the sole statement of D.W-1 defendant No.2 is available, that too against the written document Ex.P-1, therefore, the defendants miserably failed to rebut the evidence of plaintiff. The statement made by one of the defendants as D.W-1 against the admitted document Ex.P-1, in these circumstances, I have no hesitation to hold that D.W-1 told a lie in her statement when she stated that agreement was not with the plaintiff.

1. I have further noticed that the case pleaded by the plaintiff that after agreement with the plaintiff the defendants were having offers more than the agreed amount by some other parties, therefore, they refused to perform their part of the contract in accordance with the token receipt, which is visible from the trend of cross-examination upon the witness P.W-2 when his statement was recorded on 02.12.2011, the question in cross-examination was put by the learned counsel for the defendants that the value of the property will be of 3.5/4 crore rupees at this time. Learned counsel for the defendants/respondents during the arguments stated that the value of the suit property is at least fifteen crore rupees now a days. The scrutiny of evidence of one of the defendants when appeared as D.W-1 indicates that the defendants opted that one of them should appear in defence and no documentary evidence be produced. When a specific question was put to one of the defendants as D.W-1 that if the amount of Rs.2,30,00,000/- is paid by Saleem Shahadat to them, they are ready to transfer the property in his name. The witness stated that no answer is to be given to this question. There are many more questions noted by the learned trial court, the answers whereof were refused by D.W-1. The scrutiny of statement of D.W-1 shows that she is not a simpliciter household lady.

2. The point discussed by the learned first appellate court that the amount was not deposited by the appellant/plaintiff himself under the orders of this Court passed in RFA No.134 of 2010. As it was mentioned and observed in the order dated 08.03.2010 that the plaintiff/appellant has offered deposit of amount through surety. Therefore, it makes no difference when the amount was deposited by the appellant/plaintiff himself or by some surety. The order of the court was complied with and as such no adverse effect can be given to this fact against the rights of the appellant/plaintiff. There is no cavil to the case law produced by the learned counsel for the parties but the law is applied on bundle of facts in issue in a lis.

3. It is pertinent to mention here that the plaintiff is to step into the shoes of the vendors and the decree in a suit for specific performance is a declaration of maturity of the contract which is enforced through its execution.

4. When it is held that it was the defendants who came in the court with dishonest defence refusing the agreement with the plaintiff against the written document Ex.P-1 and further the plaintiff/ appellant even came to the court within four weeks form the day of writing of Ex.P-1, whereas the final payment was to be made within thirteen weeks of the document Ex.P-1. One of the defendants when appeared in the court as D.W-1 being sole witness and against the oral as well as documentary evidence of the plaintiff/appellant no evidence was produced by the defendants except the statement of D.W-1 telling a lie and it was the defendants who caused the delay of performance, therefore, the defendants to suffer in this eventuality.

5. In this view of the matter, the judgments and decrees dated 04.05.2017 and 03.06.2014 passed by the learned first appellate court and trial court respectively, being contrary to the law, whereby the suit was dismissed and the appeal there against was also dismissed, are not sustainable under the law, same are set-aside. The second appeal is allowed on the basis of discussion supra and the suit for specific performance with regard to the suit property filed by the plaintiff/appellant is decreed in his favour for the consideration amount of Rs.2,30,00,000/- (two crore and thirty lacs rupees). The earnest money of Rs.5,00,000/- was paid at the time of writing of the document on 23.04.2004, whereas an amount of Rs.1,12,50,000/- was deposited with the trial court on 20.03.2010. The remaining amount i.e. Rs.1,12,50,000/- (one crore twelve lacs and fifty thousand rupees) be deposited within one month with the learned trial court. The defendants/respondents are entitled to withdraw the whole amount along with its profit. However, it is made clear that if the remaining amount of Rs.1,12,50,000/- is not deposited by the appellant/plaintiff with the trial court within the stipulated period, then this appeal will be deemed to have been dismissed and the dismissal decree of the suit will hold the field. Furthermore, in case the remaining amount is not deposited by the appellant, surety will be entitled to withdraw the earlier amount of Rs.1,12,50,000/- along with the profit keeping in view the order dated 08.03.2010 passed by this Court in R.F.A.No.134 of 2010. The appellant/plaintiff to further deposit the stamp paper of Rs.1100/- for payment of duty upon Ex.P-1 along with ten times penalty for process of impounding of document in the trial court, the learned trial court should complete the process.

6. Before parting with this judgment I would like to appreciate the valuable arguments advanced by both the learned counsel for the parties in a professional way. I extremely appreciate one of the learned counsels for the appellant namely Mr. Khalid Ishaq Advocate, whose preparation of the case as well as the assistance to the Court professionally was visible from the way of his arguments, submitting the case law and interpretation of statute.

(M.M.R.) Appeal Allowed

PLJ 2019 Lahore 445

Present : Ali Baqar Najafi, J.

KANWAL RASHEED--Petitioner

versus

ACCOUNTANT GENERAL, PUNJAB etc.--Respondents

W.P. No. 24111 of 2017, decided on 15.2.2019.

Constitution of Pakistan, 1973--

----Art. 199--Punjab Civil Service Rules, 1963, Rr. 9, 10(2-A)1 & 11--Constitutional Petition--Parents of petitioner were government servants--Death of parents--Application for getting pension of deceased parents--On line drawing of two pensions--Issuance of notification regarding drawing of two pensions--Notice for recovery of second pension--Question of--Whether a child of deceased government servant is entitled to draw two pensions--Regular source of income--Right of--Challenge to--Law in Pakistan do not show that two pensions cannot be withdrawn by a child of both parents who retired as government servants--It is clear that drawal of pension is vested right of child of a government servant, duly qualified, which cannot be taken away through a notification that too with retrospective effect and that two pensions are independent regardless of fact that both deceased government servants were related inter-se and that drawal of a pension is not a regular source of income in view of fact that this entitlement will come to an end after attaining certain change in status of daughter--Petition was allowed. [Pp. 450 & 451] A & B

Rana Asad Ullah Khan, Advocate for Petitioner.

Raja Saleem Ullah Khan, Law Officer Finance Department.

Mr. Saeed-ul-Hassan Jaffrey, AAG with Ch. Asif Javaid, Accounts Officer.

Date of hearing : 15.2.2019.

Order

Through this Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 petitioner has challenged the notification No. FD-SR-III-4-471/2014 whereby previous notification No. FD-SR-III-4-111/89 dated 22.07.1989, was clarified.

1. Brief facts giving rise to the filing of the present writ petition are that parents of the petitioner were government servants who had already died one after the other. After the death of her father, Professor S.A. Rashid, on 22.10.1983, his pension was transferred in the name of his widow, namely, Professor Mrs. Shamshad Rashid, a government servant, who after her retirement, started getting her own pension, alongwith the pension of her late husband, until her death on 12.08.2009. In the year 2012, the petitioner filed an application and the Accountant General, Punjab got the pension of her deceased parents disbursed in her account according to law. However, in May 2016, the old procedure was changed and now the pension was required to be withdrawn on-line. However, after great efforts, only the pension of her mother was released in October, 2016 but the pension of her father was not released, in view of the impugned clarification issued in the month of September, 2015, which according to the petitioner, did not apply to her. The respondents, on the contrary, demanded the recovery of Rs. 1.94 million from her vide letter dated 11.11.2016 after 7 years, hence this writ petition.

2. In the report and parawise comments submitted by Respondents No. 1 to 3, it is specifically stated that under the Punjab Civil Services Pension Rules, 1963, the two pensions cannot be claimed by the petitioner as one pension is a sufficient source of income, and that purposely she did not inform the department about the drawal of second pension and that under the Notification No. FD.SR-III-4-471/2014 dated 11.09.2015, she cannot draw two pensions, therefore, the petitioner could not claim the future pension, and was required to return Rs. 1.94 Million drawn by her vide PPO No. MNF/10005.

3. In the report and parawise comments submitted by the Finance Department/ respondent No.4, it is stated that when the pension was put on- line, it came on the surface that petitioner was illegally drawing two pensions, as one pension is a regular source of income, therefore, second pension cannot be allowed, hence prays for dismiss of the writ petition.

4. Arguments heard. File perused.

5. According to the notification No. FD.SR.III-4-111/89 dated 22.07.1989 of the Finance Department titled “LIBERLIZATION OF PENSION RULES CLARIFICATION FAMILY PENSION” the earlier circular letter No. FD-SR-III-4-54/83 dated 25.08.1983 was extended to widow for life or until re-marriage and in the case of death of widow, family pension is admissible to son until he attains the age of 29 years and un- married daughter until she is married or attains the age of 21 years, whichever is earlier. Later, it was modified in view of the decision taken by the Governor of Punjab on 01.07.1989, when the family pension in case of widow’s death was admissible to the dependent sons until the age of 24 years or until they are gainfully employed whichever is earlier, and to unmarried daughter until their marriage or they acquired regular source of income whichever is earlier. This notification was further interpreted on 11.09.2015 vide notification No. FD-SR- III-4-471/2014 under which it was observed that a monthly family pension received by a pensioner is construed as a regular source of income, therefore, the unmarried daughter cannot draw the family pension of her father and mother simultaneously so as to grant her two family pensions. Consequently, on 10.08.2016, 11.11.2016 and 26.01.2017 notices for recovery of Rs. 19,41,631/- was issued to the petitioner to provide original pension book. The petitioner replied the respondents by sending a letter on 22.08.2016 and also on 02.02.2017 but of no avail. She, therefore, filed the present petition in the above said context.

6. In order to assess the possible retrospective effect the notification dated 11.08.2015 is reproduced as under:--

No.FD-SR-III-4-47/2017 GOVERNMENT OF THE PUNJAB FINANCE DEPARTMENT Dated Lahore, The 11th September 2015

To

1. All Administrative Secretaries to Government of Punjab.

2. The Principal Secretary to Governor of the Punjab.

3. The Principle Secretary to Chief Minister, Punjab.

4. The Military Secretary to Governor of Punjab.

5. All Commissioners in the Punjab.

6. All District Coordination Officer in the Punjab.

7. All Heads of attached Departments, Government of Punjab.

8. The Registrar, Lahore High Court, Lahore.

9. All District & Sessions Judge in the Punjab.

10. The Secretary, Punjab Public Service Commission, Lahore.

11. The Secretary, Punjab Provincial Assembly, Lahore.

12. The Secretary TEVTA Government of the Punjab.

13. The Director General Audit & Accounts (Works), Lahore.

14. The Chief Inspector of Treasuries & Accounts, Punjab, Lahore.

15. The Provincial Director, Local Fund and Audit, Punjab, Lahore.

16. The Chief Pilot, Flight Lahore.

Subject:-- LIBERALIZATION OF PENSION RULES CLARIFICATION.

I am directed to refer to para 1 of this Department’s letter No. FD-SR-III-4-111/89 dated 22nd July, 1989 and to state that a question has arisen as to whether an un- married daughter can draw family pension of her father and mother simultaneously. The matter has been examined and is observed that a monthly family pension being received by a pension is construed as regular source of income. Therefore, such pension is not entitled to receive another family pension.

Sd/- (M. NAWAZ KHALID ARABI) DEPUTY SECRETARY (SR)

Its close reading does not mention that it was drafted to have its effect from 22.07.1989. Secondly, said notification does not mention any power/authority in the exercise of which it was issued. Thirdly, drawing of a pension by the son or daughter was incorrectly considered as a regular source of income. Fourthly, it was not issued in accordance with the spirit of the Punjab Service Pension Rules, 1963.

1. The effect of the notification, unless so stipulated in the notification itself, will start from the date it was issued particularly if it was to take away certain rights. A guidance can easily be sought in this regard from Mozaffar Ahmed versus Anwar Ali and others (PLD 1965 Dacca 296) in which it was held that a statute cannot be construed to take away a vested right unless there are express provisions of law to that effect and unless such a result follows as necessary implication of the language in the statute. In Collector of Central Excise and Land Customs and 3 others versus Azizuddin Industries Ltd., Chittagong (PLD 1970 Supreme Court 439) it was observed at page 444 that if a notification is purported to completely take away the vested rights, it will be interpreted in the context of exercise of executive authority of rule- making power which could not take away the vested rights of the citizen by law. In Badshah Gul Wazir versus Government of Khyber Pakhtunkhwa through Chief Secretary and others (2015 SCMR 43) a statutory provision, particularly one curtailing substantive rights, does not have retrospective operation unless the legislature elected to give it retrospective effect. In Muhammad Amin Muhammad Bashir Limited versus Government of Pakistan through Secretary Ministry of Finance, Central Secretariat, Islamabad and others (2015 SCMR 630) the purpose to exercise a legislative authority to an executive authority is intended to enforce the law and not to override it. They can fill in details but not vary the underlining statutory principles and in case of conflict they must yield to the legislative will. Similar was the view held in Messrs Army Welfare Sugar Mills Ltd. and others versus Federation of Pakistan and others (1992 SCMR 1652) in which it was held that only the beneficialnotificationscanoperate retrospectively and not otherwise. In B.P. Biscuit Factory Ltd., Karachi versus Wealth Tax Officer and another (1996 SCMR 1470) it was held that when it comes to interpretation of statute, if the language is ambiguous and further interpretations are possible then doubt should be resolved in favour of the citizen. If Rule 4.10 clause 6 of the Punjab Civil Services Pension Rules, 1963 is interpreted in view of the above case laws, it would become that the family pension can be awarded and not refused according to priorities of the members and if there exists special circumstances for the beneficiaries a suitable interpretation should be made. Clause 6 of Rule 4.10 of the Rules ibid, is reproduced as under:--

“(6) Government shall have discretion to make such modification in the mode of allotment or conditions of tenure set forth in sub-rules (2) to (5) above as they may consider desirable to suit the special circumstances of the beneficiaries.”

1. In Khyber Zaman and others versus Governor, State Bank Of Pakistan, Karachi and others (2005 SCMR 235) the word pension was defined in the new Encyclopedia Britannica vol. 9, 15th Edition, according to which it is a source of periodic money payments to a person who retires from employment because of age, disability or completion of agreed span of service. The payments usually continue for the rest of the natural life of the recipient and sometimes to a widow or other survivor in consideration of the past service or the relinquishment of rights, claims or emoluments. In Pakistan Telecommunication Employees Trust (PTET) through M.D., Islamabad and others versus Muhammad Arif and others (2015 SCMR 1472) it was held that pension is a part of civil servant’s retirement benefit and not the bounty or an ex-gratia payment but a valid right acquired in consideration of his past services conferred by law which could not be arbitrarily abridged or reduced by executive except in accordance with law.

2. Now comes to the pivotal question as to whether a child of deceased government servants is entitled to draw two pensions. A son under the age of 21 years and the daughter unless married or until both acquired regular source of income can draw pensions. The Punjab Civil Services Rules, 1963 permitted the drawal of pension under Rules 4.10 (2A) 1 and 11.

3. The law in Pakistan and the judgments referred above do not show that two pensions cannot be withdrawn by a child of both parents who retired as government servants. However, Rule 54(11) of the Central Civil Servants Pension Rules, 1972 prevalent in India specifically provides that in case both husband and wife were government servants, who died while in service or after retirement, a family pension in respect of the deceased shall become payable to the surviving husband or the wife as the case may be and in the event of death of husband or wife the surviving child or children are entitled to two family pensions according to certain conditions. Rule 54(11) of the Rules ibid, is reproduced as under:--

“In case both wife and husband are Government servants and are governed by the provisions of this rule and one of them dies while in service or after retirement, the family pension in respect of the deceased shall become payable to the surviving child or children shall be granted the two family pensions in respect of the deceased parents, subject to the limits specified below, namely,--

(a) (i) if the surviving child or children is ore are eligible to draw two family pensions at the rate mentioned in sub-rule (3), the amount of both the pension shall be limited to 1[two thousand five hundred rupees] per mensem;

(ii) if one of the family pensions cases to be payable at the rate mentioned in sub-rule (3) and in lieu thereof the pension at the rate mentioned in sub-rule (2) becomes payable, the amount of both the pensions shall also be limited to 1[two thousands five hundred rupees] per mensem;

(b) If both the family pensions are payable at the rates mention in sub-rule (2), the amount of two pensions shall be limited to 2[one thousand two hundred and fifty rupees] per mensem.

In Rukmani and Pradeep Kumar Kumawat Versus The Union of India through its Secretary, Ministry of Home Affairs, New Delhi and Others (211(4)SLR257) Rajasthan High Court had held that denial of the pension merely on the ground that father of the deceased was getting pension and that two members of family cannot receive family pension simultaneously was not approved in view of the fact that if they qualified to receive pension in their independent right, they cannot be deprived of their valid right. Para 10 is reproduced as under:--

“10 Even sub-rule (11) of Rule 54 of the Central Civil Services (Pension Rules, 1972 provides that in case both wife and husband are Government Servants and are governed by provisions of this rule and one of them dies while in service or after retirement, the family pension in respect of the deceased shall become payable to the surviving husband or wife and in the event of the death of the husband or wife, the surviving child or children shall be granted two family pensions at a time…..”

1. Last but not least is a reference which will be relevant here of order dated 06.12.2017 passed in W.P. No. 104972 of 2017 titled Mst. Saeeda Nasreen versus The Accountant General Punjab which was dismissed as withdrawn in view of the report and parawise comments submitted by the Accounts department stating that petitioner therein, was not entitled to payment of family pension as she was already drawing the pension as a regular source of income in form of her own pension. However, it was stated in view of the comments that pension would be re-started and then the writ petition was disposed of.

2. Keeping in view the above discussion, it is clear that drawal of the pension is vested right of the child of a government servant, duly qualified, which cannot be taken away through a notification that too with retrospective effect and that two pensions are independent regardless of the fact that both deceased government servants were related inter-se and that drawal of a pension is not a regular source of income in view of the fact that this entitlement will come to an end after attaining certain change in the status of the daughter.

3. In this view of the mater, this writ petition is allowed, impugned Notification No. FD-SR-III-4-471/2014 dated 11.09.2015 is set aside declaring that child of deceased parents who were

government servants is entitled to two pensions simultaneously according to their eligibility.

(Y.A) Petition allowed

PLJ 2019 Lahore 466 (DB) [Multan Bench, Multan]

Present: Muhammad Ameer Bhatti and Tariq Saleem Sheikh, JJ.

MULTAN ELECTRIC POWER COMPANY (MEPCO) through CHIEF EXECUTIVE and another--Appellants

versus

M/s. ASIM QAISER and CO. through MANAGING PARTNER and 4 others --Respondents

I.C.A. No.243 in Writ Petition No. 8066 of 2018, decided on 2.7.2018.

Electricity Act, 1910 (IX of 1910)--

----S. 24(1)--Default in payment of outstanding amount--Electricity was disconnected--Writ Petition--Disposed of with direction to restoration of connection--Requirement of law--Notice for shifting of liability--Challenge to--If any unit out of total units becomes defaulter, the said liability can be recovered from running units provided owned by the same person but after adopting the mechanism mandated in law, of course for that purpose the default amount of default unit may be shifted upon the running units by informing the owner in this regard through written notice/letter in an unequivocal manner and on the basis of shifting of liability the said running units be declared nonpayer, where-after notice be issued for recovery of the outstanding amount from the running unit as stipulated under Section 24(1) of the Act, 1910, but here admittedly the said requirement of law has not been complied with notice issued to Respondent No.1 by the appellants, referred to by the learned counsel, could not be presumed to have fulfilled the essential requirement of law; hence ignored and for this probable reason, although not disclosed in the order of the learned Judge-in-Chamber, the restoration of electricity connection was ordered--The case-law, referred to by the learned counsel for the appellant, is distinguishable on facts and circumstances of the case--We are not inclined to interfere with the order passed by the learned Judge-in-Chamber--Appeal was dismissed. [P. 468] A, B and C

Rao Muhammad Iqbal, Advocate.

Date of hearing : 2.7.2018

Order

The constitution petition, filed by Respondent No.1, was disposed of by this Court vide order dated 25.06.2018 in line with appellants’ claim that Respondent No.1 has alternate remedy before the NEPRA, with the direction to the office to transmit copy of the same along with all its annexures at the expense of said respondent to NEPRA for its decision treating it as representation of the writ petitioner within a period of fifteen days, however, disconnected electricity of Respondent No.1 was ordered to be restored.

1. The appellant has brought this appeal being aggrieved from part of the order whereby direction to the department has been issued for restoration of Respondent No.1’s electricity connection on the ground that when the matter was referred to the competent authority then restoration order was uncalled for and beyond the jurisdiction exercised by the learned Judge-in-Chamber. While relying on Balochistan Trading Company (Pvt.) Ltd. and others vs. National Bank of Pakistan and another (1998 SCMR 1899) contends that it was out of scope of learned Judge-in-Chamber to grant the relief to the writ petitioner when his default was manifest, therefore, the order impugned is contrary to the law laid down by Hon’ble Supreme Court. Further relies on United Bank Limited and others vs. Ahsan Akhtar and others (1998 SCMR 68) to contend that the interim relief in the nature of final conclusion cannot be granted.

2. We have heard the learned counsel for the appellant and gone through the available record.

3. The learned counsel for the appellant when confronted that, ‘whether the writ petitioner (Respondent No.1 herein) is defaulter’, he concedes that this Company is not defaulter and its other units are defaulter and for recovery of that default amount, Respondent No.1 had been burdened with the consequence that his electricity was disconnected. When further confronted that according to Section 24(1) of the Electricity Act, 1910, the notice of shifting of liability of other unit of the company has been issued, he by referring the notices attached with the written reply filed by the appellant during pendency of writ petition (at Pages 36 and 37) contends that the said notices were issued but perusal of same reveals that those notices do not fulfill

the requirement as stipulated in Section 24(1) ibid. Therefore, these notices could not be termed/treated notices as specified under Section 24(1) of Electricity Act, 1910 inasmuch as without adopting the said procedure Respondent No.1 could not be treated defaulter. Clear and obvious requirement of law is that if any unit out of total units becomes defaulter, the said liability can be recovered from running units provided owned by the same person but after adopting the mechanism mandated in law, ofcourse for that purpose the default amount of default unit may be shifted upon the running units by informing the owner in this regard through written notice/letter in an unequivocal manner and on the basis of shifting of liability the said running units be declared nonpayer, where-after notice be issued for recovery of the outstanding amount from the running unit as stipulated under Section 24(1) of the Act, 1910, but here admittedly the said requirement of law has not been complied with, therefore, notice issued to Respondent No.1 by the appellants, referred to by the learned counsel, could not be presumed to have fulfilled the essential requirement of law; hence ignored and for this probable reason, although not disclosed in the order of the learned Judge-in-Chamber, the restoration of electricity connection was ordered. The case-law, referred to by the learned counsel for the appellant, is distinguishable on facts and circumstances of the case. Hence, we are not inclined to interfere with the order passed by the learned Judge-in-Chamber. This appeal is dismissed-in-limine being not maintainable.

(Y.A) Appeal dismissed

PLJ 2019 Lahore 468

Present: Amin-ud-Din Khan, J.

MALIK RAB NAWAZ (deceased) through L.Rs--Petitioners

versus

Mst. SABAN--Respondent

Writ Petition No.15389 of 2011, heard on 24.9.2018.

Constitution of Pakistan, 1973--

----Art. 199--Civil Procedure Code, 1908, S. 12(2)--Application for necessary party--Rejected--Civil Revision--Accepted and case was remanded--Challenge to--Maintainability--It is a settled law enunciated by august Supreme Court of Pakistan as well as this Court and other High Courts that it would not be appropriate to exercise jurisdiction under Article 199 of Constitution of Islamic Republic of Pakistan, 1973 to interfere with a remand order as a writ lies against final adjudication and remand order does not finally decide lis, rather Court decided case earlier has to re-decide it. [P. 470] A

2007 CLC 768, 2009 CLC 860 and 1986 SCMR 251, ref.

Malik Saleem Iqbal Awan, Advocate for Petitioners.

M/s. Arshad Malik Awan and Muhammad Abbas Hayat Awan,Advocates for Respondents.

Date of hearing : 24.9.2018.

Judgment

Through this writ petition following prayer has been made:--

“It is, therefore, most respectfully prayed that the writ petition may kindly be accepted and impugned order dated 17.05.2011 passed learned District Judge, Khushab may kindly be set aside and order dated 24.11.2010 passed by learned Civil Judge, Khushab may kindly be upheld in the supreme interest of justice.

It is further prayed till the final decision of the writ petition the operation of the impugned order dated 17.05.2011 passed by District Judge Khushab may kindly be suspended and proceeding before learned trial Court may kindly be stayed in the supreme interest of justice.”

1. I have heard the learned counsel for the parties at length and also gone through the record.

2. Learned counsel for the respondent has raised three objections. One is that all the parties before the learned trial Court have not been made party in the instant writ petition, as such, writ petition is defective one. Second is that Order VII Rule 11 of the CPC is not applicable for rejection of application under Section 12(2) of the CPC and lastly, against a remand order writ petition is not competent.

3. The respondent Mst. Saban filed an application under Section 12(2) of the CPC on 30.11.2009 to challenge the judgment and decree dated 13.02.1989 passed by Syed Tahir Hussain Kazmi learned Civil Judge Khushab, on the basis of grounds mentioned in the application under Section 12(2) of the CPC. The petitioners Rab Nawaz etc (Respondents No.1 to 7 of application under Section 12(2) of the CPC) moved an application for summary rejection of application, which was rejected vide order dated 24.11.2010. Mst. Saban preferred a revision petition, which was accepted by the learned District Judge, Khushab vide order dated 17.05.2011 observing that Order VII Rule 11 of the CPC is not applicable to an application under Section 12 (2) of the CPC. Hence, this writ petition by Rab Nawaz etc.

4. Needless to state that when the parties to a lis i.e. parties to the application under Section 12(2) of the CPC have not been impleaded and necessary parties have been left without any justifiable reasons, therefore, writ petition is not competent. Further against a remand order writ petition is not maintainable as it is a settled law enunciated by the august Supreme Court of Pakistan as well as this Court and other High Courts that it would not be appropriate to exercise jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 to interfere with a remand order as a writ lies against the final adjudication and the remand order does not finally decide the lis, rather the Court decided the case earlier has to re-decide it. Reliance can be placed upon the judgments reported as “AKBAR Ali and 18 others versus Mukhtar Ahmad and 14 others” (2007 CLC 768), “Mst. Salim-Un-Nisa and 5 other versus Aziz and another” (2009 CLC 860) and “Muhammad Ilyas Khan versus Muhammad and others” (1986 SCMR 251). Furthermore, Order VII Rule 11 of the CPC is also not available for rejection of application under Section 12(2) of the CPC. In this regard, light can be taken from the judgment of august Supreme Court of Pakistan reported as “Mrs. Anis Haider and others versus S. Amir Haider and others”(NLR 2008 Civil 514). I would like to quote relevant paragraph as under:--

“The very terminology used in Order VII, Rule 11, C.P.C. is indicative of the fact that it pertains to suits and plaints in particular. The Court should have realized the difference between a regular suit and an application. Section 141, C.P.C. cannot be attracted as it pertains to the ordinary procedure laid down in Civil Procedure Code that may be followed in deciding an application but a substantial requirement of recording of evidence on pure and serious question of fact could not be by-passed by unjustifiably invoking of Order VII, Rule 11, C.P.C. It appears that even the implication of Order VII, Rule 11, C.P.C. were not properly appreciated and applied. The order can be attracted only when a plaint by itself does not disclose any cause of action. It cannot be rejected on the basis of written statement because the initial burden remains on the plaintiff/petitioner to prove his case on the basis of assertions made in the pleadings. If the principle in hand adopted by the Courts below is endorsed, it would be the easiest thing to dismiss any civil suit simply and merely on the basis of written statement.”

1. For the foregoing reasons, the instant writ petition is not competent, same stands dismissed.

(MMR) Petition dismissed

PLJ 2019 Lahore 471

Present : Amin-din-Khan, J.

NAWAB and another--Appellants

versus

PEHLWAN KHAN (deceased) through L.Rs and others--Respondents

R.S.A. No. 143 of 2016, heard on 9.11.2018.

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

----S. 42--Suit for declaration--Dismissed--Appeal--Dismissed--Agreement to sell by attorney--Revocation of general power of attorney--Limitation--Concurrent findings--Challenge to--When a transaction was claimed through attorney, it was duty of plaintiffs to prove that original owner was not available at place where parties were entering into agreement to sell and attorney was having full powers to enter into agreement to sell suit property--Unless an attorney is given specific powers to bind principal for performance of terms of agreement in future, attorney cannot bind principal and enter into agreement to sell of property owned by principal, therefore, this agreement is bad on basis of having no powers with attorney to enter into agreement to sell of suit property--There are concurrent findings of fact recorded by two courts below and courts below while passing impugned judgments and decrees took a count of every bit of evidence available on file and nothing is shown to have been over looked any part of record from their judicious consideration--Findings of learned courts below on question of fact and law are based upon proper appreciation of oral as well as documentary evidence, which are not liable to be reviewed or substituted by this Court while exercising jurisdiction under Section 100 of CPC--Appeal was dismissed.

[Pp. 473, 474, 475 & 476] A, B and C

2001 MLD 2019, PLD 1996 Pesh. 86 and 1992 SCMR 1488, ref.

Syed Ali Raza Gillani, Advocate for Appellants.

M/s. M. Baleegh-uz-Zaman Chaudhry and Imran Arif Ranjha,Advocates for Respondents.

Date of hearing : 9.11.2018.

Judgment

Through this second appeal the appellants have challenged the judgment and decree dated 19.03.2016 passed by the learned Additional District Judge, Jhang whereby the first appeal filed by the appellants was dismissed and the judgment and decree dated 24.06.2014 passed by the learned Civil Judge 1st Class, Jhang whereby the suit for declaration in the alternate for specific performance filed by the appellants/plaintiffs was dismissed.

1. I have heard the learned counsel for the parties at full length and also gone through the record minutely with their able assistance.

2. The suit was filed by the appellants on 27.04.2001 on the basis of an agreement to sell dated 17.04.1993 pleading as a sale deed, therefore, suit for declaration was filed and in the alternate a prayer for specific performance was made. Subsequently plaint was amended and mutations No.993 attested on 19.04.2001 and 1904 attested on 31.03.2001 were also challenged.

The written statement was filed and suit was contested. Learned trial Court framed the issues and invited the parties to produce their respective evidence. Both the parties adduced oral as well as documentary evidence in support of their versions. After the completion of trial suit was dismissed by the learned trial Court videjudgment and decree dated 24.06.2014. Feeling aggrieved thereby, an appeal was preferred before the learned first appellate Court, which also met with the same fate vide judgment and decree dated 19.03.2016. Hence, this second appeal before this Court.

1. The alleged agreement is by Mohabbat Khan the attorney of original owner Pehlwan Khan. The view taken by the learned courts below is that plaintiffs failed to prove that the consideration amount was reached to the owner Pehlwan Khan as Mohabbat Khan (general attorney) is near relative of the plaintiffs and a connivance with the plaintiffs has been observed by the learned Courts below in the transaction. It is on the record that possession was already with the plaintiffs being tenants upon the suit property and in part performance it was not delivered to the plaintiffs. It is also on the record that original owner after coming back from performance of Hajj got revoked the general power of attorney on 13.07.1993, which clearly shows a refusal for performance of agreement, if any, in favour of plaintiffs by the original owner. The suit was filed on 27.04.2001, which also shows that it was beyond the period of limitation for filing a suit for specific performance. Though the Courts below have not considered this aspect of the case and decided Issue No.10 against the defendants but this fact is important one. I am further of the view that when a transaction was claimed through attorney, it was the duty of plaintiffs to prove that original owner was not available at the place where the parties were entering into agreement to sell and the attorney was having full powers to enter into agreement to sell the suit property. I have minutely scrutinized the power of attorney Exh.D-11, with regard to transfer of land relevant paragraph is as under:--

اراضی مذکورہ کو بذریعہ بیع، ہبہ ، تملیک، تبادلہ ، تقسیم، رہن منتقل کرے۔ زر بیع زر رہن وصول کرے۔ بغرض بیعنامہ اشٹام نانجوڈیشل خرید کرے۔

At this juncture it will be appropriate to consider legal implications of sale and agreement to sell. For ready reference I would like to reproduce Section 54 of the Transfer of Property Act, 1882 as under:--

“54. “Sale Defined.” “Sale” is a transfer of ownership in exchange for a price paid or promised or part paid and part promised.

Sale how made. Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other, intangible thing, can be made only by a registered instrument.

In the case of tangible immovable property, of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.

Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs in possession of the property.

Contract for sale.A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties.”

The definition of “Contract” under the Contract Act, 1872 as provided under Section 2 (h) is that an agreement enforceable by law is a contract.

1. In my view the powers to sell the property do not give power to enter into an agreement to sell because in the powers of sale the consideration amount is received and property is sold out, whereas the agreement to sell binds both the parties in accordance with the terms of agreement to perform their part in future. If in the power of attorney specific power of entering into agreement to sell of suit property is not provided, an attorney cannot enter into agreement to sell of the property of the principal/owner. In case of sale a transaction is completed, rights and liabilities of the parties are determined through an instrument of sale and with the registration and completion of same no further liability of parties remains against each other but in case of agreement to sell both the parties are bound to perform the terms of agreement in future, therefore, unless an attorney is given specific powers to bind the principal for performance of terms of the agreement in future, the attorney cannot bind the principal and enter into agreement to sell of property owned by the principal, therefore, this agreement is bad on the basis of having no powers with the attorney to enter into agreement to sell of suit property.

2. I am fortified by the judgment of august Supreme Court of Pakistan in taking the view expressed supra, reliance whereof is placed upon “Malik Riaz Ahmed and others versus Mian Inayat Ullah and others” (1992 SCMR 1488) as well as the judgment reported as “Fida Muhammad versus Pir Muhammad Khan (Deceased) Through Legal Heirs And Others” (PLD 1985 Supreme Court 341). The relevant portion of which has been rendered in the judgment of Malik Riaz Ahmad’s case (supra). I also quote the same as under:--

“It is wrong to assume that every ‘general’ power of attorney on account of the said description means and includes the power to alienate/dispose of property of the principal. In order to achieve that object it must contain a clear separate clause devoted to the said object. The draftsman must pay particular attention to such a clause if intended to be included in the power of attorney with a view to avoid any uncertainty or vagueness. Implied authority to alienate property, would not be readily deducible from words spoken or written which do not clearly convey the principal’s knowledge, intention and consent about the same. The Courts have to be vigilant particularly when the allegation by the principal is of fraud and or misrepresentation.”

Further reliance is placed upon the judgment of this Court reported as “Dost Muhammad versus Member, Board of Revenue and others” (2001 MLD 2019) and the judgment of Peshawar High Court reported as “Yar Baz Khan versus Lal Nawaz” (PLD 1996 Peshawar 86). The relevant paragraph is as under:--

“Before parting with the case, I would like to emphasize that an attorney derives authority from the principal with regard to his property either for its management or alienation for a specific purpose. The agent has to act within the framework of the deed which is depository of the intention, rights, liability and authority of parties and cannot travel beyond its scope and purview of its recitals. By re-passing confidence in agent, he is expected in law to act for the benefit of his principal. His conduct and performance of duty enjoined upon him is subject to certain commotions and limitations. For instance, where an agent is appointed to sell Hussain principal’s goods, and he buys the same for himself on his own account but the principal ratifies it, the transaction is not void. But where there is conflict between the duty and interest, the agent must disclose the undertaking, which results in wrongful gain to him and wrongful loss to his principal, so as to enable the latter to rescind the deal with third party. Understood in this sense, a holder of power of attorney to manage immovable property, though invested with power to alienate property, is required to act for the benefit and not to the detriment of the principal. If he intends to derive benefit for his own self or his next of kin, he should inform his principal prior to entering into such transaction. Any clandestine deal without disclosure to principal will not bind the latter nor will be enforced in law. In the present case, it will have been seen that both the gift and sale transactions affected by holder of power of attorney were tainted with deception and fraud and their validity cannot be upheld on any weapon of reasons. Both the Courts below have overlooked and ignored the prominent facts highlighted above and have thus acted with material irregularity in assessing their legal effects on the transactions in question. The principal or his successor-in- interest cannot be bound with such illegal deals.”

It is the case of the respondents that the attorney has transferred the property in favour of his near relative, which was also a bar without special consent of the principal. In this context, reliance is placed upon “Haji Faqir Muhammad and others versus Pir Muhammad and another” (1997 SCMR 1811).

1. Even otherwise there are concurrent findings of fact recorded by two Courts below and the Courts below while passing the impugned judgments and decrees took a count of every bit of evidence available on the file and nothing is shown to have been over looked any part of the record from their judicious consideration. The findings of

learned courts below on question of fact and law are based upon proper appreciation of oral as well as documentary evidence, which are not liable to be reviewed or substituted by this Court while exercising jurisdiction under Section 100 of the CPC. Therefore, I am unable to disagree with the concurrent findings recorded by both the learned courts below. Resultantly, this second appeal having no scope stands dismissed with costs throughout.

(Y.A) Appeal dismissed

PLJ 2019 Lahore 476

Present : Amin-ud-Din Khan, J.

ATTA MUHAMMAD (deceased) through L.Rs and others--Petitioners

versus

MUHAMMAD KHAN and others--Respondents

C.R. No. 141 of 2008, heard on 15.3.2018.

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

----S. 42--Suit for declaration--Partially decreed--Appeal dismissed--Concurrent findings--Challenge to--Attestation of Mutation--Barred by time--Property was sold in favour of Muhammad Yar predecessor of defendants and subsequently when Mst. Saban passed away in year 1938 mutation of her inheritance No.4168 was also attested--Respondents/plaintiffs or their predecessor remained silent at time of attestation of mutation of sale in favour of predecessor of defendants/petitioners and thereafter as per their own pleadings plaintiffs or their predecessor remained silent in year 1938 when finally cause of action accrued to them and filing suit 58 years thereafter was certainly barred by time and limitation even in matter of inheritance cannot be ignored. [P. 479] A

2011 SCMR 8, PLD 2013 SC 392 and PLD 2014 SC 167, ref.

West Pakistan Muslim Personal Law (Shariat) Application Act 1962 (V of 1962)--

----S. 3--Limitation Act, 1908, Art. 120--Attestation of Mutation--Limitation--Most termination of limited estate limitation for filing a suit available with plaintiffs under residuary Article 120 of Limitation Act, 1908 was six years, whereas suit has been filed on 14.10.1996--Civil Revision was Allowed. [P. 480] B

1988 SCMR 1696, ref.

M/s. Malik Noor Muhammad Awan and Ijaz Khalid Khan Niazi, Advocates for Petitioners.

Mr. Zubair Ahmad Kundi, Advocate for Respondents.

Date of hearing : 15.3.2018.

Judgment

Through this civil revision the petitioners have challenged the judgment and decree dated 7.2.2008 passed by the learned District Judge, Khushab whereby the appeal filed by the petitioners was dismissed and the judgment and decree dated 16.05.2002 passed by the learned Civil Judge, Khushab whereby the suit filed by the respondents-plaintiffs was partially decreed.

1. The brief facts are that the plaintiffs/respondents on 14.10.1996 filed a suit for declaration pleading therein that the plaintiff and Defendants No.20 to 27 being legal heirs of Ghulam Muhammad and Hafeeza sons of Phatto are owner of property measuring 115-kanals 5-marlas out of total measuring 386-kanals 8-marlas according to Register Haqdaran Zamin for the year 1993-94 situated in Mouza Utra Janobi Tehsil and District Khushab. It is stated that defendants No.1 to 19 have absolutely no concern with the suit property and challenged attestation of Mutation No.1183 attested on 15.06.1923 by Mst. Saban in favour of Muhammad Yar, predecessor of defendants No.1 to 19 on the ground that Mst. Saban was limited owner. The prayer for permanent injunction was also made. It is further pleaded that originally Phatto s/o Pallu was owner of 13 ½ Aaney in Zar-Khewat which comes to 230-kanals 10-marlas, who passed away approximately before 1914. The suit property was transferred in the name of his sons Ghulam Muhammad and Hafeeza through mutation of inheritance. Both Ghulam Muhammad and Hafeeza sons of Phatto passed away in the year 1918 being issueless. The share of Hafeeza s/o Phatto was transferred in favour of his widow Mst. Khani as limited owner through Mutation No.508, whereas share of Ghulam Muhammad was transferred in favour of his mother as limited owner through Mutation No.507. It is pleaded that thereafter Mst. Khani widow of Hafeeza contracted second marriage. The property from her name as limited owner was withdrawn and was transferred in the name of Mst. Saban, mother of Hafeeza through Mutation No.1041. It is pleaded that Mst. Saban through Mutation No.1183 attested on 15.06.1923 without any authority sold the property in favour of Muhammad Yar s/o Pallu predecessor of Defendants No.1 to 19. It is pleaded that in the year 1924-25 and thereafter in the year 1967-68 distribution of Shamlaat proceedings were initiated and the ownership was recorded, therefore, in accordance with Jamabandi for the year 1993-94 identification of property has been mentioned. It is pleaded that at the end of extinction of limited ownership, Muhammad Yar s/o Pallu being brother of last male owner i.e. Phatto, was entitled to retain ½ share in the suit property. Whereas Noora the predecessor of plaintiffs and Defendants No.20 to 27, the other brother of last male owner, was entitled to get other half of property, therefore, the instant suit to challenge Mutation No.1183 and claiming 115-kanals 5-marlas. The subsequent mutations in favour of legal heirs of Muhammad Yar have also been challenged and it is further pleaded that attestation of mutation of inheritance of Mst. Saban Bearing No.4168 attested on 23.09.1938 is a documentary evidence to show that plaintiffs are the legal heirs.

2. The written statement was filed and suit was contested. Learned trial Court framed the issues and invited the parties to produce their respective evidence. Both the parties produced oral as well as documentary evidence. After the completion of trial suit was partially decreed by the learned trial Court vide judgment and decree dated 16.05.2002. An appeal was preferred before the learned first appellate Court, which was dismissed vide judgment and decree dated 07.02.2008. Hence, this civil revision.

3. Learned counsel for the petitioners states that he will press only the point of limitation and issue regarding limitation for filing the suit. Admittedly Mst. Saban passed away in the year 1938 and if the case of plaintiffs as pleaded is admitted to be true, the cause of action accrued firstly on 15.06.1923 to the plaintiffs or their predecessor at the time of sale of property to the predecessor of petitioners/ defendants through Mutation No.1183 attested on 15.06.1923 and lastly in the year 1938 when Mst. Saban passed away and mutation of her inheritance No.4168 was attested on 23.09.1938, whereas the suit was filed in the year 1996 at least 58 years after the death of Mst. Saban and 73 years after the accrual of first cause of action. The limitation provided for suit for declaration is six years according to the residuary Article 120 of Limitation Act, 1908. Despite the fact that Issue No.4 of limitation was framed but both the learned courts below failed to record the findings on this issue in accordance with law. Prays for acceptance of instant civil revision. Learned counsel for the petitioners has also relied upon the judgments reported as “Atta Muhammad versus Maula Bakhsh and others” (2007 SCMR 1446), “Mst. GRANA through Legal Heirs and others versus Sahib Kamala Bibi and others” (PLD 2014 Supreme Court 167), “Noor Din and another versus Additional District Judge, Lahore and others” (2014 SCMR 513) and “Muhammad Amir and others versus Mst. Beevi and others” (2007 SCMR 614).

4. On the other hand, learned counsel for the respondents states that there are concurrent findings of fact recorded by two Courts below. States that in the matter of inheritance limitation does not apply and it was not a hurdle in filing the suit and both the courts below came to a right conclusion while the suit filed by the respondents/plaintiffs was decreed and appeal there against was dismissed.

5. I have heard the learned counsel for the parties at full length and also gone through the record, case law referred supra and the findings recorded by the learned courts below.

6. At this stage even the shares pleaded by the respondents/plaintiffs is not correct. If the case of plaintiffs is admitted to be true, Mst. Saban being widow of last male owner was also entitled to get share from inheritance. Therefore, stating that Muhammad Yar was entitled to ½ share and the predecessor of plaintiffs, the other brother Noora, was entitled ½ share is wrong.

7. The impression that limitation never runs in the matter of inheritance is not correct appreciation of law. I am fortified by the celebrated judgment of august Supreme Court of Pakistan reported as “Atta Muhammad versus Maula Bakhsh and others” (2007 SCMR 1446).

8. As the property was sold by the limited owner, in this way, it is not a case of possession of co-sharer through inheritance upon the suit property, as per version of the plaintiffs, Mst. Saban was not entitled to transfer the ownership rights in the suit property but through Mutation No.1183 attested on 15.06.1923 the property was sold in favour of Muhammad Yar the predecessor of defendants and subsequently when Mst. Saban passed away in the year 1938 mutation of her inheritance No.4168 was also attested. The respondents/plaintiffs or their predecessor remained silent at the time of attestation of mutation of sale in favour of predecessor of defendants/petitioners and thereafter as per their own pleadings the plaintiffs or their predecessor remained silent in the year 1938 when finally the cause of action accrued to them and filing the suit 58 years thereafter was certainly barred by time and limitation even in the matter of inheritance cannot be ignored. In this context, reliance can be placed upon the judgments reported as “Muhammad Islam versus Inspector General of Police, Islamabad and others” (2011 SCMR 8), “Farman Ali versus Muhammad Ishaq and others” (PLD 2013 Supreme Court 392), “Mst. Grana through Legal Heirs and others versus Sahib Kamala Bibi and others” (PLD 2014 Supreme Court 167), “Agha Syed Mushtaque Ali Shah versus Mst. Bibi Gul Jan and others” (2016 SCMR 910), “Noor Din and another versus Additional “Commissioner Of Income Tax, Companies Zone-IV, Karachi versus Hakim Ali Zardari” (2006 SCMR 170) and “Hakim Muhammad Buta and another versus Habib Ahmad and others” (PLD 1985 Supreme Court 153).”

9. As per the case of petitioners that Mst. Saban was limited owner and admittedly she died in the year 1938 and her limited interest in the suit property terminated, therefore, at that time under the custom if predecessor of plaintiffs was entitled to inherit, he was required to challenge the sale Mutation No.1183 within limitation from the attestation of mutation or at least in the year 1938, which has not been done. Even with the promulgation of West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962), in accordance with Section 3 of the Act at the most termination of limited estate the limitation for filing a suit available with the plaintiffs under residuary Article 120 of the Limitation Act, 1908 was six years, whereas the suit has been filed on 14.10.1996. Reliance is placed upon the judgment of august Supreme Court of Pakistan reported as “Mst. JANNAT BIBI versus Sher Muhammad and others” (1988 SCMR 1696).” I would like to quote relevant paragraph as follows:--

“This brings up the particular aspect of this case which seems to have been overlooked by the High Court. The plaintiff’s suit was based upon right created by the statutory provisions, namely, Section 3 of the Act of 1962, whereby limited estates of Muslim females under the Customary law were terminated and under Section 5 such the last full owner. It is, therefore, clear that new rights were created by operation of law in favour of the appellant in respect of the estate of the deceased. Since these rights were not being enjoyed by the appellant prior to 1962, there can be no question of her having brought a suit for possession on that basis on a date prior to the enforcement of the said Act of 1962. Looking at the matter in this perspective, it becomes manifest that the right to possession as full owner as a Muslim heir vesting in the appellant having accrued in 1962, the suit filed in 1966 for possession was still within time.”

1. In the light of what has been discussed above, the findings recorded by both the Courts below on point of limitation are not sustainable under the law and as such are reversed. Resultantly, the instant civil revision is allowed and the impugned judgments and decrees dated 07.02.2008 and 16.05.2002 passed by the learned first

appellate Court and trial Court, respectively are set aside. The result would be the suit for declaration filed by the respondents-plaintiffs shall stand dismissed with costs throughout.

(MMR) Civil Revision allowed

PLJ 2019 Lahore 481 (DB)

Present: Mamoon Rashid Sheikh and Shahid Waheed, JJ.

SECRETARY, HEALTH DEPARTMENT--Appellant

versus

DR. MUHAMMAD KHALID MASOOD and others--Respondents

I.C.A. No.1032 of 2016, decided on 22.01.2019.

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

----S. 79--Constitution of Pakistan, 1973, Art. 174--Filling of appeal by unauthorized person--Competency for authorization--Official capacity--Aggrieved person--Maintainability--Present appellant could not sue or prefer this appeal with reference to his designation for his official acts, unless he was “Corporation Sole”, whereas he in fact is not--Fact of matter is that it is only Provincial Government which is concerned with matters pertaining to its affairs--No officer in his official capacity or otherwise can be said to be aggrieved person in relation to a judicial order regarding affairs of a Government--Admittedly, Government of Punjab was a party in constitutional petition and it could have preferred appeal if it felt so aggrieved by order passed in constitutional petition--In such view of matter, Secretary, Health Department, Government of Punjab cannot be said to be an aggrieved person and appeal by him is not maintainable--Nothing has been brought on record to indicate that Secretary, Health Department, Government of Punjab was legally competent to authorize Section Officer to sign and present instant memorandum of appeal before this Court--Even otherwise Addl. Advocate General has not appended any document with this appeal establishing fact that Section Officer was authorized by Secretary, Health Department, Government of Punjab to sign and present memorandum of appeal--This omission suggests that this appeal has been presented by an unauthorized person and thus is not competent--Appeal by Secretary, Health Department, Government of Punjab through Section Officer is not competent, it will not, therefore, be necessary to examine other points urged in appeal.--Appeal was dismissed. [P. 483] A, B and C

PLD 1971 Kar. 625 and 1996 MLD 1510, ref.

Mr. Asif Mehmood Cheema, Addl. Advocate General for Appellant.

Mr. Anees Sherwani, Advocate for Respondent.

Date of hearing : 22.1.2019

Order

This Intra Court Appeal under Section 3 of the Law Reforms Ordinance, 1972 calls into question the direction, to consider the case of Respondents No.1 to 3 for regularization of their period under contract with the King Edward Medical University, issued by the learned Single Judge in Chamber through order dated 12.05.2016 in a petition brought by the said espondents under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, that is, writ petition No.7243 of 2013.

1. Before commencing hearing on the merits of the instant appeal, we noticed that Respondents No.1 to 3 in their constitutional petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 had impleaded: (i) Government of the Punjab through Secretary, Health Department, Civil Secretariat Lahore; (ii) Special Secretary, Health Department, Government of the Punjab, Civil Secretariat Lahore (Mr. Babar Hayuat Tarar); (iii) King Edward Medical University, Lahore through its Principal/Head, Nila Gumbad, Lahore; and (iv) Syndicate, King Edward Medical University, Lahore, through Vice-Chancellor whereas the present appeal was preferred by the Secretary, Health Department, Government of the Punjab through Section Officer (AMI), Government of the Punjab, Specialized Healthcare and Medical Education Department, Lahore. This is a clear violation of Section 79, CPC read with Article 174 of the Constitution of the Islamic Republic of Pakistan, 1973 and, therefore, we asked learned Addl. Advocate General as to how the Secretary, Health Department, Government of the Punjab through Section Officer is aggrieved and can prefer an appeal against the order dated 12.05.2016 passed by learned Single Judge in Chamber in Writ Petition No.7243 of 2013. Responding to this question, learned Addl. Advocate General has made an oral request at the Bar for permission to amend the appeal now and, as we understood him, he wants to make the Provincial Government as party at this stage. We are not inclined to accept this oral request as the claim, at this time, has become barred by time against the Government.

2. According to Section 79, CPC read with Article 174 of the Constitution of the Islamic Republic of Pakistan, 1973, the present appellant could not sue or prefer this appeal with reference to his designation for his official acts, unless he was “Corporation Sole”, whereas he in fact is not. The fact of the matter is that it is only the Provincial Government which is concerned with the matters pertaining to its affairs. No officer in his official capacity or otherwise can be said to be aggrieved person in relation to a judicial order regarding the affairs of a Government. Admittedly, Government of the Punjab was a party in the constitutional petition and it could have preferred appeal if it felt so aggrieved by the order passed in the constitutional petition. In such view of the matter, the Secretary, Health Department, Government of the Punjab cannot be said to be an aggrieved person and the appeal by him is not maintainable. This view finds support from the case of “Secretary, B. and R., Government of West Pakistan and 4 others v. Fazal Ali Khan” (PLD 1971 Karachi 625) and “Manthar and another v. Province of Sindh through Deputy Commissioner, Sanghar and 4 others” (1996 MLD 1510)

3. There is yet another irregularity which cannot be ignored. The appeal in hands is by the Secretary, Health Department, Government of the Punjab through Section Officer (AMI), Government of the Punjab Specialized Healthcare and Medical Education Department, Lahore. Nothing has been brought on record to indicate that the Secretary, Health Department, Government of the Punjab was legally competent to authorize Section Officer to sign and present the instant memorandum of appeal before this Court. Even otherwise the Addl. Advocate General has not appended any document with this appeal establishing the fact that the Section Officer was authorized by the Secretary, Health Department, Government of the Punjab to sign and present the memorandum of appeal. This omission suggests that this appeal has been presented by an unauthorized person and thus is not competent.

4. Since we have come to the conclusion that the appeal by the Secretary, Health Department, Government of the Punjab through Section Officer is not competent, it will not, therefore, be necessary to examine the other points urged in the appeal.

5. The result of the above discussion is that this appeal is incompetent and, therefore, the same is dismissed.

(MMR) Appeal dismissed

PLJ 2019 Lahore 484

Present : Muhammad Farrukh Irfan Khan, J.

Mst. AYESHA SHAHID--Petitioner

versus

Addl. DISTRICT JUDGE, etc.--Respondents

W.P. No. 63673 of 2017, decided on 26.3.2018.

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

----Ss. 12(2) & 25--Custody of Minor--Interim custody of minor--Visitation schedule--Welfare of Minor--Constitutional Jurisdiction--Separation of parents--Admittedly, Respondent No.3 is real father of minor and being natural guardian he has right of his supervision under Islamic Law--Therefore, on separation of parents minor cannot be permanently deprived from love and affection of either of parents--Minor has now crossed age of six years, therefore, he should have maximum interaction with father even if custody is with mother, otherwise, it may cause an estrangement in mind of child which may ultimately leave a vacuum in accomplishment of his personality for deprivation of love, affection and company of his father. [P. 486] A

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

----Ss. 12(2) & 25 Constitution of Pakistan, 1973, Art. 199--Constitutional Jurisdiction--Custody of minor--Visiting Schedule--Interim custody of minor--Permanent custody of minor--Meeting of minor in Court premises with father is neither conducive nor effective and does not serve purpose of meeting--Therefore, welfare of minor lies that his meeting with respondent-father should be arranged at his residence--Learned Appellate Court after taking into consideration all pros and cons has rightly chalked out visitation schedule of minor in above terms which in my considered view is in interest and welfare of minor--Learned counsel for petitioner is unable to convince this Court in what manner welfare of minor is compromised if impugned schedule is implemented upon as such this Court is not inclined to intervene with same in its Constitutional jurisdiction--Writ petition dismissed.

[Pp. 486 and 487] B and C

Sh. Zahid Mehmood, Advocate for Petitioner.

Mr. Fahad Ahmad Siddiqui, Advocate for Respondent No. 3.

Date of hearing : 26.3.2018.

Order

Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioner calls in question the validity of impugned judgment of the learned Appellate Court dated 09.08.2017 whereby the said Court while accepting appeal of Respondent No.3 against the order of the learned Guardian Judge dated 02.07.2016 chalked out meeting schedule of the minor with respondent-father in the following manner:-

"i. The interim custody of the minor shall be handed over to the petitioner on 2nd and 4th Saturday of every calendar month at 05.00 PM and petitioner shall return the interim custody of the minors to the respondent on 2nd and 4th Sunday at 5.00 PM, ii. On the occasion of Eid ul Fitar, the petitioner/ father shall be entitled for interim custody of the minors on 2nd day of Eid-ul-Fitar from 5.00 PM and petitioner shall return the interim custody of the minor to the respondent on the 3rd day of Eid ul Fitar at 5.00 PM

iii. On the occasion of Eid ul Azha, the petitioner/ father shall be entitled for interim custody of the minors on 2nd day of Eid-ul-Azha from 5.00 PM and petitioner shall return the interim custody of the minor to the respondent on the 3rd day of Eid ul Azha.

iv. On the occasion of birth day of the minor, the petitioner/ father shall be entitled for interim custody of the minor from 5.00 PM and petitioner shall return the interim custody of the minor to the respondent on the next day of birthday of the minor at 5.00 PM

v. On the occasion of birth day of father of the minor petitioner/ father shall be entitled for interim custody of the minor from 05:00 PM and petitioner/father shall return the interim custody of the minor to the respondent on the next day of birthday of father of the minor at 5.00 P.M.

vi. During summer vacations, the appellant will be entitled to have custody of minor for one month.

vii. During winter vacations, he will be entitled to meet with his minor children for five days."

1. Learned counsel for the petitioner submits that the visitation schedule set out by the learned Appellate Court is very harsh; that at present age of the minor is about six years and at this stage his overnight stay with the respondent-father is likely to affect his growth adversely; that the respondent-father is unable to properly maintain the minor as such, the petitioner being the real mother, has serious reservations that the minor may confront unpleasant situation over there or may encounter some psychological phenomena; that there is also strong apprehension that the respondent would remove the ward from the territorial jurisdiction of the Guardian Court; that the learned Guardian Judge had rightly formulated a schedule of meeting of the minor with the respondent/ father in the Court premises which has illegally been modified by the learned Appellate Court.

2. On the converse, learned counsel for Respondent No. 3 submits that the respondent is real father of the minor; that proper growth of the minor requires love and affection of the parents and its deprivation from either side would not be in the welfare of the minor; that meeting schedule chalked out by the learned Guardian Judge in the Court premises was not conducive as such the learned Appellate Court keeping in view the welfare of the minor has rightly formulated the visitation schedule which needs no intervention by this Court in its Constitutional jurisdiction.

3. Arguments heard. Record perused.

4. Irrespective of the fact whether the application before the learned Guardian Judge is under Section 12(2) of Guardians and Wards Act, for interim custody of the minor or under Section 25 of the Act ibid for permanent custody of the minor the only consideration which requires to be adhered by the learned Guardian Court is the welfare of the minor and nothing else. Admittedly, Respondent No.3 is the real father of the minor and being the natural guardian he has right of his supervision under the Islamic Law. Therefore, on separation of the parents the minor cannot be permanently deprived from the love and affection of either of the parents. The minor has now crossed the age of six years, therefore, he should have maximum interaction with the father even if the custody is with the mother, otherwise, it may cause an estrangement in the mind of the child which may ultimately leave a vacuum in the accomplishment of his personality for deprivation of love, affection and company of his father. In order to achieve this goal the concerned Court should make every possible effort to chalk out a reasonable visitation schedule in a congenial, homely and friendly atmosphere. The visitation schedule chalked out by the learned Guardian Judge in the Court's premises while dismissing the application of the respondent for interim custody of the minor in no manner could be construed to meet the above

objective. Meeting of the minor in the Court premises with the father is neither conducive nor effective and does not serve the purpose of meeting. Therefore, welfare of the minor lies that his meeting with the respondent-father should be arranged at his residence. The learned Appellate Court after taking into consideration all the pros and cons has rightly chalked out the visitation schedule of the minor in the above terms which in my considered view is in the interest and welfare of the minor. The learned Appellate Court has already imposed a condition of submission of surety bonds by the respondent at the time of taking over custody of the minor which is sufficient to dispel the apprehension of the petitioner regarding removal of the minor from the territorial jurisdiction of the Guardian Court. Learned counsel for the petitioner is unable to convince this Court in what manner the welfare of the minor is compromised if the impugned schedule is implemented upon as such this Court is not inclined to intervene with the same in its Constitutional jurisdiction.

1. Resultantly, this writ petition is dismissed.

(MMR) Petition dismissed

PLJ 2019 Lahore 487 (DB) [Multan Bench Multan]

Present: Shahid Mubeen and Muzamil Akhtar Shabir, JJ.

MCB BANK LIMITED through DULY AUTHORIZED ATTORNEY--Appellant

versus

MUHAMMAD SAEED--Respondent

F.A.O. No. 47 of 2018, decided on 20.8.2018.

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

----S. 42--Financial Institutions (Recovery of Finances) Ordinance, 2001, S. 22--Civil Procedure Code, 1908, O. XXXIX, R. 1 & 2—Suit for declaration--Dismissed for non-Prosecution--Restored--Application for leave to defend--Availing of auto finance facility--Default in making monthly instalments--Repossessing of leased vehicle--Application for delivery of vehicle--Allowed—Jurisdiction--Interlocutory order--Challenge to--Learned Division Bench cognizant of matter has only held that learned Judge Banking Court was not competent to finally decide suit without following procedure prescribed in FIO for trial of suit and providing an opportunity to defendant bank to file application for leave to defend and in case such an application is filed without deciding same--Learned Division Bench had not decided in afore referred judgment whether learned Banking Court was authorized or had jurisdiction to decide application for interim relief or pass any interlocutory order in favour of plaintiff before grant of leave to defend to respondent, therefore, principle laid down in afore referred judgment is not applicable to facts of this case and is distinguishable on this ground-- Impugned order is not without jurisdiction, illegal or perverse and no exception can be taken to same in given circumstances of case.

[Pp. 492 & 495] A and E

Financial Institutions (Recovery of Finance) Ordinance 2001 (XLVI of 2001)

----S. 7--Powers of Banking Court to grant interim relief--Principle of law--Jurisdiction--It is a settled principle of law that what is not prohibited is permitted unless same specifically violates any law or rule--An interim order is a part of working of judicial system and no separate or specific provision is necessary to empower a Court to issue an interim order--As far as proper exercise of jurisdiction of Banking Court to grant interim relief is concerned, same is discretionary in nature and exercise of power so vested in Court on basis of sound judicial principles cannot be interfered into by this Court unless same is shown to be illegal, based on erroneous exercise of jurisdiction or perverse, which can only be determined on case to case basis--Court had directed for release of vehicle subject to deposit of defaulted amount and rights of parties shall be determined by final decision of pending lis on its own merits-- Appeal was dismissed. [Pp. 492, 494 & 495] B, C and D

Mr. Mughees Aslam Malik, Advocate for Appellant.

Ch. Shahzad Aslam, Advocate for Respondent.

Date of hearing : 24.5.2018.

Judgment

Muzamil Akhtar Shabir, J.--Through this appeal under Section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 ("FIO") the appellant bank has called in question the order dated 06.04.2018 passed by Judge Banking Court-I, Multan whereby the application of the respondent under Order XXXIX, Rules 1 and 2, C.P.C. has been allowed.

1. The brief facts of the case are that the respondent is a customer of the appellant bank who availed auto finance facility from the appellant for the purchase of Honda City Car bearing Registration No. LEH-15-3267 for an amount of Rs.12,15,200/- repayable in 60 monthly instalments spanning over five years. On default in payment of monthly instalments, the appellant bank repossessed the leased vehicle of the respondent. Aggrieved of the said act, the respondent filed a suit for declaration before the Banking Court, Multan on 23.10.2017 by claiming that the appellant is not entitled to repossess the vehicle as the respondent is regularly making payment of monthly instalments and further sought relief that the appellant bank be restrained from auctioning the leased vehicle. Along with the said suit, an application under Order XXXIX, Rules 1 and 2, C.P.C. was filed with the prayer that the appellant bank be restrained from transferring or auctioning the leased vehicle and another application was filed with prayer for directing the appellant bank to deliver the vehicle to the respondent after receiving defaulted instalments. The Banking Court-I, Multan restrained the appellant bank from transferring the vehicle to any other person. The appellant bank thereafter filed an application for leave to defend the suit and the matter was adjourned for arguments on the PLA on various dates but the suit was dismissed on 14.02.2018 for non-appearance of the respondent whereafter it was got restored by the said respondent on 30.03.2018 and was adjourned to 06.04.2018 for further proceedings, on which date, the Judge Banking Court, Multan, instead of deciding the application for leave to defend the suit, accepted interlocutory application of the respondent for delivery of vehicle to him after receiving the defaulted amount. The said order is under challenge through this appeal.

2. The learned counsel for the appellant has argued that without granting leave to defend, the learned Banking Court could not pass any effective order in respect of handing over of the financed vehicle on the pretext that no amount is outstanding against the respondent. He has placed reliance on The Bank of Punjab through General Attorney v. Malik Umer Farooq (2014 CLD 198) and Gulistan Textiles Mills Ltd. and another v. Soneri Bank Ltd. and another (PLD 2018 SC 322).

3. Conversely, learned counsel appearing on behalf of the respondent has argued that the condition for passing effective order before granting leave to defend is applicable to the defendant only and could not be used against the plaintiff who was not required to obtain leave of the Court to proceed further with the matter.

4. Heard. Record perused.

5. The respondent obtained auto finance facility for purchase of Honda City Car for an amount of Rs. 12,15,200/- which was repayable in 60 monthly instalments spanning over five years. However, the respondent defaulted in making payment whereafter the appellant bank repossessed the said vehicle. The respondent filed a suit for declaration challenging the repossession of the vehicle by stating therein that the respondent had not defaulted in making the afore-referred payment. Besides it was claimed that the car had met with an accident against which insurance claim was filed by the respondent but the appellant bank had not processed the said claim of the respondent rather had started making demand of late payment charges and without notice forcibly repossessed the vehicle. It was claimed that even if some instalments were due, the respondent is ready to make payment of the same and the appellant be directed to handover the vehicle. Alongwith the said suit, an application for interim injunction under Order XXXIX, Rules 1 and 2 C.P.C. was also filed. Moreover, another application for deposit of outstanding amount for release of the afore-referred vehicle was also filed. The appellant bank filed PLA against the same and also filed replies to the applications. Thereafter, the suit was dismissed for non-prosecution on 14.02.2018 but was subsequently got restored on 30.03.2018 and on 06.04.2018 the Judge Banking Court-I, Multan instead of deciding the pending application for leave to defend filed by the appellant bank allowed the application of the respondent for release of vehicle after receiving outstanding defaulted amount in the following terms:

"Learned counsel for the plaintiff has stated that the plaintiff has deposited an amount of Rs.2,24,000/- in this Court's account on the premises of defaulted instalments and at present nothing is due to him. The defendants without issuance of any prior notice confiscated the suit vehicle, therefore, the demand of the warehouse charges and repossession charges is illegal and without any lawful justification. It has been prayed that as the plaintiff has cleared his entire default so, he is entitled to make use of the suit vehicle and he be released the same.

In view of the contents of application attended by an affidavit, persuaded by submissions made by the learned counsel for the plaintiff and keeping in view the propriety in the plea and bona fide of the plaintiff as he has deposited the entire defaulted instalments, the defendants are directed to handover the possession of the suit vehicle to the plaintiff forthwith under intimation to this court. Necessary communication be addressed to the concerned quarters for the release of the suit vehicle. However, the plaintiff shall keep on depositing future instalments as per agreement for finance."

1. The question that has arisen for determination of the Court is whether the Banking Court could validly pass the afore referred order dated 06.04.2018 without deciding the application for leave to defend the suit filed by the appellant bank. The contention of the appellant is that the Banking Court without deciding the application for leave to defend had no jurisdiction to decide the afore referred application, for which purpose reliance has been placed on 2014 CLD 198 (Supra). In the afore referred case, the matter in consideration before the learned Division Bench of this Court in appeal was also related to the repossession of leased vehicle by the bank and the suit was filed by the customer seeking a declaration that act of the defendant bank in repossessing the vehicle was illegal and unlawful and sought a direction to the bank to render true and faithful statement of account and permanent injunction was also prayed for against the bank not to auction the repossessed vehicle and hand over the possession of repossessed vehicle to the plaintiff. The Banking Court accepted the statement of the customer plaintiff that he was a defaulter of some instalments and granted him opportunity to pay the defaulted amount alongwith repossession charges. Thereafter the Banking Court disposed of the suit by directing the bank to deliver the vehicle to the plaintiff/customer without providing an opportunity to the bank to file application for leave to defend the suit. The said order was challenged by filing FAO before this Court wherein the learned Division Bench has observed as under:

"....

The impugned order reads as follows:--

"The plaintiff has stated that he is the defaulter of some instalments and now he is ready to pay the same. So the instant suit is disposed of with the direction to the defendant bank to hand over the possession of the vehicle to the customer, subject to payment of the defaulted instalments pending by this date plus repossession charges Rs.15,000 within 10 days, definitely. Account statement be also delivered to the plaintiff within the aforesaid specific time."

The order shows that the Banking Court No.II accepted the statement of the plaintiff that he was in default of the lease instalments yet was ready to pay the instalments. On the basis of this statement, the suit was disposed of with a direction to the Bank to hand over the possession of the vehicle subject to payment of the defaulted instalments and repossession charges within ten days. We are of the opinion that the Banking Court has erred in law by neglecting to follow the prescribed procedure under the F.I.O. 2001.

.... ......

In the instant case the Banking Court failed to give the defendant the opportunity to defend the case under Section 10 of the F.I.O. 2001 in the form of a preliminary leave to defend application.

..... .....

To our minds the Banking Court has granted the respondent his final relief without giving the appellant bank an opportunity to file its preliminary leave to defend application as stipulated under Section 10 of F.I.O. 2001 and without hearing the case of the appellant Bank against whom the respondent was seeking its relief.

..... .....

The Banking Court could not have disposed of the suit as per the impugned order of 06.09.2012. The Banking Court under the F.I.O., 2001 had to exercise its jurisdiction strictly in accordance with the F.I.O., 2001. We find that the Banking Court has neglected to follow the prescribed procedure which is mandatory under the Ordinance.

.... ......

Therefore, in view of the aforesaid, this appeal is allowed, the impugned order dated 06.09.2012 is set aside with no order as to costs. The suit of the respondent is deemed to be pending before the learned Banking Court No.II, Lahore. The Banking Court shall treat it as afresh suit and proceed with the suit strictly in accordance with the F.I.O., 2001."

1. In the afore referred judgment passed by this Court, the learned Division Bench cognizant of the matter has only held that the learned Judge Banking Court was not competent to finally decide the suit without following the procedure prescribed in FIO for trial of the suit and providing an opportunity to the defendant bank to file application for leave to defend and in case such an application is filed without deciding the same. The learned Division Bench had not decided in the afore referred judgment whether the learned Banking Court was authorized or had jurisdiction to decide the application for interim relief or pass any interlocutory order in favour of the plaintiff before grant of leave to defend to the respondent, therefore, the principle laid down in the afore referred judgment is not applicable to the facts of this case and is distinguishable on this ground.

2. In the judgment reported as PLD 2018 SC 322 (supra), the matter for consideration before the Hon'ble Supreme Court of Pakistan was that whether the Banking Court had a power to direct interim sale of goods under the provisions of Section 16 of the F.I.O. by invoking jurisdiction under Order XXXIX, Rule 6, C.P.C. which is a general law when the said power had not been vested in the Court by the special law i.e. F.I.O. itself. The Hon'ble Supreme of Pakistan while taking into consideration Sections 7 and 16 of the F.I.O. reached the conclusion that a Banking Court shall, in all the matters with respect to which procedure has not been provided for in the F.I.O., follow the procedure laid down in Code of Civil Procedure, 1908 and Criminal Procedure Code, 1898 but where a specific procedure is provided in the FIO, the provisions of C.P.C. have been excluded. In the afore referred judgment as the Section 16 of the F.I.O. provided for the attachment of property but did not provide for sale of the same as an interim measure, the Court held that according to the principle of harmonious interpretation the special law would take precedence over the general law and provisions of Order XXXIX, Rule 6, C.P.C. or inherent powers under Section 151, C.P.C. could not be invoked for selling the attached property as an interim measure when such power was not available under Section 16 of the F.I.O. Section 7 of the F.I.O. provides as under:

"7. Powers of Banking Courts.--

(1) Subject to the provisions of this Ordinance, a Banking Court shall:

(a) in the exercise of its civil jurisdiction have all the powers vested in a civil Court under the Code of Civil Procedure, 1908 (Act V of 1908);

(b) .....

(2) A Banking Court shall in all matters with respect to which the procedure has not been provided for in this Ordinance, follow the procedure laid down in the Code of Civil Procedure, 1908 (Act V of 1908), and the Code of Criminal Procedure, 1898 (Act V of 1898).

... .."

1. The perusal of the afore referred Section 7 makes it clear that subject to the provisions F.I.O., the Banking Court in exercise of its civil jurisdiction has all the powers vested in a civil Court in the Code of Civil Procedure and shall follow the Code of Civil Procedure with respect to procedure when the same is not provided in the F.I.O. The power to pass orders relating to grant of interim injunction has neither been prohibited nor been regulated by any provision of the F.I.O., therefore, keeping in view of the principle enunciated in the judgment PLD 2018 SC 322 (supra), we are of the opinion that by virtue of powers contemplated by Section 7 of the F.I.O., the Banking Court is vested with powers to grant interim relief which power is to be regulated by provisions of Code of Civil Procedure. Besides it is a settled principle of law that what is not prohibited is permitted unless same specifically violates any law or rule. Reliance in this regard is placed on decisions of the Hon'ble Supreme Court in cases reported as Additional Collector-II Sales Tax, Lahore v. Abdullah Sugar Mills Ltd and others (2003 PTD 1664), Islamia University, Bahawalpur v. Muhammad Hameed Bhatti and another (2004 SCMR 649) and Imam Bakhsh and others v. Ghulam Nabi and others (1999 SCMR 34). Even otherwise, a Court that is vested with powers to grant final relief is also empowered to grant interim relief. Reliance is placed on Additional Collector-II Sales Tax, Lahore v. Messrs Abdullah Sugar Mills Ltd. (2003 SCMR 1026), Commissioner, Khairpur Division, Khaiprur and another v. Ali Sher Sarki (PLD 1971 SC 242), Sindh Employees' Social Security Institution and another v. Adamjee Cotton Mills Ltd. (PLD 1975 SC 32) and Molvi Muhammad Yaqub v. Chairman, Election Tribunal, N.W.F.P. and others (PLD 1976 SC 625).

2. Besides making of an interim order is a part of the working of the judicial system and no separate or specific provision is necessary to empower a Court to issue an interim order. Reliance is placed on Sardar Shah Bukhari v. Chief Justice and Judges of the High Court of West Pakistan (PLD 1965 SC 479) and a Division Bench judgment of this Court titled Chaudhry Textile Mills Ltd. Lahore v. Central Board of Revenue, Islamabad(PLD 1976 Lahore 1392). The Banking Court for all intents and purposes was vested with the power to pass interlocutory orders including orders for grant of interim relief. In the present cases, the vehicle was confiscated by the respondent bank without any prior notice and if the vehicle was allowed to be detained by the bank in a warehouse, it would definitely deteriorate in value because of its non-use and chances of tampering with the same could also not be ruled out. Moreover, putting the said vehicle to auction without determination of liability by a Court of competent jurisdiction would also tantamount to denying the lessee of his right to retain the same in case the final order is passed in his favour, therefore, in order to prevent the afore referred eventualities, the Banking Court could pass an interim order directing the appellant bank to release the vehicle after receiving the outstanding defaulted amount subject to final determination of liability of the respondent customer. As regards the question of passing an order of releasing the vehicle before deciding the application for grant of leave to defend to the respondent bank is concerned suffice it to say that in the present case the respondent (plaintiff) had filed the suit before the Court and he was not required to obtain leave to defend the said suit before proceeding further in the matter, contrary to a defendant in a suit under the F.I.O., who cannot affectively participate in the further judicial proceedings under the F.I.O. without obtaining leave to defend the suit. Therefore, the Banking Court in order to preserve the property (vehicle in the present case) was not required to wait for decision of application for leave to defend before passing an order on the application for grant of temporary injunctions filed by the plaintiff because if such an interpretation of law is adopted it would be tantamount to placing a clog on the vested power of the Court to grant interim relief to the plaintiff, where the same did not exist.

3. As far as the proper exercise of jurisdiction of the Banking Court to grant interim relief is concerned, the same is discretionary in nature and the exercise of power so vested in the Court on the basis of sound judicial principles cannot be interfered into by this Court unless the same is shown to be illegal, based on erroneous exercise of jurisdiction or perverse, which can only be determined on case to case basis. In the present case, the Court has exercised the said jurisdiction keeping in view the bona fides of the respondent in submitting himself to the jurisdiction of the Court with a plea of readiness to deposit the entire outstanding defaulted amount in the Court which apparently has been done in order to prevent the vehicle from deterioration and the same has not caused any prejudice to the appellant bank especially when the respondent claims to have been dispossessed of vehicle without any prior notice. The Court had directed for the release of vehicle subject to deposit of defaulted amount and the rights of the parties shall be determined by the final decision of the pending lis on its own merits. The impugned order is not without jurisdiction, illegal or perverse and no exception can be taken to the same in the given circumstances of the case.

4. For what has been discussed above, no ground to interfere in the impugned order is made out. Consequently, this appeal being devoid of any merit is dismissed.

(Y.A) Appeal dismissed

PLJ 2019 Lahore 496 (DB)

Present: Muhammad Farrukh Irfan Khan and Ch. Muhammad Iqbal, JJ.

M/s. FIQAS (Pvt.) Limited etc.--Appellants

versus

HABIB METROPOLITAN BANK LIMITED etc.--Respondents

R.F.A. No. 897 of 2012, heard on 20.2.2019.

Financial Institutions (Recovery of Finances) Ordinance 2001--

----S. 10(4), (5) and (6)--Finance facility--Execution of documents Default in repayment--Suit for recovery--Decreed--Challenge to--There is no document produced by appellants which may show any re-payment of amount due against availed facility from bank--When confronted as to whether appellants/defendants have fulfilled mandatory requirements of Section 10 (4) and (5) of Ordinance, 2001 learned counsel for appellants remained unable to satisfy this Court--Learned Judge Banking Court has rightly passed impugned judgment and decree while invoking jurisdiction as envisaged in penal clause of sub-Section 6 of Section 10 of Ordinance ibid and dismissed petition for leave to defend--Learned counsel for appellants has not been able to point out any illegality and material irregularity in impugned judgment and decree passed by learned Judge Banking Court nor identify any jurisdictional defect--Appeal was Dismissed. [Pp. 498 & 499] A, B and C

PLD 2012 SC 268, 2005 CLD 1489, 2014 CLD 1458, ref.

Mr. Iftikhar Ullah Malik, Advocate for Appellants.

Malik Muhammad Umar Awan, Advocate for Respondent No. 1.

Proceeded against ex-parte vide order dated 02.10.2018 for Respondents No. 2 and 3.

Date of hearing : 20.2.2019.

Judgment

Ch. Muhammad Iqbal, J.--Through this single judgment, we intend to decide titled RFA alongwith connected RFA No.896 of 2012 as the subject matter is same in both the appeals and they have arisen out of the same impugned judgment and decree as well as common questions of law and facts are involved therein.

1. Through these appeals, the appellants have challenged the validity of judgment and decree dated 20.09.2012 passed by the learned Judge Banking Court-I, Gujranwala (Camp at Sialkot) whereby suit for recovery filed by Respondent No. 1 was decreed equivalent to Rs. 1,41,03,564.59/- against the appellants jointly as well as severally with costs and cost of funds as determined by the State Bank of Pakistan from the date of default till full and final realization of the decretal amount as provided by the provisions of Section 3 of Financial Institution (Recovery of Finances) Ordinance, 2001.

2. Brief facts of these appeals are that the appellants / defendants applied for the finance facility and also executed various charge documents i.e. agreement of financing, Demand Promissory Note, Letter of Hypothecation, Letter of Guarantee and Memorandum of Deposit of Title Deeds etc., in favour of the bank but they defaulted in repayment of outstanding amount of Rs.1,41,03,564.59/-, which resulted into filing of suit for recovery on 22.05.2007 by the bank. The appellants appeared and filed petition for leave to defend the suit with the stance that the bank has illegally charged the markup in violation of terms and conditions of sanction advice etc. The bank filed reply by raising objection that petition for leave to defend is not in consonance with the provision of Section 10 (4) and (5) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 and the same is liable to be dismissed under Section 10 (6) of the Financial Institutions (Recovery of Finances) Ordinance, 2001. The learned Judge Banking Court-I Gujranwala (Camp at Sialkot) dismissed the leave application and decreed the suit vide judgment and decree dated 20.09.2012 to the tune of Rs. 1,41,03,564.59/- jointly as well as severally with costs and cost of funds as determined by the State Bank of Pakistan from the date of default till full and final realization of the decretal amount as provided by the provisions of Section 3 of Financial Institution Ordinance, 2001. Hence, these appeals.

3. Heard. Admittedly, the appellants in their petition for leave to defend admitted the availing of finance facility from the bank but the petition for leave to defend of the appellants is not as per Section 10 (4) of the Financial Institutions (Recovery of Finances), Ordinance, 2001. For ready reference, provision of Section 10 (4) is reproduced as under:--

"10 (4) In the case of a suit for recovery instituted by a financial institution the application for leave to defend shall also specifically state the following:--

(a) the amount of finance availed by the defendant from the financial institution; the amounts paid by the defendant to the financial institution and the dates of payments;

(b) the amount of finance and other amounts relating to the finance payable by the defendant to the financial institution upto the date of institution of the suit;

(c) the amounts of finance and other amounts relating to the finance payable by the defendant to the financial institution upto the date of institution of the suit;

(d) the amount if any which the defendant disputes as payable to the financial institution and facts in support thereto:

Explanation.--For the purposes of clause (b) any payment made to a financial institution by a customer in respect of a finance shall be appropriated first against other amounts relating to the finance and the balance, if any, against the principal amount of the finance."

When the appellants failed to comply with required parameters of provision of Section 10 (4) of the Ordinance, 2001 then penal clause of Section 10 (6) shall come into play and their leave to defend is necessarily liable to be rejected. For ready reference, Section 10 (6) is reproduced as under:--

"10 (6) An application for leave to defend which does not comply with the requirements of sub-section (3), (4) where applicable and (5) shall be rejected, unless the defendant discloses therein sufficient cause for his inability to comply with any such requirement."

Respondent bank appended the agreement for financing, Demand Promissory Note, Letter of Hypothecation, Letter of Guarantee and Memorandum of Deposit of Title Deeds with the suit and these documents could not be rebutted by the appellants through any evidence, rather they admitted the availing of the finance facility. There is no document produced by the appellants which may show any re-payment of the amount due against the availed facility from the bank. When confronted as to whether the appellants/defendants have fulfilled the mandatory requirements of Section 10 (4) and (5) of Ordinance, 2001 the learned counsel for the appellants remained unable to satisfy this Court. In view of the above backdrop, the learned Judge Banking Court has rightly passed the impugned judgment and decree while invoking the jurisdiction as envisaged in penal clause of subsection 6 of Section 10 of the Ordinance ibid and dismissed the petition for leave to defend. Reliance is placed on the case titled as Apollo Textile Mills Ltd. and Others Vs Soneri Bank Ltd (PLD 2012 SC 268) wherein it has been held as under:--

"19. In this case, the application for leave to defend the suit filed by the petitioners did not fulfil the requirements of Section 10 (3), (4) and (5) of the Financial Institutions (Recovery of Finances) Ordinance XLVI of 2001. It was admittedly not in conformity with the said mandatory provisions. No cause or the reason for inability to comply with sad requirements was shown. Instead it was expressly admitted by the learned Senior Advocate Supreme Court for the petitioners before the High Court and also before us that the petitioners failed to fulfill the mandates of the said provisions and did not plead the required Accounts. The petitioners / defendants thus attracted the prescribed legal consequences of:--

(i) Rejection of their leave petition under Section 10 (6)

(ii) Non-entitlement under Section 10 (1) to defend the suit for not obtaining leave to defend the suit in terms provided for in Section 10;

(iii) The allegations of fact in the plaint were deemed under Section 10 (1) to have been admitted by them; and

(iv) A judgment and decree against them and in favour of the plaintiff bank under Section 10(1) and (11) ibid.

Reliance can also be placed on the cases titled as Shahid Farooq Sheikh Vs Allied Bank of Pakistan Limited through Manager (2005 CLD 1489), Messrs Sadia Industries and 3 Others Vs Messrs Soneri Bank Limited(2014 CLD 1458) and Kasb Bank Limited Vs Muhammad Ahmed Ansari (2014 CLD 1518).

Moreover in the instant appeals this Court passed order dated 21.11.2012 directing the appellants to deposit five million with the Deputy Registrar (Judicial) of this Court but the appellants failed to deposit the same and non-deposit of the said amount also casts a negative impression on the bonafide of the appellants as they are not ready to pay back the decretal amount.

1. Learned counsel for the appellants has not been able to point out any illegality and material irregularity in the impugned judgment and decree passed by the learned Judge Banking Court nor identify any jurisdictional defect.

2. In view of above, both the appeals are hereby dismissed. No order as to costs.

(MMR) Appeal dismissed

PLJ 2019 Lahore 500

Present: Ch. Muhammad Masood Jahangir, J.

Mst. NAGHMANA ZAIDI--Appellant

versus

TAYYABA BEGUM (deceased) through L.Rs.--Rspondents

F.A.O. No. 539 of 2010, decided on 24.4.2019.

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

----S. 12--Suit for specific performance--Dismissed--RFA--Dismissed--Barred by time--Delay of six years--Application for restoration of appeal--Rejected--Challenge to--Application for condonation of delay along with Appeal was filed with averment that appellant became ill, but certificate for "bed rest" appended therewith issued by a private Doctor reflected' that it was issued for a period commencing from 08.03.2010 to 21.03.2010, but no explanation for remaining period spreading over 85 days was detailed as to why these were wasted in filing Appeal--No justification was brought on record that how almost six years were wasted to approach learned Appellate Court against dismissal of suit. [P. 501] A and B

Limitation Act, 1908 (IX of 1908)--

----S. 3--Application for condonation of delay--Jurisdiction--Limitation--Scope of--Court before which any suit, appeal or application is instituted, preferred or made is obliged to dismiss same--Jurisdiction, of a Court is always subject to law of limitation--If proceedings before Court are launched beyond scope of limitation, Court cannot assume jurisdiction--There is no second opinion that law of limitation, which is statute of repose is designed to quit title and to bar, stale and water logged disputes, must be strictly complied with and Courts cannot refrain from applying said law--After prescribed period has elapsed, door of justice is closed and no plea of illness, poverty, distress, ignorance or mistake can be availed--Moreover, legality or illegality of order/judgment can be checked by Appellate Forum only when jurisdiction of said Court is invoked within statutory period by availing of proper remedy--Appeal was dismissed. [Pp. 501 & 502] C

1978 SCMR 367, 1989 SCMR 1149 and PLD 1990 SC 692, ref.

Syed Muhammad Nisar Safdar, Advocate for Appellant.

Date of hearing : 24.4.2019

Order

Inessential details apart, the present appellant on 04.12.1993 approached the learned Civil Court for grant of decree of specific performance of oral contract dated 25.07.1990, which was further acknowledged by executing written contract. The suit was contested by the respondents with the stance that no bargain was settled and that the contract was forged and fabricated document. After full-fledged trial, ultimately learned Civil Court while appreciating evidence available on suit file in depth dismissed the suit vide comprehensive judgment of 24th September, 2001, though it was assailed by filing Regular First Appeal before the learned District Court, yet after a delay of almost six years, which again was not vigilantly pursued and ultimately it was dismissed in default on 5th September, 2009. Although for its restoration, application was preferred, which failed vide impugned order of 22nd February, 2010. The appellant again went in slumber and lastly filed the Appeal in hand on 16th June, 2010 when provided period was over.

1. Arguments heard and record scanned.

2. Although application for condonation of delay along with the Appeal was filed with the averment that appellant became ill, but the certificate for "bed rest" appended therewith issued by a private Doctor reflected' that it was issued for a period commencing from 08.03.2010 to 21.03.2010, but no explanation for the remaining period spreading over 85 days was detailed as to why these were wasted in filing the Appeal. The arguments of learned counsel for the appellant that his client being lady deserves leniency and that law favours adjudication of cases on merit is not well-founded. No justification was brought on record that how almost six years were wasted to approach the learned Appellate Court against the dismissal of the suit. The submission of learned counsel for the appellant that counsel of his client did not communicate her with regard to decision of the suit was not rational. It is not only the duty of a counsel to peruse the case rather basically it is the function of the litigant to watch the proceedings of his case. There is unanimity of the view among the superior Courts that because of the mandatory nature of Section 3 of the limitation Act, 1908, the Court before which any suit, Appeal or application is instituted, preferred or made is obliged to dismiss the same. The jurisdiction, of a Court is always subject to law of limitation.

If the proceedings before the Court are launched beyond the scope of limitation, the Court cannot assume jurisdiction. There is no second opinion that law of limitation, which is statute of repose is designed to quit title and to bar, stale and water logged disputes, must be strictly complied with and the Courts cannot refrain from applying the said law. After the prescribed period has elapsed, the door of justice is closed and no plea of illness, poverty, distress, ignorance or mistake can be availed. Moreover, the legality or illegality of the order/judgment can be checked by the Appellate Forum only when the jurisdiction of the said Court is invoked within the statutory period by availing of the proper remedy. The question of limitation cannot be considered a "technicality" simpliciter as it has got its own significance, which would have substantial bearing on merits of the case, and the law of limitation must be followed. In arriving at this view, this Court is fortified by the dicta laid down by the apex Court in the judgments reported as S. Sharif Ahmad Hashmi v. Chairman, Screening Committee Lahore and another (1978 SCMR 367), Muhammad Naseem Sipra v. Secretary, Government of Punjab (1989 SCMR 1149) and Fazal Illahi Siddiqi vs. Pakistan (PLD 1990 SC 692).

1. For the delay in filing of the instant Appeal, it is the appellant, who -can. blame herself. No doubt, she also filed CM.No.2-C of 2010 for condonation of delay in preferring the Appeal merely on the ground of sickness, but it as observed hereinabove cannot be given force.

2. For what has been discussed above, the C.M.No.2-C-2010 as well as instant Appeal is dismissed.

(MMR) Appeal dismissed

PLJ 2019 Lahore 502

Present : Muhammad Waheed Khan, J.

MUHAMMAD IDREES--Petitioner

versus

REGIONAL POLICE OFFICER, SHEIKHUPURA etc.--Respondents

W.P. No. 184292 of 2018, heard on 12.3.2019.

Constitution of Pakistan, 1973--

----Art. 199--Criminal Procedure Code, 1898, S. 156--Change of Investigation Challenge order of second change of investigation passed by RPO--Report under Section 173 Cr.P.C has already been submitted before learned trial Court and trial in this regard has commenced--A cross version was also recorded on complaint of one of accused persons of FIR--Investigation of case was conducted by ASI who declared some accused--persons innocent and some guilty from both sides--Petitioner party moved an application for change of investigation which was allowed by DPO on recommendations of Standing Board Investigation was re-conducted by SHO/Inspector, who also declared some accused persons innocent and some guilty from both sides--I.O. concluded his investigation and forwarded same to SHO for submission of report U/S 173 Cr.P.C to Court of competent jurisdiction--Learned trial Court by taking cognizance of matter framed charge against accused persons-RPO on recommendations of Regional Standing Board, ordered second change of investigation of case--Since report U/S 173 Cr.P.C had already been submitted and learned trial Court had taken cognizance of case and framed charge--Order for change of investigation at that belated stage was not sustainable in law-instant petition is hereby allowed and impugned order passed by RPO is hereby set aside and learned trial Court is directed to proceed with matter in accordance with law.

[Pp. 503, 504, 505 & 506] A, B, C, D, E, F & G

2014 SCMR 1499; PLD 2007 SC 31, Ref.

Mr. Talib Hussain Azad, Advocate for Petitioner.

Mr. Shah Nawaz Shah, Advocate for Respondent No. 3.

Mr. Fayyaz Ahmad Mehr, Assistant Advocate General for State.

Date of hearing : 12.3.2019.

Judgment

Through this writ petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has impugned the order dated 02.03.2018 passed by Regional Police Officer, Sheikhupura Region, RPO Office, Lahore/Respondent No.1 whereby the investigation of case FIR No.179 of 2017 dated 16.05.2017, registered with Police Station Warburtan, District Nankana Sahib has been changed.

1. The crux of arguments of learned counsel for the petitioner is that report under Section 173 Cr.P.C has already been submitted before the learned trial Court and the trial in this regard has commenced and keeping in view this situation it was not an occasion for Respondent No.1 to pass the impugned order whereby the second investigation of the instant case had been changed.

2. On the other hand, learned counsel appearing on behalf of Respondent No.3 opposed the contention of the learned counsel for the petitioner and contends that in fact Respondent No.1 has passed the order on the recommendations of Regional Standing Board, Sheikhupura Region and it was well within the competence of Respondent No.1 to change the investigation in the instant case.

3. Heard. Record perused.

4. The facts, in brief, are that complainant/Respondent No.3 lodged FIR No.179/2017 dated 16.05.2017 against the petitioner and six others under Sections 452, 354, 148, 149, 337-A(i), 337-F(i), 337-L(2) PPC at Police Station Warburtan, District Nankana Sahib. A cross version was also recorded under Section 337-F(iii) and 34 PPC on the complaint of one of the accused persons of FIR namely, Muhammad Arshad son of Roshan Din against Respondent No.3/Muhammad Nadeem and three others.

5. The investigation of the case was conducted by Mushtaq Ahmed, ASI who declared one of the accused persons namely Sajjad alias Shahzad innocent being not present at the place of occurrence however, he declared rest of the accused persons guilty, and also declared accused of cross version namely Rashid Ali guilty but declared rest of the three persons as innocent.

6. Being aggrieved of the investigation of above said Mushtaq Ahmed ASI, petitioner party moved an application for change of investigation which was allowed by the DPO Nankana Sahib on the recommendations of Standing Board vide order dated 11.09.2017 and investigation was re-conducted by Sadaqat Ali (SHO)/Inspector Police Station Sadar Shah Kot who declared accused persons namely Arshad Ali guilty of house trespass and accused namely, Shoaib was held guilty of offence under Section 354 PPC and rest of the accused persons of FIR were declared innocent being not participated in the occurrence and on the other hand, said I.O declared Rashid accused of cross version guilty of causing injury to Arshad Ali and rest of the accused persons were declared innocent being not present at place of occurrence.

7. The investigating Officer concluded his investigation on 22.09.2017 and forwarded the same to SHO/Respondent No.2 for submission of report under Section 173 Cr.P.C to the Court of competent jurisdiction.

8. Respondent No.2/SHO submitted report of the case under Section 173 Cr.P.C before the learned District Public Prosecutor Nankana Sahib on 10.11.2017 who forwarded the same to Court of competent jurisdiction for its trial.

9. The learned trial Court by taking cognizance of the matter framed charge against the accused persons on 10.02.2018.

10. At this juncture, on the application of complainant/ Respondent No.3, RPO/Respondent No.1 on the recommendations of Regional Standing Board, Sheikhupura Region ordered second change of investigation of case vide his order dated 02.03.2018.

11. From the above narration of facts it reveals that since the report under Section 173 Cr.P.C had already been submitted before the learned trial Court and the learned trial Court had taken the cognizance of the case and framed the charge against the accused persons on 10.02.2018 and after that the complainant of the instant FIR Respondent No.3 moved an application to Respondent No.1 who after recommendations of the Regional Standing Board recommended for second change of investigation. As such, the order for change of investigation at that belated stage was not sustainable in view of the law laid down by the Hon’ble Supreme Court of Pakistan in case of Qari Muhammad Rafique v. Additional Inspector General of Police (Inv) Punjab and others (2014 SCMR 1499) and in the case of Muhammad Nasir Cheema v. Mazhar Javed and others (PLD 2007 Supreme Court 31). In the case of Qari Muhammad Rafique (supra) the Hon’ble Supreme Court of Pakistan has observed as under:--

“5. We have heard the learned counsel for the parties and perused the available record. Learned counsel for the petitioner while arguing the matter before the learned Division Bench, seized of the Intra Court Appeal No.288 of 2013, admitted in clear terms that the challan was submitted in Court at least two months prior to the transfer of investigation at that time charge had also been framed against the accused by the learned trial Court. The trial had also commenced at the time of transfer of investigation, as such, the order for transfer of investigation at that belated stage was not sustainable in view of the law laid down by this Court in the case of Muhammad Nasir Cheema v. Mazhar Javaid and another PLD 2007 SC 31. In such circumstances learned Single Judge in Chamber had rightly accepted the Writ Petition filed by Respondent No.6 and had committed no illegality or material irregularity and we also find no jurisdictional defect in the said order. The learned Division Bench had also dismissed the Intra Court Appeal for

valid reasons which findings cannot be interfered with by this Court in its constitutional jurisdiction under Article 185 of the Constitution.

1. The resume of the above discussion is that we find no merit in this petition which is hereby dismissed. Leave refused.”

2. For what has been discussed above, the instant petition is hereby allowed and the impugned order dated 02.03.2018 passed by Regional Police Officer, Sheikhupura Region, RPO Office, Lahore/Respondent No.1 is hereby set aside and learned trial Court is directed to proceed with the matter in accordance with law.

(K.Q.B.) Petition allowed

PLJ 2019 Lahore 506 [Multan Bench Multan]

Present : Shahid Bilal Hassan, J

KABIR MUHAMMAD (deceased) through L.Rs.--Petitioners

versus

ALLAH BAKHAH (deceased) through L.Rs and others--Respondents

Civil Revision No.1280-D of 2011, decided on 2.4.2019.

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

----S. 42--Suit for declaration--Dismissed--Appeal Dismissed--Concurrent findings--Challenge to--Petitioner predecessor Kabir Muhammad remained in litigation with respondent and continuously associated proceedings before revenue hierarchy and Furd Badr was declared null and void on and same fact was in knowledge of Kabir Muhammad from day one, but he kept mum and instituted suit in year 1995, after about 12 years of passing of said order, which otherwise had to be challenged within one year.

[P. 507] A

PTD 2015 SC 107, PLD 2014 SC 585 & 2014 SCMR 1594, ref.

Limitation Act, 1908 (IX of 1908)--

----S. 3--Barred by limitation--It is observed that while deciding issue of limitation, learned Court below have construed law on subject in a judicious and apt manner and have no committed any illegality and irregularity, rather vested jurisdiction has been exercised legally--Civil Revision was dismissed. [P. 507] B

M/s. Ch. Muhammad Siddique and Abdul Sammad Ali, Advocates for Petitioners.

Malik Zafar Mahboob Langrial, Advocate for Respondents

Mr. Ahmad Nadeem Gehla, Assistant Advocate General

Date of hearing: 2.4.2019.

Order

Precisely, petitioners' predecessor-in-interest namely Kabir Muhammad instituted a suit for declaration with regards to the suit land wherein he challenged certain mutations as well as order of Deputy Commissioner, Muzafargarh dated 8.9.1983. The respondents/defendants while appearing before the learned trial Court contested the suit and prayed for dismissal of the same. Out of the divergent pleadings of the parties, issues were framed and evidence of the parties was invited, which was adduced in pro and contra. The learned trial Court vide impugned judgment and decree dated 15.09.2009 dismissed suit of the petitioners/plaintiffs, which decree was agitated by preferring an appeal, but the same was also dismissed vide impugned judgment and decree dated 26.07.2011, which has given rise to the instant civil revision.

1. Heard.

2. Admittedly, the petitioners predecessor Kabir Muhammad remained in litigation with the respondents and continuously associated the proceedings before the revenue hierarchy and the Fard Badr was declared null and void on 28.09.1983 and the same fact was in the knowledge of the Kabir Muhammad from the day one, but he kept mum and instituted the suit in the year 1995, after about 12 years of passing of the said order, which otherwise had to be challenged within one year. If for the sake of arguments it is admitted that the order was illegal and void, even then the name would have been called into question within time prescribed under law; reliance is placed on Ghulam Hussain Ramzan Ali v. Collector of Customs (Preventive), Karachi (2015 PTD 107-Supreme Court of Pakistan & (2014 SCMR 1594) and Gen, (R.) Pervez Musharraf v. Nadeem Ahmad (Advocate) and another (PLD 2014 Supreme Court 585).

3. Pursuant to the above, when it is found that the suit was barred by limitation, there is no need to discuss further merits of the case and it is observed that while deciding issue of limitation, the learned Court below have construed law on the subject in a judicious and apt manner and have no committed any illegality and irregularity, rather vested jurisdiction has been exercised legally.

4. For the foregoing reasons, the civil revision in hand being devoid of any force and substance stands dismissed.

No order as to the costs

(MMR) Civil Revision dismissed

PLJ 2019 Lahore 508 [Multan Bench Multan]

Present: Shahid Bilal Hassan, J

MUKHTIAR HUSSAIN--Petitioner

versus

MUHAMMAD ASLAM--Respondent

Civil Revision No.576 of 2014, decided on 23.4.2019

Punjab Pre-emption Act, 1991 (IX of 1991)--

----S. 13--Performance of Talb-e-Muwathibat--Suit for possession on basis of pre-emption--Dismissed--Appeal--Dismissed--Concurrent findings--Challenge to--Petitioner/plaintiff has failed to prove performance of talb-e-nuathibat as per mandate of law because mere mentioning of date, time and place of making such talb in plaint is not sufficient rather same has to be proved through unimpeachable and confidence inspiring evidence, which is lacking in this case, as has been discussed and appreciated by learned Court below, because petitioner could not name witnesses in plaint in whose presence he made talb-e-muwathibat--Learned Courts below have rightly non-suited petitioner and have rightly non-suited petitioner and have not committed and illegality or irregularity, impugned judgments and decrees do not need to be interfered with--Civil Revision was Dismissed. [P. 509] A & B

2013 SCMR 721, 2015 SCMR 394 & PLD 2015 SC 69, ref.

Rana Shahzad Hussain, Advocate for Petitioner

Malik Zafar Mahboob Langrial, Advocate for Respondent

Date of hearing : 23.4.2019

Order

Impugns the judgment and decree dated 30.07.2011 delivered by the learned Trial Court, whereby suit for possession on the basis of pre-emption, instituted by the petitioner(s) was dismissed as well as judgment and decree dated 20.01.2011 passed by the learned Appellate Court, through which appeal was dismissed.

1. Heard.

2. Perusal of the record goes to evince that the Petitioner/plaintiff has failed to prove performance of talb-e-muwathibat as per mandate of law because mere mentioning of date, time and place of making such talb in the plaint is not sufficient rather the same has to be proved through unimpeachable and confidence inspiring evidence, which is lacking in this case, as has been discussed and appreciated by the learned Courts below, because the petitioner could not name the witnesses in plaint in whose presence he made talb-e-muwathibat. Moreover, the service of addressee has also not been proved through convincing and unimpeachable evidence as the postman could not bring record and even the A.D. has not been exhibited. As such the instant case is against the ratio of the celebrated judgment reported as Mian Pir Muhammad and another (PLD 2007 Supreme Court 302), Allah Ditta through L.Rs. and others v. Muhammad Anar (2013 SCMR 866), Dr. Pir Muhammad Khan v. Khuda Bukhsh and others (2015 SCMR 1243), Munawar Hussain and others v. Afaq Ahmed (2013 SCMR 721), Muhammad Apaidullah v. Ijaz Ahmed (2015 SCMR 394), BashirAhmed v. Ghulam Rasool (2010 SCJ 643), Israr Ahmed and 3 others v. Haji Muhammad and another (2009 Law Notes 377) and Subhanuddin and others v. Pir Ghulam (PLD 2015 Supreme Court 69). Thus, the learned Courts below have rightly non-suited the petitioner and have not committed any illegality or irregularity, impugned judgments and decrees do not need to be interfered with.

3. Pursuant to above while placing reliance on the judgments supra as well Muhammad Farid Khan v. Muhammad Ibrahim etc. (2017 SCMR 679), Mst. Zaitoon Begum v. Nazar Hussain and another (2014 SCMR 1469) and Cantonment Board through executive Officer, Cantt, Board Rawalpindi v. Iklaq Ahmed and others (2014 SCMR 161), the civil revision in hand, being devoid of any force and substance, stands dismissed with no order as to the costs.

(MMR) Civil Revision dismissed

PLJ 2019 Lahore 510[Bahawalpur Bench, Bahawalpur]

Present: Shujaat Ali Khan, J.

EHSANULLAH KHAN etc.--Petitioners

versus

GOVT. OF PAKISTAN etc.--Respondents

W.P. No. 5564 of 2012/BWP, heard on 9.5.2019.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional Petition--Imposition of Land Reforms Regulation, 1959--Bona fide purchaser--Suits of petitioners were decreed--Proceedings of land commission--Implementation of decreed--Locus standi--Challenge to--Petitioners are purchasers from the legal heirs of the late Nawab, thus, they cannot challenge any proceedings until and unless they are recorded as owner in the relevant revenue record--It is not case of the petitioners that after purchase of land from legal heirs of late Nawab their names have been incorporated as owner in the revenue record, thus, prayer made in these petitions cannot be granted--Until and unless names of petitioners are incorporated as owner in the revenue record after implementation of decrees, in their favour, they are debarred to assail any order of government functionaries--Apex Court of country while dealing with locus standi of the purchasers from the legal heirs of the late Nawab--As far as non-filing of written statement is concerned, suffice it to note that irrespective of said fact petitioners are bound to prove their right which can be enforced in these proceedings but despite addressing Court at length learned counsel for the petitioners failed to convince this Court in that respect--Petition was dismissed.

[P. 512 & 513] A, B & C

2013 SCMR 96 & 1982 SCMR 991, ref.

Mr. Abdul Mughni Farani Advocate for Petitioners No.1 to 5 & 13 to 28 of this petition, Petitioners No. 1, 2, 6 to 11 & 14 to 16 in W.P. No. 1998 of 2011 as well as for the petitioners in W.P. Nos. 9265 of 2018 & 1564 of 2011 and Crl. Org. Nos. 761-W of 2016 & 440-W of 2018.

Khan Muhammad Hussain Azad, Advocate for Petitioners No.6 to 12 in this petition and Petitioners No. 3 to 5, 12, 13 in W.P. No. 1998 of 2011.

Mr. Khalil-ur-Rehman, D.A.G with Sher Muhammad, APS Ministry of SAFRON, Islamabad.

Mr. Jam Muhammad Afzal Gasoora, AAG.

Mr. Jamshed Iqbal Khakwani, Advocate for CDA, Bahawalpur.

Malik Muhammad Aslam, Advocate for Respondents No.32 & 34 in W.P. No. 1998/2011.

Date of hearing : 9.5.2019.

Judgment

Through this single judgment I intend to decide this petition (W.P. No. 5564 of 2012/BWP) as well as W.P. Nos. 9265/2018, 1564/2011 & 1998/2011 (connected petitions) having commonality of law and facts inasmuch as in this petition the petitioners have assailed imposition of Land Reforms Regulation, 1959 upon the land comprising Shikargah Cholistan, Bahawalpur and have further prayed for issuance of restraint order against the respondents regarding their dispossession. Likewise, in the connected petitions the petitioner have sought a restraint order against their dispossession.

1. Mr. Abdul Mughni Farani, Advocate representing Petitioners No.1 to 5 & 13 to 28 in this petition, Petitioners No. 1, 2, 6 to 11 & 14 to 16 in W.P. No. 1998/2011 as well as for the petitioners in W.P. Nos.9265/2018 & 1564/2011 submits that the petitioners being represented by him being bona fide purchasers from the legal heirs of late Sir Sadiq Muhammad Khan Abbasi, the last Ameer of Bahawalpur (hereinafter to be referred as the late Nawab), their rights are duly protected; that since the suits of the petitioners against the legal heirs of the late Nawab qua the land subject matter of these petitions have been decreed they are entitled to due protection under the law; that since this petition has been admitted to regular hearing non-filing of written statement by the respondents, within the prescribed period of limitation, stance of the petitioners having remained unrebutted deserves to be accepted as prayed for; that it has already been established that the land of Shikargah of the late Nawab could not be resumed under the Martial Law Regulations, 1959, thus, proceedings by the Land Commission in this regard are nullity in the eye of law; that upon the death of the Nawab his legacy has already been divided amongst his legal heirs and the petitioners being bon afide purchasers from the said legal heirs of the late Nawab are entitled to due protection under the law and that act of the office cannot be given precedence over the judicial verdict. Relies on Prince A.M. Abbasi and another v. Federal Government in the States and Frontier Regions Division, Islamabad through its Secretary (PLJ 2002 SC 210) and Qazalbash Waqf and others v. Chief Land Commissioner, Punjab, Lahore and others (PLD 1990 SC 99).

2. Khan Muhammad Hussain Azad, Advocate for Petitioners No.6 to 12 in this petition and for Petitioners No.3 to 5, 12 & 13 in W.P. No.1998/2011 states that his clients do not want to press the said petitions. Adds that after resumption of land the late Nawab did not remain owner of Shikargah, therefore, same could not be mutated in favour of his legal heirs, thus, no vendee can seek any right through the legal heirs of the late Nawab. Further adds that the real aggrieved persons are those who are in possession of the suit land under different schemes duly approved by the provincial government. Submits that Petitioner No. 12 in this petition has already filed W.P. No.657/2019 wherein injunctive order has been issued by this Court. Further submits that the said petitioner has already filed CPLA No. 1293 of 2019 before the Apex Court of the country which is pending adjudication. Relies on Punjab Land Commission through Secretary and others v. Mst. Iqbal Abbasi and others (2013 SCMR 96) and Brig. His Highness Nawab Muhammad Abbas Khan Abbasi v. Deputy Land Commissioner, Bahawalpur and others (1982 SCMR 991).

3. Learned Deputy Attorney General, while producing copy of order, dated 02.10.2018, passed by the August Supreme Court of Pakistan in Civil Appeals No.883 to 886 of 2012 and other allied matters states that in view of decision of the Apex Court of the country no relief can be granted in these petitions.

4. Mr. Jamshed Iqbal Khakwani, Advocate representing Cholistan Development Authority, Bahawalpur has adopted the arguments advanced by the learned Deputy Attorney General.

5. I have heard learned counsel for the parties at considerable length and have also gone through the documents, appended with these petitions as well as the case-law cited at the bar.

6. Admittedly, the petitioners are purchasers from the legal heirs of the late Nawab, thus, they cannot challenge any proceedings until and unless they are recorded as owner in the relevant revenue record. It is not case of the petitioners that after purchase of the land from the legal heirs of the late Nawab their names have been incorporated as owner in the revenue record, thus, the prayer made in these petitions cannot be granted.

7. During the course of arguments, Mr. Abdul Mughni Farani Advocate, representing Petitioners No.1 to 5 & 13 to 28 in this petition as well as the petitioners in W.P. Nos.9265/2018, 1564/2011 & 1998/2011, put much emphasis on the fact that the suits filed by the petitioners against the legal heirs of the late Nawab have been decreed, thus, the petitioners are entitled to due protection under the law. In this regard, I am of the view that until and unless names of the petitioners are incorporated as owner in the revenue record after implementation of the decrees, in their favour, they are debarred to assail any order of the government functionaries. The Apex Court of the country while dealing with locus standi of the purchasers from the legal heirs of the late Nawab, vide order, dated 02.10.2018, passed in Civil Appeals No.883 to 886 of 2012 and other allied matters, has inter-alia observed as under:--

"7. With regard to the impleadment applications which have primarily been filed by the subsequent purchasers, it is to be noted that they are to swim and sink with the sellers--"

Undeniably, till date names of legal heirs of the late Nawab have not been incorporated in the revenue record rather proceedings in that regard are under-way. The said fact lends support to the fact that at the most they can be considered as ostensible owners and the petitioners, being subsequent purchasers, have to sink and swim with them and in case the respective vendors of the petitioners succeed to get their names incorporated in the revenue record as owners the petitioners would be at liberty to get enforced the decrees passed against them but no relief can be granted in these petitions.

1. As far as non-filing of written statement is concerned, suffice it to note that irrespective of said fact the petitioners are bound to prove their right which can be enforced in these proceedings but despite addressing the Court at length learned counsel for the petitioners failed to convince this Court in that respect.

2. As far as stance of Khan Muhammad Hussain Azad Advocate regarding pendency of proceedings before this Court or the Apex Court of the country is concerned, suffice it to observe that the same being independent in nature, have no bearing upon these petitions.

3. For what has been noted above, this petition to the extent of petitioners No.6 to 12 and W.P. No.1998/2011 to the extent of Petitioners No.3 to 5, 12 & 13 are hereby dismissed as withdrawn whereas to the extent of remaining petitioners this petition as well as connected petitions (W.P. Nos.9265/2018, 1564/2011 and 1998/2011 are dismissed on merits. No order as to costs.

CM. No.16 of 2017 in W.P. No.5564/2012. Application under Section 12(2) CPC.

1. Since the main petition has been dismissed, instant application has become infructuous and is disposed of accordingly.

(Y.A.) Petition dismissed

PLJ 2019 Lahore 514 (DB)[Multan Bench, Multan]

Present: Ch. Mushtaq ahmad and Sardar Muhammad Sarfraz Dogar, JJ.

MUHAMMAD TAHIR--Petitioner

versus

GOVERNMENT OF PUNJAB, through SECRETARY HOME DEPARTMENT LAHORE and 6 others--Respondents

Writ Petition No. 16750 of 2017, decided on 15.5.2019.

Constitution of Pakistan, 1973--

----Art. 199--Member of defunct Organization--"Jaish-e-Muhammad"--Mischievous and objectionable activities--Name of petitioner was placed on 4th Schedule of ATA 1997--Challenge to--During arguments when confronted as to whether any new evidence regarding involvement of petitioner in promoting cause of defunct organization "Jaish-e-Muhammad" for terrorism or sectarianism was collected by respondent authorities after his acquittal from case FIR No. 32/2015, as mentioned above, learned Assistant Advocate General was not in a position to furnish any plausible or valid reason in this regard except that name of petitioner was listed in 4th Schedule on basis of source information except this there is no other evidence available on record--No doubt name of a person can be inserted repeatedly in list of 4th Schedule of ATA, 1997 provided some fresh evidence or material is surfaced on record but in instant case there is no such evidence available with State functionaries present in Court--Respondents are directed to exclude name of petitioner from list of 4th Schedule, forthwith--Petition was allowed. [Pp. 515] A & B

Syed Jaffar Tayyar Bukhari, Advocate for Petitioner.

Ch. Zulfiqar Ali Sidhu, A.A.G. for Respondents.

Mr. Tanvir Ahmed, Assistant Director, D.C. Office, Muzaffargarh with record.

Mr. Mustafa Kamal, D.O., CTD, Muzaffargarh in person.

Date of hearing : 15.5.2019.

Order

Through this petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 petitioner Muhammad Tahir has assailed vires of order dated 10.11.2017 whereby his name has been placed on 4th Schedule of ATA, 1997 being active Member of defunct organization "Jaish-e-Muhammad" involving in terrorist activities to spread panic and terrorism in the public-at-large.

1. The bottom line of arguments advanced by learned counsel for the petitioner was that in previous case vide FIR No. 32/2015 on the basis of which petitioner alleged to be active member of proscribed organization under reference has since been acquitted by this Court vide judgment dated 19.5.2016 passed in Criminal Appeal No. 2339 of 2015. He next argued that after that no new evidence was collected by the respondent authorities whereby it could be ascertained that present petitioner was involved in mischievous and objectionable activities prejudicial to public safety

2. Contentions have been opposed.

3. Arguments heard. Record perused.

4. During arguments when confronted as to whether any new evidence regarding involvement of the petitioner in promoting cause of defunct organization "Jaish-e-Muhammad" for terrorism or sectarianism was collected by the respondent authorities after his acquittal from case FIR No. 32/2015, as mentioned above, learned Assistant Advocate General was not in a position to furnish any plausible or valid reason in this regard except that name of the petitioner was listed in 4th Schedule on the basis of source information except this there is no other evidence available on record. No doubt name of a person can be inserted repeatedly in the list of 4th Schedule of ATA, 1997 provided some fresh evidence or material is surfaced on record but in the instant case there is no such evidence available with the State functionaries present in Court.

5. In this backdrop, we allow this petition. Orders dated 31.01.2017 and 10.11.2017 passed by Respondents No. 1 & 2 being illegal and unlawful are, hereby set aside. Respondents are directed to exclude name of the petitioner from the list of 4th Schedule, forthwith.

(MMR) Petition Allowed

PLJ 2019 Lahore 515 (DB)[Multan Bench, Multan]

Present: Muhammad Sajid Mehmood sethi and Asim Hafeez, JJ.

ABDUL SATTAR--Appellant

versus

MUSLIM COMMERCIAL BANK, LTD., etc.--Respondents

R.F.A. No. 107 of 2017, decided on 24.1.2019.

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

----Art. 84--Financial Institution (R & F) Ordinance 2001), S. 10--Leave to defend--Hand writing Expert--Comparison of signature--Appellant cannot be non-suited merely for reason that no effort was made to seek comparison of signatures from hand-writing expert, which exercise if at all intended, has to be undertaken once leave to defend is allowed, only then an interlocutory application can be filed--Even otherwise, it is within discretion of learned Judge Banking Court to seek verification of signatures by procuring report of handwriting expert for opinion upon grant of leave to defend, if it considered that substantial question of law and fact has been raised--Notwithstanding comparison of signatures, there are multiple issue which were not considered or adjudicated upon while deciding petition for leave to defend--Appellant has made out a case for grant of leave to defend, in wake of questions of law and facts raised. [Pp. 519 & 520] A, D & E

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

----Art. 95--Presumption of truth--Documents--Validity--Respondent No. 2 is beneficiary of financing and therefore assumes greater responsibility to prove validity of document, which discharge of onus would require appellant to rebut presumption attached to documents, which are registered--All this can be achieved upon grant of leave to defend. [P. 519] B

Execution of Document--

----Sequel of execution of documents itself makes out a case for grant of leave to defend--Alleged power-of-attorney was executed on 25.04.2002, application for grant of finance facility was submitted on 30.04.2002, sanction advice was issued on 08.05.2002, which does not make any reference to third party mortgage. [P. 519] C

Mr. Muhammad Suleman Bhatti, Advocate for Appellant.

Mr. Mughees Aslam Malik, Advocate for Respondents.

Date of hearing: 24.1.2019.

Judgment

AsimHafeez, J.--Appellant has impugned judgment and decree dated 2.2.2017 ("decree") by the learned Judge Banking Court-III, Multan, whereby petition for leave to defend the suit, filed by the appellant was dismissed, being devoid of any question of law and fact and resultantly suit was decreed accordingly.

1. Briefly, the facts necessary for adjudication of lis are that Respondent No. 1 bank filed suit for recovery of Rs.2,100,000/- against the appellant and the Respondents No. 2 & 3, claiming grant of finance facility by way of issuance of letter of Guarantee in favour of M/s. F.F (Marketing Division) Lahore Trade Centre for Rs.3,000,000/- at the request of Respondent No. 2, being sole proprietor of Respondent No. 3, i.e. Asif Trading, Company. Respondents No. 2 and 3 filed separate petition for leave to defend the suit, which was dismissed and suit was decreed through judgment and decree dated 24.3.2004. The appellant was proceeded ex-parte, who thereafter submitted application to set-aside ex-parte decree, which was dismissed by the learned Judge Banking Court vide order dated 20.6.2005. Order dated 20.6.2005 was challenged through filing of FAO No. 157/2005, which appeal was accepted, consequently ex-parte decree was set-aside and opportunity was allowed to the appellant to file petition for leave to defend. Petition for leave to defend was filed, which was dismissed and judgment and decree dated 2.2.2017 issued. Hence instant appeal.

2. The claim of respondent bank, against the appellant, is confined to the extent of appellant's property, statedly mortgaged with it through deed of collateral mortgage dated 11.5.2002. The mortgage deed was allegedly executed by the Respondent No. 2, purportedly acting as an attorney of the appellant in terms of registered general power of attorney dated 25.04.2002 - document forming nucleus of the real dispute. It was alleged that appellant also signed/executed irrevocable general power of attorney, favouring Respondent No. 1 bank, dated 14.05.2002.

3. Learned counsel opened submissions with denial of execution or general power of attorney dated 25.04.2002 in favour of the Respondent No. 2 and irrevocable power of attorney dated 14.05.2002, in favour of the Respondent No. 1 bank. It was not disputed that no promissory note, finance agreement or personal guarantee was executed by the appellant. It is contended that dispute raised cannot be resolved summarily but through recording of evidence, after grant of leave to defend.

4. Conversely, learned counsel for the respondent/bank supported the judgment and decree dated 02.02.2017. Learned counsel emphasized that despite knowledge of the documents, validity and execution whereof were denied, no proceedings were initiated for seeking cancellation thereof since June 2004. Further, learned counsel alleged collusion between Respondent No. 2 and appellant.

5. Arguments heard. And available record perused.

6. A perusal of the judgment impugned would show that petition for leave to defend was dismissed primarily on three grounds, firstly the failure of the appellant to move to proper forum for seeking cancellation of alleged disputed documents, secondly, opinion formed upon finding; similarity of signatures - comparison done in view of Article 84 of the Qanun-e-Shahadat Order 1984 - of the appellant on the disputed documents with the signatures on the identity card and petition for leave to defend and thirdly, that the appellant had not filed any application for seeking comparison of signatures. The learned Judge Banking Court has dealt with other objections as well, which need no discussion as the counsels appearing had confined their arguments to the extent of the grounds stated.

7. The finding of the learned Judge Banking Court regarding alleged failure of the appellant to move to proper forum for seeking cancellation of documents is erroneous and illegal, when examined in the context of the provisions of the Financial Institutions (Recovery of Finances) Ordinance, 2001 ("the Ordinance 2001"). The respondent bank by treating the appellant as "Customer" had filed suit and sought mortgage decree on the basis of collateral mortgage deed dated 11.05.2002, which was allegedly executed pursuant to general power of attorney, purportedly executed by the appellant in favour of the Respondent No. 2. The respondent bank had attributed execution of irrevocable general power of attorney dated 14.05.2002 by the appellant. The appellant had filed petition for leave to defend the suit, wherein objections qua the validity, legitimacy and veracity of the documents was raised, which inter-alia also included the general power of attorney dated 25.04.2002. Notwithstanding the fact that each of the document was executed separately but all form an integral part of one wholesome transaction, i.e. mortgage charge of the bank over the property in question. In terms of sub-section (4) of Section 7 of the Ordinance, 2001 the Judge Banking Court has exclusive jurisdiction to adjudicate upon the claim that whether a valid mortgage charge has been created on the basis of the documents sued and relied upon by the bank. Since the appellant-treated as customer – has allegedly executed the general power of attorney dated 25.04.2002 in favour of the Respondent No. 2, on the basis whereof the same executed collateral mortgage deed dated 11.05.2002, therefore, the learned Judge Banking Court has the jurisdiction to adjudicate upon and determine the question of genuineness of all the documents, legality and enforceability thereof- which are not mutually exclusive but form an integral part of one transaction - in view of the objections raised in the petition seeking leave to defend. If the reason given by the learned Judge Banking Court is accepted it would imply that each and every document had to be challenged separately before various forums, which per-se defeats the purpose and objective of creating an exclusive jurisdiction. The appellant has been pursuing the matter since 2004, upon gaining knowledge of ex-parte decree. The learned Judge Banking Court has not appreciated that the question of validity of alleged general power of attorney is a relevant fact and assumes significance in the context of fact-in-issue, relating to the execution and enforceability of deed of collateral mortgage. The judgment impugned to the extent of first finding is bad in law.

8. We have observed that the learned Judge Banking Court has proceeded to compare the signatures of the appellants on disputed documents with identity card and petition for leave to defend. No doubt such course was available to the Court under Article 84 of Qanun-e-Shahadat Order 1984 but the comparison of signatures could be made with originals documents, evidently reflected from the record that the originals documents, disputed by the appellant, were neither produced nor ordered to be produced. A reference is made to judgment reported as "Rana Manoon Rasheed v. Kokab Noorani Okarvi and 4 others" (PLD 1999 Karachi 257).

9. The appellant cannot be non-suited merely for the reason that no effort was made to seek comparison of the signatures from the hand-writing expert, which exercise if at all intended, has to be undertaken once leave to defend is allowed, only then an interlocutory application can be filed. Even otherwise, it is within the discretion of the learned Judge Banking Court to seek verification of signatures by procuring report of handwriting expert for opinion upon grant of leave to defend, if it considered that substantial question of law and fact has been raised. Reference is made to judgment by August Supreme Court of Pakistan reported as "Mst. Akhtar Begum v. Muslim Commercial Bank Ltd." (2001 SCMR 264). No doubt that presumption of truth is attached to the power of attorney in terms of Article 95 of Qanun-e-Shahadat Order 1984, which is rebuttable provided an opportunity is allowed to rebut the same. On the face of it, the Respondent No. 2 is the beneficiary of the financing and therefore assumes greater responsibility to prove the validity of the document, which discharge of onus would require the appellant to rebut the presumption attached to the documents, which are registered. All this can be achieved upon grant of leave to defend.

10. That sequel of execution of documents itself makes out a case for grant of leave to defend. Alleged power-of-attorney was executed or 25.04.2002, application for grant of finance facility was submitted on 30.04.2002, sanction advice was issued on 08.05.2002, which does not make any reference to third party mortgage. Irrevocable general Power-of-Attorney was allegedly executed by appellant on 14.05.2002, if it is so, why personal guarantee was not procured from the appellant. And if at all irrevocable general Power-of-Attorney was executed on 14.05.2002 why the need arose to seek execution of a collateral mortgage deed dated 11.05.2002 by the Respondent No. 2, when the appellant had allegedly executed an irrevocable power of attorney. It goes without saying that notwithstanding comparison of signatures, there are multiple issues which were not considered or adjudicated upon while deciding the petition for leave to defend.

11. The entire controversy has to be examined in the context of Section 10(9) of the Ordinance, 2001, which is reproduced as under:

"[(9)] Subject to Section 11, the, Banking Court shall grant the defendant leave to defend the suit if on consideration of the contents of the plaint, the application for leave to defend and the reply thereto it is of the view that substantial questions of law or fact have been raised in respect of which evidence needs to be recorder".

1. Upon perusal of Section 10(9) ibid, it is evident that the legislature has qualified the eligibility of questions of law and fact by enunciating that all those questions of law and fact which require evidence would entitle a defendant to grant of leave to defend. In view of the facts and circumstances of the case, the appellant has made out a case for grant of leave to defend, in wake of questions of law and facts raised.

2. In the circumstances, the impugned judgment and decree dated 02.02.2017 against the appellant is set-aside, the petition for leave to defend filed by the appellant is allowed, by way of grant of unconditional leave to appear and defend. The learned Judge Banking Court-III, Multan is directed to treat the petition for leave to appear and defend as written statement, frame issues and direct the parties to lead evidence and decide the suit/matter on merits, preferably within a period of 90 days from date of this judgment.

3. The observations made are tentative and shall not prejudice the case/defence of any party and nor shall influence the Banking Court.

4. No order as to the costs.

(MMR) Order accordingly

PLJ 2019 Lahore 521 (DB)[Multan Bench, Multan]

Present: Muhammad Tariq Abbasi and Mujahid mustaqeem Ahmed, JJ.

BASHIR AHMAD--Appellant

versus

ADDITIONAL SESSIONS JUDGE/EX-OFFICIO JUSTICE OF PEACE, TAUNSA SHARIF, DISTRICT D.G. KHAN and 4 others etc.--Respondents

I.C.A. No. 305 of 2018, decided on 6.5.2019.

Law Reforms Ordinance, 1972 (XII of 1972)--

----S. 3--Theft of Electricity—Registration of FIRs--Pre-arrest bails were granted on basis of payment of deduction bills--Bills were found as bogus—Petitions for lodging FIRs—Allowed--Filling of W.P.--Dismissed--Challenge to--Learned Sessions Judge, Dera Ghazi Khan is directed to ask concerned Additional Sessions Judge, Tounsa Sharif, to take up matter in question and if it is found that appellant and others, by filing false documents, had obtained unjustified concession of extraordinary relief of pre-arrest bail, then not only said concession should be withdrawn, but SHO of concerned Police Station should also be asked to entertain above said application of SDO MEPCO, Tounsa Sharif and take criminal action, against nasty(s), as warranted under law--Intra Court Appeal was disposed of. [P. 522] A

SyedJaffer Tayyar Bukhari Advocate for Appellant.

Mr. Amjad Ali Ansari, AAG, for Respondents.

Mr. Amir Aziz Qazi, Advocate for Respondent No. 5.

Date of hearing : 6.5.2019.

Order

This Intra Court Appeal, filed under Section 3 of Law Reforms Ordinance, 1972, calls in question, the order dated 25.09.2018, passed by the learned Single Judge in Chamber, in Writ Petition No. 13715 of 2018, whereby the said petition has been dismissed in limini.

1. An application was moved by the S.D O. MEPCO, Tounsa Rural Sub-Division, Tounsa Sharif, District Dera Ghazi Khan, before the Ex-officio Justice of Peace, Tounsa Sharif, whereby registration of a criminal case, under Sections 419/420/468/471 PPC, against the appellant and others was sought, on the grounds that FIRs No. 195/2017, 230/2017, 234/2017, 252/2017, 04/2018, 10/2018, 18/2018 and 19/2018, for theft of electricity, were registered against the present appellant and others, named in the application; all had applied for pre-arrest bail before the learned Additional Sessions Judge, Tounsa Sharif, when on 24.02.2018, the appellant and others had contended that they had paid the deduction bills, issued to them and submitted the same in the Court and the Court had confirmed pre-arrest bail of the appellant and others. It was further contended in the application, that on verification, the above said bills, alleged and submitted by the appellant and others, before the Court, were found as bogus, hence criminal action against them was required. The Ex-officio Justice of Peace, through order dated 11.09.2018, had directed the SHO of Police Station City Tounsa Sharif, to record statement of the SDO MEPCO, Taunsa Sharif and proceed in accordance with law.

2. The above mentioned direction of the Ex-officio Justice of Peace, was challenged by the appellant, through Writ Petition No. 13175/2018, which was taken up on 25.09.2018, but dismissed in limini.

3. The stance of the learned counsel for the appellant is that no forged document was prepared by the appellant or anybody else and that true documents were filed in the Court, hence the application for registration of criminal case was totally unjustified and that even otherwise, it was the learned Court, where the documents were tendered, to look into the situation and then proceed in accordance with law.

4. Consequently, the learned Sessions Judge, Dera Ghazi Khan is directed to ask the concerned Additional Sessions Judge, Tounsa Sharif, to take up the matter in question and if it is found that the appellant and others, by filing false documents, had obtained unjustified concession of extraordinary relief of pre-arrest bail, then not only the said concession should be withdrawn, but the SHO of the concerned Police Station should also be asked to entertain the above said application of SDO MEPCO, Tounsa Sharif and take criminal action, against the nasty(s), as warranted under the law.

5. All the above mentioned proceedings should be completed within a fortnight, with intimation to Deputy Registrar (Judicial) of this Court.

6. Disposed of.

(MMR) Appeal disposed of

PLJ 2019 Lahore 523[Multan Bench, Multan]

Present: Shahid Bilal Hassan, J.

KHUBAIB KHAN--Petitioner

versus

ADDL. DISTRICT JUDGE, MIAN CHANNU DISTRICT KHANEWAL and 2 others--Respondents

W.P. No. 5556 of 2019, decided on 15.4.2019.

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

----Ss. 8 & 10--Constitution of Pakistan, 1973, Art. 199--Constitutional Petition--Suit for dissolution of marriage, recovery of dowry articles--Exparte partially decreed--Appeal--Case was remanded to trial Court--Trial Court again decreed--Appeal--Exparte partially decreed--Application for setting aside exparte proceedings--Accepted--Appellate Court varied claim of Respondent No. 3--Mutual settlement--Consent decree--Challenge to--It is evident from order that petitioner alongwith his brother and learned counsel was present before learned Appellate Court when parties settled to resolve claims of dowry articles and dower on basis of statement of Muhammad Bin Faqeer Ullah on oath and in response to said mutual understanding learned Appellate Court issued notice to said person, who appeared and recorded his statement on oath on 21.03.2019, where-after learned Appellate Court on basis of his statement passed impugned order and decree dated 21.03.2019--Status of said impugned order and decree is that of consent decree, which is not appealable--Learned Appellate Court after mutual understanding of parties and statement of person agreed upon for settling issue with regard to dowry articles and dower has rightly passed impugned order and decree--Thus, there appears no illegality and jurisdictional error in impugned order and decree passed by learned Appellate Court warranting interference by this Court in exercise of extraordinary constitutional jurisdiction—Petition was dismissed. [P. 525] A

Syed Jaffar Tayyar Bukhari, Advocate for Petitioner.

Date of hearing : 15.4.2019.

Order

Concisely, the Respondent No. 3 instituted a suit for dissolution of marriage, recovery of dowry articles valuing Rs. 14,45,000/-, Haq Mehr Rs.5000/- and plot measuring five marlas valuing Rs. 10,00,000/- against the present petitioner. The petitioner was summoned through all modes but neither the petitioner/defendant nor anyone appeared on his behalf, therefore ex parte proceedings were carried out against him. Learned Trial Court after recording exparte evidence of the Respondent No. 3/plaintiff and hearing arguments vide impugned ex parte judgment and decree dated 28.05.2018 partially decreed the suit. The Respondent No. 3/plaintiff preferred appeal against the said judgment and decree and the case was remanded to the learned Trial Court with the direction to re-writ the judgment after proper evaluation of the evidence vide order dated 17.09.2018. After remand, the learned Trial Court re-wrote the judgment and decreed the suit of Respondent No. 3 in the following terms on 29.09.2018:

"-----suit of the plaintiff for dissolution of marriage is hereby decreed on the basis of Khula subject to relinquishment of 25% of the prompt dower. The plaintiff is entitled to receive alternate price of Rs.3,00,000/- for her dowry articles. The plaintiff is entitled to receive Rs.3750/- as dower. Claim of the plaintiff for recovery of plot measuring 5-Marla valuing Rs. 10,00,000/- is hereby dismissed."

Being aggrieved of the said judgment and decree, the Respondent No. 3 preferred an appeal, wherein the petitioner did not appear despite issuance of process and publication of the newspaper, for which he was proceeded against ex parte. The learned Appellate Court vide ex parte judgment and decree dated 18.12.2018 partially accepted the appeal of Respondent No. 3 in the following term:

"----------the instant appeal is partially accepted. Findings of the learned Family Court are modified, accordingly. To remove any confusion for the purpose of execution process, it is made clear that the appellant is held entitled for recovery of 75% of Rs.5000/-(Rs.3750) as per Column No. 13 and 50% of Rs. 10,00,000/- (Rs. 5,00,000/-) as per Column No. 16 of the Nikah Nama, as dower and for recovery of dowry articles, (excluding the gold ornaments, clothes, shoes and cosmetics), as per list Ex.P-3 or its alternate price of Rs. 5,00,000/-

The petitioner filed an application for setting aside ex parte proceedings dated 15.12.2018 and ex parte judgment & decree dated 18.12.2018 and on 11.03.2019 in presence of the petitioner, his brother and father of the Respondent No. 3 as well as learned counsel for the parties, it was settled that matter with regard to dowry articles and dower may be resolved on the basis of statement of Muhammad Bin Faqeer Ullah on oath, so the learned Appellate Court ordered to summon said Muhammad Bin Faqeer Ullah. On 21.03.2019, application of the petitioner for setting aside ex parte proceedings dated 15.12.2018 as well as ex parte judgment and decree dated 18.12.2018 was accepted and after recording statement of Muhammd Bin Faqeer Ullah (maternal uncle) of the petitioner and Respondent No. 3, the learned Appellate Court varied the claims of Respondent No. 3 for dower and dowry articles as under:--

(i) The appellant is held entitled to recover half of value of the plot i.e. Rs.5,00,000/-, as per Column No. 16 of Nikah Nama Ex.P4 as dower. The amount of dower as per Column No. 13 shall be deemed to be paid by the respondent.

(ii) As mutually agreed between the parties, the respondent Khubaib Khan would deliver the dowry articles, as lying in his house, on oath and the appellant would receive the same. Both of the learned counsels shall send representatives of their respective parties for handing over/receiving the dowry articles, within 15-days of passing of the instant order.

Hence, the instant constitutional petition by impugning the, ex parte judgment and decree dated 29.09.2018 passed by the learned Trial Court and order & decree dated 21.03.2019 passed by the learned Addl. District Judge, Mian Channu.

1. Heard.

2. Presumption of truth is attached to the proceedings of the Court. It is evident from the order dated 11.03.2019 that the petitioner alongwith his brother and learned counsel was present before the learned Appellate Court when the parties settled to resolve the claims of dowry articles and dower on the basis of statement of Muhammad Bin Faqeer Ullah on oath and in response to the said mutual understanding the learned Appellate Court issued notice to said person, who appeared and recorded his statement on oath on 21.03.2019, where-after the learned Appellate Court on the basis of his statement passed the impugned order and decree dated 21.03.2019. The status of said impugned order and decree is that of consent decree, which is not appealable. The learned Appellate Court after mutual understanding of the parties and statement of the person agreed upon for settling the issue with regard to dowry articles and dower has rightly passed the impugned order and decree. Thus, there appears no illegality and jurisdictional error in the impugned order and decree passed by the learned Appellate Court warranting interference by this Court in exercise of extraordinary constitutional jurisdiction.

3. Resultantly, the writ petition in hand being devoid of any force and substance stands dismissed in limine.

(MMR) Petition dismissed

PLJ 2019 Lahore 526 (DB)

Present: Muzamil Akhtar Shabir and Shahid Jamil Khan, JJ.

MUHAMMAD RAMZAN--Applicant

versus

COMMISSIONER INLAND REVENUE, etc.--Respondents

STR No. 9296 of 2019, decided on 18.2.2019.

Sales Tax Act, 1990 (VII of 1990)--

----S. 47--Initiation of value addition proceedings issuance of show cause notice--Assessment Order--Appeal before commissioner inland revenue--Remand Order--Discrepancies--Question of whether respondent was importer of scrap or not during tax period--Determination--Such a remand order does not generally give rise to any question of law to be determined by this court--Appellate Tribunal had reached conclusion that certain facts had not been determined by CIR before passing order set aside by Tribunal and matter was remanded for determination of same--Said adjudication was required to be made for proper determination of dispute between assessee and department therefore, afore-referred contention of petitioner is based merely on apprehension and cannot be made basis for setting aside impugned remand order at this stage--Reference Application was decided against Appellant.

[P. 528] A & B

2016 PTD 2548 & 2007 PTD 1757, ref.

Rana Mushtaq Ahmed Toor, Advocate for Applicant.

Date of hearing: 18.2.2019.

Order

In this Reference Application under Section 47 of the Sales Tax Act, 1990 ("Act of 1990"), following questions are proposed for our opinion:--

i. Whether in the facts and circumstances of the case, the learned Appellate Tribunal Inland Revenue was justified to remand back the case just to fulfill the lacunas as well as to cure the proceedings as the value addition proceedings were initiated without invoking the relevant provision i.e. Section 7-A of the Sales Tax Act, 1990?

ii. Whether in the facts and circumstances of the case, the learned Appellate Tribunal Inland Revenue was not authorized to annul the impugned assessment order passed under section 11(2) of the Sales Tax Act, 1990 as the petitioner did not commit any default with regard to filing of the returns, payments of tax, less than tax payable or got refund erroneously therefore the learned Commissioner Inland Revenue was not competent to pass the impugned order?

iii. Whether in the facts and circumstances of the case, the learned Appellate Tribunal Inland Revenue was not authorized to annul the impugned assessment order as the value addition was made by the Commissioner Inland Revenue without constitution of valuation committee under section 2(46)(e) of the Sales Tax Act, 1990?"

1. The afore-referred questions are asserted to have arisen out of order dated 04.12.2018 passed by the Appellate Tribunal Inland Revenue, Lahore Bench, Lahore ("Appellate Tribunal"). Relevant part of the said order is reproduced hereunder:--

"11. On merits of the case, we find that the learned CIR has not adjudicated the case judiciously and without considering the actual facts of the case. Proper opportunity as envisaged under the law also seems to be not accorded to the appellant as queries raised in the show-cause notice was not properly responded/ adjudicated whereas during the course of proceedings the entire focus was on the pending proceedings before the Hon'ble FTO. It is the stance of the appellant before the CIR that they had not declared imported goods/scrap in the sales tax whereas it is the departmental contention that being importer of scrap, the taxpayer was bound to pay 17% value addition tax. If goods imported have been declared then the goods imported has already been subjected to 3% value addition at import stage. Complete procedure for value addition has been provided under section 2(46) of the Act. The status of the appellant is needs to be ascertained whether it is an importer of scrap or not during the tax periods under appeal? It is also the contention of the learned AR that further tax has been charged illegally when the sales were made to end consumers. It is also the contention of the AR that no closing stocks was sold out of books rather the Annexure-F of the sales tax returns was not filled in properly. Under such circumstances, we are of the opinion that matter needs to be looked into afresh at assessment stage. Order of the CIR is accordingly vacated and matter remanded back to the department for denovo decision in accordance with law after according proper opportunity of hearing to the registered person."

1. The perusal of afore-referred order reveals that the Appellate Tribunal has pointed out certain discrepancies in order dated 19.06.2018 passed by Commissioner Inland Revenue ("CIR") by observing that some important facts inter alia, whether the respondent was importer of scrap or not during the tax period under appeal, have not been decided. While passing the remand order, the Appellate Tribunal has not finally determined anything through a conclusive finding of fact and at this stage there is no assessment order against the petitioner on the record. Such a remand order does not generally give rise to any question of law to be determined by this court. Reliance is placed on Commissioner Inland Revenue, Multan v. Messrs Bank Al-Habib Ltd. (2016 PTD 2548) and Commissioner of Income Tax and Wealth Tax, Sialkot Zone v. Messrs Maqbool Ahmed Gill (2007 PTD 1757). Consequently the reference at this stage is premature, misconceived and not maintainable.

2. As regards the contention of the petitioner that the remand order will operate against the interest of the petitioner as the respondent department will fill in lacunas and cure defect in proceedings is concerned, suffice it to say that the Appellate Tribunal had reached conclusion that certain facts had not been determined by the CIR before passing the order set aside by the Tribunal and the matter was remanded for determination of the same. The said adjudication was required to be made for proper determination of the dispute between the assessee and the department therefore, the afore-referred contention of the petitioner is based merely on apprehension and cannot be made basis for setting aside the impugned remand order at this stage.

3. Since the proposed questions do not arise from order of Appellate Tribunal, therefore, we decline to exercise advisory jurisdiction. Reference Application is decided against the applicant.

4. Office shall send a copy of this order under seal of the Court to the learned Appellate Tribunal Inland Revenue as per Section 47(5) of the Act, 1990.

(MMR) Reference Declined

PLJ 2019 Lahore 529 (DB)

Present: Shahid Jamil Khan and Muzamil Akhtar Shabir, JJ.

IBRAHIM--Petitioner

versus

CUSTOMS APPELLATE TRIBUNAL & 2 othres--Respondents

Customs Reference No. 256450 of 2018, decided on 19.2.2019.

Customs Act, 1969 (VI of 1969)--

----Ss. 156, 157, 168 & 196--Allegation of--Hino Truck loaded with smuggled/non duty paid goods--Concealed under iron/steel scrap--Adjudicating authority order for confiscation of Goods--Appeal dismissed--Question of--Whether truck was being involved in a wholly and exclusively manner for transportation of smuggled goods--Determination of--That Appellate Tribunal, while dismissing petitioner's appeal against order of confiscation of truck, has not decided issue raised through show-cause notice that vehicle in question was involved in a wholly and exclusively manner for transportation of smuggled goods, which was a finding to be reached after determination of facts of case--Appellate Tribunal is last facts finding forum and has to exercise its jurisdiction diligently to decide an issue on basis of facts arrived at before it alter discussing record relating to facts--Failure of Tribunal to exercise its vested jurisdiction relating to determination of facts would be tantamount to a question of law--Impugned order is set-aside and matter is remanded back to Appellate Tribunal for deciding same within a period of 30 days from receipt of order of this Court by determining issue relating to truck being involved in a wholly and exclusively manner for transportation of smuggled goods--Case was remanded—Reference was allowed. [P. 531] A

2015 PTD 1330, 2002 PTD 419 & 2002 SCMR 527, ref.

Mian Abdul Bari Rashid, Advocate for Petitioner.

Mr. Izhar-ul-Haq Sheikh, Advocate for Respondents.

Date of hearing : 19.2.2019.

Order

Through this Customs Reference filed under Section 196 of the Customs Act, 1969 ("Act"), the petitioner has called in question judgment/order dated 01.10.2018 passed by the Customs Appellate Tribunal Bench-I, Lahore, ("Appellate Tribunal") whereby the appeal filed by the petitioner was dismissed.

1. The allegation against the petitioner is that on 08.08.2017 Hino Truck bearing Registration No. TAB, 112/Lasbella, loaded with smuggled/non duty paid miscellaneous goods concealed under iron/steel scrap, was intercepted by the Seizing Agency while destined for Lahore from Quetta under the garb of builty issued by M/s. Sitara-al-Masood Khan Goods Transport Company, Quetta reflecting full load iron scrap and GD showing import of iron and steel remeltable scrap. The Seizing Agency vide order dated 08.08.2017 seized the smuggled goods along with the truck under Sections 168 and 157 of the Act. The adjudicating authority ordered for outright confiscation of the said goods. The petitioner challenged the afore referred order before the appellate tribunal by filing an appeal which was dismissed vide order dated 01.10.2018. The petitioner has called in question the afore referred order passed by the Appellate Tribunal on the ground that the Appellate Tribunal could not dismiss his appeal without determining the allegation that the said vehicle was involved in a wholly and exclusively manner for transportation of smuggled goods and consequently could not maintain the order of the adjudicating authority to outrightly confiscate the same under Clause 89(i) of Sections 156(1) and 157(2) of the Act read with Clauses "a" and "b" of the preamble of SRO No. 499(I)/2009 dated 13.06.2009.

2. We have gone through the impugned judgment/order passed by the Appellate Tribunal, the operative part of which is reproduced below:--

"From the perusal of the said reply, it reveals that the alleged GD No. QCHM-HC-390 dated 11.07.2017 was fabricated by the appellants in order to cover up the impugned goods, as lawfully imported into the country. It is also astonishing to note that the Registration number of the said vehicle was also entered in the impugned GD to show that the impugned goods have been loaded in a vehicle whose registration was TAB-112/Lasbella. Messrs Usman Steel Mills (importer), as per recovered GD has submitted that neither he had filed the GD nor had paid any duty and taxes against the same. It is very much clear from the record that the seized goods are smuggled one and the present appellant has fabricated the GD in the name of Messrs Usman Steel Mills (importer) to misuse the same and an attempt has been made to transport the smuggled goods under the cover of the said GD."

1. Perusal of the afore referred impugned order shows that the Appellate Tribunal, while dismissing the petitioner's appeal against order of confiscation of truck, has not decided the issue raised through show-cause notice that vehicle in question was involved in a wholly and exclusively manner for transportation of smuggled goods, which was a finding to be reached after determination of the facts of the case. The Appellate Tribunal is the last facts finding forum and has to exercise its jurisdiction diligently to decide an issue on the basis of facts arrived at before it after discussing the record relating to the facts. The failure of the Tribunal to exercise its vested jurisdiction relating to determination of facts would be tantamount to a question of law. Reliance in this regard is placed on Commissioner Inland Revenue v. Messrs Mehran Traders (2015 PTD 1330) and Commissioner of Income Tax, Companies Zone-II, Karachi v. Messrs Sindh Engineering (Pvt.) Ltd., Karachi (2002 SCMR 527 = 2002 PTD 419). In the given circumstances, the question of law necessarily arises that "whether Appellate Tribunal has exercised its jurisdiction in accordance with law?" Our answer to the question is in the negative.

2. For what has been discussed above, the impugned order is set-aside and the matter is remanded back to the Appellate Tribunal for deciding the same within a period of 30 days from receipt of the order of this Court by determining the issue relating to the truck being involved in a wholly and exclusively manner for transportation of smuggled goods. Office is directed to transmit a copy of this order to the Appellate Tribunal in accordance with law.

3. The reference is allowed in the foregoing terms.

(MMR) Reference Allowed

PLJ 2019 Lahore 531

Present : Muhammad Waheed Khan, J

MUHAMMAD NAVEED--Petitioner

versus

I.G. OF POLICE, PUNJAB, etc.--Respondents

Writ Petition No. 21244 of 2019, decided on 6.5.2019.

Constitution of Pakistan, 1973--

----Art. 199--Lodging of FIR--Confirmation of investigation--Application for transfer of second investigation--Allowed and investigation was transferred--Accused were found involved after through investigation--Submission of report under Section 173 Cr.P.C.--Recommendations of provincial standing Board--Order for change of third investigation--Challenge to--Report u/s 173 Cr.P.C. has already been submitted before learned trial Court and trial has also commenced against Respondents No. 5 to 8, so, keeping in view above cited judgments, there is no cavil to proposition that after submission of report u/s 173 Cr.P.C. and commencement of trial, change of investigation by Respondent No. 1 was uncalled for and is not sustainable in eye of law--Even otherwise, there would be an ample opportunity for both parties to prove their stance before learned trial Court by producing evidence--Petition was allowed.

[P. 533] A

2014 SCMR 1499 & PLD 2007 SC 31, ref.

Mr. Muhammad Sohail Dar, Advocate for Petitioner.

Mr. Fayyaz Ahmad Mehr, Assistant Advocate General for State.

Mr. Akhtar Hussain Bhatti, Advocate for Respondent No. 5.

Date of hearing 06.05.2019.

Order

Through the instant petition filed in terms of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has made the following prayer;--

"It is therefore, most respectfully prayed that instant Writ Petition may kindly be accepted and the transfer of investigation and proceeding thereon may kindly be quashed after declaring the same to be illegal, unlawful and without jurisdiction.

Any other relief which this Honourable Court deems fit and appropriate may also be awarded to the petitioner."

1. Learned counsel for the petitioner submits that the petitioner lodged FIR No. 140 dated 11.02.2018 u/s 506/341 PPC at Police Station Sadar Okara against Respondents No. 5 to 8 regarding the occurrence allegedly took place on 08.02.2018. The matter was thoroughly investigated by the Investigating Officer-Respondent No. 4, thereafter, investigation was conducted by the Station House Officer Police Station concerned and the Deputy Superintendent of Police, namely, Zia Ullah also confirmed the investigation conducted by two Investigating Officers. Thereafter, Respondent No. 5 to 7 applied to the Provincial Standing Board for second transfer of investigation and same was transferred and entrusted to the Range Crime, Sahiwal, wherein after thorough investigation Respondents No. 5 to 8 were found involved in the alleged crime. Submits that report u/S 173, Cr.P.C. has been submitted before the learned trial Court on 10.04.2018, copies of statements u/S. 241-A Cr.P.C. has also been delivered to Respondents No. 5 to 8 and charge has also been frame against them on 05.12.2018. Submits that thereafter, I.G. of Police, Punjab/Respondent No. 1 on the recommendations of Provincial Standing Board ordered for third change of investigation in the instant case and petitioner has challenged the impugned order passed by Respondent No. 1 on the ground that after submission of report u/S. 173 Cr.P.C. investigation of the case cannot be transferred or the matter cannot be re-investigated. Learned counsel has relied upon the dictum laid down in cases of "Qari Muhammad Rafioue v. Additional Inspector General of Police (Inv), punjab and others (2014 SCMR 1499), wherein it is held that after framing of charge and commencement of trial the change of investigation at that belated stage was not sustainable. A similar view is observed by the august Supreme Court of Pakistan in its judgment passed in case of "Muhammad Nasir Cheema V. Mazhar Javaid and others" (PLD 2007 Supreme Court 31).V

2. On the other hand, learned counsel for Respondents No. 5 to 8 has vehemently opposed the arguments advanced by the learned counsel for the petitioner, whereas learned Law Officer has supported the arguments advanced by the learned counsel for the petitioner.

3. Pro and contra arguments have been heard. Record perused.

4. Record shows that report u/S. 173 Cr.P.C. has already been submitted before the learned trial Court and trial has also commenced against Respondents No. 5 to 8, so, keeping in view the above cited judgments, there is no cavil to the proposition that after submission of report u/s 173 Cr.P.C. and commencement of trial, change of investigation by Respondent No. 1 was uncalled for and is not sustainable in the eye of law. Even otherwise, there would be an ample opportunity for both the parties to prove their stance before the learned trial Court by producing evidence.

5. In view of the above discussion, instant petition is hereby allowed and impugned order dated 30.03.2019 passed by the I.G. of Police, Punjab-Respondent No. 1 for change of investigation is set aside and the learned trial Court is directed to proceed with the matter in accordance with law.

(Y.A.) Petition allowed

PLJ 2019 Lahore 534

[Multan Bench, Multan]

Present: Ch. Mushtaq Ahmad, J

ASIF HUSSAIN--Petitioner

versus

ADDL. DISTRICT JUDGE, SAHIWAL, etc.--Respondents

Writ Petition No. 1101 of 2019, decided on 22.1.2019.

Constitution of Pakistan, 1973--

----Art. 199--Pakistan Penal Code, 1860--S. 381-A--Theft of Cars--Recovery of vehicles--Application for superdari of Car--Refused--ASJ handed over superdari to Respondent No. 3--Challenge to-- Mere statement of an accused before police and report submitted by police before Court may not be relevant as compared to opinion of experts--Even otherwise by way of superdari only temporary arrangement has been made to save vehicle from any environmental damages both parties may establish their claim before appropriate forums as to ownership--No illegality has been noted in impugned order passed by learned Addl. Sessions Judge Sahiwal--Hence, constitutional petition being meritless, is dismissed--Petition was dismissed. [P. 530] A

Syed Jaffar Tayar Bukhari, Advocate for Petitioner.

Date of hearing : 22.1.2019.

Order

Petitioner has assailed orders dated 06.11.2018 and 03.1.2019 through which he has been refused superdari of a car.

1. Petitioner got registered casevide F.I.R No. 101/2018 under Section 381-A P.P.C P.S Civil Line District Sahiwal for theft of his car Toyota Corolla GLI No. LWD 330 Engine No. X35 1074 Chasis No. NZE 1206027458 on 04.08.2018.

Respondent No. 3 herein also lost his car No. LEA-09378 Chasis No. ZZE 1229303060 Engine No. 4531119 blue Model 2005 Altas Corolla for which he got registered case F.I.R No. 429/2018 dated 05.07.2018 under Section 381-A PPC at P.S Ghalla Mandi Sahiwal.

Both the above cases were under investigation when an accused person namely Aamir Sohail who was arrested in case F.I.R No. 858 dated 14.08.2018 under Section 381-A P.P.C registered at P.S City Raiwind Lahore made a disclosure for recovery of two vehicles in the said case one Suzuki Mehran No. WH-226/IET Model 2013 Engine No. PKB 546686 Chasis No. PK 01086300 and another Car Toyota Corolla No. LEJ 1732 Colour blue Model 2007 Chasis No. 17E120/075696 whereas Engine and Chasis No. of Toyota Corolla were found tampered. Accused further made disclosure that he committed theft of Toyota Corolla within the vicinity of Sahiwal, hence he was roped in case F.I.R No. 108/18 dated 06.08.2018 under Section 381-A P.P.C P.S Civil Line Sahiwal got registered by the petitioner.

Petitioner as well as Respondent No. 3 the complainant of cases registered at Ghalla Mandi, Sahiwal both applied for superdari of Toyota Corolla car got recovered by P.S Raiwind City Lahore before learned Magistrate Section 30 Sahiwal who refused the superdari to both the complainants vide order dated 6.11.2018 but the learned Addl. Sessions Judge, Sahiwal vide order dated 3.1.2019 handed over superdari to Respondent No. 3.

1. In support of this petition, learned counsel for the petitioner has argued that the statement of the accused; report submitted by the police before the learned Magistrate and the remand papers support that infact it was the car of the petitioner which was stolen by the accused Aamir Sohail but the learned Addl. Sessions Judge ignoring the available material has handed over superdari to Respondent No. 3 for reasons not sustainable in the eye of law on the subject.

2. After hearing learned counsel for the petitioner and going through the impugned order it has been noticed that as per report submitted by Punjab Forensic Science Agency the car subject matter of case got registered by petitioner was not verified to be the same. During pendency of revision petitions with the consent of both the parties the vehicle in question was also examined through an expert by Toyota Sahiwal Motors who after examining the car has reported as under:--

"The Toyota Corolla Car Registration number LEJ0701732 colour strong Blue parked in the Civil Line, police station, Sahiwal was inspected checked for tempering, modification and

alterations. The subject car has been removed/lost all check points of vehicle identification and further wrong model VIN plate and Chasis number pasted. After inspection of car, it is observed, the car is not Toyota Corolla GLI. The body structure is Toyota Corolla Altis. This car is not matching with both documents, which were handed over to our team. "

1. In view of above opinion prima facie the claim of the petitioner to retain the car does not appear to be co-gent. Mere statement of an accused before police and the report submitted by the police before the Court may not be relevant as compared to the opinion of experts. Even otherwise by way of superdari only temporary arrangement has been made to save the vehicle from any environmental damages both the parties may establish their claim before appropriate forums as to ownership. No illegality has been noted in the impugned order passed by learned Addl. Sessions Judge Sahiwal. Hence, constitutional petition being meritless, is dismissed.

(MMR) Petition dismissed

PLJ 2019 Lahore 536 [Multan Bench, Multan]

Present : Sardar Ahmad Naeem, J

MUHAMMAD TARIQ--Petitioner

versus

STATION HOUSE OFFICER, etc.--Respondents

Writ Petition No. 18060 of 2018, decided on 22.1.2019.

Constitution of Pakistan, 1973--

----Art. 199--Right of Hazanat--Custody of Minors--Private Settlement between parties for custody of minors--Second Marriage--Violation of agreement--Challenge to--It was noticed that minors were living with their mother since long--An agreement was executed between parties, legality whereof cannot be determined by Court during these proceedings--Parties are already before proper forum for determination of their rights--There is also no allegation if Respondent No. 2 snatched minors from petitioner, who has failed to make out a case for interference by Court--Petition was Dismissed. [Pp. 537 & 538] A

Mr. Humayoun Syed Rasool, Advocate for Petitioner.

Malik Shoukat Mehmood Marha, Assistant Advocate General for State.

Malik Zafar Mehboob Langrial, Advocate for Respondent No. 2.

Date of hearing: 22.1.2019.

Order

Through this petition filed in terms of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner prayed for the following relief:

"...prayed that instant petition may kindly be accepted and the order dated 27.11.2018 passed by the learned Additional Sessions Judge, Muzaffargarh to the extent of handing over the custody of the minors namely, Kausar Bibi aged 7-years, Asima Bibi aged 5-years to the Respondent No. 2 may kindly be declared illegal, against the law and facts and be set aside and in consequence thereof, Respondent No. 1 may kindly be directed to recover the said detenues from the illegal, unlawful and improper confinement of the private respondents, be ordered to produce them before this Hon'ble Court, and detenues be handed over to the petitioner/real father of the minors/detenues, in the supreme interest of justice.

Any other relief………”.

1. Learned counsel for the petitioner submitted that as a result of private settlement, the minors were handed over to their mother and now she has contracted second marriage which is violation of written agreement earlier executed between the parties, thus, Respondent No. 2 had lost right of Hazanat and that the custody of the minors may be handed over to the petitioner, in particular, when their elder brothers/sister are already with the petitioner.

2. Learned counsel for Respondent No. 2 opposed this petition with vehemence and submitted that the instant petition was based on malafide and that regarding the custody of the minors, both the parties are before the competent forum, thus, the petition was liable to be dismissed.

3. Having heard the arguments addressed at the bar and after perusing the record, it was noticed that the minors were living with their mother since long. An agreement was executed between the parties, legality whereof cannot be determined by the Court during these proceedings. The parties are already before the proper forum for the determination of their rights. There is also no allegation if

Respondent No. 2 snatched the minors from the petitioner, who has failed to make out a case for interference by the Court.

1. There is no merit in this petition which is hereby dismissed.

(MMR) Petition dismissed

PLJ 2019 Lahore 538 (DB) [Multan Bench, Multan]

Present: Muhammad Sajid Mehmood Sethi and Asim Hafeez, JJ

GOVERNMENT OF PUNJAB through Secretary, Health Department, Lahore & another--Appellants

versus

MUHAMMAD MUNIR & another--Respondents

I.C.A. No. 41 of 2013, decided on 24.1.2019.

Law Reforms Ordinance, 1972 (XII of 1972)--

----S. 3--Termination of service--Constitutional Petition--Allowed--Reinstated in service from date of termination--Compliance of order--Challenge to--Whether respondents could be treated differently when similarly placed other persons, pursuant to impugned order, have joined service and order passed by learned Single Judge has been complied with and thereafter their appeal was disposed of in above terms, learned Law Officer replied that said order is under challenge before Hon'ble Supreme Court--Since in this case as well, impugned order has been complied with--In circumstances, we are not inclined, to interfere in matter and this appeal, along with connected appeals, has become infructuous and is disposed of accordingly--Appeal was disposed of. [P. 539] A & B

Mr. Aziz-ur-Rehman Khan, A.A.G for Appellants.

Syed Jaffar Tayyar Bukhari, Advocate for Respondents.

Date of hearing : 24.1.2019.

Order

This consolidated order shall dispose of instant appeal along with following connected, appeals as common questions of law and facts are involved in these cases:--

1. I.C.A. No. 42 of 2013 titled Executive District Officer (Health), Vehari v. Ghulam Murtaza & others.

2. I.C.A. No. 33 of 2015 titled Government of Punjab through Secretary, Health Department, Lahore & others v. Shakil Ahmad.

3. Through instant appeal, appellants have assailed order dated 10.1.2013, passed by learned Single Judge in Chambers, whereby constitutional petition filed by respondents, was allowed and respondents were directed to be reinstated into service from the dates of termination of their services.

4. Learned Law Officer submits that respondents did not fulfill the eligibility criteria as they were Matric with Arts whereas required qualification was Matric with science. However, he has not denied that similar order, assailed through connected appeal i.e. I.CA. No. 42 of 2013, which was disposed of vide order dated 24.9.2014, with the following observation:--

"Latter submits that the order passed by the learned Single Judge in Chamber in W.P.No.1978 of 2010 has been complied with. Former also confirms this fact.

1. in this view of the matter, this appeal has become infructuous and is accordingly disposed of."

When asked whether respondents could be treated differently when similarly placed other persons, pursuant to impugned order, have joined the service and order passed by the learned Single Judge has been complied with and thereafter their appeal was disposed of in the above terms, learned Law Officer replied that said order is under challenge before Hon'ble Supreme Court.

1. Since in this case as well, the impugned order has been complied with. In the circumstances, we are not inclined to interfere in the matter and this appeal, along with connected appeals, has become infructuous and is disposed of accordingly.

(MMR) Appeal disposed

PLJ 2019 Lahore 539

Present : Sadiq Mahmud Khurram, J.

KHAWAJA MUHAMMAD AHMED--Petitioner

versus

MUHAMMAD AYYUB, etc.--Respondents

PSLA No. 6 of 2016, decided on 25.10.2018.

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

----S. 417(2)(3)--Limitation Act, 1908, S. 5, Art. 157--Acquittal orders by Magistrate--Application for grant of special leave to appeal with application for condonation of delay--Criminal administration of justice--Maintainability--Section 417(2) of Code of Criminal Procedure, 1898 provides for filing of such applications seeking grant of special leave to appeal whereas section 417 (3) provides for time before expiry of which such application for grant of special leave to appeal from order of acquittal can be entertained by High Court--According to established principle of criminal administration of justice once an acquittal is recorded in favour of accused facing criminal charge he enjoys double presumption of innocence, therefore, Courts competent to interfere in acquittal order should be slow in converting same into conviction, unless and until said order is patently illegal, shocking, based on misreading and non-reading of record or perverse--Application under section 5 of limitation Act, 1908 is otherwise not maintainable in cases relating to applications made under section 417 (2) Code of Criminal Procedure, 1898 seeking grant of special leave to appeal on order of acquittal in a case instituted upon a complaint--Instant application for grant of special leave to file an appeal against order of acquittal has been filed under section 417 (2) of Code of Criminal Procedure and Section 417 (3) of Code of Criminal Procedure, 1898 itself provides period within which same has to be filed--Therefore, Section 5 of Limitation Act, 1908 cannot be made applicable to such applications--Needless to add that time period provided under Article 157 of Limitation Act is also of no import in this matter.

[Pp. 541, 542 & 543] A, B, C & D

Limitation Act, 1908 (IX of 1908)--

----S. 5--Applicablity--Applications filed under Section 417(2) of Code of Criminal Procedure, 1898--This Court is, therefore, not empowered to condone any delay in filing applications for grant of special leave to appeal from order of acquittal passed by learned Judicial Magistrate, Gujranwala--Applications for Leave to appeal and condonation of delay was dismissed. [P. 543] E

1998 SCMR 1854, PLD 1963 SC 151 & 1990 SCMR 164, ref.

Nemo for Petitioner.

Mr. Tariq Javed, District Public Prosecutor for Respondents.

Date of hearing: 25.10.2018

Order

The petitioner namely Khawaja Muhammad Ahmad son of Khawaja Bashir Ahmed being aggrieved of the order of the acquittal passed by the Judicial Magistrate Ist Class Gujranwala dated 28.2.2015 in the case instituted upon the complaint filed by the petitioner and has prayed for grant of special leave to appeal from the order of said acquittal. The application for grant of special leave to appeal was presented on 9th of January, 2016 beyond the period of 60 days as prescribed by Section 417 (3) of the Code of Criminal Procedure, 1898 along with an application under section 5 of the Limitation Act, 1908 seeking condonation of delay on the following grounds:--

1. …………………………………………

2. That the impugned order was came to the knowledge of the petitioner two days before filing of this petition so in the interest of justice the delay in filing the present appeal may be condoned.

3. That the petitioner has a very good prima facie arguable case in her favour.

4. That if the delay is not condone the petitioner shall suffer irreparable loss and injury.

5. At the very outset it has been noticed that the order of the acquittal was passed by the Court of Judicial Magistrate Ist Class, Gujranwala on 28.2.2015 and this petition is hopelessly barred by time.

6. It is important to note that section 417(2) of the Code of Criminal Procedure, 1898 provides for filing of such applications seeking grant of special leave to appeal whereas section 417 (3) provides for the time before the expiry of which such application for grant of special leave to appeal from order of acquittal can be entertained by the High Court. That said provisions of law are being reproduced as under:

7. Appeal in case of acquittal.(1)Subject to the provision of sub-section (4) the Provincial Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High court.

(2) If such an order of acquittal is passed in any case instituted upon complaint and the High court, on an application made to it by the complainant in this behalf grants special leave to appeal from the order of acquittal the complainant may present such an appeal to the High court.

(2-A) A person aggrieved by the order of acquittal passed by any Court other than a High court, may, within thirty days, file an appeal against such order.

(3) No application under sub-section (2) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of sixty days from the date of that order.

(4) If, in any case, the application under sub-section (2) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-section (1).

(5) An appeal against an order of conviction or acquittal under Sections 354A, 376, 376A, 377 or 377B of the Pakistan Penal code, 1860 (Act XLV of 1860) shall be decided within six months.”

1. It is important to note that according to established principle of the criminal administration of justice once an acquittal is recorded in favour of accused facing criminal charge he enjoys double presumption of innocence, therefore, the Courts competent to interfere in the acquittal order should be slow in converting the same into conviction, unless and until the said order is patently illegal, shocking, based on misreading and non-reading of the record or perverse. The said principle has been enunciated by the August Supreme Court of Pakistan in the judgment reported as Muhammad Inayat Versus The State (1998 SCMR 1854). Furthermore the August Supreme Court of Pakistan in the case reported as Abdul Qayyum Versus Ghulam Yasin (PLD 1963 Supreme Court 151), refused to condone the delay of only fifteen days.

2. The application under section 5 of the limitation Act, 1908 is otherwise not maintainable in cases relating to applications made under section 417 (2) Code of Criminal Procedure, 1898 seeking grant of special leave to appeal on the order of acquittal in a case instituted upon a complaint. In this regard Section 29 of the Limitation Act, 1908 provides as under:

Section 29. Saving.

(1) “Nothing in this Act shall affect section 25 of the Contract Act, 1872.

(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the First Schedule, the provisions of section 3 shall apply, as if such period were prescribed therefor in that schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law:

(a) the provision contained in section 4, sections 9 to 18 and section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law: and

(b) the remaining provisions of this Act shall not apply.

(3) Nothing in this Act shall apply to suits under the Divorce Act (IV of 1869).

(4) Sections 26 and 27 and the definition of “easement” in section 2 shall not apply to cases arising in territories to which the Easements Act, 1882, may for the time being extend”.

1. As is very much evident from the perusal of the said provision of law for determining any period of limitation prescribed for any suit, appeal or application shall only apply insofar as, and to the extent to which they are not expressly excluded by such special or local law. As the instant application for grant of special leave to file an appeal against the order of acquittal has been filed under section 417 (2) of the Code of Criminal Procedure and Section 417 (3) of the Code of Criminal Procedure, 1898 itself provides the period within which the same has to be filed. Therefore, Section 5 of the Limitation Act, 1908 cannot be made applicable to such applications. Needless to add that the time period provided under Article 157 of the Limitation Act is also of no import in this matter.

2. In the case of the State versus Zahid Hussain reported as (1990 SCMR 164), it was held by the August Supreme Court of Pakistan that where period of limitation is prescribed by a special law or local law and its different from the one in the Limitation Act, 1908, then the period as provided in the special or local law shall prevail over the period provided for by the Limitation Act. It has been further held in the above mentioned case of The State versus. Zahid Hussain that in case of conflict of express words the limitation Act yields.

3. For all the above reasons and upon consideration of the above binding decisions of the August Supreme Court of Pakistan I am of the view that section 5 of the Limitation Act 1908 is not applicable to the applications filed under Section 417(2) of the Code of Criminal Procedure, 1898. This Court is, therefore, not empowered to condone any delay in filing the applications for grant of special leave to appeal from the order of acquittal passed by the learned Judicial Magistrate, Gujranwala.

4. For the reasons stated above, the application under section 5 of the Limitation Act is dismissed and consequently the petition for grant of special leave to appeal No. 6 of 2016 is also dismissed.

(Y.A.) Appeal dismissed

PLJ 2019 Lahore 544 (DB)

Present: Mrs. Ayesha A. Malik and Asim Hafeez, JJ.

NATIONAL BANK OF PAKISTAN—Appellant

versus

ZIA-UL-HAQ NOON, etc.--Respondents

R.F.A. No. 1527 of 2015, heard on 13.3.2019.

Mortgage--

----Scope of--Financing facilities--Contractual obligations--Intimation given by the purchaser to the appellant bank and subsequent creation of mortgage charge over the properties of the purchasers, which securities were accepted by the bank and requisite documentation was done, creates binding promise on the part of the bank. [P. 551] A

Contract Act, 1872 (IX of 1872)--

----S. 7--Qanun-e-Shahadat Order, 1984, Art. 119--Doctrine of acceptance by silence--Binding contract if acceptance of proposal--Entitlement to discharge of obligation--Failed to lead evidence to establish alleged discharged from obligation--Mortgage created against fresh properties were in addition to the existing securities and not to replace / substitute those--No case of extinguishment of liability of the Respondent No. 1 is made out--Respondents No. 13 & 14 negotiated an independent settlement with the bank to seek their release, which was independent of the vending agreement--This fact further negates the claim of the Respondent No. 1.

[P. 552] B

Contract Act, 1872 (IX of 1872)--

----S. 62--Principle of novation--Original contract stood substituted with new contract--Misapplication of Law--Mere allegation would not absolve Respondent No. 1 from the obligations under the guarantee--Letters addressed neither substitute original contract nor create any enforceable binding for the appellant bank to allow discharge / release of Respondent No. 1--Arrangement of sale of assets, transfer of management and assumption of liability - entered into and consummated without the consent, express or implied, of the appellant bank – would ipso-facto release/discharge Respondent No. 1--Learned judge banking Court erred in law while rendering the judgment whereby it discharged/released Respondent No. 1 of its obligations--Failure of Respondent No. 1 to prove its alleged release / discharge from the obligation/liability, by way of producing evidence, was grossly overlooked by the learned judge banking court--Judgment dated 02.05.2015 suffers from legal defect, material irregularities and misapplication of law—Appeal was accepted. [Pp. 552, 553 & 554] C, D & E

Mr. Khalid Ishaq, Advocate for Appellant.

Mr. Muhammad Javed Arshad, Advocate for Respondent.

Date of hearing : 13.3.2019

Judgment

Asim Hafeez, J.--The appellant bank has assailed judgment and decree dated 02.05.2015 by learned Judge Banking Court No. II, Lahore, whereby Respondent No. 1 (who was impleaded as defendant No. 4 in the suit) was discharged/exonerated from the obligation of repayment of alleged amounts claimed in the suit. The suit was, however, decreed against Respondents No. 2, 3 to 9 – being the legal heirs of Sheikh Allah Ditta Sethi - and Respondent No. 10. Respondents No. 13 & 14 negotiated settlement and claim was withdrawn to their extent.

Brief Facts:

1. The facts, necessary for adjudication of the lis at hand are that, the appellant bank allowed financing facilities in shape of Cash Credits (Hypothecation / Pledge) and demand loan, having limit of Rs.7.200 Million, to Respondent No. 2 Company. The facilities were inter-alia secured through mortgage, pledge and hypothecation charges and the personal guarantees of the directors. Record showed that in March 1986, the then directors of the Respondent No. 2 company transferred shareholding and assets of the company to Sheikh Allah Ditta Sethi – impleaded through legal heirs, i.e. Respondents No. 3 to 9 – and Respondent No. 10, which was intimated to the appellant bank vide letter dated 25.03.1986, the date on which vending agreement was executed. The factum of transfer of assets and assumption of liabilities was intimated to the appellant bank by in-coming directors through letter dated 30.03.1986. Contemporaneously, in-coming directors provided and facilitated mortgage charge over personal properties – the core question is that whether the securities provided were in addition to or in substitution to the already available securities, including the personal guarantees of the out-gong directors. In the year 1987, upon default, appellant bank filed suit for recovery of Rs.7,835,307/-, wherein out-going as well as in-coming directors were arrayed as borrowers. Respondent No. 1 filed PLA No. 2-B/88, while others filed separate applications seeking leave to appear and defend, which applications were accepted and leave was allowed vide order dated 16.11.1999. Issues were framed and parties were asked to adduce evidence. Out of the 7 issues framed, issues No. 1 to 3 are most relevant and crucial for the purposes of present controversy, which issues are reproduced hereunder;

Issue No. 1. Whether the Plaintiff’s suit is not maintainable against the defendants No. 2 and 3 after acceptance of transfer of management and shareholding in pursuance of agreement dated 25.03.1986? OPD

Issue No. 2. Whether the securities furnished by Sh. Allah Ditta Sethi and Mr. Armghan Waheed were additional securities? OPP

Issue No. 3. Whether the securities furnished by defendants No. 2 & 3 were subrogated and Plaintiff’s illegally refused to release the same? OPD

1. The appellant bank produced evidence, oral - two witnesses appeared and cross-examined - and documentary. No evidence was produced by Respondent No. 1. After hearing the parties, the learned judge Banking Court decreed the suit for Rs. 2,473,596.18 along with costs and Cost of Funds against Respondents No. 2 to 10 and discharged / absolved the Respondent No. 1 (Defendant No. 4) of any obligation to pay. The question involved is whether the order of release / discharge of the Respondent No. 1, who is represented and contesting this appeal, is against the law and facts.

Core Issue:

1. The heart of the controversy is that whether Respondent No. 1 stood discharged / absolved of its contractual obligations – under personal guarantee executed – as a consequence of transfer of shareholding and acquisition of assets and liabilities of Kaghan Food Products Limited by the purchasers / in-coming directors in terms of vending agreement dated 25.03.1986 and letter dated 30.03.1986 (Ex.P-35).

2. Learned counsel, appearing for the appellant bank, submits that Respondent No. 1 was not entitled to claim discharge / release qua its obligation under the instrument of personal guarantee, merely for the reason of change of management and provisioning of additional securities, which arrangement was otherwise without the approval of the appellant bank. It is contended that personal guarantee executed by Respondent No. 1, would continue to constitute a binding and enforceable obligation, in the absence of cancellation or return of instrument of guarantee. Per learned counsel, no evidence was produced by Respondent No. 1 in support of its contentions, which failure alone deflate the argument regarding discharge / release. Added that evidence led was misread and ignored and learned Judge Banking Court misapplied the law. Reliance was placed of following judgments, reported as “Messrs Huffaz Seamlen Pipe Industries Ltd. and 2 others v. Messrs Security Leasing Corporation Ltd.” (2002 SCMR 1419), “Messrs State Engineering Corporation Ltd. v. National Development Finance Corporation and others” and (2006 SCMR 619), “Shipyard K. Damen International v. Karachi Shipyard and Engineering Works Ltd.” (PLD 2003 SC 191).

3. Learned counsel for Respondent No. 1, conversely, contended that the appellant bank failed to prove case in terms of issue No. 2, noted above. Acceptance of the properties as securities by the appellant bank, offered by the purchasers, created binding and enforceable promise on the part of the appellant bank. Respondent No. 1 was entitled to discharge / release from alleged obligation under personal guarantee, legal position correctly appreciated by the learned Judge Banking Court. Learned counsel relied upon the principle of novation to support contentions. Reliance is placed on judgments reported as “S. Sibtain Fazli v. (1) Star Film Distributors and (2) Muhammad Ali Khan” (PLD 1964 Supreme Court 337), “Habib Bank Limited v. Hussain Corporation Ltd.” (1994 MLD 2276) and “National Bank of Pakistan v. Shoganint (Pvt) Ltd. and other” (2005 CLC 1207).

4. When confronted, the learned counsel for Respondent No. 1 referred to vending agreement dated 25.03.1986, letters dated 30.03.1986 and 04.06.1986 to claim release / discharge of Respondent No. 1 of its alleged obligation / liability under the instrument of personal guarantee. We have examined the referred documents. In order to appreciate the submissions made it is expedient to reproduce relevant portions thereof. Reference is made to clause 7 (e) of vending agreement dated 25.03.1986, which is reproduced hereunder as;

7 (e) As per the books of KFP Ltd., certain amounts are owed to the National Development Finance Corporation, Industrial Development Bank of Pakistan and National Bank of Pakistan by KFP Ltd. These loans have been secured by personal guarantees of some of the Sellers who are directors of the Company under the normal banking rules and regulations. It is hereby agreed that before taking over the project the PURCHASERS shall arrange to have all such personal guarantees released to the entire satisfaction of the aforementioned banks and institutions individually.

[Emphasis underlined]

1. In view of said clause, the purchasers were required to arrange release of personal guarantees of the sellers – including Respondent No. 1, before taking over the project. The Management stood transferred before seeking release of guarantees, which was not agitated by Respondent No. 1 and no indemnification was sought from purchaser under indemnity clause, i.e. clause 18(a) of the vending agreement – indemnity clause. The case of Respondent No. 1 before us was that purchasers addressed letter dated 30.03.1986 (Ex.P-35) to the appellant bank, accepting / acknowledging transfer of assets and assumption of liabilities and submitted properties for creation of mortgage charge which was accepted by the bank, as mentioned in the plaint, and such acknowledgment and acceptance entitled Respondent No. 1 to claim discharge / release under the law.

2. The crucial questions would be that whether mere agreement– bilateral and not tripartite arrangement - between the buyer and seller would be binding upon the creditor bank which was not a party to such bilateral arrangement? Whether simplicitor issuance of letter to intimate transfer of shares, acquisition of assets and assumption of liabilities would entitle Respondent No. 1 to claim discharge from its obligation, in the absence of cancellation of personal guarantee? Whether request on the part of Respondent No. 1 through letters dated 25.03.1986 and 04.06.1986, on the part of ex-directors for the release of personal guarantee, would obligate the appellant bank to discharge / release Respondent No. 1 from its obligations in terms of guarantee? Whether any discharge / release can be claimed in terms of principle of novation? Before dilating upon the noted questions, it is expedient to reproduce contents of the letters, which read as;

Letter dated March 25, 1986

The Executive Vice President, National Bank of Pakistan, Principal Office, Al-Falah Building, The Mall, Lahore.

Dear Sir, We have sold the total shareholding of M/s. Kaghan Food Products Ltd. to M/s. Seven Brothers (Regd.) through their Managing Partner, Sheikh Allah Ditta Sethi. The new owners wish to substitute their property documents in place of the property documents pertaining to 15/D-1, Gulberg III, Lahore, belonging to Mrs. MahJabeen Noon who is one of the Directors of M/s. Kaghan Food Products Ltd. You are requested to kindly accept their documents and return the documents of 15- D/I, Gulberg III, Lahore, to us.

The new owners are willing to give personal guarantees for the loans advanced by the Bank to Kaghan Food Products Ltd. The necessary documentation for this may be done immediately.

Yours faithfully, For & on behalf of M/s. Kaghan Food Products Ltd.

Letter dated 30.03.1986

To, The Manager, National Bank of Pakistan, ACP Model Br. Lahore.

D/Sir, We would like to inform you that we have purchased M/s Kaghan Food Products Ltd. alongwith all its assets & Liabilities as on 31-3-1986.

The name of Director’s of our firm showing their assets are enclosed herewith.

We also confirm that the name of the said company i.e. Kaghan Food Products Ltd shall continue as it is our Head office.

It is further confirmed that there is no other liability outstanding against Director assets.

Thanking you.

Yours faithfully, Sheikh Allah Ditta Sethi

[Emphasis underlined]

Letter dated 04.06.1986

The Senior Vice President, National Bank of Pakistan, Principal Office Al-Falah Building, The Mall, Lahore.

Dear Sir, As you are aware Kaghan Food Products Limited has been sold to Haji Allah Ditta Sethi and his partners and the management of the company is now with them. Therefore, the following have ceased to be the Directors of the Company and their personal guarantees have been released;

1) Mr. Azhar Hayat Noon

2) Mr. Zia-ul-Haq Noon

3) Mrs. Mahjabeen Noon

In confirmation of this photo copy of letter from IDBP dated 03.06.86 reference No. UD/14242 is enclosed. It is now requested that house documents of 15/D-I, Gulberg-III, Lahore belonging to Mrs. Mahjabeen Noon may kindly be returned and the personal guarantees of three ex-Directors mentioned above be released. It may be noted that suitable alternate property documents have already been submitted by Mr. Haji Allah Ditta Sethi and been checked by your Legal Advisor Mr. Yaqoob Khan and found to be in order. Order for immediate release of the house documents may kindly be given.

Thanking you. Yours faithfully, (AZHAR HAYAT NOON).

1. It is evident from the perusal of the letter dated 30.03.1986 (Ex.P-35) – underlined portion – that the purchasers had only intimated factum of assumption of assets and liabilities, while, confirming no-liability status of directors of their firm. The letter under reference – alleged to have supported the claim of Respondent No. 1 – does not indicate any resolve for seeking release of personal guarantee of Respondent No. 1 against provisioning of immovable properties by the purchasers. The letter made no reference to any alleged approval or permission of appellant bank. Purchasers were impleaded as defendants No. 5 & 6, who had filed PLA No. 5-B/88. We have examined application seeking leave to defend, wherein nothing was indicated regarding alleged discharge / release of Respondent No. 1. It was alleged that purchase of shares of ex-directors was done with the permission and approval of appellant bank but no evidence led to substantiate contentions regarding permission and approval of the bank. The application does not support the contentions raised by Respondent No. 1.

2. Likewise, letters dated 25.03.1986 and 04.06.1986 were, at best, in the form of a request and does not show any binding obligation or commitment on the part of the appellant bank to establish any agreement for the discharge / release of Respondent No. 1. It is for the Respondent No. 1 to prove that any binding and enforceable obligation of the appellant bank reached qua release / cancellation of guarantee, in the absence of any evidence by the Respondent No. 1, alleged claim of discharge/release carries no credence.

3. The crux of the submissions on behalf of Respondent No. 1 was that the intimation given by the purchaser to the appellant bank and subsequent creation of mortgage charge over the properties of the purchasers, which securities were accepted by the bank and requisite documentation was done, creates binding promise on the part of the bank. In essence, it is pleaded, the conduct of the appellant, consequent to the letters referred, has to be construed as an acceptance. To appreciate the submissions, it is expedient to reproduce section 7 of the Contract Act, 1872, which reads as;

“7. Acceptance must be absolute;--In order to convert a proposal into a promise, the acceptance must—

(1) be absolute and unqualified;

(2) be expressed in some usual and reasonable manner, unless the proposal prescribes the manner in which it is to be accepted. If the proposal prescribes a manner in which it is to be accepted, and the acceptance is not made in such manner, the proposer may within a reasonable time after the acceptance is communicated to him, insist that his proposal shall be accepted in the prescribed manner, and not otherwise; but if he fails to do so he accepts the acceptance”

1. In view of section 7-ibid, proposal would become a binding contract if acceptance of proposal is absolute and unqualified. In this case nothing was shown that appellant bank ever conveyed an absolute and unqualified acceptance qua the letters addressed and proposals made therein. Doctrine of acceptance by silence – merely for the reason that additional properties were provided and accepted by the appellant bank – is not applicable in view of the failure of Respondent No. 1 to prove it. Respondent No. 1 failed to establish absolute and unqualified acceptance and even acceptance by way of conduct. Even otherwise, the facts regarding acceptance on the part of the appellant bank and entitlement to discharge / release in lieu of any obligation, are relevant facts, which are required to be proved by Respondent No. 1, in terms of Article 119 of Qanun-e-Shahadat Order, 1984. In the circumstances, no case of acceptance on the part of the appellant bank is established.

2. The success of alleged claim of Respondent No. 1 is dependent upon proving issues No. 1 & 3. The Respondent No. 1 failed to lead any evidence to establish alleged discharge / release from obligations / liability under personal guarantee, merely upon placement of fresh properties as security. The witnesses produced by the appellant bank consistently affirmed that mortgage created against fresh properties were in addition to the existing securities and not to replace / substitute those. No case of extinguishment of liability of the Respondent No. 1 is made out. Respondents No. 13 & 14 negotiated an independent settlement with the bank to seek their release, which was independent of the vending agreement. This fact further negates the claim of the Respondent No. 1.

3. Learned counsel for Respondent No. 1 claimed discharge / release under the principle of novation, as enunciated in section 62 of the Contract Act 1872. This argument is misconceived. A bilateral arrangement between in-coming and out-going directors – even showing an enforceable understanding -, in the absence of creditor, would not be binding upon the said creditor. It is expedient to reproduce section 62, ibid, and illustration thereof to displace the argument. Section 62 reads as;

Effect of novation, rescission and alteration of contract

1. If the parties to a contract agree to substitute a new contract for it, or to rescind or alter it, the original contract need not be performed.

Illustrations

(a) A owes money to B under a contract. It is agreed between A, B and C that B shall thenceforth accept C as his debtor, instead of A. The old debt of A to B is at an end, and a new debt from C to B has been contracted.

1. Since, Respondent No. 1 had alleged that original contract stood substituted with a new contract – vending agreement – and therefore original contract need not to be performed, therefore, it is for Respondent No. 1 to prove and establish it, which it failed. Mere allegation would not absolve Respondent No. 1 from the obligations under the guarantee. The letters addressed neither substitute original contract nor create any enforceable binding for the appellant bank to allow discharge / release of Respondent No. 1. We are fortified in our view upon perusal of the ratio of the judgment by August Supreme Court of Pakistan, reported as Mrs. Mussarat Shaukat Ali v. Mrs. Safia Khatoon and others (1994 SCMR 2189). Relevant portion is reproduced hereunder:

“Section 62 of the Contract Act which deals with the effect of novation, rescission and alteration of contract, reads as follows:--

“62. Effect of novation, rescission and alteration of contract.--If the parties to a contract agree to substitute a new contract for it, or to rescind or alter it, the original contract need not be performed.”

The above provisions make it clear that if the parties to the contract agree to substitute a new contract in place of the original one, then the original contract need not be performed. Therefore, performance of original agreement between the parties is dispensed with only where the parties to the contract agree to substitute the original contract by a new contract. However, where only one of the parties to the contract alleges novation or alteration in the original contract but fails to establish the same, then mere allegation of novation in the original contract by one of the parties to the contract does not absolve the parties to the original contract from obligation to perform the original contract. The parties can only be relieved from performance of the original contract if they have by mutual consent substituted a new contract in place of the original one.”

1. There is no cogent evidence / proof available on record or any indication in the documents available that arrangement of sale of assets, transfer of management and assumption of liability - entered into and consummated without the consent, express or implied, of the appellant bank – would ipso-facto release / discharge Respondent No. 1.

2. The case laws referred by and relied upon by the parties may constitute authorities in their own facts and circumstances, which are not applicable qua the facts of this case, hence, distinguishable. The controversy at hand was not subject matter of the judgments referred by Respondent No. 1. Likewise, the judgments relied upon by the appellant bank discussed different propositions of law.

3. We have examined the judgment passed by learned Judge Banking Court, which manifested mis-reading and non-reading of crucial evidence available on record and mis-application of law. The learned judge banking Court erred in law while rendering the judgment whereby it discharged / released Respondent No. 1 of its obligations. Failure of Respondent No. 1 to prove its alleged release / discharge from the obligation / liability, by way of producing evidence, was grossly overlooked by the learned judge banking court. The

judgment dated 02.05.2015 suffers from legal defect, material irregularities and misapplication of law.

1. In the circumstances, we accept this appeal, set aside the impugned judgment and decree dated 02.05.2015 to the extent of Respondent No. 1 and decree the suit to its extent for Rs.2,473,596.18/- along with the costs and Cost of Funds, jointly and severally alongwith others. The judgment and decree dated 2.5.2015 against Respondent No. 2, respondents No. 3 to 9 – being the legal heirs of deceased Sheikh Allah Ditta Sethi - and Respondent No. 10 shall remain intact.

2. No orders as to the costs.

(MMR) Appeal accepted

PLJ 2019 Lahore 554[Multan Bench, Multan]

Present: Anwaarul Haq Pannun, J

BASHIR AHMAD KHAN--Petitioner

versus

ADDL. SESSIONS JUDGE, DERA GHAZI KHAN and 6 others--Respondents

Writ Petition No. 865 of 2018, decided on 2.5.2019.

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

----S.3(2)--Application U/S 265-K CrPC was accepted filed by accused persons and they were acquitted--Dismissal of writ petition--Complainant challenged said order of acquittal passed by learned A.S.J.--Trial was half way ought to have granted opportunity of producing full fledged trial--Disputed plots/land is situated in same khata--No time and date of incident has been mentioned in instant private complaint--Dispute, in fact, of demarcation of land owned by them--If accused had taken possession of disputed land in joint khata in absence of complainant even then it cannot be said that accused illegally dispossessed complainant from his land--No illegality, perversity or material irregularity could have been pointed out in impugned order--Petition is dismissed.

[Pp. 556 & 557] A, B, C & E

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

----S. 265-K--Power vested U/S 265-K CrPC can be exercised by learned trial Court at any stage of trial. [P. 556] B

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

----S. 265-K--Pre-requisites :--

(i) After hearing prosecutor and accused both, (ii) Reason must be recorded for acquitting accused, (iii) Trial Court shall exercise its powers only if it comes to conclusion that there exists no probability of accused being convict of any offence

(iv) Moving of formal application by accused is not necessarily envisaged

(v) Court can exercise its power on its own motion.

[Pp. 556 & 557] C

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

----S. 265-K--Law has vested trial Court with a wide power enabling it to see through wall on its other end--In view of plethora of pending cases, instead of allowing complainant/prosecution to produce weak, defficient, and inadmissible proposed evidence in trial, it is high time for trial courts to exercise such vast power vested therewith, to save precious public time for conducting other meaning-full proceedings in some other matters pending in courts objectively.

[P. 557] D

Constitution of Pakistan, 1973--

----Art. 199--Writ of Certiorari--Person seeking issuance of certiorari, has to show that impugned order is unsustainable on account of being result of extremely, improper exercise of jurisdiction or has clearly been passed in violation of any provisions of law or is product of excess or failure of jurisdiction.

[P. 558 ] F

PLD 1973 SC 24, ref.

Haji Muhammad Tariq Aziz Khokhar, Advocate for Petitioner

Ch. Muhammad Zulfiqar Ali Sidhu, Assistant Advocate General for State

Mr. Usman Tariq Butt, Advocate for Respondents No. 2 to 7.

Date of hearing : 2.5.2019.

Judgment

Through this Constitutional petition, the petitioner calls in question the order dated 25.11.2017 passed by the learned Addl. Sessions Judge, D.G. Khan whereby, accepting the application of Respondents No. 2 to 7 under section 265-K Cr.P.C. in a private complaint titled "Bashir Ahmad Khan v. Ijaz Ahmad and 5 others" under section 3 (2) of the Illegal Dispossession Act, 2005, the learned trial Court had proceeded to acquit the respondents.

1. The main plank of the arguments of the learned counsel for the petitioner is that the learned trial Judge, instead of accepting an application under section 265-K Cr.P.C. when the trial was just half the way ought to have granted opportunity of producing full fledge evidence to the petitioner/complainant, therefore, the impugned order is not sustainable in the eyes of law.

2. On the other hand, the learned counsel for the respondents has vehemently opposed the contentions of the learned counsel for the petitioner.

3. The arguments advanced by the learned counsel for the parties have been heard and record perused.

4. The contention of the learned counsel for the petitioner that the learned trial Judge ought to have granted full fledge opportunity to the petitioner for producing his entire proposed evidence and thereafter the matter should have been decided on merits instead of accepting the application under section 265-K Cr.P.C. moved by the accused, half the way of the trial is concerned, the same is not even legally tenable. The provisions of section 265-K Cr.P.C. is reproduced herein:--

265-K Cr.P.C. Power of Court to acquit accused at any stage:

"Nothing in this Chapter shall be deemed to prevent a Court from acquitting an accused at any stage of the case; if, after hearing the prosecutor and the accused and for reasons to be recorded, if considers that there is no probability of the accused being convicted of any offence."

The perusal of the provision clearly indicates that the power vested under section 265-K Cr.P.C. can be exercised by the learned trial Court at any stage of the trial. The language "Nothing, in this Chapter shall be deemed to prevent a Court from acquitting an accused at any stage of the case" adequately conveys the underlying object of the provision that there exists no impediment on the way of trial Court in exercise of its powers for acquitting accused at any stage,, subject to certain pre-requisites, i.e.

(i) after hearing the Prosecutor and the accused both, (ii) the reasons must be recorded for acquitting the accused, (iii) the trial Court shah1 exercise its powers only if it comes to the conclusion that there exists no probability of the accused being convict of any offence.

(iv) Moving of formal application by the accused is not necessarily envisaged.

(v) The Court can exercise its power on its own motion.

1. Keeping in view the provision of section 265-K Cr.P.C. in verbatim, I may add one thing that the law has vested a trial Court with a wide power, enabling it to see through the wall on its other end. It may be observed here that in view of plethora of pending cases, instead of allowing the complainant/prosecution to produce weak, deficient, and inadmissible proposed evidence in the trial, it is high time for the trial courts to exercise such vast power vested therewith, to save precious public time, for conducting other meaning-full proceedings in some other matters pending in the courts objectively. Acceptance of the above noted contention of the learned counsel would amount to rendering the provision redundant which cannot be done. In order to appreciate the contention for the learned counsel for the petitioner of factual matrix, I feel it appropriate to reproduce a portion of the judgment under challenge:--

"Admittedly, the disputed plots/land is situated in same khata in which respondents Ijaz, Maher Mai and Aftaf also own their plots/land. This fact is evident from the report of the SHO, PS Sadar, District D.G.Khan as well as Patwari concerned and also from petition u/s.22-A/22-B Cr.P.C. filed by complainant Bashir Ahmad Khan against accused Ijaz and Maher Mai wherein complainant Bashir Ahmad Khan admitted the said facts in Para No. 2 thereof. Further, no time and date of incident has been mentioned in instant private complaint. The dispute, in fact, between the parties to present private complaint is of demarcation of land owned by them for which the remedy available to them 'is to file application to the Revenue Authorities or to institute a suit for declaration. If for the sake of arguments, it is admitted that the accused had taken possession of disputed plots/land in joint khata in absence of complainant even then it cannot be said that the accused illegally dispossessed the complainant from his land because in such situation, they would have dispossessed him without his consent of his immovable property otherwise in due course of law. So, the remedy available to the complainant is to institute a suit u/s.9 of the Specific Relief Act, 1877 for the reason that it cannot be said that accused would have dispossessed him without having any lawful authority with intent to grab it."

The perusal of the order of the learned trial Judge, hereinabove, clearly indicates that it is based on proper appreciation of facts and law and material available on record. No illegality, perversity or material irregularity could have been pointed out, in the impugned order by the learned counsel.

1. Even otherwise in order to issue a writ of certiorari under Article 199 (a) (ii) of the Constitution of Islamic Republic of Pakistan, 1973 which is reproduced hereunder for ready reference:--

2. Jurisdiction of High Court, (a) (ii):

''Declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect; or "

The person invoking the Constitutional jurisdiction under the above Article seeking issuance of writ of certiorari, by way of setting aside the order, has to show that the order, under challenge, violates the condition mentioned in the above provisions of the Constitution, that the authority/court/tribunal was denuded of jurisdiction whatsoever to pass the order or that the order impugned is unsustainable on account of being result of extremely, improper exercise of jurisdiction or has clearly been passed in violation of any provisions of law or is product of excess or failure of jurisdiction, by the tribunal or that some principle of law laid down by the superior courts, which under Article 189 of the Constitution is binding on the subordinate courts has been violated. The scope of interference by the High Court is, therefore, limited to the inquiry whether the tribunal has in doing the act or undertaking the proceedings acted in accordance with law. If the answer be in the affirmative the High Court will stay its hands and will not substitute its own findings for the findings recorded by the tribunal. Cases of no evidence, had faith, misdirection or failure to follow judicial procedure, etc. are treated as acts done without lawful authority and vitiate the act done or proceedings undertaken by the Tribunal on this ground. Reliance is placed on the case law reported in Rahim Shah v. The Chief Election Commissioner of Pakistan and another (PLD 1973 Supreme Court 24), there remains a failure on the part of the petitioner to show that the impugned order being hit by any of above

referred conditions, hence this petition, being bereft of any force, is hereby dismissed.

(Kh. Q.B) Petition dismissed

PLJ 2019 Lahore 559 (DB)

Present: Shahid Jamil Khan and Asim Hafeez, JJ.

PROVINCE OF PUNJAB through Member (Judicial-V)--Appellants

versus

MUHAMMAD AZAM--Respondent

Intra-Court Appeal No. 620 of 2014, decided on 6.2.2019.

Evaccuee Property and Displaced Persons Laws (Repeal) Act, 1975 (XIV of 1975)--

----S. 3(1)b--Sale of resumed Evaccuee land--Question of--Whether alleged sale/transfer of land in its favour constitute a valid legal and legitimate sale--Determination--Disposal of un-allotted evacuee land--Challenge to--Examination of claim and determine eligibility of each applicant--Direction to--We, while hearing appeal, are constrained to take cognizance of this blatant flaw, wherein factum of absence of inherent qualification / eligibility of Respondent No. 1, under section 3(l)(b) of Repeal Act, to claim land was no where considered or appreciated--Meaningful silence by entire hierarchy of Board of Revenue raises obvious doubts qua credibility of transaction, which illegality culminated into order dated 12-05-2011--It is admitted that appellant is only relevant competent authority to determine entitlement and claim of Respondent No. 1 or any person claiming right to purchase land in terms of scheme for disposal of land, rural/agricultural or urban as case may be--In these circumstances, we are of opinion that question of entitlement of Respondent No. 1 in a context of relevant scheme is a crucial issue which to-date has not been determined--Since entitlement of Respondent No. 1 was never considered or adjudged, therefore, alleged transfer or permission to transfer land vide order dated 12.05.2011 is void and of no legal effect--Consequently, sale / mutation of resumed land, including sale/transfer to Respondent No. 1 and in favour of claimants, claiming land by virtue of purchase from legal heirs of Chand Bibi is set-aside and declared void, being contrary to section 3(1) of Repeal Act, and schemes implemented for disposal of un-allotted evacuee land--After ascertaining possession and period of possession strictly in accordance with law and thereafter decide entitlement and other matters, including but limited to determination of status / nature of land (either it is agricultural or urban) and market price of land, if he applicants meet qualification / eligibility benchmark for purchase, in lieu of their continuous possession from period specified in section 3(1) of Repeal Act--However, it is observed that observations made in this judgment are tentative in nature and appellant should decide matter in accordance with law without being influenced with this judgment--Appeals were Accepted and Case was remanded.

[Pp. 570, 571, 573 & 574] A, B, C & D

M/s. Ch. Muhammad Shafique, Ghazanfar Khalid Saeed and M. Ammad Khan Rai, Advocates for Appellants

Mr. Sarfraz Ahmad Cheema, Advocate for Respondent.

Mr. Muhammad Yaqoob Kanjoo, Advocate for Settlement Department for Respondent.

Date of hearing : 15.11.2018.

Judgment

Asim Hafeez, J.--This judgment shall also decide inter-connected Intra Court Appeals (ICAs) No. 621 of 2014 & 684 of 2014 (appeals). All these appeals arise out Judgment dated 12.05.2014, by the learned Single Judge in chambers in Writ Petitions No. 14-R/2012 and 82-R/2012, whereby order dated 30.12.2011 by Respondent No. 1 was set-aside. ICA No. 684 of 2014 was filed by one Mr. Shaukat Ali against the order of dismissal of application under Order 1 Rule 10 Code of Civil Procedure 1908, on 12.05.2012.

1. We can trace the history of the case from the opening paragraphs of order dated 30.01.2010, which facts are by and large not disputed. The Member (Judicial-1) Settlement Commissioner decided the case titled as "Muhammad Akram. etc vs Muhammad Afzal / AC/DSC(L) vide order dated 13.12.2003, wherein excess allotment was cancelled from the name of Chand Bibi and land was ordered to be resumed in favour of the provincial government. For reference, the order dated 13.12.2003 is reproduced hereunder;

"In view of the position discussed above, the excess allotment in village Qila Sahib Singh has since been cancelled from the name of Chand Bibi in the connected case titled "Mst. Naziran Bibi, etc. vs. Muhammad Fazal, etc." decided today. The allotment of land measuring 37 kanals 10 marlas bearing Nos. 363, 404, and 405 made by AC/DSC(Land), Hafizabad in the name of Mst. Chand Bibi is obviously without any entitlement and has no legal value in the eye of law. The same is also hereby ordered to be cancelled. The District Officer (Revenue), Hafizabad is directed to implement this order and resume the said land allotted to Mst. Chand Bibi in Village Khaurlanwala in favour of the State. So far as the petitioners are concerned, they are directed to submit fresh application for this purpose on the basis of their continuous possession in terms of Section 3 of the Repeal Act 1975, after the land is resumed by the District Officer (Revenue)/DSC (L), Hafizabad in favour of the State. A copy of this order be also sent to Secretary (S&R)/SC(L)for information and necessary action".

1. Order dated 13.12.2003 was impugned through Writ Petition No. 61-R/2004 before the Lahore High Court Lahore, by the subsequent vendees, claimed to have purchased land from the legal heirs of Chand Bibi, and the persons aggrieved of order of cancellation of excess evacuee land. The petition was disposed of in terms of order dated 11.11.2008, which is reproduced hereunder;

All the Writ Petitions are accordingly disposed of with the observations that the findings recorded by the learned Respondent No. 1 in the impugned order that Chand Bibi was entitled only to 45 units and consequently to the allotment of proportionate land is up-held. The learned Respondent No. 1 or his successor-in-office shall calculate and adjust the resumed land to be allotted against the said 45 units and adjust the same against the sales made by the LR of Mst. Chand Bibi. The petitioners shall also be entitled to file applications to be considered alongwith the applications of respondents No. 2 to 6 in terms of section 4 of the Evacuee Properties and Displaced Persons Laws (Repeal) Act, 1975. No orders as to costs".

1. in compliance of the order dated 11.11.2008, the Respondent No. 1, in case bearing No. CSC Case No. 118/2009 passed order dated 30.01.2010, relevant portion whereof is reproduced hereunder;

2. I have heard the learned counsel for the parties and perused the relevant record. In compliance with the order of the Hon'ble High Court dated 11.11.2008 passed in Writ Petition No. 61-R/2004 the allottee was entitled to only 45 PIUs seniority wise in favour of the petitioners. Ghulam Rasool, the petitioner being first purchaser of the allottee was entitled to the tune of 45 PIUs. As reported by District Officer (Rev.). As reported by District Officer (Rev.), Hafizabad land measuring 11 kanals & 09 marlas Khasra No. 903/365 (6-K & 14-M), 478 (1-K 17-M), 670/293 (12-M) & 718/85 (2-K 6-M) against 44 PIUs was to be restored in favour of the present petitioners, therefore, it is ordered accordingly. The remaining land excluding land measuring 11 Kanals & 09 Marlas out of total land measuring 103 Kanals & 17 Marlas is resumed in favour of state. District Officer (Rev.), Hafizabad is directed to implement the said order and resume the land in favour of Provincial Government (Sabiq Matrooka)

3. As regards the appiication of the petitioners for purchase of the land under Section 3 of the Evacuee Properties and Displaced Persons Laws (Repeal) Act No. XIV of 1975 in the light of orders of the Hon'ble Court out of 30 kanals & 05 Marlas the petitioners submitted an affidavit for purchase of the remaining land measuring 15 Kanals, 03 Marlas & 02 Sarsai which became excess from their entitlement. The petitioners are bona-fide purchasers from the allottee and have been in possession of the same since the purchase. Therefore, they are allowed to purchase the land measuring 15 Kanals, 03 Marlas & 02 Sarsai at the market price plus 10% surcharge. They shall deposit the amount under head No. G-11226. Deposits in favour of the Chief Settlement Commissioner, Punjab. District Officer (Rev.), Hafizabad shall get the market price and 10% surcharge assessed through District Price Assessment Committee and send the case for final approval by the Chief Settlement Commissioner within one month.

4. The Respondent No. 1 submitted application dated 03.08.2011 to the appellant seeking purchase of evacuee land Khasra No. 399,477, 478, 812/409 measuring 24 Kanals 12 Marlas, situated in Mouza Qillah Sahib Singh, Tehsil and District Hafizabad. Respondent No. 1 claimed transfer of land, measuring 24 Kanals 12 Marlas, in its favour in term of order dated 12.05.2011 against consideration of Rs.7,380,000/-deposited on 02.05.2011, which was mutated through mutation No. 5292 dated 16.05.2011.

5. It appears that current controversy reignited when the appellant, vide order dated 30.12.2011, re-called earlier order dated 30.01.2010, relevant portion of order dated 30.12.2011 is reproduced hereunder;

"In view of the facts as well as the law points stated above, I being a competent authority hereby recall the order dated 30.01.2010 passed in CSC case No. 118/2009 and quash the subsequent proceedings conducted on the basis of this order. I also declare the transactions in favour of Muhammad Azam as null and void, ab-initio. However, he shall have the right to retrieve his deposited amount. The case is hereby decided with the following observations:

"(i) According to the order dated 13.12.2003 of Member (Judicial-I)/Chief Settlement Commissioner and order dated 11.11.2008 of the Hon'ble High Court, the original allottee was entitled for 45 PIUs. In this way, the area equal to 45 PIUs which comes to land measuring 11 kanals & 9 marlas shall be distributed amongst the most senior vendees from the original allottee which shall be, determined by District Collector, Hafizabad personally.

(ii) After deducting the area measuring 11 Kanals & 9 marlas out of 103 Kanals & 17 marlas, the remaining evacuee urban land measuring 92 Kanals & 8 marlas is hereby resumed in favour of the Provincial Government (Sabiqa Matrooka) as had already been done by the then Member (judicial-I)/Chief Settlement Commissioner, vide order dated 13.12.2003 and by the Hon'ble High Court vide judgment dated 11.11.2008.

(iii) The most senior vendees are only entitled for 11 Kanals & 9 marlas as has been narrated in para (i) above. The vendees of remaining resumed area measuring 92 Kanals & 8 marlas are not entitled for its purchase because their cases do not fall within the purview of Section 3 of the Evacuee Properties and Displaced Persons Laws (Repeal) Act No. XIV of 1975. The vendees always step into the shoes of their vendees. A defective title could not become perfect as it was further transferred. The dictum laid down in the judgments reported as PLJ 2011 Lahore 202 and 2008 AC 22 are fully applicable in these case. The resumed land measuring 92 Kanals & 8 marlas shall be put to unrestricted public auction by the Auction Committee headed by District Collector, Hafizabad, Secretary (S&R), Board of Revenue, Punjab and Additional District Collector, Hafizabad shall be the members of the Auction Committee. The vendees/occupants shall have the first right of purchase. The highest bid money/auction amount shall be deposited under head No. G-11226 "Deposits in favour of the Chief Settlement Commissioner, Punjab" and the same shall be subject to final approval of Chief Settlement Commissioner, Punjab under rules/policy. District Collector, Hafizabad is directed to complete the auction process within a period of three months without fail under intimation to this Court".

1. The appellant had also passed specific order on the application CSC Case No. 755/2011 of the Respondent No. 1, which formed part of the order dated 30.12.2011, relevant part thereof is reproduced hereunder;

"6. CSC Case No. 755/2011: The contention of Muhammad Azam s/o Muhammad Din was that the order dated 30.01.2010 was legally passed by this Court and the subsequent orders and proceeding were also based upon facts. He argued that he was entitled for purchase of land measuring 24 kanals & 12 marlas which was legally transferred to him against a consideration of Rs.24,00,000/- per acre and the mutation of proprietary rights was also sanctioned in his favour. In this way, the transaction in his favour had become a passed and closed transaction. He further submitted that the complaints were liable to be rejected. During the course of hearing, he was asked about the possession on the area in question because in the latest report, the revenue field staff never supported his contention regarding possession of the area in question but he failed to satisfy the Court that he was in possession at the time of passing the order dated 30.01.2010. In this way, it appeared that he made an unsuccessful attempt for snatching the valuable urban properties of the Provincial Government by concealment of actual facts."

1. Respondent No. 1 impugned order dated 30.12.2011 through Writ Petition No. 14-R/2012, which petition was accepted on 12.05.2014 alongwith Writ Petition No. 82-R/2012. Hence this Appeal.

2. Through ICA No. 621 of 2014, the appellant impugns order dated 12.05.2014, passed in Writ Petition No. 82-R/2012, which petition was allowed in terms of order passed in Writ Petition No. 14-R/2012.

3. ICA No. 684 of 2014 was filed by Mr. Shaukat Ali, whose application for becoming party was dismissed on 12.05.2014. The appellant allegedly claimed entitlement to bid for resumed evacuee land under section 3 of Evacuee Property and Displaced Persons Laws (Repeal) Act 1975 ("Repeal Act"). It is pertinent to mention that Writ-Petitioners in Writ Petition No. 82-R/2014 and appellant in ICA No. 684 of 2014 were aggrieved of order dated 12.05.2011, through which land was allegedly allowed to be transferred to Respondent No. 1.

Submissions by the learned counsel for the Appellant.

1. Learned counsel for the appellant defended the order dated 30.12.2011, alleging that excess land resumed in favour of the provincial government was sold / transferred through fraudulent and collusive proceedings, as a result whereof the valuable land of the Government was sold at ridiculously low price. The learned counsel contends that land was sold to Respondent No. 1 without appreciating the fact that land was not agricultural but falls within urban area/boundaries. The learned counsel emphasized that the learned single Judge in chambers had not appreciated the law and facts, while setting aside the order dated 30.12.2011.

Submissions by the learned counsel for the Respondent No. 1.

1. The learned counsel representing Respondent No. 1 contended that no power of review was available to the appellant in view of provisions of Repeal Act, hence the order dated 30.12.2011 is wholly without jurisdiction. Land once sold / transferred, consideration whereof had been accordingly determined and paid, cannot be cancelled in purported exercise by the appellant, who otherwise was ineffective after passing of order dated 12.05.2011. On merits, learned counsel contended that land sold was agricultural, which was determined at the time of assessment of land for determining its price. Per learned counsel, the transfer of land was in accordance with scheme prepared for disposal of un-allotted rural/agricultural land in terms of section 3(1)(b) of Repeal Act, prepared by Board of Revenue in this behalf. The counsel took us through the entire record to establish that all procedural requirements were fulfilled and the price, at which land in question, was accordingly determined and it commensurate with the market price.

Submissions by the learned counsel for the Respondents in ICA No. 621 of 2014 and learned counsel for appellant in ICA No. 184 of 2014.

1. The learned counsel for the respondents in ICA No. 621 and the learned counsel representing appellant in ICA No. 684 of 2014 also claimed rights in the resumed land, some claiming land on the basis of sales made by the legal heirs of Chand Bibi and others claiming land on account of alleged possession of land. It was argued that order dated 11.11.2008, passed in Writ Petition No. 61-R/2004, was not followed and land sold to Respondent No. 1 was fraudulent and caused prejudice to their rights claimed by them. No land can be sold without fulfilling the requirements of law.

2. Arguments heard. Available record perused.

3. At the outset, we enquired from the learned counsel for Respondent No. 1 that whether land in question, i.e. measuring 24 Kanals 12 Marlas, was claimed as purchased from the legal heirs of Chand Bibi, the learned counsel submitted that land is claimed in independent capacity, on the basis of continuous possession, and same was purchased after resumption of land in favour of the Provincial Government-which was firstly mutated in the name of the government vide Mutation No. 5054 dated 24.02.2010 measuring 86 Kanals 18 Marlas 1-1/2 Sarsai, pursuant: to order dated 30.01.2010, of the appellant, which was in excess of entitlement of Chand Bibi. Learned counsel, reiterated that Respondent No. 1 claimed entitlement to land in lieu of scheme for disposal of un-allotted evacuee rural agricultural land, proposed and implemented by the Board of Revenue in terms of section 3 (1)(b) of the Repeal Act. According to him, land was transferred in terms of order dated 12.05.2011 passed by the appellant, which order was illegally recalled by the appellant vide order dated 30.12.2011.

4. The crux of the submissions made before us are that appellant has no jurisdiction to recall jts earlier order, in view of the provisions of Repeal Act. Additionally, it was argued that entire process / exercise of sale / transfer of evacuee land was collusive and fraudulent. Respondent's No. 1 counsel submitted that sale/transfer, in favour of Respondent No. 1, was in accordance with the scheme of disposal of land, introduced under section 3 (1)(b) of the Repeal Act. Respondent No. 1 claimed proprietary rights over the land on the basis of order dated 12.05.2011, pursuant to which order, land was mutated in the name of Respondent No. 1 through mutation No. 5292 dated 16.05.2011.

5. Before we proceed to decide the matter, it is expedient to reproduce the order dated 12.05.2011-foundation of the claim of the Respondent No. 1, which was recalled/reviewed vide order dated 30.12.2011 by appellant. The order dated 12.05.2011 reads as;

Board of revenue, Punjab, Farid Kot House, Lahore.

Dated the 12.05.2011.

From

The Board of Revenue, Punjab

To

The District Coordination Officer/Collector, Hafizabad

Subject: TRANSFER OF LAND MEASURING 24K-12M COMPRISING KHASRA NOS.399/4,477/8-4,478/8-4 AND 812/409/3-15 SITUATED IN MAUZA QILA SAHIB SINGH, TEHSIL AND DISTRICT HAFIZABAD IN FAVOUR OF MUHAMMAD AZAM S/O MUHAMMAD DIN /O QILA SAHIB SINGH. TEHSIL AND DISTRICT HAFIZABAD.

Member (Judicial-v), Board of Revenue/Chief Settlement Commissioner, Punjab has been pleased to transfer the land measuring 24-Kanals 12-Marlas, comprising Khasra Nos. 399/4,477/8-4,478/8-4 and 812/409/3-15, situated in Mauza Qila Sahib Singh, Tehsil and District Hafizabad in favour of Mr. Muhammad Azam son of Muhammad Din, Mauza Qila Sahib Singh, Tehsil and District Hafizabad, at Rs.73,80,000/-(Rupees seventy three lacs eighty thousands only) deposited by the petitioner on 2.5.2011, in the National Bank of Pakistan, Main Branch, Hafizabad under Head No. G-11226 Deposit in favour of Chief Settlement Commissioner, Punjab.

You are requested to proceed further in accordance with law after observing all the codal formalities regarding its implementation in the revenue record under intimation to this office.

Issued with the approval of Chief Settlement Commissioner, Punjab.

Deputy Secretary (S&R) Board of Revenue, Punjab, Farid Kot House, Lahore.

No. & date Even.

A copy is forwarded for information to

1. MBR (J-V)/CSC, Board of Revenue, Punjab

2. Commissioner, Gujranwala Division, Gujranwala.

Deputy Secretary (S&R) Board of Revenue, Punjab, Farid Kot House, Lahore.

1. Since, Respondent No. 1 claimed rights in the evacuee land, on the basis of scheme for the disposal of un-allotted land, prepared by Board of Revenue in exercise of powers under section 3(1)(b) of the (Repeal) Act, which is reproduced hereunder:

"3. Transfer of property—(1) All properties, both urban and rural, including agricultural land, other than such properties attached to charitable, religious or educational trusts or institutions whether occupied or un-occupied, which may be available for disposal immediately before the repeal of the aforesaid Act and Regulation, or which may become available for disposal after such repeal as a result of a final order passed under subsection (3) of Section 2, shall stand transferred to the Provincial Government, on payment of such price as may be fixed by the Federal Government in consultation with the Provincial Government, for disposal--

(a) In the case of urban properties, by the Provincial Government under a scheme to be prepared by it in this behalf, and

(b) in the case of rural properties, by the Board or Revenue of the Province under a scheme to be prepared by the Provincial Government in this behalf:

Provided that agricultural land occupied by any person continuously for four harvests immediately preceding Kharif 1973 shall first be offered for sale to such person unless an order of ejectment has been passed against him in respect of such land.

Provided further that only so much land shall be offered to such person as does not together with land already held by him exceed a subsistence holding within the meaning of the Land Reforms Regulation, 1972."

[Emphasis underlined]

1. We will examine the order dated 30.01.2010, Order dated 12.05.2011, Order dated 30.12.2011 and Order dated 14.05.2014 while adjudicating upon the matter.

Whether the Respondent No. 1 fulfils the qualification / eligibility benchmark?

1. We have examined the order of transfer dated 12.05.2011 and section 3(1)(b) of the Repeal Act, it is clear that the Respondent No. 1, before claiming any alleged right in the land, had to fulfil the terms and conditions of section 3(1)(b), ibid, and conditions of scheme of disposal of land. To ascertain the entitlement of the Respondent No. 1, it is imperative to examine documents referred by the learned counsel for the Respondent No. 1. First in the series, is application, filed by the Respondent No. 1, dated 03.08.2011 to seek transfer / sale of resumed evacuee land - except this application there was no other application / document on record. During the course of hearing of the case, we confronted the learned counsel for Respondent No. 1 that whether any other application / document was submitted by Respondent's No. 1 father, to which he responded that certified copies of Khasra Girdawari's were attached with the writ petition and no other document was required in the presence of said documents. We are called upon to enter into this in-depth analysis of documents as fraud has been alleged.

2. In paragraph No. 1 of application, dated 03.08.2010, filed for seeking purchase of evacuee land, it was mentioned that Respondent No. 1 was in cultivating possession of the land for the last thirty years -which implied that he had claimed possession of the land since 1980 [since application was filed on 03.08.2010]. In view of this admission whether the Respondent No. 1 can claim any benefit of proviso to clause (b) of sub-section (1) of section 3 of Repeal Act, which reads as;

"Provided that agricultural land occupied by any person continuously for four harvests immediately preceding Kharif 1973 shall first be offered for sale to such person unless an order of ejectment has been passed against him in respect of such land".

[emphasis underlined]

1. We have also examined the copies of Khasra Girdawari, which showed record since 1972-73. Respondent No. 1 claimed occupation of 24 Kanals 12 Marlas but land appearing in these documents was less in measurement [as evident from the Khasra Girdawari for the years 1972-1973,1973-1974,1974-1975,1975-1976]. And Khasra Girdawari for the years 1976-1977, 1977-1978, 1978-1979, 1979-1980 are missing as well. It appeared that Respondent No. 1 does not meet the terms and conditions of section 3(l)(b) of Repeal Act, which essentially required that person claiming had to be occupy land continuously for four harvests immediately preceding Kharif 1973.

2. We had examined the report of the Patwari dated 02.09.2010, on which much emphasis was laid by the learned counsel for the Respondent No. 1, wherein it was observed that the Respondent No. 1 was in possession for the last 30-35 years approximately, which implied that as per the report the Respondent No. 1 or its father, as claimed, were in possession since 1975 - which fact alone disentitle Respondent No. 1 in terms of section 3(l)(b) of the Repeal Act. It is noted that while dismissing the application CSC Case No. 755/2011 of the Respondent No. 1 had observed that the Respondent No. 1 was not in possession at the time of the passing of order dated 30.01.2010.

3. The primary condition that the land occupied by any person continuously for four harvests immediately preceding Kharif 1973 shall first be offered for sale to such person unless an order of ejectment has been passed against him in respect of such land is undoubtedly a condition precedent, to be met before determination of purchase / price and other requirements.

4. We have also noticed that requirement of section 3(l)(b) was made part and parcel of the scheme for disposal of un-allotted evacuee rural Agricultural Land, which is evident from Chapter-I, clause (ii) and Chapter-II clause i) of the said scheme, which are reproduced hereunder;

CHAPTER-I.

In this Scheme unless the subject or context otherwise requires:--

(ii) 'Occupied land' means evacuee un-allotted land which is in continuous possession of the occupant for four harvests immediately, preceding Kharif, 1973.

CHAPTER-II.

Disposal of occupied un-allotted land.

"2 (i) That such Persons/has/have been in actual cultivating possession thereof for a period of at least four harvests immediately preceding Kharif 1973 upto the extent of subsisting holding within the meaning of the Land Reforms Regulation 1972 i.e. 12½ acres.

1. Now if the Respondent No. 1 was unable to meet the qualification / eligibility then whether alleged sale / transfer of land in its favour constitute a valid, legal and legitimate sale? We have examined the order dated 12.05.2011, wherein no such determination was done, to ascertain the eligibility of the Respondent No.

2. We, while hearing appeal, are constrained to take cognizance of this blatant flaw, wherein the factum of absence of inherent qualification / eligibility of the Respondent No. 1, under section 3(l)(b) of the Repeal Act, to claim land was no where considered or appreciated. Meaningful silence by the entire hierarchy of the Board of Revenue raises obvious doubts qua the credibility of the transaction, which illegality culminated into order dated 12.05.2011, as reproduced hereinabove.

3. We noted that such determination was conspicuous by its absence from the order dated 12.05.2011, which material fact escaped notice of the learned single judge in chambers, as well, while acknowledging alleged right of the Respondent No. 1 qua the land.

4. During the course of arguments, it is admitted that appellant is the only relevant competent authority to determine the entitlement and claim of Respondent No. 1 or any person claiming right to purchase land in terms of scheme for disposal of land, rural/agricultural or urban as the case may be. In these circumstances, we are of the opinion that the question of entitlement of Respondent No. 1 in a context of relevant scheme is a crucial issue which to-date has not been determined. Since the entitlement of Respondent No. 1 was never considered or adjudged, therefore, alleged transfer or permission to transfer land vide order dated 12.05.2011 is void and of no legal effect.

It is nobody's case that any determination was done or appeared to have been carried out before passing of order dated 12.05.2011, on the basis whereof land was sold/transferred to Respondent No. 1.

1. We observed that Writ Petition No. 82-R/2012 - order impugned through ICA No. 621 of 2014 - was allowed on the basis of the order dated 12.05.2014, passed in Writ Petition No. 14-R/2012, wherein the question of the power to recall / review was subject to the challenge. The writ petitioners also challenged the order dated 12.05.2011 alongwith other orders, on the premise that benefit was extended to Respondent No. 1 deceptively and fraudulently at their expense.

2. We have also examined the order dated 30.01.2010, which was passed pursuant to order dated 11.11.2008, passed in Writ Petition No. 61-R/2004. Said order had two parts, one relating to the order of resumption of land measuring 86 kanals 18 Marlas 1-1/2 Sarsai, already mutated in the name of the provincial government through Mutation No. 5054 and other relating to the determination of the rights of the parties to claim / bid for the ownership of the evacuee, in terms of section 3(1) of Repeal Act- depending on the status of the land-, as observed in the order dated 11.11.2008. We are of the opinion that the order dated 11.11.2008, ibid, has not been complied with in letter and spirit - to the extent of entitlement of all eligible persons under section 3(l)(b) of the Repeat Act, 1975 -and apparently the sale of land to Respondent No. 1 is illegal and carried out without determination of material questions - touching very entitlement of Respondent No. 1. The order dated 11.11.2008 had attained finality and implementation thereof was mandatory but conspicuously overlooked, which was not adhered to while passing order to the extent of entitlement of the persons holding possession of resumed land and claiming eligibility to purchase under the Scheme introduced.

3. We believe that determination of the entitlement of the persons, allegedly claiming possession of the resumed land was not done in accordance with section 3(1) of the Repeal Act. In these circumstances, we disagree with observations made by the learned single judge in chambers vide order dated 12.05.2014, whereby acknowledgement was extended to the transfer through order dated 12.05.2011.

4. Learned counsel for Respondent No. 1 referred to various provisions of Repealed Act of 1975 to substantiate arguments that no power to recall-review was available with the appellant, which appears to be a correct position of law.

5. In view of the facts narrated above, it appears that the issue is not confined to the determination of power or recall-review of otherwise but involves determination of the rights of the parties vis-a-vis the resumed evacuee land. The question arises that whether, we acting as appellate Court can examine the orders passed by the appellant. We are hearing this matter as appellate authority, enjoying all powers under the Constitutional jurisdiction, which position is further fortified in view of the fact that no appeal, review or revision was available to appellant, whose orders are amenable to jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan 1973. Taking a lead from arguments of Respondent No. 1, since no right of appeal, review or revision is available against the order of appellant, we, are entitled to examine entire matter. Guidance, in this behalf can be solicited from celebrated judgments by Apex Court of Pakistan reported as "Imran Ullah v. The Crown" (PLD 1954 Federal Court 123) and "F.A. Khan v. The Government of Pakistan" (PLD 1964 SC 520). Relevant portion of Imran Ullah v. The crown's case is reproduced hereunder:

"The statutory right of appeal confers a right of re¬hearing of the whole dispute unless expressly restricted in scope and the appellate Court is not confined to the reasons which have been given by the Court below as the ground of its decision. The appeal Court has to consider the controversy entirely afresh, both as regards facts and as regards law, and can substitute its own opinion in place of the decision taken by the lower Court."

Relevant portion of F.A. Khan v. The Government of Pakistan's case is reproduced hereunder:

"None of these matters is res Integra and in fact decided cases show that in respect of the nature of an appeal the following propositions may be regarded as established:

(i) when an appeal is filed the matter becomes sub-judice and is reheard by the appellate Court which does not Act merely as a Court of error;

(ii) after there has been an appeal even though an appellate Court simply affirms the order of the original Court the only decree or order in existence is the order of the appellate Court;

(iii) the original and appellate proceedings are steps in one proceedings."

1. We have examined the order dated 12.05.2014, wherein the learned Single Judge conspicuously overlooked real issue of entitlement of Respondent No. 1, a Writ Petitioner before the Court, who was seeking entitlement on the basis of order dated 12.05.2011 to question the jurisdiction of the appellant to recall/review its earlier order. Respondent No. 1 had not approached the Court with clean hands and intended to take refuge behind, an illegal exercise by the appellant to recall earlier order, without disclosing that Respondent No. 1 lacked entitlement/eligibility - on the basis of the documents available. We cannot close our eyes to this gross illegality, whereby the alleged entitlement of Respondent No. 1 was acknowledged without appreciating crucial fact that Respondent No. 1 failed to meet the basic requirements under section 3(1)(b) of the Repeal Act.

2. We set-aside the order dated 12.05.2014, order dated 30.12.2011, order dated 12.05.2011 - which was passed and allowed transfer of land in favour of the Respondent No. 1 without examining and adhering to the mandate of section 3(1)(b) of the Repeal Act and fulfilment of conditions of scheme for the disposal of un-allotted evacuee rural agricultural land.

3. We also set-aside the order dated 30.1.2010, to the extent of the sale / disposal of resumed evacuee land amongst the applicants / claimants being not adhered to while determining the rights of subsequent vendees and persons claiming land on basis of continuous possession of land, however, the order to the extent of the resumption of the land to Government of Punjab is sustained.

4. Consequently, the sale / mutation of the resumed land, including the sale / transfer to the Respondent No. 1 and in favour of the claimants, claiming land by virtue of purchase from the legal heirs of Chand Bibi is set-aside and declared void, being contrary to section 3(1) of the Repeal Act, and the schemes implemented for the disposal of un-allotted evacuee land.

5. We remand the matter to the appellant to examine the claims and determine the eligibility of each applicant, after ascertaining the possession and period of possession strictly in accordance with the law and thereafter decide entitlement and other matters, including but limited to the determination of the status / nature of the land (either it is agricultural or urban) and market price of the land, if he applicants meet qualification / eligibility benchmark for purchase, in lieu of their continuous possession from the period specified in section 3(1) of Repeal Act. However, it is observed that the observations made in this judgment are tentative in nature and appellant should decide the matter in accordance with law without being influenced with this judgment.

6. The appeals are accepted in above-mentioned terms.

(MMR) Appeals Accepted

PLJ 2019 Lahore 574 (DB) [Multan Bench, Multan]

Present: Muhammad Sajid Mehmmod Sethi, Asim Hafeez, JJ.

M/s. BISMILLAH COTTON FACTORY, etc.--Appellants

versus

BANK OF PUNJAB etc.--Respondent

R.F.A. No. 204 of 2006, decided on 7.2.2019.

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

----S. 7--Financial Institutions (Recovery of Finances) Ordinance 2001, S. 22 Mortgage charge--Disbursement of finance with procurement of Guardianship certificate alongwith permission for mortgage--Appointment of guardian regarding mortgage sale and transfer of property--Requirement of loan--Welfare of Minors--Inquiry to evade mortgage liabilities--Challenge to--Permission/sanction of Guardian Judge was sought specifically for loan from respondent bank, on plea that such loan was required to ensure welfare of minors, failing which factory had to be closed-- In absence of denial of beneficial interest minors while filing petition for leave to defend, is devoid of any force, raises adverse inferences against appellants and otherwise denudes submission raised of any credibility--Creation of mortgage charge is legal and same is enforceable against appellants in terms of judgment and decree--No illegality or defect was pointed in judgment and decree dated 21.6.2006.

[Pp. 578 & 579] B, C & D

Mortgage--

----Scope--Finance facility—Whether properties belonging to minors can be mortgaged with respondent bank for purpose of securing repayment of finance facility, extended and availed--Appeal was dismissed. [P. 576] A

Mr. Muhammad Suleman Bhatti, Advocate for Appellants.

Mr. Sohail Ahmad Janjua, Advocate for BOP.

Sardar Riaz Karim, Advocate for Respondent No. 2.

Mr. M. Yafis Naveed Hashmi, Advocate for Respondents No. 2, 2(1) to (v).

Mian Ahmad Mehmood, Advocate for Applicant.

Date of hearing: 29.1.2019.

Judgment

Asim Hafeez, J.--This regular first appeal under Section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 ("Ordinance of 2001") is against judgment and decree dated 21.06.2006 passed by learned Judge Banking Court-I, Multan, whereby suit filed by Respondent No. 1 (Bank of Punjab) was decreed, against the appellants, for Rs.7,861,038/- alongwith costs of funds from the date of default i.e. 30.06.2004 till realization of the decreetal amount.

1. The Appellant No. 2 is proprietor of 'Bismillah Cotton Factory', who has executed finance documents, including his personal guarantee alongwith others. Appellant No. 2, acting as Guardian for the Appellants No.6 to 10, created mortgaged charge in favour of respondent bank on the properties of Appellants No. 6 to 10, alleged as minors, to the extent of their shares. Appellants No. 1 to 10 filed consolidated application under Section 10 of Ordinance of 2001 for seeking grant for leave to defend the suit. Appellant. No. 2 filed said application for and on behalf of Appellants No. 6 to 10 the minors-being their guardian. On failure of the appellants to raise substantial question of law and facts, leave was declined and consequently suit was decreed. Hence, this appeal.

2. Before adverting to the submission made by the learned counsels, it is appropriate to identify application Bearing No. 1985-C of 2012 filed by Appellant No. 7 on behalf of the Appellants No. 6, 8 to 10, in instant appeal whereby certain documents were placed on record under Order XLI Rule 27 of Code of Civil Procedure, 1908, to be treated as additional evidence. Without going into the question of maintainability of said application, when leave to defend was declined, in essence, the purpose of this conscious effort was to highlight an illegality in the creation of mortgage charge over the properties of Appellants No. 6 to 10, which properties were subject matter of-mortgage charge and the judgment and decree under reference. In brief, the submission was that the properties under reference could not be mortgaged when no permission had been obtained from learned Guardian Judge, more particularly in the context of the imitation put in the certificate of Guardianship issued under section 7 of Act No.VIII of 1890 Guardian and Wards Act 1890.

3. Precise submissions by the leaned counsel for the appellants are that in view of restraint on Appellant No. 2, i.e. not to mortgage the property or any part thereof without the express sanction of the court, no enforceable charge by way of mortgage can be created against the properties, identified as property No.1 and property No.2 in the plaint. In brief, the only objection raised was regarding the nullity of mortgage charge qua the properties and absence of enforceability thereof, pursuant to the judgment and decree, in wake of the restriction contained in the guardianship certificates.

4. Conversely, leaned counsel for the respondent bank defended the judgment and decree dated 21.06.2006 and contended that the submissions made on behalf of the minors regarding illegality and unenforceability of mortgage charge was an afterthought and otherwise, collusive. The appellants were the real beneficiaries of the loan extended. It is contended that no such objection on has been raised while submitting the application for leave to defend the suit and there was no specific denial that Appellant No.2 was the legally appointed guardian of the minors and acted as such.

5. Arguments heard. And available record perused.

6. No serious dispute was raised regarding the finance facility extended and execution of the finance and security documents. The heart of the controversy is that whether properties belonging to the minors can be mortgaged with the respondent bank for the purpose of securing repayment of finance facility, extended and availed. Whether the Respondent No.1 was aware of the factum of the actual ownership of the properties of the minors, at the time of the grant of finance and whether any step was taken to secure repayment of the finance byway of mortgage charge over the properties. A reference to copies of the sanction advices dated 19.11.2002 and 29.07.2003 and conditions therein regarding subjecting the disbursement of finance with procurement of guardianship certificate along with permission for mortgage to the extent of the shares of the minors from the concerned Guardian Judge, may prove knowledge of the bank, if any permission was obtained from the concerned Guardian Judge. It is pointed out that two properties are subject matter of this appeal, one-to the extent of 24 Kanals and 10 Marlas being the share of the minors - of the property was part of Guardianship certificate dated 25.10.2002 and other--to the extent of 10 Marlas, comprising of commercial shops - was part of amended Guardianship certificate dated 03.09.2003, both of which certificates were mentioned in CM. application No. 1985-C of 2012, filed by the Appellants No. 6 to 10.

7. The thrust of the argument was on the conditions appearing in the Guardianship certificates, including amended certificate dated 03.09.2003 issued by learned Judge Guardian Court, in terms of section 7 of Act No.VIII of 1890, wherein restraint was placed on the guardian appointed regarding mortgage, sale or transfer of the properties, mentioned therein. The conditions imposed, imply that mortgage charge can be raised, on the properties, with the express sanction of the Court of Guardian Judge The learned counsel for respondent bank provided copy of application seeking sanction of the Court and order dated 29.10.2002, which order contained grant of permission / sanction by the Court for creating mortgage Charge over property measuring 24 kanals and 10 Marlasin lieu of loan from the respondent bank, to secure welfare of the minors. The order dated 29.10.2002 reads as;

"The petitioner Abdul Sattar moved an application for permission to mortgage the property of minors. He has been appointed Guardian of the minors vide order dated 25.10.2002. He has prayed that a Factory Bismallah Cotton Factory, is running his business in which minors have their equal shares, hence as guardian he may be allowed to mortgage property for purchase of limit drawn from the bank of Punjab for the welfare of minors.

1. There is nothing contrary to the petition in hand. The petitioner has already been appointed as guardian of the property of minors, hence petition is hereby accepted accordingly, subject to all the just exception".

2. It transpired from the record that the Appellant No.2 had flied application seeking amendment in the guardianship certificate issued on 25.10.2002, for the reason that one of the properties measuring 10 Marlas was not included in the said certificate. The application was accepted on 3.9.2003. It is interesting to note that permission/sanction of the Guardian Judge was sought specifically for loan from the respondent bank, on the plea that such loan was required to ensure welfare of the minors, failing which the factory had to be closed. It is expedient to reproduce order dated 3.9.2003, by learned Guardian Judge, which reads as;

The instant petition has been filed by the petitioner namely Abdul Sattar who has been appointed as guardian of person and property of minors/legal heirs of deceased Abdul Malik. His contention is that inadvertently the property measuring 10-Marlas bearing Khata No.2, situated in Mouza Shahr Sultan Part-II could not be incorporated in the Guardian Petition. The petitioner is running all the affairs of the business and intends to have loan from The Bank of Punjab and without incollusion of property mentioned in the instant petition he would not be able to get the said loan which would adversely effect the interest of the minors. His contention is corroborated by his statement. In view of the above, in the best interest of justice, the present petition is allowed. Amended Guardian Certificate be issued in the name of the petitioner after inclusion of the property mentioned in the instant petition. File be consigned to the record room after its due completion."

1. Upon perusal of the order dated 03.09.2003, it becomes clear and obvious that permission / sanction was obtained accordingly. In view of the order dated 03.09.2003, the restraint incorporated in the guardianship certificate would not apply to mortgage under reference in wake of sanction / permission in writing; in terms of order dated 03.09.2003. No objection was ever raised by the Appellants No.6 to 10 to the order dated 03.09.2003. Record showed that Mortgage deed dated 26.09.2003, regarding property measuring 10 Marlas, was executed after the order dated 03.09.2003. Any argument regarding illegality and unenforceability of mortgage charge, in view of the orders passed and in absence of denial of beneficial interest by the minors while filing petition for leave to defend, is devoid of any force, raises adverse inferences against the appellants and otherwise denudes the submission raised of any credibility. It appears what the appellants are trying to evade their liabilities / obligations, which cannot be done in view of the facts narrated and orders dated 29.10.2002 and 3.9.2003.

2. It the circumstances, the creation of mortgage charge is legal and same is enforceable against the appellants in terms of the judgment and decree. No illegality or defect was pointed in the judgment and decree dated 21.6.2006.

3. In view of the above, instant appeal is without any merit and same is, therefore, dismissed. The judgment & decree dated 21.6.2006 passed by learned Judge Banking Court-I, Multan, is upheld.

4. No order as to the costs.

(MMR) Appeal Dismissed

PLJ 2019 Lahore 579

Present: Muzamil Akhtar Shabir, J.

SALMAN FAZAL--Petitioner

versus

JUDGE FAMILY COURT, SHEIKHUPURA etc.--Respondents

W.P. No. 19199 of 2019, decided on 2.4.2019.

Constitution of Pakistan, 1973--

----Art. 199--Family Courts Act, 1964, S. 5--Application for rejection of plaint to extant of recovery of Rs. 70,000/- Dismissed--Personal property--Question of--Whether or not said amount can be treated as personal property of wife--Determination--Jurisdiction--Challenge to--Trial Court has reached conclusion on application filed by petitioner that cash Rs.70,000/- is presumed as personal property of wife and family Court has jurisdiction to entertain matter relating to same including recovery of cash--Where appeal is not maintainable, constitutional petition cannot be used as its substitute especially where no final challengeable order requiring determination has yet been passed--Besides it is a settled principle of law that a plaint cannot be rejected or returned in piecemeal when some dispute required to be determined by Court still subsists and it could be rejected only if all reliefs claimed were barred under law--Petitioner seeks piecemeal rejection of plaint whereas it is not disputed that Court has jurisdiction to entertain and decide remaining claim and on basis of principles laid down in afore referred judgments, it is not advisable to reject plaint at this state--Petition was dismissed. [Pp. 580 & 581] A, B & C

2017 YLR 1217 & 2003 YLR 943, ref.

M/s. Aamir Iqbal Basharat and Umair Yasin, Advocates for Petitioner.

Ms. Zarish Fatima, Assistant Attorney General and Mr. Muhammad Arshad Manzoor, AAG. On Court's call.

M/s. Nasrullah Khan Babar, Ch. Muhammad Naseer and Ms. Uzma Razzaq Khan, Advocates/Amici curiae.

Date of hearing : 2.4.2019.

Order

Through this constitutional petition, the petitioner has called in question the order dated 6.11.2018 passed by Judge Family Court, Sheikhupura, whereby the application filed by the petitioner under Section 5 of the Family Courts Act, 1964 ("Act") for rejection of plaint to the extent of recovery of Rs.70,000/- has been dismissed.

1. Learned counsel for the petitioner has argued that as per preamble, Section 5 of the Act and Schedule-I attached with the Act, the family Court being a special Court of limited jurisdiction cannot entertain claim to the extent of recovery of Rs.70,000/- filed by Respondent No.2 ("respondent") against the petitioner and the jurisdiction for the said purpose vests with the civil court.

2. Conversely, the learned Law Offices as well as Amici Curiae have argued that as nothing has been finally decided, therefore, this constitutional petition is pre-mature.

3. In paragraph 2 of the plaint, the respondent claimed that on the second day of marriage, the petitioner had taken away Rs.70,000/- cash from her purse with the promise to return the same which has not been done. The question here for determination is whether Rs.70,000/- could be recovered under the entries to the schedule of the Act which provided for suits that are under exclusive jurisdiction of family court. In the present case, the trial Court has reached the conclusion on the application filed by the petitioner that cash Rs.70,000/- is presumed as personal property of the wife and family Court has the jurisdiction to entertain the matter relating to the same including recovery of cash. Whether or not the said amount can be treated as personal property of the wife under the entry No.9 of the Schedule of the-Act is yet to be determined on the basis of evidence to be recorded by the parties and the Court has prima facie presumed the same to be personal property of the wife for the purposes of further determination, therefore, the impugned order is purely interlocutory in nature, against which an appeal is not available under the law. Consequently, where the appeal is not maintainable, the constitutional

petition cannot be used as its substitute especially where no final challengeable order requiring determination has yet been passed. Besides it is a settled principle of law that a plaint cannot be rejected or returned in piecemeal when some dispute required to be determined by the Court still subsists and it could be rejected only if all reliefs claimed were barred under the law. Reliance in this regard is placed on the judgments reported as QadeerAhmad vs. Ejaz Ahmad through L.Rs. and others (2017 YLR 1217) and Imran Raza Shaikh and 5 others vs. Mst. Zarina Gul and 4 others (2003 YLR 943). In the present case, the petitioner seeks piecemeal rejection of plaint whereas it is not disputed that the Court has jurisdiction to entertain and decide the remaining claim and on the basis of principles laid down in the afore referred judgments, it is not advisable to reject the plaint at this state.

1. For what has been discussed above, this constitutional petition at this stage is premature and is accordingly dismissed. The petitioner may wait for final order before challenging the same through appropriate proceeding.

(Y.A.) Petition Dismissed

PLJ 2019 Lahore 581Multan Bench, Multan]

Present: Ali Baqar Najafi, J

SAJAWAL--Petitioner

versus

JUDGE FAMILY COURT DISTRICT MULTAN and another--Respondents

W.P. No. 3801 of 2019, decided on 8.3.2019.

Constitution of Pakistan, 1973--

----Art. 199--Family Courts Act, 1964, S. 9(1) & 9(5-A)--Suit for maintenance allowance and dower--Right to submit statement of petitioner was struck off--Right to fair trial--Fundamental right--Challenge to--Respondent filed a suit for maintenance allowance and dower on 31.5.2018 in which petitioner appeared on 15.9.2018 whereafter on 23.10.2018, 3.12.2018 and 5.1.2019 petitioner was given opportunities to submit written statement but he could not submit same on account of unavoidable circumstances--Under section 9(1) read with section 9(5A) of Family Courts Act, 1964, a period of 15 days is provided for said purpose--However, if petitioner could establish sufficient reasons which prevented him for filing written statement, such time can be extended in interest of justice. [P. 582] A

Constitution of Pakistan, 1973--

----Art. 10-A—Fundamental Right—Right to fair trial--Keeping in view valuable rights of petitioner to defend himself before Family Court and referring to Article 10-A of Constitution of Islamic Republic of Pakistan, 1973 (Right to Fair Trial) prescribing right to defend as a fundamental right--Petition was allowed. [P. 582] B

Malik Tariq Javed Arain, Advocate for Petitioner.

Date of hearing : 8.3.2019.

Order

Through this constitutional petition, the petitioner has challenged the order dated 6.2.2019 whereby the right to submit written statement of the petitioner was struck off on the ground that despite availing number of opportunities, he has failed to file written statement within the statutory period.

1. After hearing the learned counsel for the petitioner and perusing the file, it is straightaway observed that the respondent filed a suit for maintenance allowance and dower on 31.5.2018 in which the petitioner appeared on 15.9.2018 whereafter on 23.10.2018, 3.12.2018 and 5.1.2019 the petitioner was given opportunities to submit the written statement but he could not submit the same on account of unavoidable circumstances. Under section 9(1) read with section 9(5A) of the West Pakistan Family Courts Act, 1964, a period of 15 days is provided for the said purpose. However, if the petitioner could establish sufficient reasons which prevented him for filing the written statement, such time can be extended in the interest of justice. Learned counsel for the petitioner states that on two occasions the learned Presiding Officer was on leave and that he will file the written statement before the Family Court on the next date of hearing i.e. 5.4.2019 if so permitted by the Court against an appropriate cost.

2. In this view of the matter and keeping in view the valuable rights of the petitioner to defend himself before the Family Court and referring to Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973 (Right to Fair Trial) prescribing right to defend as a fundamental right, I allow this writ petition, set-aside the order dated 6.2.2019 passed by the Family Court and permit the petitioner to submit written statement on 5.4.2019 subject to payment of cost Rs.5000/- to the respondent on the said date.

(Y.A.) Petition Allowed

PLJ 2019 Lahore 583Present: Muzamil Akhtar Shabir, J.

AHSAN IFTIKHAR--Petitioner

versus

BOARD OF INTERMEDIATE & SECONDARY EDUCATION, etc.--Respondents

W.P. No.16568 of 2019, decided on 15.5.2019.

Constitution of Pakistan, 1973--

----Art. 199--Board Calender--Chapter 14(14), 15, Rr. 9, (3) & (8)--Constitutional Petition--Order passed by discipline Committee--Cancellation of result card--Appeal--Dismissed--Petitioner was appeared in secondary school certificate (Part II) Annual Examination--Pass declaration--Anonymous application against petitioner--Issuance of charge sheet--Wrongful assumption of jurisdiction--Challenge to--It is settled by now that where a law requires a particular thing to be done in a particular manner, same could only be done in that manner and not otherwise as said dictate of law could not be treated as a mere technicality and such an action could not be held to be in compliance with legislative intent and could not sustain in eye of law--Unless order barring petitioner from passing relevant examination had been passed at relevant time before declaration of result, subsequent order barring petitioner from passed especially when provisions under Chapter 14 Rule 14 had not been invoked through charge sheet--Consequently it is held said provision of Chapter 15 Rule 9 of Calendar has not been rightly invoked after declaration of result--As jurisdiction referred in Chapter 15 Rule 9 at this stage was not available to Board, therefore, charge sheet in nature of show-cause notice as well as proceedings and consequent orders passed by Disciplinary Committee and Appeal Committee, having its basis on wrongful assumption of jurisdiction, are without jurisdiction; hence same are declared to have been issued without any lawful authority and of no legal effect--As matter is being decided on legal ground, therefore, factual aspect of same has not been commented upon in this order--Petition was allowed. [Pp. 585 & 586] A, B, C

PLD 2006 SC 94, NLR 2003 CLJ 830, PLD 2018 SC 189, PLD 2016 SC 995 & 2014 SCMR 1015, ref.

M/s. Mehmood Ahmad Alvari and Mian Muhammad Sharif, Advocates for Petitioner.

Mr. Mehboob Azhar Sheikh, Advocate for Respondent-Board.

Mrs. Zarish Fatima, Assistant Attorney General and Mr. Muhammad Arshad Manzoor, AAG for State.

Date of hearing : 15.5.2019.

Order

Through this Constitutional petition, the petitioner has called in question order dated 29.12.2018 passed by Discipline Committee of Board of Intermediate and Secondary Education (BISE), Lahore ("Board") whereby the result of the petitioner for Secondary School Certificate (Part-I & II), Annual Examination, 2018 has been cancelled and has also called in question order dated 05.03.2019 passed by Appeal committee of the Board whereby the afore-referred decision has been upheld by dismissing the petitioner's appeal.

1. The learned counsel for petitioner states that after having passed the afore-referred examination and declaration of his result, the Board was not vested with any authority to proceed against the petitioner under Chapter 15 Rule 9 Sub-Rules (3) & (8) of the Board Calendar ("Calendar") as the said provision could only be invoked during conduct of examination and that too before the result has been declared, consequently the impugned orders are claimed to be without jurisdiction.

2. On the other hand, the learned counsel for Board has relied upon Chapter 14 Rule 14 of the Board Calendar to argue that the Board has the power to quash the result of a candidate at any time even after it has been declared; therefore, no exception can be taken to the impugned orders.

3. Heard, record perused.

4. It is observed that the petitioner appeared in Secondary School Certificate (Part-II), Annual Examination, 2018 under Roll No.222358 and his result was declared as "pass" and he collectively obtained 1031 marks out of 1100 for both parts of the said examination and was awarded Secondary School Certificate. Thereafter, he got admission in Government College University, Lahore but subsequently, on an anonymous complaint received by the Board, the result of the petitioner was cancelled after answer sheets of his physics practical examination were found to have certain discrepancies. Moreover, it was observed that the answer sheets have subsequently been interpolated by deletion of wrong answers and inserting correct answers in collusion with the sub-examiner. A charge sheet under the provisions of Conduct of Examinations provided in Chapter 15 Rule 9 Sub-Rules (3) & (8) of the Calendar was issued to the petitioner requiring him to file reply. The said rules are reproduced below:

"9. If a candidate is found guilty of any of the following offences, he shall be disqualified from passing that examination and from appearing in two immediately following examination:

(1) ………………….

(2) ………………….

1. The charge sheet which was in the nature of show-cause notice issued to the petitioner requiring him to file reply should have specifically mentioned the details of allegations and the provisions of law against which the petitioner was required to be proceeded against and in case specific details were not mentioned the authorities proceeding against the petitioner would be proceeding against him under the wrong assumption of said violations. Reliance in this regard is placed on Ishtiaq Ahmad Sheikh and others vs. M/s. United Bank Limited and others (PLD 2006 S.C. 94) and M/s Atlas Tyres (Pvt.) Ltd, Sheikhupura v. Additional Collector (Adjudication), Collectorate of Central Excise, Lahore and another (NLR 2003 CLJ 830). Non-mentioning of Chapter 14 Rule 14 in the charge sheet clearly indicates that the Board did not initiate proceedings against the petitioner under the said rule which power was vested in it for cancellation/quashing of result after its declaration, therefore, by passing an order under the said provisions without including the same in the charge sheet would be proceedings on wrong assumptions and not sustainable in the eye of law, as what is not charged through a charge sheet cannot be proved. The time to invoke provision of Chapter 15 Rule 9 Sub-Rules (3) & (8) had expired when the petitioner's result has been declared. Although grounds referred in the said rule could have been made the grounds for proceedings against the petitioner if show-cause notice under correct provisions of law/rules had been issued by specifically mentioning the same but show-cause notice having not mentioned provision of Chapter 14 Rule 14 of the calendar was ambiguous, vague and devoid of power under which the same was issued, consequently it could not be held that the vested powers had properly been exercised. It is settled by now that where a law requires a particular thing to be done in a particular manner, the same could only be done in that manner and not otherwise as the said dictate of law could not be treated as a mere technicality and such an action could not be held to be in compliance with legislative intent and could not sustain in the eye of law. Reliance is placed on Muhammad Hanif Abbasi vs. Imran Khan Niazi and others (PLD 2018 S.C 189), Shahida Bibi and others vs. Habib Bank Limited and others (PLD 2016 S.C. 995) and Zia-ur-Rehman vs. Syed Ahmad Hussain and others (2014 SCMR 1015). Consequently it is held that by not issuing charge sheet by mentioned Chapter 14 Rule 14 of the Calendar, and by mentioning provisions under Chapter 15 Rule 9 Sub-Rules (3) & (8) only, for cancellation / quashing of already declared result, the respondents had exercised a jurisdiction not vested in them, therefore, the said exercise of jurisdiction is held to be without lawful authority.

2. The learned counsel for Board has stressed that the provision of Chapter 15 Rule 9 not only barred the candidate from passing the relevant examination but it also provides that he would also be barred from appearing in two subsequent examinations to be held immediately thereafter, therefore, it is argued that this provision can be invoked even after passing the examination but I am not in agreement with the said argument on the ground that unless the order barring the petitioner from passing relevant examination had been passed at the relevant time before declaration of result, the subsequent order barring the petitioner from appearing in two next examination could not have been passed especially when provisions under Chapter 14 Rule 14 had not been invoked through charge sheet. Consequently it is held the said provision of Chapter 15 Rule 9 of the Calendar has not been rightly invoked after the declaration of result.

3. As the jurisdiction referred in Chapter 15 Rule 9 at this stage was not available to the Board, therefore, the charge sheet in the nature of show-cause notice as well as the proceedings and consequent orders passed by the Disciplinary Committee and the Appeal Committee, having its basis on wrongful assumption of jurisdiction, are without jurisdiction; hence the same are declared to have been issued without any lawful authority and of no legal effect. As the matter is being decided on legal ground, therefore, the factual aspect of the same has not been commented upon in this order.

4. For what has been discussed above, the afore-referred order dated 29.12.2018 passed by Discipline Committee and order dated 05.03.2019 passed by Appeal Committee are set aside. The instant petition is allowed accordingly.

(Y.A.) Petition Allowed

PLJ 2019 Lahore 587[Multan Bench, Multan]

Present : Muhammad Sajid Mehmood Sethi, J

JAMIL AHMED & others--Petitioners

versus

GOVERNMENT OF PAKISTAN through Secretary, Ministry of Communication, Islamabad & others--Respondents

Writ Petition No. 17576 of 2018, heard on 22.1.2019.

Constitution of Pakistan, 1973--

----Arts. 4, 8, 9, 18, 23, 24, 38 & 199--National Highways and Strategic Roads (Control) Rules, 1998, Rr. 3, 4, 6, 8, 11 & 12--National Highway Authority Act, 1991, Ss. 10(2), 10(viii), (xiii), 21 (3), 23-- Obtaining of NOC--Imposing of approach rental charges--Issuance of notices--Consent of authority--Powers of authority--Delegation of powers--Validity of a statutory instrument--Undertaking by petitioners--Challenge to--Rule 4 of NHA Rules prohibits construction or laying out any means of access to or from a national highway, motorway, strategic road or any other road or bridge without written consent of respondent-authority--As per Rule 8 of Rules of 1998, any person can apply for consent of respondent-authority for construction of a building or means of access etc. within building line, which may be granted on conditions, respondent-authority deems fit to impose including any fee / charges--Similarly, Rule 12 of Rules of 1998 deals with license for grant of permission to construct approach roads or culverts for use of Government land for construction, installation of filling / CNG Stations, other amenities and laying of utility lines through, across, under and over road or bridge, which may be subject to any conditions imposed by respondent-authority--Provisions of the Act of 1991 clearly shows that impugned Rules regarding License, NOC, ARC and undertakings are totally in line with parent statute--Power is vested with Federal Government to make rules and respondent-authority can make regulations not inconsistent with rules on all matters for which regulations are expedient--Rules 4, 8 & 12 of Rules of 1998 read with Regulations 2002 have been framed under valid authority of law--Under afore-mentioned Rules particularly Rules 3, 6, 11 & 12, any person/petitioner desirous of inter alia carrying out commercial activity has to obtain consent in writing of respondent-authority and pay ARC--Purpose of delegating powers to respondent-authority to frame rules and devise regulations is only to facilitate implementation of law to best of its object and mandate--No vested or legal right of petitioners has been infringed--It is a settled law that Courts should always lean in favour of validity of a Statutory Instrument and should be slow to strike it down and an interpretation, which saves law, should be adopted rather than holding a law to be invalid, unconstitutional or ultra vires--Petitioners are estopped by their own words and conduct by submitting owners / dealers undertakings to answering respondents, wherein they have undertaken to pay lease rental charges and rent of approaches to respondent-authority before 31st July each year, payable in advance as required in NHA Office letter in favour of NHA, Road Maintenance Account, Islamabad--Power to levy charges / taxes is a sine qua non for State insofar as same is essential for purposes of generating financial resources and utilization of those resources for welfare of public at large--Rules of 1998 and, Regulations 2002 are held to be intra vires provisions of Act of 1991 as well as Constitution and petitions to this extent are devoid of any merits--Matter is remitted to respondent-authority--Petitioners shall appear before respondent-authority along with copy of this Court's order and file objections/replies--Respondent-authority shall provide opportunity of being heard to petitioners and decide matter strictly in accordance with law within thirty days, from date of receipt of certified copy of this order, and shall not take coercive measures against petitioners till decision of notices already issued--Order Accordingly.

[Pp. 594, 595, 596, 597, 598 & 599] A, B, C, D, E, F, G & H

2016 SCMR 69, PLD 1975 SC 397, PLD 1995 SC 423 & 2000 SCMR 1956, ref.

M/s. Muhammad Ali Siddiqui, Rai Husnain Nasir, Malik Sajjad Haider Maitla, Mahar Fakhar Raza Malana, Muhammad Suleman Bhatti, Malik Ghulam Qasim Rajwana, Muhammad Javaid Arshad, Hafiz Muhammad Naveed Akhtar, M. Sohail Iqbal Bhatti, Mian Muhammad Asif Rasheed Sial, Barrister Malik Kashif Rafique Rajwana, Ch. Bashir Ahmad Ansari, Sohail Ahmad Janjua and Muhammad Maalik Khan Langah, Advocates for Petitioners

M/s. Barrister Malik Muhammad Yousaf Hanjra, Assistant Attorney General, Malik Muhammad Tariq Rajwana, Mian Muhammad Ashfaq Hussain, Rehmat Sahreen Khan and Asma Khan, Advocates for Respondents

Date of hearing: 22.01.2019.

Judgment

This consolidated judgment shall dispose of instant writ petition along with following connected writ petitions as common questions of law and facts are involved in these cases:--

1. W.P. No. 17120 of 2017 titled Apex Petroleum Services & others v. Govt. of Pakistan, Ministry of Communication, Islamabad through its Secretary & others

2. W.P. No. 1421 of 2018 titled M/s Hussain Mills Ltd. v. General Manager, Pb-South NHA, Multan & others

3. W.P.No.1968 of 2018 titled Ahmed Fine Weaving Limited v. Government of Pakistan, Ministry of Communications through its Secretary, Islamabad & others

4. W.P.No.2432 of 2018 titled M/s Seven Star Petrol Pump (PSO) v. Chairman, National Highway Authority, Islamabad & others

5. W.P.No.3535 of 2018 titled Sheikh Oil & Co. v. Govt. of Pakistan, Ministry of Communication, Islamabad through its Secretary & others

6. W.P.No.10080 of 2018 titled Hamza Flexible Printing & Packages (Pvt.) Ltd. v. Govt. of Pakistan, Ministry of Communication, Islamabad through its Secretary & others

7. W.P.No.10081 of 2018 titled S.M. Food Makers Limited v. Govt. of Pakistan, Ministry of Communication, Islamabad through its Secretary & others

8. W.P.No.10082 of 2018 titled Vision Foods & Packaging (Pvt.) Ltd. v. Govt. of Pakistan, Ministry of Communication, Islamabad through its Secretary & others

9. W.P.No.10083 of 2018 titled Volca Food International Limited v. Govt. of Pakistan, Ministry of Communication, Islamabad through its Secretary & others

10. W.P.No.10084 of 2018 titled S.M. Food Makers Limited v. Govt. of Pakistan, Ministry of Communication, Islamabad through its Secretary & others

11. W.P.No.10111 of 2018 titled M/s Al-Noor Flour Mills v. Government of Pakistan through Secretary, Ministry of Communication, Islamabad & others

12. W.P.No.10338 of 2018 titled Syed Qasim Husnain Naqvi v. Government of Pakistan through Secretary, Ministry of Communications, Islamabad & others

13. W.P.No.10501 of 2018 titled Memon Motors Pvt. Ltd. & others v. Government of Pakistan, Ministry of Communications through its Secretary, Islamabad & others

14. W.P.No.13677 of 2018 titled Yaqub Soap Factory Limited v. Government of Pakistan, Ministry of Communication through its Secretary, Islamabad & others

15. W.P.No.13678 of 2018 titled Yaqub Packages v. Government of Pakistan, Ministry of Communication through its Secretary, Islamabad & others

16. W.P.No.17478 of 2018 titled Zahid Hussain & another v. Government of Pakistan through Secretary, Ministry of Communication, Islamabad & others

17. W.P.No.17587 of 2018 titled Rao Abid Ali Khan v. Government of Pakistan through Secretary, Ministry of Communication, Islamabad & others

18. W.P.No.17932 of 2018 titled Mahmood Textile Mills Limited v. National Highway Authority & others

19. W.P.No.18132 of 2018 titled Talib Hussain v. Govt. of Pakistan through Secretary, Ministry of Communication, Islamabad & others

20. W.P.No.18136 of 2018 titled Muhammad Kashif Bashir & others v. Government of Pakistan through Secretary, Ministry of Communication, Islamabad & others

21. W.P.No.18139 of 2018 titled Muhammad Iqbal Khan v. Govt. of Pakistan through Secretary, Ministry of Communication, Islamabad & others

22. W.P.No.18145 of 2018 titled Roomi Industries (Pvt.) Ltd. v. Govt. of Pakistan through Secretary, Ministry of Communication, Islamabad & others

23. W.P.No.677 of 2019 titled Muhammad Ali & another v. Government of Pakistan through Secretary, Ministry of Communication, Islamabad & others

24. W.P.No.919 of 2019 titled Muhammad Hanif v. Government of the Pakistan through Secretary, Ministry of Communication, Islamabad & others

25. W.P.No.989 of 2019 titled Mutee-ur-Rehman v. Government of Pakistan through Secretary, Ministry of Communication, Islamabad & others

26. Through instant petition, petitioners have assailed the vires of the National Highways and Strategic Roads (Control) Rules, 1998 ("the NHA Rules 1998") as amended in 2002, specifically Rules 4, 8 & 12 read with Chapter - IV of Regulatory Framework and Standard Operating Procedures for Preservation and Commercial Use of Right of Way (ROW) - 2002 ("Regulations 2002"), whereby requirements of obtaining NOC and payment of approach rental charges ("ARC") have been imposed, being ultra vires the mandate of the National Highway Authority Act, 1991 ("the Act of 1991") and the Constitution of the Islamic Republic of Pakistan, 1973 ("the Constitution"). Petitioners have also assailed recovery notices for payment of outstanding dues / rental charges, issued by the respondent-authority and have sought direction from this Court to restrain the respondent-authority from taking any coercive measures against them.

27. Learned counsel for petitioners submit that demand in the shape of impugned notices, raised by the respondent-authority, being against the provisions of the Act of 1991 and Articles 4, 8, 9, 18, 23, 24 & 38 of the Constitution, is ultra vires the basic principles of natural justice and equity including Easement Rights of the petitioners attached with their respective privately owned properties / businesses. They add that the rules and regulations framed thereunder are always subservient to the provisions of main statute. Further submit that the Act of 1991 does not provide that respondent-authority can rent out its any function, license, authority, property, road and access to any person, therefore, demand of any type of NOC / registration fee or ARC is not only in violation of the provisions of the Act ibid, but also in derogation of the provisions of the Constitution. They add that the only charges, which can be received by the respondent-authority under the statute, is the tolls, one of the sources of income of respondent-authority as mentioned in Section 21(3) of the Act of 1991, whereas no license fee or ARC is provided in the said Act. They further submit that tax or any other charges can only be imposed in accordance with the mechanism provided in Article 70 of the Constitution. In support of their submissions, they have relied upon Khawaja Ahmad Hassaan v. Government of Punjab and others (PLD 2004 Supreme Court 694 = 2005 SCMR 186), Suo Motu Case No. 13 of 2009 (PLD 2011 Supreme Court 619), Suo Motu Case No. 11 of 2011 (PLD 2014 Supreme Court 389), Hyderabad Cantonment Board v. Raj Kumar and others (2015 SCMR 1385), Pakistan Telecommunication Authority (PTA), Islamabad through Chairman v. Pakistan Telecommunication Company Limited, Headquarters, G-8 Markaz, Islamabad (2016 SCMR 69), Messrs D.S. Textile Mills Limited v. Federation of Pakistan and others (PLD 2016 Lahore 355), Independent Newspapers Corporation (Pvt.) Ltd. and others v. Federation of Pakistan and others (PLD 2017 Lahore 289), Continental Biscuits Ltd. v. Federation of Pakistan through Secretary Defence, Ministry of Defence, Islamabad and 3 others (2017 PTD 1803) and Mazhar v. Station House Officer, Police Station Garh, Faisalabad and another (2018 YLR Note 115).

28. On the other hand, learned Law Officer, duly assisted by learned Legal Advisors for respondent-authority, while referring to Sections 2(k), 2(j), 7, 10, 31 & 32 of the Act of 1991, contends that the Rules of 1998 have been framed in accordance with the authority assigned by the parent statute, therefore, the demand of NOC / registration fee and ARC is strictly in accordance with law. He further contends that issue to this extent has already been dealt with by this Court in Irshad Noor CNG Station through Proprietor v. National Highway Authority, Islamabad and others through Chairman (2016 CLC Note 15), Messrs Colony Sugar Mills Ltd. through Deputy Manager v. Province of Punjab and 5 others (2017 PTD 406) and Muhammad Khalid Qureshi v. Province of Punjab through Secretary, Excise and Taxation Department, Lahore and another (2017 PTD 805).

29. Arguments heard. Available record perused.

30. Respondent-authority has been established under the Act of 1991 for planning, development, operation and maintenance of National Highways and Strategic Roads and matters connected therewith. The management of the respondent-authority vests with the Executive Board, which is authorized to exercise all powers, functions and does all acts and things, which are to be done by the respondent-authority. Precise submission of the petitioners is that respondent-authority has no authority to issue NOC and demand ARC as the Rules 4, 8 and 12 of NHA Rules 1998 read with Regulations in Chapter - IV of Regulations 2002 are ultra vires the Act of 1991 and the Constitution. In order to analyze the submission of the petitioners it is necessary to peruse the assailed Rules 4, 8 and 12 of NHA Rules which are reproduced hereunder:

"4. Prohibition to Construct or Layout any Means of Access:- No person shall, without the consent, in writing, of the Authority, construct or layout any means of access to or from a national highway, motorway, strategic road or any other road or bridge declared as such under the Act."

"8. Construction of Means of Access to or From the Road or to Construct a Building, Structure and Other Amenities Within a Building Line:- (1) Any person wishing to obtain the consent of the Authority to construct a means of access to or from the highway or to construct a building, structure and other amenities within the Building Line determined under Rule-5 or under any provincial law before the commencement of Act shall apply to the Authority for grant of its permission.

(2) The applicant shall furnish to the Authority such plans, other relevant documents and fees as it may require in this behalf as prescribed under NHA regulatory framework and standard operating procedures for preservation and commercial use of Right of Way (ROW).

(3) The Authority shall, subject to due consideration to highway safety and convenience of road users and if satisfied that the permission to construct a means of access to, or from, the highway or to construct a building, structure and other amenities within the building line may be granted, inform the applicant accordingly, subject to such conditions as it may deem fit to impose on payment of such fees as it may fix.

(4) In case the Authority is of the opinion that such permission may not be granted, it shall record its reasons, in writing, for refusal to grant such permission and inform the applicant accordingly with reasons for such refusal."

"12. License for the grant of permission to construct approach roads or culverts for the use of Government land for construction, installation of filling/CNG stations, other amenities and laying of utility lines through, across, under and over the road or bridge:--(1) The authority may, at its discretion, with due regard to the safety and convenience of the road user and subject to such conditions as it may impose and on payment of such fees and rental/lease charges as it may fix, permit any person or agency to; (a) setup filling/CNG stations, hotel/motel, restaurants, sign boards, nurseries, shops, khokhas, hoardings, banners for a specific period; (b) to carry any cable, wire, pipeline, drain, duct, sewer or channel of any kind through, across, under or over any national highway, motorway, strategic road and bridge under its control; (c) to manage the national highway, strategic road or bridge corridor including all amenities in sections or sub-sections or part thereof as commercial entity through management contractor on behalf of the authority, at a fee or ground rental charges prescribed by the authority in the duly executed contract agreement approved by the Board or as prescribed under Regulatory Framework and Standard Operating Procedures of the Authority.

(2) Any person or agency wishing to obtain the consent of the authority to construct or lay out a means of access to or from or to construct a building, structure and other amenities within ROW and building line to which restrictions have been applied by or under Sub-section (1) of Rule 3, 6 and 11 and shall furnish with his application such plans and other particulars as may be prescribed by authority and the authority may refuse to grant the application or may grant the application subject to such conditions as it may deem fit to impose and ground rental charges and fees prescribed under Regulatory Framework and Standard Operating Procedures of the Authority.

(3) If the owner of CNG/Filling stations, restaurants, hotels/motels, factories, nurseries, shops/khokhas and any other amenities or Government agencies, departments, cantonment boards fails to pay the lease or ground rental charges in the prescribed time and fail to comply with the instructions of the authority, a surcharge fee shall be charged at the prescribed rates as given in the regulatory framework and standard operating procedures of the authority.

(4) The land utilized other than approach road as specified by NHA shall be mandatory for the applicant to pay ground rental charges as determined by DCO or prescribed by the Authority @ 7% of the land value."

1. Rule 4 of NHA Rules prohibits construction or laying out any means of access to or from a national highway, motorway, strategic road or any other road or bridge without written consent of the respondent-authority. As per Rule 8 of the Rules of 1998, any person can apply for the consent of respondent-authority for construction of a building or means of access etc. within the building line, which may be granted on the conditions, respondent-authority deems fit to impose including any fee / charges. Similarly, Rule 12 of the Rules of 1998 deals with license for the grant of permission to construct approach roads or culverts for the use of Government land for construction, installation of filling / CNG Stations, other amenities and laying of utility lines through, across, under and over the road or bridge, which may be subject to any conditions imposed by respondent-authority. Under the authority of Rules of 1998, respondent-authority framed Regulation of 2002 and its Chapter-IV provides provisions to regulate procedure for lease of Government land for installation of filling / CNG Stations and NOC requirements including charges for using NHA land for approaches to filling / CNG Stations installed out of NHA ROW.

2. Bare perusal of the provisions of the Acts of 1991 shows that Section 10 of the Act of 1991 enlists the powers of respondent-authority including the power under Section 10(2)(viii) of the Act ibid to license facilities on roads under its control on such terms as it deems fit. Likewise, Section 10(2)(xiii) of the Act empowers the respondent-authority to raise funds (local and foreign) through borrowing, floating of bonds, sharing or leasing of assets or any other means, from time to time. Section 21(3) of the Act of 1991 enlists the funds respondent-authority have to its credit which not only includes the income from tolls under Section 21(3)(iv) but also other sums received by the respondent-authority, such as fees, damages costs, refund, forfeitures, sale proceeds, lease money rentals and fines under Section 21(3)(vii). Section 21(3) of the Act of 1991 is reproduced hereunder:

"21. National Highway Authority Fund.— (1)...

(2) ...........

(3) The National Highway Authority Fund shall have to its credit all funds received by the Authority from which the Authority can incur expenditure related to its functions including -

(i) loans obtained from the Federal Government;

(ii) other loans obtained by the Authority;

(iii) grants made by the Federal Government;

(iv) income from tolls;

(v) funds provided by the Federal Government;

(vi) foreign aid, grants and loans negotiated and raised by the Authority;

(vii) all other sums received by the Authority, such as fees, damages costs, refund, forfeitures, sale proceeds, lease money, rentals and fines;

(viii) income from the sale of assets, land or vehicles; and

(ix) funds from floating bonds, shares or through any other means."

1. ROW has been defined in Section 2(j) of the Act of 1991, which is reproduced hereunder:--

"Right of Way" (ROW) means the land acquired for the purpose of construction of a National Highway or any other road assigned to the Authority;"

The roads have also been defined in Section 2(k) of the Act ibid, according to which, "road" means a road including land within the right of way and all works, such as, carriageways, cartways, footpaths berms, side drains, culverts, bridges, tunnels, fences, posts, sign boards, plantation and lighting arrangements, intersections and medians assigned to the Authority.

1. Sections 31 & 32 of the Act of 1991 empower the respondent-authority to make rules and regulations. The said Sections are reproduced hereunder:--

"31. Rules.--The Federal Government may, by notification in the official Gazette, make rules for carrying out the purposes of this Act."

"32. Regulations.--The Authority may make regulations, not inconsistent with the rules, on all matters for which regulations are expedient."

1. Aforementioned provisions of the Act of 1991 clearly shows that the impugned Rules regarding License, NOC, ARC and undertakings are totally in line with the parent statute. The power is vested with the Federal Government to make rules and respondent-authority can make regulations not inconsistent with the rules on all matters for which regulations are expedient. The Rules 4, 8 & 12 of the Rules of 1998 read with Regulations 2002 have been framed under the valid authority of law. Under the afore-mentioned Rules particularly Rules 3, 6, 11 & 12, any person/petitioner desirous of inter alia carrying out commercial activity has to obtain the consent in writing of the respondent-authority and pay the ARC. The notices have been issued to the petitioners as per provisions of the Act of 1991 and the Rules of 1998. The purpose of delegating powers to respondent-authority to frame rules and devise regulations is only to facilitate implementation of the law to the best of its object and mandate. No vested or legal right of the petitioners has been infringed. Under the law, rules and regulations made under a statute are treated for the purpose of construction as if they were in the enabling statute and are to be of the same effect as if contained in the statute, and it is a settled law that the Courts should always lean in favour of validity of a Statutory Instrument and should be slow to strike it down and an interpretation, which saves the law, should be adopted rather than holding a law to be invalid, unconstitutional or ultra vires. Reference, in this behalf, may be made to the judgments reported as Pakistan Telecommunication Authority (PTA), Islamabad Through Chairman v. Pakistan Telecommunication Company Limited, Headquarters, G-8 Markaz, Islamabad (2016 SCMR 69), Mehreen Zaibun Nisa and others v. Land Commissioner, Multan and others (PLD 1975 SC 397), Multiline Associates v. Ardeshir Cowasjee and 2 others (PLD 1995 SC 423), Messrs Elahi Cotton Mills Ltd and others v. Federation of Pakistan through Secretary, M/o Finance, Islamabad and 6 others (PLD 1997 SC 582), Federation of Pakistan throush Secretary, Ministry of Finance and others v. Haji Muhammad Sadiq and others (PLD 2007 SC 133), Syed Aizad Hussain and others v. Motor Resistration Authority and others (PLD 2010 SC 983), and Dr. Tariq Nawaz and another v. Government of Pakistan through the Secretary, Ministry of Health, Government of Pakistan, Islamabad and another (2000 SCMR 1956).

2. Issue regarding grant of licenses and fixation as well as recovery of ARC by respondent-authority came before this Court in the case of Irshad Noor CNG Station (supra) in which it was held that NHA has authority to grant license facilities on roads and to give its assets on lease. The road on which CNG Stations / Rice Mills of petitioners (in said writ petitions) were constructed, were under the control and management of respondent-authority and they were required to obtain NOCs to use the roads / ROW for their business. It was also observed that respondent-authority was empowered to grant consent for construction on the building line, approach roads or culverts etc. by imposing certain conditions including fee / rental charges. It was also noticed that Regulations were framed in 2002 deriving powers from the Act of 1991 and the Rules of 1998, wherein all the requirements for grant of NOC were mentioned including the charges for registration / NOC fee as well as charges for the establishment of CNG Stations. As the respondent-authority has been established to manage roads, therefore, the roads assigned to the authority are to be managed and operated by the authority on the terms as deemed fit by the authority. It has not been denied by any of the petitioners that roads on which their businesses exist are assigned to the respondent-authority, and therefore, the same are under control and management of the respondent-authority.

3. Learned counsel for the petitioners argued that no government or authority can compulsorily extract money from any class of persons either in form of tax, fee, charge or levy unless specifically authorized under the law and the parent statute does not empower the Government to make rules regarding ARC, hence, the impugned rules as well as demand are ultra vires the parent statute. This argument is devoid of merits for the reason that the parent statute clearly empowers the government to make rules for carrying out the purposes of Act of 1991 and one of the source of income of the respondent-authority, as mentioned in Section 23 of the Act of 1991, is sums received by the respondent-authority as lease money and rentals. The case law cited by learned counsel for petitioners is not applicable to the proposition in hand for the reason that in those cases, parent statute does not authorize the levy of tax, fee or charge and keeping the relevant statute in view, the Superior Courts came to the conclusion that rules / provisions of law were ultra vires and impugned demand was not justified, thus, those cases are clearly distinguishable. Further, petitioners are estopped by their own words and conduct by submitting the owners / dealers undertakings to the answering respondents, wherein they have undertaken to pay the lease rental charges and rent of approaches to the respondent-authority before 31st July each year, payable in advance as required in the NHA Office letter in favour of NHA, Road Maintenance Account, Islamabad. Even otherwise, "license" means official or legal permission to engage in a regulated activity and it creates a corresponding duty on the part of beneficiary to abide by the terms and conditions mentioned therein.

4. It is not denied that some of the petitioners are using the approach road of respondent-authority within the ROW / between ROW and building line in violation of the restriction on ribbon development in respect of the National Highway / Motorway / Strategic Road and doing commercial activities, without permission / obtaining NOC and paying ARC within the meaning of the Rules of 1998. Petitioners are bound to get NOC from the respondent-authority and pay the ACR under the above referred Rules and their undertakings in shape of demand draft in favour of NHA, Road Maintenance Account, Islamabad for further process of NOC. Clause N of NOC, issued to the petitioners, mandates as under:--

"This NOC is liable to be cancelled at any stage on coming to the notice of National Highway Authority that any of the terms and conditions mentioned above is found to be bogus or has been obtained / arranged by mis-representation. In such case the ground rental charges deposited by the lessee, as advance of five years shall be forfeited in the name of NHA revenue account."

1. Needless to say that that power to levy charges / taxes is a sine qua non for the State insofar as the same is essential for the purposes of generating financial resources and utilization of those resources for welfare of the public at large. Legislature enjoys plenary power to impose taxes within the framework of the Constitution and such power rests on necessity as it is an essential and inherent attribute of sovereignty belonging to a matter of right to every independent State or Government. By exercising such powers, mala fide cannot be attributed to the Legislature. Wisdom of Legislature cannot be questioned by Courts as long as the law in question is not violative of fundamental rights guaranteed by the Constitution. As long as Legislature has competence to legislate, grounds or wisdom of Legislature remains its exclusive prerogative. Legislature is not debarred from promulgating provisions of law under the Constitution.

2. In view of the above discussion, the Rules of 1998 and, Regulations 2002 are held to be intra vires the provisions of the Act of 1991 as well as the Constitution and the petitions to this extent are devoid of any merits. "However, some of the petitioners claim that they are not covered by the said Rules but still the notices have been issued to them demanding ARC, and some also alleged that the impugned demand is excessive and is not in conformity with the Rules and Regulations framed by the respondent-authority itself. To this extent, the matter is remitted to respondent-authority. The petitioners shall appear before the respondent-authority along with copy of this Court's order and file objections/replies. The respondent-authority shall provide opportunity of being heard to the petitioners and decide the matter strictly in accordance with law within thirty days, from the date of receipt of certified copy of this order, and shall not take coercive measures against the petitioners till decision of the notices already issued. If any of the petitioners is not covered by the impugned Rules / Regulations or impugned demand is exaggerated, their grievance shall be redressed strictly in accordance with law.

3. In view of the above this writ petition, along with all the aforementioned cases, is accordingly disposed of.

(Y.A.) Order Accordingly.

PLJ 2019 Lahore 600[Multan Bench, Multan]

Present : Asjad Javaid Ghural, J

FAZAL HUSSAIN--Petitioner

versus

ADDITIONAL SESSIONS JUDGE/Justice of Peace Tehsil Kehror Lal-Esan District Layyah and 3 others--Respondents

Writ Petition No.2256 of 2018, decided on 21.3.2018.

Constitution of Pakistan, 1973--

----Art. 199--Petition for lodging FIR for preparation of pass book before justice of peace--Allowed--Direction to S.H.O.--Suit for declaration for cancellation of mutation--Decreed--Appeal Dismissed--Civil Revision--Dismissed--Preparation of pass book after cancellation of mutation by Government--Order of Justice peace was challenged--Perusal of record evinces that land in question was sanctioned by revenue authority in favour of mother of Respondent No.3 on 25.12.2017 and till date petitioner has every right to a passbook prepared for purpose of agricultural loan--However, law could take its own course if petitioner had prepared said passbook alter 25.12.2017--As said passbook had been prepared prior to that, therefore, no offence has been made out and petitioner alongwith proforma respondents could not be held responsible for any illegal act committed by them for cheating, forgery or misrepresentation--Learned Ex-Officio Justice of Peace being quasi-judicial forum has to pass order judiciously but in case in hand he has not passed said order with judicious mind, which requires interference by this Court--Petition was allowed.

[Pp. 601 & 602] A

Syed Muhammad Jaffar Tayyar Bukhari, Advocate for Petitioner.

Malik Muhammad Majid Shahbaz, Advocate for Respondents.

Mr. Aziz-ur-Rehman Khan, Assistant Advocate General.

Date of hearing : 21.3.2018.

Order

Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, petitioner Fazal Hussain has challenged the vires of order dated 1.2.2018 passed by the learned Ex-Officio Justice of Peace, Karor-Lal-Eisan whereby in petition under Section 22-A Cr.P.C. filed by Respondent No.3 seeking direction for the registration of criminal case against the petitioner and proforma respondents, Respondent No.2/Station House Officer, Police Station Karor, had been directed to record version of Respondent No.3 and then proceed further strictly in accordance with law under the provision of 154 Cr.P.C.

1. Brief facts necessary for disposal of present writ petition are that Respondent No.3 had filed a petition under Section 22-A Cr.P.C. seeking direction for the registration of case against the petitioner and the proforma respondents with the allegation that the mother of Respondent No.3 namely Mst. Naziran Bibi had instituted a suit for declaration against the petitioner and others alleging therein that mutation No.1856 dated 31.01.2013 sanctioned in favour of the accused persons were the result of fraud, forgery and misrepresentation. The aforesaid suit was decreed in her favour on 24.04.2017, which has attained finality upto this Court. Mst. Naziran Bibi had subsequently approached the Revenue Department for implementation of decree dated 20.04.2017. Thereafter the petitioner and Respondent No.4 filed two successive suits for permanent injunction and during pendency of these suits, they got prepared a passbook on 18.12.2017 showing themselves as owner on the basis of same mutation. Hence, this petition.

2. Arguments heard. Record perused.

3. The petitioner and the proforma respondents had been alleged to have prepared a passbook on 18.12.2017 through revenue officials showing themselves as owner of the land in question. It is not out of place to mention here that the said passbook has not been used and no agricultural loan was sanctioned on the basis of said passbook. The learned Court below directed the Station House Officer to record the statement of Respondent No.3 under Section 154 Cr.P.C. on the ground that the decree of declaration in respect of land in question had already been passed in favour of the mother of Respondent No.3 and mutation No. 1857 dated 31.1.2013 had been cancelled and the petitioner was no mere owner of the said land. I am not in agreement with this observation as on filing of two successive suits for permanent injunction by the petitioner and Respondent No.4. The issue remained alive and the land in question was still lying in the name of the petitioner and his companion till the date when the passbook in question was prepared i.e. 18.12.2017. The perusal of record evinces that the land in question was sanctioned by the revenue authority in favour of the mother of Respondent No.3 on 25.12.2017 and till date the petitioner has every right to get a passbook prepared for the purpose of agricultural loan. However, the law could take its own

course if the petitioner had prepared the said passbook after 25.12.2017. As the said passbook had been prepared prior to that, therefore, no offence has been made out and the petitioner alongwith proforma respondents could not be held responsible for any illegal act committed by them for cheating, forgery or misrepresentation. Learned Ex-Officio Justice of Peace being quasi-judicial forum has to pass the order judiciously but in the case in hand he has not passed the said order with judicious mind, which requires interference by this Court.

For what has been discussed above, the petition in hand is allowed and the impugned order dated 1.2.2018 is hereby set-aside.

(Y.A.) Petition Allowed

PLJ 2019 Lahore 602 (DB)Multan Bench, Multan]

Present: Muhammad Sajid Mehmood Sethi and Muzamil Akhtar Shabir, JJ

M/s. GULISTAN POWER GENERATION LIMITED & 3 others--Appellants

versus

BANK OF PUNJAB & 2 others--Respondents

R.F.A. No. 872 of 2016, decided on 2.5.2019.

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

----S. 22--Suit for recovery--Decreed--Finance facility agreement--Renewal of agreement--Time and again--Relationship of banker and customer--Ceasing of--Non mentioning of personal guarantee--Applications for leave to extent of defendant No. 1 & 2--Dismissed--Appeal allowed to extant of Appellant No. 3 & 4 while dismissed to extent of Appellant No. 1 & 2--Challenge to--Although learned Single Judge in Chambers has referred to continuing guarantees of Appellant Nos. 3 and 4 issued between 14.07.2003 to 01.07.2008 against renewals of finance facility but said judgment is silent as to effect of renewal agreements dated 01.07.2009 onwards, which only refer to continuing guarantee of Appellant No.2 but not to guarantees issued by Appellant Nos. 3 and 4--Even Plaint is silent to that effect, which only refers to personal guarantees of Appellant Nos. 3 and 4 up to renewal of agreement for years 2007-08--Effect of afore-referred non-mentioning of personal guarantees of Appellant Nos. 3 and 4 was required to be determined while passing impugned judgment, which is not forthcoming on record, therefore, said appellants were at least entitled for granting leave to defend to establish that their guarantees had been discharged--Learned Single Judge in Chambers has rightly relied upon statement of accounts and excluded an amount of Rs.11,830,843/- as markup charged beyond expiry period to decree suit against remaining appellants jointly and severally for an amount of Rs.51,892,960.50/- together with costs of funds and costs of suit--Afore referred finding of learned Single Judge is inconsonance with material available on record and is well founded warranting no interference--Consequently, no exception can be taken to same--Order accordingly. [Pp. 604 & 605] A & B

Mr. Akif Majeed, Advocate for Appellants

Mr. A.W. Butt, Advocate for Respondent No. 1

Malik Asadullah and Mirza Zeeshan, Advocates for Respondent No.2.

Date of hearing: 28.3.2019.

Judgment

Muzamil Akhtar Shabir, J.--Through this Regular First Appeal, filed under Section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 ("Ordinance"), the appellants have called in question the judgment and decree dated 31.12.2015 passed by the learned Single Judge in Chambers, whereby the recovery suit filed by Plaintiff Bank-Respondent No.1 was decreed against the appellants as principal borrower and guarantors.

1. Learned counsel for the appellants contends that although while passing the impugned judgment and decree, it has been held by the learned Single Judges in Chambers that guarantees executed by the Appellants No. 3 and 4 were continuing guarantees but an important aspect of the matter has not been taken into consideration that the finance agreements which were subsequently renewed time and again, although mentioned continuing personal guarantee of Tanvir Ahmad-Appellant No. 2 but the same from the year 2009-10 onwards did not mention the guarantees of Appellant Nos. 3 and 4, therefore, to that extent as the Appellant Nos. 3 and 4 claim to have been discharged from payment of the afore referred amount of finance as guarantors on account of novation of contract, they were entitled at least for grant of leave to defend the suit.

2. On the other hand, learned counsel appearing on behalf of the Respondent No. 1 has supported the impugned judgment and decree by claiming that the guarantees of Appellant Nos. 3 and 4 were continuing guarantees, therefore, the leave to appear and defend the suit was rightly disallowed and decree was validly passed against them.

3. Heard. Record perused.

4. The pivotal point raised by the learned counsel for the appellants is that although through initial finance agreements, the respondent bank disbursed and renewed the finance facility between the years 2003-04 to 2007-08 against guarantees of Appellant Nos. 3 and 4 but subsequently renewals of the said finance facility from 2009-10 onwards did not mention continuing guarantee of the said appellants against such renewals whereas guarantee of Appellant No.2 was specifically mentioned and claim that the relationship of banker and customer thereafter ceased to exist between the parties.

5. Although learned Single Judge in Chambers has referred to the continuing guarantees of Appellant Nos. 3 and 4 issued between 14.07.2003 to 01.07.2008 against renewals of finance facility but the said judgment is silent as to the effect of renewal agreements dated 01.07.2009 onwards, which only refer to continuing guarantee of Appellant No.2 but not to the guarantees issued by Appellant Nos. 3 and 4. Even the Plaint is silent to that effect, which only refers to personal guarantees of the Appellant Nos. 3 and 4 up to the renewal of agreement for the years 2007-08. The effect of the afore-referred non-mentioning of the personal guarantees of the Appellant Nos. 3 and 4 was required to be determined while passing the impugned judgment, which is not forthcoming on the record, therefore, the said appellants were at least entitled for granting leave to defend to establish that their guarantees had been discharged.

6. In view of the above, we allow this appeal to the extent of Appellant Nos. 3 and 4 only and set-aside the impugned judgment and decree to their extent and allow their applications for leave to defend and remand the matter to the learned Single Judge in Chambers for proceeding further.

7. So far as contentions of other appellants are concerned, learned Single Judge in Chambers has properly appreciated the controversy and rightly dismissed their applications for leave to defend as no substantial question of law and facts requiring recording of evidence has been raised and application for leave to defend was not in consonance With the provisions of Section 10 (3, 4 and) 5) of the Ordinance and was rightly refused. Besides learned Single Judge in

Chambers has rightly relied upon the statement of accounts and excluded an amount of Rs.11,830,843/- as markup charged beyond the expiry period to decree the suit against the remaining appellants jointly and severally for an amount of Rs.51,892,960.50/- together with costs of funds and costs of suit. The afore referred finding of the learned Single Judge is inconsonance with the material available on the record and is well founded warranting no interference. Consequently, no exception can be taken to the same.

1. For what has been discussed above, this appeal to the extent of Appellant Nos. 1 and 2 is dismissed.

(Y.A.) Order accordingly

PLJ 2019 Lahore 605

Present: Muhammad Qasim Khan, J

JAVED--Petitioner

versus

STATE, etc.--Respondents

W.P. No. 237718 of 2018, decided on 22.10.2018.

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

----Ss. 154/161, 22-A & 22-B--Police Rules, 1934--Cross-version--Recording registered criminal case--Guidelines--Application for registration of criminal case--Same was disposed of with a direction to investigating officer of FIR to proceed on application of petitioner if cross-version attracts in case or not--Petitioner voiced a grievance that despite order by learned Ex-Officio justice of peace, his cross-version was not being recorded--Additional Inspector General Police was directed to appear--He was also directed to prepare SOP (Standard Operating Procedure) with consultation of all stakeholders and issue same for guidance of police officials investigating cross-versions to avoid any complication to public at large--Cross-version of present petitioner has been recorded to bring same in line with requirement of law and police rules.--Petition was disposed of. [Pp. 606 & 608] A & B

PLD 2018 SC 595, ref.

Mr. Rasheed Afzaal Cheema, Advocate for Petitioner.

Mian Muhammad Qamar-uz-Zaman, Advocate for Respondent No.7.

Mr. Muhammad Afzal Bhatti, Assistant Advocate General for State.

Date of hearing : 22.10.2018.

Order

Briefly the facts of the case are that regarding an occurrence, FIR No.116/2018 dated 30.03.2018 under Sections 337-A(i), 337- A(ii), 186, 148, 149, PPC was registered at Police Station City Nankana Sahib on the complaint of Abdul Rehman Shaheen (Respondent No.7) against the present petitioner and some others. Since the petitioner had another story regarding the same occurrence, therefore, he filed an application under Sections 22-A/22-B, Cr.P.C. before the learned Ex-officio Justice of Peace, the same was disposed ofvide order dated 03.05.2018 with a direction to the Investigating Officer of the said FIR to proceed on the application of the petitioner if cross-version attracts in the case or not. Through the instant writ petition the petitioner voiced a grievance that despite order by the learned Ex-officio Justice of Peace, his cross-version was not being recorded.

1. On 27.09.2018 District Police Officer and S.P (Investigation) were directed to appear before this Court in person along with Investigating Officer on 28.09.2018. On 28.09.2018 the Court was apprised that cross-version of the petitioner had been recorded. On perusal of the police file this Court observed that statement of petitioner was not recorded u/S. 161 Cr.P.C and further his statement was also not incorporated in RAPT ROZNAMCHA and statements of his witnesses and the site plan in the light of statement of the witnesses of cross-examination was not prepared, which is against the requirement of law and if the Investigating Agency adopted this way of recording cross-version then the complainant of cross-version will miss out his basic rights and it will frustrate the requirement of law in the light of case “Mst. Sughran Bibi versus The State” (PLD 2018 Supreme Court 595). The DPO as well as other police officers also could not come out with any explanation; as such the Additional Inspector General Police was directed to appear in person and he was apprised about the situation and relevant provisions of law, especially the police rules as guidance for recording of cross- versions and its investigation. He was also directed to prepare SOP with the consultation of all stakeholders and issue the same for guidance of police officials investigating the cross-versions to avoid any complication to the public-at-large.

2. Today, the Court has been informed that SOP (Standard Operating Procedures) No.30200/Inv/HA/L dated 19.10.2018 has been issued with regard to recording of cross-versions, a copy whereof has been placed before the Court. An extract of the same is reproduced hereunder:--

On Court query the police officers present in Court inform that now the cross-version of the present petitioner has been recorded to bring the same in line with the requirement of law and the police rules. This being the position the grievance of the petitioner stands redress and this petition is disposed of accordingly.

1. It has been observed that in the above referred SOP a comprehensive mechanism has been laid down but from the covering letter of the SOP it appears that although the same was addressed to the heads/Incharge of the concerned branches of the police

department, but the same do not appear to have been routed to the bottom i.e. to the SHOs or the Investigating Officers. Similarly, the SOP also does not appear to have been circulated for public awareness or to the legal fraternity. The Inspector General of Police Punjab is directed to ensure that above referred SOP shall be communicated to the SHOs who shall onward see that the SOP must be complied with in letter and spirit by the Investigating Officer. At the same time, the Inspector General of Police Punjab shall ensure that copy of this SOP must be transmitted to all the Tehsil and District Bar Associations of Punjab for information.

(K.Q.B.) Petition Disposed of

PLJ 2019 Lahore 609

Present : Ch. Muhammad Masood Jahangir, J

ZULFIQAR ALI etc.--Appellants

versus

LIAQAT ALI etc.--Respondents

E.F.A. No. 117859 of 2017, decided on 22.5.2019.

Surety--

----Surety under the law has no right to restrain an action against him rather having stood guarantor, he had substituted himself for his principal and afterwards it was the choice of the decree-holder to proceed any of them severally or both of them jointly

. [P. 611] A

Financial Institution (Recovery of finances) Ordinancc, 2001--

----S. 10--The reason being that leave to contest the suit was accorded only on the surety of the appellants and in absence, the Court might have not allowed the judgment debtor to proceed with the suit, which would have been decreed on that very first day, whereas on the fulfillment of condition, the trial was conducted for years and when the stage for realization of the decree reached, it was tried to be avoided for the aforenoted objection. [P. 611] B

Judgment Debtor--

----Scope-- appellants at their own accord had stepped into the shoes of the judgment debtor, as such they were equally responsible for the satisfaction of the decree. [P. 611] C

1989 CLC 2441, 2006 CLD 687, PLD 2014 429 Lah. 2005 SCMR 72, AIR 1924 LHR 428 & PLD 1953 LHR 22, ref.

Ch. Muhammad Rafique Warraich, Advocate for Appellants.

M/s. Malik Iftikhar Ahmad and Muhammad Faheem Mazhar, Advocate for Respondent No.1.

Date of hearing : 22.5.2019.

Order

The background of the instant E.F.A. was that Respondent No.1 instituted recovery suit of summary nature on the basis of some cheque against Barash Ali, ascendant of Respondents No.2a to 2i, who in his life appeared before the learned Trial Court and submitted application to defend the suit, which having been granted subject to furnishing of surety bonds, the appellants jointly stood as such and ultimately the suit was decreed. Thereafter, the learned Executing Court vide order dated 07.10.2017 proceeded to initiate proceedings for its satisfaction against the appellants, which was contested before the same Court by the appellants/sureties on the sole ground that unless the principal debtor or his legal heir(s) is/are proceeded against in the first instance, the recovery proceedings against the appellant was not warranted, but the objection was turned down on 02.12.2017. The appellants carried both the said orders before this Court through this Appeal.

1. Arguments heard and record perused.

2. Admittedly, the appellants were not the judgment debtors, but the moment they at their own submitted surety bonds and undertook while recording their statements to the following effect:--

they bounded themselves and subsequently it was not open for them to wriggle out of it. Thus prior to discharge of their liability, they had no right to dictate terms to the creditor and asked to pursue his remedy against the principal in the first instance. The surety under the law has no right to restrain an action against him rather having stood guarantor, he had substituted himself for his principal and afterwards it was the choice of the decree-holder to proceed any of them severally or both of them jointly. The crux of the contract of guarantee is that it binds the surety in a co-extensive manner. The reason being that leave to contest the suit was accorded only on the surety of the appellants and in absence, the Court might have not allowed the judgment debtor to proceed with the suit, which would have been decreed on that very first day, whereas on the fulfillment of condition, the trial was conducted for years and when the stage for realization of the decree reached, it was tried to be avoided for the aforenoted objection. The appellants at their own accord had stepped into the shoes of the judgment debtor, as such they were equally responsible for the satisfaction of the decree. Reliance is placed on the judgments reported as Mirza Anwar Ahmad Vs. Habib Bank Ltd., Faisalabad and others (1989 CLC 2441), Messrs State Engineering Corporation Ltd. Vs. National Development Finance Corporation and others (2006 CLD 687), Muhammad Bashir through Legal Heir Vs. Zarina Bibi and others (PLD 2014 Lahore 429), Rafique Hazquel Masih Vs. Bank Alfalah Ltd. and other (2005 SCMR 72). In the case of M/s. State Engineering (supra) it was held as under:-

Section 128 is applicable in the given circumstances. The liability of the guarantor/surety is co-extensive with that of the principal debtor, unless it is otherwise provided by the contract as envisaged in Section 128 of the Contract Act, 1872. They are jointly and severally liable to pay the outstanding amount to the creditor. A guarantor cannot shirk from the liabilities incurred by him through the execution of documents.

Almost same has also been concluded in Rafique’s case (supra) and its relevant extract is reproduced hereunder:--

The liability of the surety under Section 128 of the Contract Act is co-extensive with that of the principal debtor, unless it is otherwise provided by the contract- - - In absence of any specific stipulation in the contract, a guarantor cannot take up the plea that the Bank should enforce the liability against the principal debtor before proceedings against the guarantor. The reason being that the Bank grants loan only on the guarantee and in absence of letter/contract of guarantee the Bank may not have sanctioned the loan.

Besides, Section 145 of the Code, 1908 is more than clear on this point.

1. The emphasis of learned counsel for the appellants that the moment, Barash Ali, judgment debtor died for whom his clients became surety, their liability stood absolved was not well founded. This proposition has already been clinched by this Court in case reported as Maula Dad Vs. Wadhawa Singh and others (A.I.R.1924 Lahore 428) wherein it was concluded that:-

The surety rendered himself liable for any decree which might be passed against his principal and in consideration for his doing so the plaintiff dropped his proceedings against the very tangible sum of Rs.1,400. The mere fact that the principal has since died does not absolve the surety from performing his contract, and, following Chandulal Dalsukhram v. Jehang-bhai Chhotalal (1). I find that there is no force whatever in the objection, and I dismiss the appeal with costs.

1. The next grouse of the appellants that they were not party to the original lis, as such decree was not executable against them, has also been dealt with by this Court in cases reported as Khan Muhammad Ishaq Khan Vs. The Azad Sharma Trnasport Co. Ltd. and others (PLD 1953 Lahore 22), Mrs. Muhammad Shafi through Agent Vs. Sultan Ahmed (2000 CLC 85) and Habib Bank Limited Vs. Malik Atta Muhammad and 4 others (2000 CLC 451). In latter case it was held as under:--

As far the objection that the petitioner Bank being surety was not a party to the original suit or appeal, therefore, the execution of the decree passed against Agent Domez Borie could not be taken out against them, suffice it to refer to Section 145, C.P.C. whereby it is provided that even though a surety is not arrayed as a party to the suit or appeal, the decree against the judgment debtor can also be executed against the surety and rightly so because it is well accepted that the liability of the surety is co-extensive with the judgment debtor and continues till such time that the decree is either satisfied by the judgment debtor or by the surety. The provision of Section 145, C.P.C. eminently makes it clear that such surety shall, for the purpose of appeal, be deemed to be a party within the meaning of Section 47, C.P.C. The expression “deemed to be” manifestly refers to the law whereby a thing is presumed to be in existence while in fact it is not in existence. A surety need not be made a party to the proceedings until execution is sought against him. If any authority is needed, reference may be made to Khan Muhammad Ishaq Khan v. The Azad Sharma Transport Co. Ltd. and others PLD 1953 Lah. 22, Cholappa Gattina Sanna and another v. Rachandra Anna Pai AIR 1920 Bom.331 and

Parkash Chand Mahajan v. Madan Theatres, Ltd. AIR 1936 Lah.463.

Hence, learned Executing Court was justified to proceed with the measures for satisfaction of the decree against them. The learned counsel for the appellants is unable to point out any illegality or jurisdictional defect committed by the Court below while passing the impugned orders. This Appeal having no merit and force is dismissed, with no order as to cost.

(Y.A.) Appeal dismissed

PLJ 2019 Lahore 613

Present : Rasaal Hasan Syed, J

ALI KAMRAN--Appellant

Versus

MUHAMMAD ASLAM--Respondent

Civil Revision No.836 of 2013, decided on 20.6.2019.

Partition Act, 1893--

----S. 4--Evacuee Property--Transfer of property by settlement department--Sale of property to extent of share--Agreement to sell--Suit for specific performance--Decreed--Suit for partition--Appointment of local commission--Report of local commission--Filling of application--Dismissed--Appeal--Dismissed--Suit was decreed--Execution proceedings--Undivided family--Throughout trial petitioners or their predecessor never pressed into service their alleged claim that property was an undivided dwelling belonging to “undivided family” which could not be partitioned or that they were willing to buy share/portion of Bashir Ahmad (predecessor of respondent Nos.1 to 3) or that Court should allow relief in terms of Section 4 of Act and dispose of matter accordingly--Strangely enough petitioners opted to bring an application under Section 4 of Act on 30.9.2009 i.e. after a period of approximately 23 years from sale in favour of Bashir Ahmad and after 11 years from date of decree in partition suit--Petitioners obviously could not be allowed to sleep over matter for 23 years and then rouse from slumber and expect indulgence of Court for favorable consideration--Conduct of petitioners and their predecessor demonstrated a case of waiver and in result they were estopped to raise plea under Section 4 of Act--Facts of this case reflect a pathetic picture and condition of respondent litigants, who despite having a decree in their favour since 23.6.1998 were unable to reap fruits of decree and were being prevented from enforcing their rights by introduction of one frivolous objection petition after another--Bashir Ahmad, predecessor of respondent Nos.1 to 3 who was fighting for his rights, died in hope of getting relief but was fortunate enough to avail benefit of decree--It is an extreme example of abuse of process of law and Courts where judgment-debtor successfully obstructs implementation of decree for 21 years--Sale in favour of Bashir Ahmad was made in terms of agreement of 1987--Suit was decreed in 1993, suit for partition filed by him was decreed in 1998, but application under Section 4 of Act was filed on 30.9.2009, after eleven years of decree but with a stance that applicants were willing to purchase share of decree-holder, against price of Rs. 1,30,000/- which decree-holder had paid in 1987 to vendor for his share--Obviously with expiry of 21 years from date of sale agreement value of property, which is statedly located in heart of a commercial center, must have increased manifold and, therefore, offer on face of it reflected mala fide to blackmail and harass decree-holder and to compel capitulation to illegal wishes by fear of prolongation of proceedings in execution petition--Such tactics which are deemed to be evidence of unscrupulous behavior could not be countenanced or approved, more so, in revisional jurisdiction which is equitable and discretionary in nature--Revision petition dismissed. [Pp. 616, 617, 619, 620 & 621] A, B, C & D

2004 SCMR 47 & 1991 MLD 250, ref.

Mr. Tahir Iqbal Chaudhary, Advocate for Petitioner

Mr. Yaqoob Ali Chaudhary, Advocate for Respondent

Date of hearing : 20.6.2019.

Judgment

This civil revision calls in question orders dated 12.5.2010 and 05.11.2013 of the learned Courts below whereby the application under Section 4 of Partition Act, 1893 (the “Act”) filed by the petitioner in the execution proceedings of a partition decree was dismissed and appeal against the same was refused.

1. On petitioners’ behalf it was argued that the disputed property was the dwelling of an undivided family; Respondent Nos.1 to 3 were strangers and were not members of the undivided family; they could not compete with the alleged superior right of petitioner; the learned Courts below misinterpreted and misapplied the provisions of the Act and further that the petitioners were entitled to purchase the share of Respondent Nos. 1 to 3 on payment of Rs.1,30,000/-. Contrariwise, learned counsel for the respondent submitted that the application as also the appeal were legally untenable and that the application was collusive, mala fide and belated which was rightfully dismissed.

2. Careful review of the facts, as ascertained from the file, are that being an Evacuee Property, House No. 432/434-B-IV, was transferred by the Settlement and Rehabilitation Department in favour of Waheed Ahmad and Saeed Ahmad both sons of Noor Muhammad in equal proportions. The area of the land underneath the house was 03 marlas. Waheed Ahmad, predecessor of Respondent Nos. 4 to 6 agreed to sell his share of property in favour of Bashir Ahmad (predecessor of Respondent Nos. 1 to 3) vide sale agreement dated 13.10.1987 on the basis whereof a suit for specific performance was instituted which was decreed on 26.4.1993. Later suit for partition was filed by Saeed Ahmad (represented by legal heirs) which was contested. A preliminary decree was passed on 23.6.1998 and a local commission was appointed to visit the site and also to propose the mode of partition if in his view the property was divisible. It appears that as per report the property was found to be divisible. After eleven years, the petitioners filed an application under Section 4 of the Act, claiming the property as an undivided dwelling of an “undivided family” and alleged them to be entitled to purchase the share of decree-holder for Rs. 1,30,000/- i.e. the price which was paid in 1987. A direction was solicited for transfer of the suit property in favour of the applicants. The application was resisted on number of legal and factual grounds which was dismissed by the learned Civil Judge/Executing Court vide order dated 12.10.2010 and the order was also affirmed in appeal by learned Addl. District Judge, Sahiwal, vide order dated 05.11.2013. It was observed by the learned Courts below that the application was filed after 23 years from the sale agreement and more than 11 years from the partition decree, which was collusive and in any case the petitioner, if interested to purchase, would get a chance to participate in the auction, if the property is ultimately ordered to be sold.

3. Before opining on the merits of the objection, it is appropriate to take into consideration the specific features and circumstances of this case which reflect meaningfully upon the petitioners. Admittedly, the property was an Evacuee Property, which was transferred under the Settlement Laws in favour of Waheed Ahmad and Saeed Ahmad in equal shares. Waheed Ahmad agreed to sell his share vide agreement dated 13.10.1987. The suit to enforce the agreement was decreed in favour of Bashir Ahmad on 26.4.1993. The decree was executed and transfer of title in favour of Bashir Ahmad was effected who later filed suit for partition on 25.7.1995. Petitioners did not claim to be ignorant about the sale nor claimed ignorance of their predecessor Saeed Ahmad about the sale. The petitioners and their predecessor never deemed it necessary to either challenge the sale or the decree passed in favour of Bashir Ahmad. The conduct of petitioners and their predecessor, therefore, warrants the unequivocal inference they had no objection to the transaction.

4. In the suit for partition subsequently filed by Bashir Ahmad, Saeed Ahmad predecessor of petitioners or the petitioners themselves, did not challenge the sale in favour of Bashir Ahmad on the plea of having any superior right to be substituted under Section 4 of the Act. Instead as manifest from the copy of the judgment dated 23.6.1998 of the preliminary decree, the suit was contested with the defence that the sale agreement was forged and the decree was collusive and that the petitioners were in occupation of property as owners. Even no evidence was produced in the pre-remand and post-remand proceedings of the suit, instead the fate of the suit in terms of the decree was accepted, and it is not claimed that the same was challenged in the hierarchy of jurisdiction. Instead execution proceedings were delayed through miscellaneous objections sponsored intermittently. It is evident from the decree in the partition suit that the local commission was appointed, spot inspection was made and report was submitted in the Court to the effect that the property was divisible. It is thus obvious that throughout the trial the petitioners or their predecessor never pressed into service their alleged claim that the property was an undivided dwelling belonging to “undivided family” which could not be partitioned or that they were willing to buy the share/portion of Bashir Ahmad (predecessor of respondent Nos.1 to 3) or that the Court should allow relief in terms of Section 4 of the Act and dispose of the matter accordingly. Strangely enough the petitioners opted to bring an application under Section 4 of the Act on 30.9.2009 i.e. after a period of approximately 23 years from the sale in favour of Bashir Ahmad and after 11 years from the date of decree in partition suit.

5. In these circumstances the question that requires serious consideration will be as to whether the petitioners could be permitted to plead that the property was an undivided dwelling or it belongs to an “undivided family” or that they had a right to purchase the share of property subject-matter of decree and also as to whether the claim would not be barred by the rules of estoppel and waiver. No explanation whatsoever was given in the application as to why the petitioners or their predecessor remained mute and as to why the plea was not taken at the first opportunity. The petitioners obviously could not be allowed to sleep over the matter for 23 years and then rouse from the slumber and expect indulgence of the Court for favorable consideration. The conduct of the petitioners and their predecessor demonstrated a case of waiver and in result they were estopped to raise the plea under Section 4 of the Act.

6. On merits also, there is no substance in the objection raised under Section 4 of the Act. For better appreciation it will be beneficial if the relevant part of Section 4 of Act is reproduced which reads as under:--

“4. Partition suit by transferee of share in dwelling-house. (1) Where a share of a dwelling house belonging to an undivided family has been transferred to a person who is not a member of such family and such transferee sues for partition, the Court shall, if any member of the family being a shareholder shall undertake to buy the share of such transferee, make a valuation of such share in such manner as it thinks fit and direct the sale of such share to such shareholder, and may give all necessary and proper directions in that behalf.

(2) …”

The provisions of Section 4 of the Act have remained subject-matter of consideration in certain judicial pronouncements wherein the expression “dwelling-house” belonging to “undivided family” were duly examined. Reference can be made to “Mst. Arjumand Bano v. Ch. ALI Muhammad” (1991 MLD 250) wherein a learned Division Bench of this Court observed as under: -

“18. In sharp contrast to the well recognized conception of an undivided Hindu family, the Islamic law “does not allow the conception of a family life to overshadow its fundamental principle, namely, individual responsibility and liberty. Each member of the family is endowed with full legal capacity and the law does not sanction any joint family system of holding property as is prevalent among the Hindus. Whatever authority the law vests in the head of the family is based either on contract or on necessity for the protection of those members of the family who are unable to take care of themselves.” (The principles of Muhammadan Jurisprudence by Sir Abdur Rahim at page 326). This is because “as soon as an owner dies, succession to his property opens. There is no State intervention or clergy’s intervention needed for the passing of the title immediately to the heirs. Thus it is obvious that a Muslim’s estate legally and judicially vests immediately on his death in his or her heirs and their rights respectively come into separate existence forthwith”.

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1, 12.

1. In the present day western civilization, there are some societies in which the law recognizes a body of persons consisting of a man and woman, living as husband and wife, though not legally married, and their illegitimate children as a family. Indeed, this is inconceivable in our society.

2. In view of what has been said above, particularly the conception of an undivided Hindu family, we are left with the impression that Section 4 of the Partition Act smacks of the influence of Hindu law. In any case, the parties here being Muslims, the expression must be understood in the context of an Islamic society and if need be, re-interpreted accordingly, for, to quote from the preamble of the Constitution of the Islamic Republic of Pakistan , “ it is the will of the people of Pakistan to establish an order … wherein the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and Sunnah”. We do not, therefore, think that the concept of “undivided family”, as understood in Hindu law, has any relevance in an Islamic society.

3. It was said that the right given by Section 4 of the Partition Act is assimilable to the right of pre-emption, its object being to exclude the intrusion of strangers into a family dwelling house. This contention overlooks the Islamic pre- emption law, under which a co-sharer has a right to purchase the share of another co-sharer in preference to a stranger. This right has received legislative recognition in the recently enacted Punjab Pre-emption Ordinance, 1990.

4. There may be cases in which a family consists of a father and married sons and daughters living under the same roof, the father being the head of the family. But it will cease to be a ‘family’ when the father dies, the house devolves upon his children in definite shares, and the married sons and daughters start living with their families independently of each other.

5. As the legislature has used the adjective “undivided” with the expression “family” and as the law must be presumed to intend to mean what it says, this was not without significance. The question must, therefore, be asked - undivided in what? One need not strain one’s imagination to conjure up cases, for there are many, in which a group of persons, though descended for the same ancestor and related in blood, are living in the same dwelling house as independent families; they have separate establishments; they have separate living and cooking facilities and do in fact live separate and apart. Such families would not, in our opinion, be within the expression “undivided families”.”

(emphasis supplied)

1. On the touchstone of interpretation of rule by the learned Division Bench it is manifest that in the circumstances of present case the petitioners could not possibly allege that it was a case of “undivided dwelling house” belonging to an “undivided family”. The facts in the revision petition, when examined, reveal that Waheed Ahmad and Saeed Ahmad were claimants of the Evacuee Property according to their entitlement, the property was transferred under the Settlement Laws in their favour proportionate to their entitlement and based on independent rights. The two claimants were undeniably married individuals having their own independent families. It was not a case of transfer of property to the common propositus nor was it pleaded or proved that Saeed Ahmad and Waheed Ahmad as also their families were living as “undivided family” under the management and control of one elder; rather both the transferees lived with their families in their own respective portions. Waheed Ahmad opted to sell his ownership in favour of late Bashir Ahmad who is now succeeded by his legal heirs. Similarly, Saeed Ahmad and Waheed Ahmad, having their separate families, married children, settled in their lives, they could not possibly be pleaded to be a part of an “undivided family” in an “undivided dwelling-house” owned by one ancestor. The claim under Section 4 of the Act, which too now stands repealed by the provisions of Section 17 of the Punjab Partition of Immovable Property Act, 2012 (Act IV of 2013), was legally and factually untenable which the Courts below rightfully rejected.

2. Before parting with this judgment, it is painfully observed that the facts of this case reflect a pathetic picture and condition of the respondent litigants, who despite having a decree in their favour since 23.6.1998 were unable to reap the fruits of decree and were being prevented from enforcing their rights by introduction of one frivolous objection petition after another. Bashir Ahmad, the predecessor of Respondent Nos.1 to 3 who was fighting for his rights, died in the hope of getting relief but was fortunate enough to avail the benefit of the decree. It is an extreme example of the abuse of process of law and Courts where the judgment-debtor successfully obstructs the implementation of decree for 21 years. Such unjustified conduct of the judgment-debtors and the agonies of the successful litigant due to the illegal resistance at execution stage was considered by the honourable Supreme Court of Pakistan in “Muhammad Abdullah v. Yatim Khana Khalqia, Sargodha through its Manager and others” (2004 SCMR 471) wherein it was observed as under:--

“7…The process of execution as in vogue in our system has totally shattered the confidence reposed by the general public in our judicial system. Firstly, it takes years for a suit of any kind to reach its logical conclusion. Thereafter, the decree-holder has to file execution proceedings, which more or less is contested like a suit. Sufficient time is spent before the Executing Court and the matter is contested by the judgment- debtor like a suit by filing number of applications just to prolong the matter. It takes years to finalize the same.

1. As already stated, the Privy Council made remarks about this malady prevalent in our judicial system hundred and thirty years earlier. This situation has not improved after all the long period of more than one and quarter of century. Rather it has got worsened and the parties suffer agonies of litigation without final determination respecting their cause for generations. Having noticed unfortunate facts of this case as also the gimmickry of the petitioner whereby in an unscrupulous manner he successfully stalled the execution and deprived the respondent Yatim Khana for more than two decades, I am constrained to observe that unless and until this malady in the judicial system is remedied at the earliest otherwise it would be too late to mend the same as the poor litigants are losing their confidence in the prevalent judicial system. To ameliorate this situation, I suggest that …”

2. In the instant case, as observed by the honourable Apex Court hereinabove, the sale in favour of Bashir Ahmad was made in terms of agreement of 1987. The suit was decreed in 1993, the suit for partition filed by him was decreed in 1998, but the application under

Section 4 of the Act was filed on 30.9.2009, after eleven years of the decree but with a stance that the applicants were willing to purchase the share of decree-holder, against the price of Rs. 1,30,000/- which the decree-holder had paid in 1987 to the vendor for his share. Obviously with the expiry of 21 years from the date of sale agreement the value of the property, which is statedly located in the heart of a commercial center, must have increased manifold and, therefore, the offer on the face of it reflected the mala fide to blackmail and harass the decree-holder and to compel capitulation to the illegal wishes by the fear of prolongation of the proceedings in execution petition. Such tactics which are deemed to be evidence of unscrupulous behavior could not be countenanced or approved, more so, in revisional jurisdiction which is equitable and discretionary in nature.

1. For the reasons above this revision is without substance and is dismissed with costs throughout. The executing Court shall proceed in the matter day to day and ensure final implementation and execution of decree within one month from the receipt of the judgment with intimation to the Deputy Registrar (Judl.) of this Court.

(Y.A.) Revision Petitioner Dismissed

PLJ 2019 Lahore 621 (DB) [Rawalpindi Bench, Rawalpindi]

Present: Atir Mahmood and Ch. Muhammad Masood Jahangir, JJ.

MUHAMMAD AFZAL--Appellant

versus

CIVIL DEFENCE OFFICER, JHELUM etc.--Respondents

I.CA. No. 93 of 2018, decided on 31.1.2019.

Law Reforms Ordinance, 1972--

----S. 3--Issuance of Notice for deficiency regarding fire safety measures--Demand of gratification--Selling of marriage Hall--Filling of writ petition--Dismissed with cost--Lodging of criminal case--Challenge to--Possibility cannot be ruled out that just to take revenge of filing of earlier Writ Petition before this Court and orders passed therein appellant was issued notice to teach him a lesson, but learned single Judge in Chamber without realizing this aspect of case passed impugned judgment, which is not sustainable--Notice questioned thereunder issued by respondent No.1 being without any legal back is also quashed--However, if safety measures are still found to be deficient at spot, then concerned competent Authority may initiate fresh proceedings as warranted under law, rules/policy, but with prior notice to appellant in this regard.

[Pp. 623] B & C

Constitution of Pakistan, 1973--

----Arts. 9, 14, 18 & 23 to 25--Fundamental Rights--Protection of--There is no ambiguity that no one is above law and cannot take advantage of his position or status to infringe rights as well as liberty of people, whereas every authority while discharging its functions is bound to act fairly, justly and in accordance with law, thus any act in derogation of mandate of law cannot be protected.

[P. 623] A

Barrister Osama Amin Qazi, Advocate for Appellant.

Mr. Shams Tabraiz, A.A.G. for respondents.

Date of hearing: 31.1.2019.

Order

Undeniably, the appellant is proprietor of Haweli Marriage Hall and BBQ Restaurant at G.T. Road, Dina, Jhelum. Respondents Nos. 1 and 2 on 21.03.2018 visited the same and found it to be deficient with the fire safety measures, as such they closed the premises with metal wires compelling the former to approach this Court through Writ Petition No.928-2018 and vide order dated 30.03.2018 the same was entertained while observing as under:--

Learned Assistant Advocate General Punjab, in attendance on Court's call in receipt of copy of this petition, shall seek instructions so as to assist the Court. Seemingly reckless invocation of penal provisions in the backdrop of alleged violation under Sections, 5,8 of the Punjab Marriage Function Act, 2016 is not sustainable. Learned Law Officer shall take up the matter with Deputy Commissioner as well as District Police Officer, Jhelum to ensure that official authority is not abused.

Thereafter, on 14.04.2018 notice was served upon the appellant and to call in question its vires W.P.No. 1286-2018 was preferred by him, which was declined on 09.05.2018 by the learned single Judge in Chamber while imposing cost of Rs.50,000/- as well as to seal the premises of appellant besides lodging of a criminal case against him, which is under challenge of this Appeal.

1. Inaugurally, it was emphasized by learned counsel for the appellant that Respondent No. 1 being offended from the orders dated 30.03.2018 reproduced above while misusing his official authority issued notice for sealing the premises of the appellant and destroyed his business, which was being run for the last many years, whereas from the very first day all safety measures were adopted to protect it from fire. It is also added by him that in fact the gratification demanded by Respondent No. 2 was refused to be paid by the appellant and Respondent No. 1 being his tool just to harass and humiliate the appellant issued the process for sealing his property, which being illegal, erroneous and contrary to law was not sustainable, but learned single Judge in Chamber without taking into consideration the said backdrop of the situation erred in law to pass the impugned judgment in a hasty manner.

On the other side learned Law Officer supported the impugned judgment and sought for dismissal of this Appeal.

1. Arguments heard and record perused.

2. Undisputedly, the fundamental rights of each and every citizen of the State are protected under Articles 9, 14, 18 and 23 to 25 of the Constitution of Islamic Republic of Pakistan, 1973. There is no ambiguity that no one is above the law and cannot take advantage of his position or status to infringe the rights as well as liberty of the people, whereas every authority while discharging its functions is bound to act fairly, justly and in accordance with law, thus any act in derogation of the mandate of the law cannot be protected. The learned Law Officer after going through the provisions of the Civil Defence (Special Powers) Rules, 1951 was not in a position to say that Respondent No. 1 had authority to issue subject notice for sealing of the property of the appellant. The possibility cannot be ruled out that just to take revenge of the filing of earlier Writ Petition before this Court and the orders passed therein the appellant was issued the notice to teach him a lesson, but learned single Judge in Chamber without realizing this aspect of the case passed the impugned judgment, which is not sustainable. Resultantly, this Appeal succeeds, judgment impugned herein is set aside and while allowing W.P.No.1286-2018, the notice questioned thereunder issued by Respondent No. 1 being without any legal back is also quashed. However, if the safety measures are still found to be deficient at spot, then the concerned competent Authority may initiate fresh proceedings as warranted under the law, rules/policy, but with prior notice to the appellant in this regard.

(MMR) Appeal Allowed

PLJ 2019 Lahore 624 [Bahawalpur Bench, Bahawalpur]

Present: Jawad Hassan, J

ABDUL HADI--Petitioner

versus

SECRETARY FINANCE, GOVT. OF PAKISTAN and 4 others--Petitioner

W.P. No. 4588 of 2017/BWP, decided on 18.3.2019

Constitution of Pakistan, 1973--

----Art. 199--Petitioner was working as Branch Manager (HBFC)--Issuance of circular regarding voluntary severance Scheme (VSS) 2016--Application to avail benefit of scheme--Another application for withdrawal of earlier application--Acceptance of 1st application--Filling of Representation but in vain--Filling of W.P.--Disposed of with direction to decide pending application Representation was rejected--Challenge to--An employee can withdraw his voluntary retirement before it comes into effect. Similar is case of Petitioner as Petitioner applied for VSS package on 29.12.2016 and subsequently filed withdrawal application on 06.01.2017 before cutoff date i.e. 20.01.2017; meaning thereby that Petitioner had applied for withdrawal of VSS package well within time and that too prior to acceptance of his earlier application dated 29.12.2016. Therefore, Respondents were obligatory to decide firstly, his application for withdrawal of VSS package either way and then proceed in accordance with law, but by passing impugned letter as well as office order have committed material illegality--It is clear from record that application for withdrawal of VSS package was submitted before same has been exercised i.e. prior to its acceptance, as such this clause does not apply in instant case. Furthermore, receiving of cheque by Petitioner was Under Protest which also shows intention of Petitioner that he wished to withdraw said VSS package and that cannot be considered that he has exercised said VSS package--Respondents ought to have decided application of Petitioner dated 06.01.2017 for withdrawal of VSS package prior to acceptance of his earlier application dated 29.12.2016. Consequently, impugned letter dated 27.01.2017 as well as office order dated 03.05.2017 are set aside. In interest of justice it would be more appropriate to transmit this petition alongwith all its annexures to Respondent No.2 to look into matter and decide above referred application of Petitioner dated 06.01.2017 afresh after providing opportunity of personal hearing to all concerned including Petitioner within a period of 15 days from receipt of certified copy of this order--Petition was disposed of.

[Pp. 628, 629] A, B & C

M/s. Rai Mazhar Hussain Kharal, Sardar Abdul Basit Balouch, Shakeel Ahmed Bobra, Muhammad Yaseen Ataal, Khalid Hafeez and Muhammad Rizwan, Advocates for Petitioner.

Khawaja Muhammad Ajmal, Advocate for Respondents No.2 to 5.

Date of hearing : 18.3.2019.

Order

Through the instant petition, filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution"), the Petitioner has assailed the acceptance letter dated 27.01.2017 and office order dated 03.05.2017 passed by the Respondents.

1. The facts succinctly revealed from the petition are that the Petitioner was working as Manager at Branch Office Rahimyar Khan, House Building Finance Company (HBFC). The Respondent No.3 issued a circular dated 22.12.2016 regarding Voluntary Severance Scheme (VSS)-2016 and fixed the date for apply at or before 30.12.2016 which was extended later on as 20.01.2017 vide circular dated 12.01.2017. To avail the benefit of the same the Petitioner applied through written application dated 29.12.2016 but due before its acceptance and closing date of submission of applications for VSS, the Petitioner immediately on 06.01.2017 submitted another application for the withdrawal of earlier application dated 29.12.2016 mentioning therein that due to some unavoidable circumstances the Petitioner did not want to avail the VSS. But without deciding his second application dated 06.01.2017 for withdrawal of VSS package, the Assistant Vice President with the approval of the Respondent No.3 accepted his earlier application dated 29.12.2016 through the impugned acceptance letter dated 27.01.2017.

2. Feeling aggrieved thereby the Petitioner submitted representation before the Respondent No. 2 praying therein his reinstatement into service coupled with the reminder but in vain. Hence, the Petitioner filed W.P. No. 2726/2017 which was disposed of by this Court vide order dated 11.04.2017 with the direction to the Respondent No. 2 to decide the pending representation of the Petitioner and in result thereof the Respondent No.2 rejected the same vide the impugned office order dated 03.05.2017. Hence, this petition.

3. In reply to the petition the Respondents have filed report and parawise comments denying all the allegations and prayed for dismissal of the petition.

4. Learned counsel for the Petitioner inter alia contended that the impugned letter and office order are against the law and facts; that the application of the Petitioner for withdrawal of VSS dated 06.01.2017 was to be decided before acceptance of his earlier application; that the application for withdrawal of VSS was not considered by the Respondents, as such he has not been treated in accordance with law; that other similarly placed employees have been allowed withdrawal of VSS but the Petitioner has been denied of the same, as such a discriminatory attitude has been adopted towards the case of the Petitioner which is sheer violation of his fundamental rights guaranteed under the Constitution; that the impugned office order does not contain any logical reason for rejection of the same; that the public functionaries should be more reasonable and benevolent towards their employees rather than to litigate for the sake of litigation at public expenses; that the cheque given under the VSS has been accepted by the Petitioner Under Protest. In support of his contention the learned counsel for the Petitioner has placed reliance on the case titled Muhammad Irfan Khan and others v. The Federation of Pakistan & others (C.P. No. D-5773 of 2016), Government of Sindh Through Secretary S&GAD and another v. Raja Muhammad Inayat Khan (2001 SCJ 715), Muhammad Ali Gohar Zaidi v. House Building Finance Corporation & others (C.A. No.26-K of 2012).

5. On the other hand, learned counsel for the Respondents vehemently opposed the contentions advanced by the learned counsel for the Petitioner and prayed for dismissal of the petition on the ground that the impugned letter as well as office order have rightly been passed; that the Petitioner has no locus standi to file this petition; that the material facts have been concealed by the Petitioner in the petition, as such he has not come to the Court with clean hands; that the Petitioner without any duress had submitted application for VSS package and now at belated stage he cannot be allowed to withdraw the same; that principle of estoppal duly applied in the case of the Petitioner; that the withdrawal of VSS package application of the Petitioner had duly been responded by the Respondent; that the VSS package has specific condition that once it is exercised the same cannot be altered or withdrawn (para No.7.1). to strengthen his arguments the learned counsel for the Respondents has placed reliance on the case titled The Secretary Punjab Public Service Commission, Lahore and others v. Aamir Hayat and others (2019 SCMR 124).

6. I have heard the arguments of both the sides and perused the record.

7. There are certain facts which are admitted and have never been denied by either party which are as follows:

i. The Petitioner was employee of the Respondents.

ii. The dead final date to apply for VSS package was 20.01.2017.

iii. The Petitioner submitted application to avail VSS package on 29.12.2016.

iv. The application for withdrawal of earlier application dated 29.12.2016 was filed on 06.01.2017.

v. The application for VSS package dated 29.12.2016 was accepted by the Respondents on 27.01.2017.

vi. Representation of the Petitioner was rejected on 11.04.2017.

vii. The cheque amounting to Rs. 10,160,441/-under VSS package was received by the Petitioner Under Protest on 15.03.2017.

1. The main grievance of the Petitioner is that his application dated 06.01.2017 for withdrawal of application for VSS package has not been considered prior to acceptance of his earlier application dated 29.12.2016. Learned counsel for the Petitioner has placed reliance on the case of Government of Sindh supra. I have gone through the said judgment; the relevant portions thereof are reproduced below and are as follows:

"Voluntary retirement by exercising option after completion of 25 years' qualifying service. Civil servant would be entitled to withdraw his request for voluntary retirement when notification of his retirement had not come into effect. It would be discreet exercise of power and authority to allow civil servant to continue in service rather than to approach the problem with bureaucratic trend by rejecting reasonable request for withdrawal of voluntary retirement. In such case, judgment of Service Tribunal allowing service Appeal of civil servant and restoring him to him original position as Section officer was neither improper nor arbitrary or contrary to law so as to attract interference of Supreme Court.

Voluntary retirement. Withdrawal of offer as to voluntary retirement. Circumstances that civil servant had drawn the amount of leave encashment for 180 days alone could not operate as bar to withdrawal of offer of voluntary retirement.

There is no inflexible rule of law that in service matters, option of voluntary retirement once exercised is final and cannot be retraced under any circumstances. Each case must be examined on the facts and circumstances obtaining in a case. Indeed no hard and fast rule can be laid down for this proposition. Even in case of resignation it has been held that once resignation was tendered, an employee was allowed to withdraw the same before the said had been acted upon."

1. In view of the above enunciate principle, an employee, can withdraw his voluntary retirement before it comes into effect. Similar is the case of the Petitioner as the Petitioner applied for VSS package on 29.12.2016 and subsequently filed withdrawal application on 06.01.2017 before the cutoff date i.e. 20.01.2017; meaning thereby that the Petitioner had applied for withdrawal of VSS package well within time and that too prior to acceptance of his earlier application dated 29.12.2016. Therefore, the Respondents were obligatory to decide firstly, his application for withdrawal of VSS package either way and then proceed in accordance with law, but by passing the impugned letter as well as office order have committed material illegality. Although the withdrawal application of the Petitioner was responded by the Respondent yet the same was at belated stage. In this regard the contention of the Respondents mentioned in the report and parawise comments is that the request of the Petitioner regarding withdrawal of VSS package was replied vide e-mail dated 12.01.2017 by the Regional Head Central, Lahore that the application once submitted cannot be withdrawn and this was in accordance with the terms and conditions laid down in the policy circular of VSS. Contrarily, this contention of responding the withdrawal application via e-mail has been denied by the Petitioner with vehemence. The Copy of the said e-mail attached with the report and parawise comments reflects that the same has not been sent to the Petitioner rather the branch concerned, as such it cannot be presumed that the fate of the same has been conveyed to the Petitioner. However, the Respondents have also appended with the report and parawise comments copy of letter dated 10.04.2017 which shows that the request of withdrawal of the Petitioner has been rejected by the Respondents; that means the Petitioner's request was declined after the acceptance of the VSS package.

2. Furthermore, the stance of the Respondents that according to clause-7.1 of the VSS circular dated 22.12.2016 the application of the Petitioner for withdrawal of VSS cannot be allowed

as "option for VSS once exercised cannot be altered or withdrawn." It is clear from the record that the application for withdrawal of the VSS package was submitted before the same has been exercised i.e. prior to its acceptance, as such this clause does not apply in the instant case. Furthermore, the receiving of the cheque by the Petitioner was Under Protest which also shows the intention of the Petitioner that he wished to withdraw the said VSS package and that cannot be considered that he has exercised the said VSS package.

1. Be that as it may, suffice it to say that the Respondents ought to have decided the application of the Petitioner dated 06.01.2017 for withdrawal of VSS package prior to acceptance of his earlier application dated 29.12.2016. Consequently, the impugned letter dated 27.01.2017 as well as office order dated 03.05.2017 are set aside. In the interest of justice it would be more appropriate to transmit this petition alongwith all its annexures to the Respondent No.2 to look into the matter and decide the above referred application of the Petitioner dated 06.01.2017 afresh after providing opportunity of personal hearing to all the concerned including the Petitioner within a period of 15 days from the receipt of certified copy of this order. During the course of arguments the Court has been apprised that in case the Petitioner is reinstated into service even then he has attained his age of superannuation. Keeping in view the above referred circumstances, the Respondent No.2 shall firstly decide the application of the Petitioner dated 06.01.2017 and then proceed strictly in accordance with law.

13. In view of the above terms, this petition stands disposed of.

(MMR) Petition Disposed of

PLJ 2019 Lahore 629 [Bahawalpur Bench, Bahawalpur]

Present: Mujahid Mustaqeem Ahmed, J

GHULAM MURTAZA--Appellant

versus

MUHAMMAD RAFI--Respondent

R.F.A. No. 100 of 2012, decided on 2.5.2018

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

----S. 96, O. XXXVII R. 1 & 2--Suit for recovery of amount on basis of dishonoured cheque--Decreed--Challenge to--Careful scrutiny/examination of evidence on record leads me to an irresistible conclusion that neither in plaint nor in evidence PWs have given any specific date when this loan amount was advanced to appellant--It is not readily believable that just on request of appellant such huge amount was advanced by respondent without any documentation or even issuance of cheque in favour of respondent at that time--Obviously both parties have no blood or family relation--Mere fact that appellant is it cultivating land on lease adjacent to land of father-in-law of respondent (PW.3) is not sufficient to pay such huge amount without any formal documentation--As such I am justified to draw conclusion that on basis of evidence on record passing on Rs.5,00,000/- to appellant is not established particularly when no date of such transaction has been mentioned in plaint and in testimony of PWs--Respondent has failed to discharge initial onus of passing on Rs.5,00,000/- to appellant and issuance of cheque by appellant admitting that financial liability, as such learned Additional District Judge in stereo style, without appreciating evidence on record, decreed suit of respondent--Judgment impugned herein is based on mis-reading and non-reading of evidence and as such not sustainable--Consequently, instant appeal is allowed--Impugned judgment and decree is set aside and suit of respondent for recovery of Rs.5,00,000/- stands dismissed. [Pp. 632 & 633] A & B

Mr. Muhammad Saleem Faiz, Advocate for Appellant.

Mr. Ghulam Shabbir Shah, Advocate for Respondent.

Date of hearing: 2.5.2018.

Judgment

By filing this Regular First Appeal in terms of Section 96 of Civil Procedure Code, 1908, the appellant has challenged the legality and propriety of the judgment dated 23.07.2012 by which suit of the respondent for recovery of Rs.5,00,000/- stood decreed.

1. The relevant features of this appeal are that the respondent on 02.02.2011 filed suit under Order XXXVII Rules 1 & 2, C.P.C. against the present appellant for recovery of Rs.5,00,000/- on the basis of dishonored cheque Ex.P1. The respondent in his suit claimed that he had good relations with the appellant and the appellant along with Imtiaz Ahmad PW-2 approached him and borrowed Rs.5,00,000/- and promised to return this amount in "Kharif" 2010. When subsequently this amount was demanded, the respondent on 17.1.2011 issued cheque Ex.P1 in his favour and on 22.01.2011 it was presented to the bank but it was dishonored as per Memo. Ex.P2 (personal presentation of drawer required as it was thumb account). As such the respondent prayed for passing of decree of Rs.5,00,000/- in his favour whereas the appellant contested the suit, denied borrowing this amount and pleaded that in fact he had purchased 40-bags of fertilizer from the respondent valuing Rs. 1,28,000/- and the open cheque was issued towards that fiscal liability. The appellant further contended that he utilized 15 bags of fertilizer and returned the remaining bags being sub-standard fertilizer whereas he has sold one ox of Rs.35,000/- to the respondent and as such he was liable to pay only Rs. 13,000/- balance amount. To settle this controversy learned Additional District Judge framed the following issues:--

2. Whether the plaintiff is entitled to the decree of Rs.5,00,000/- on the basis of cheque No.D-989113 dated 17.01.2011? OPP

3. Whether the suit is not maintainable in its present form? OPD

4. Relief

5. After recording evidence of partiesvide judgment dated 23.07.2012 impugned herein, the suit of the respondent stood decreed. As such the appellant has assailed this judgment and decree passed by the learned Addl. Distt. Judge Chishtian, Distt. Bahawal Nagar mainly on the grounds of against facts, law based on misreading and non-reading of evidence.

6. Arguments heard. Record perused.

7. In plaint, the respondent has not mentioned the date when the amount was advanced to the appellant and the name of witnesses (except PW. 2) in whose presence this transaction took place. Similarly, he has not mentioned the date, place or the name of witnesses before whom the appellant has issued cheque in his favour. The respondent appeared as PW-2 and narrated the case in line with set in plaint. He has not given any specific date when this amount was given to the appellant. The respondent claimed that this amount was paid by him to the appellant in presence of Haji Imtiaz Ahmad PW-3, Muhammad Akmal, PW-4 but latter's name is not mentioned in the plaint in this context. Haji Imtiaz Ahmad PW-3, father-in-law of the respondent corroborated his version in examination-in-chief. During cross-examination he deposed that after receiving loan amount, the appellant alone returned to his house. Muhammad Akmal, PW-4 also deposed that loan amount was paid to the appellant in his presence and subsequently the appellant has issued cheque of Rs.5,00,000/- in favour of the respondent. During cross-examination he deposed that after borrowing the amount the appellant along PW.2 proceeded from the house of the respondent. He conceded that the cheque was issued as "guarantee". This witness also deposed that on the instructions of the appellant he has filled the particulars of the cheque. In rebuttal the appellant as DW-1 deposed that he has just purchased 40-bags of DAP (Fertilizer) from the respondent and the version of the respondent regarding recovery of Rs.5,00,000/- is against facts. During cross-examination he deposed that he had thumb marked the cheque and on return of sub-standard fertilizer the cheque was not returned to him. He categorically denied the suggestion that he had borrowed Rs. 5,00,000/- from respondent and issued cheque against that amount.

8. The careful scrutiny/examination of evidence on record leads me to an irresistible conclusion that neither in plaint nor in evidence PWs have given any specific date when this loan amount was advanced to the appellant. It is not readily believable that just on request of the appellant such huge amount was advanced by the respondent without any documentation or even issuance of cheque in favour of the respondent at that time. Obviously both the parties have no blood or family relation. Mere fact that the appellant is it cultivating land on lease adjacent to land of father-in-law of respondent (PW.3) is not sufficient to pay such huge amount without any formal documentation. As such I am justified to draw the conclusion that on the basis of evidence on record passing on Rs.5,00,000/- to the appellant is not established particularly when no date of such transaction has been mentioned in plaint and in testimony of PWs. The contention of learned counsel for the respondent is that issuance of cheque is not denied by appellant, as such, cheque is negotiable instrument and under Section 118 of the Negotiable Instruments Act XXI of 1881 burden of proof of non-payment of consideration lies on appellant and he has failed to discharge such onus and as such learned Additional District Judge has rightly decreed the suit of the respondent. In support of this contention he has relied on cases titled Muhammad Aziz-ur-Rehman Vs. Liaqat Ali (2007 CLD 1605 Supreme Court of Pakistan) and Muhammad Nawaz Vs. Qazi Muhammad Rashid (2018 CLC Note 34 Lahore (Multan Bench). Whereas learned counsel for the appellant has relied on case reported as Asif Ali and 6 others Vs. Saeed Muhammad (PLJ 2010 Lahore 291 (DB) wherein relying on the principle handed down in Salar Abdur Rauf v. Mst. Barkat Bibi (1973 SCMR 332) it has been held that under Section 118 Act ibid, it is not a conclusive presumption of drawing consideration of negotiable instruction, rather it can be held to be rebuttable in nature and initial burden of proving the case i.e.

Negotiable Instrument/ cheque has been executed against consideration lies on the plaintiff.

1. Thus to my view in this, case the respondent has failed to discharge initial onus of passing on Rs. 5,00,000/- to the appellant and issuance of cheque by the appellant admitting that financial liability, as such learned Additional District Judge in stereo style, without appreciating the evidence on record, decreed the suit of the respondent. The judgment impugned herein is based on mis-reading and non-reading of evidence and as such not sustainable. Consequently, instant appeal is allowed. Impugned judgment and decree is set aside and suit of the respondent for recovery of Rs.5,00,000/- stands dismissed.

(MMR) Appeal allowed

PLJ 2019 Lahore 633 [Multan Bench, Multan]

Present : Tariq Saleem Sheikh, J

MUHAMMAD SAEED--Petitioner

versus

PUNJAB OVERSEAS PAKISTANIS COMMISSION through Chairperson and 5 others--Respondents

W.P.No.10356 of 2016, decided on 22.11.2017

Constitution of Pakistan, 1973--

----Art. 199--Punjab Overseas Pakistan Commission Act, 2014 ("The Act") S. 2(g)--Oversea Pakistani--Execution of agreement with respect of immoveable properties--Filling of complaint before overseas Pakistani Commissioner--Issuance of letter--Jurisdiction--Challenge to--Jurisdiction of Act is limited to Government Agencies and complaints that its seeks to deal with are only those which relate to maladministration and corruption in said Agencies--It does not extend to disputes between individuals--They are to be resolved by Courts in ordinary course through due process of law--Respondent No.1 and Petitioner and no Government Agency within meaning of clause (g) of Section 2 of Act is involved--Therefore, none of bodies set up under Act can exercise jurisdiction in matter and Respondent No.3 was not competent to issue impugned letter--Respondent No.5 cannot by-pass ordinary course prescribed by law--Impugned letter is declared to have been issued without lawful authority and illegal--However, Respondent No. 5 would be at liberty to pursue his remedies against Petitioner in accordance with law. [Pp. 635, 636] B, C & D

Punjab Overseas Pakistani Commission Act, 2014--

----S. 2(g)--Establishment of Overseas Pakistanis Commission--Purpose of--Purpose of Act is to provide a swift mechanism to redress complaints of overseas Pakistanis pertaining to "Government Agency" and to promote an environment which could provide them en incentive to invest in Punjab. [Pp. 635] A

Mehar Khalil-ur-Rehman, Advocate, for Petitioner.

Rana Akmal Abbas, Advocate for Respondent No.5.

Mian Mumtaz Hussain, AAG.

Date of hearing: 22.11.2017.

Order

This constitutional petition assails the vires of Letter No.39-OPC-GAR dated 16-5-2016 issued by Respondent No.3 to Respondent No.4 (C.P.O. Multan).

1. Brief facts of the case are that Respondent No.5 is an overseas Pakistani who is employed in Qatar. On 15.8.2015 he made Complaint No.1576 to the Punjab Overseas Pakistanis Commissioner (the "Commissioner") against the Petitioner alleging that he had executed an agreement with him in respect of three immoveable properties situated in various parts of District Multan and had then fraudulently sold them to third parties. The complaint was referred to the District Overseas Pakistanis Committee, Multan (the "District Committee") which considered the matter in its meeting held on 13-5-2016 and referred it to Respondent No.3 (who is the focal person of the District Committee) for necessary action. In pursuance of the said direction Respondent No.3 issued the impugned letter/order dated 16-5-2016 to the Respondent C.P.O, Multan, asking him "to go through the contents of the complaint and redress/respond within three days positively". Hence, this petition.

2. Learned counsel for the Petitioner contended that Respondent No.3 had no jurisdiction to issue the impugned letter under the Punjab Overseas Pakistanis Commission Act, 2014 (the "Act"). He argued that the dispute between the Petitioner and Respondent No.5 was of a civil nature and only the civil Court was competent to decide the same. Lastly, the entire proceedings initiated against the Petitioner were malafide and caused illegal harassment to him.

3. On the other hand, the learned Law Officer vehemently opposed this petition. He submitted that the Commission was established under an Act of the Punjab Assembly with a view to help/solve the problems of the overseas Pakistanis who earn valuable foreign exchange for the country. He contended that the Commissioner and the District Committees constituted under the Act were charged with the duty to attend to the complaints of the overseas Pakistanis and to refer them to the concerned offices so that they may be expeditiously redressed. He further contended that Respondent No.3 was competent to issue the impugned Order and the Petitioner's objections thereto were misconceived.

4. The learned counsel for Respondent No.5 adopted the arguments of the learned Law Officer and submitted that the Petitioner was a fraudster who had received a huge amount of money from him in respect of three immoveable properties under a written agreement and then, instead of executing a sale deed in his favour, transferred them to third parties. He had come to the Court with unclean hands and his petition was thus liable to be dismissed.

5. I have heard the learned counsel and have perused the available record.

6. The Act was promulgated by the Punjab Assembly on 10-4-2014. It establishes the Punjab Overseas Pakistanis Commission which is headed by the Chief Minister (Punjab), an Advisory Council and District Committees and also provides for the appointment of the Commissioner. Each body has its own functions which have been defined in detail. The purpose of the Act is to provide a swift mechanism to redress the complaints of the overseas Pakistanis pertaining to the "Government Agency" and to promote an environment which could provide them en incentive to invest in the Punjab. The intention of the Legislature is clearly spelt out in the preamble of the Act and pervades through its entire body. It is also substantiated by the various sections which describe the functions assigned to the aforementioned bodies constituted thereunder.

7. The term "Government Agency" is defined in clause (g) of Section 2 of the Act to mean a department, attached department or special institution of the Government of the Punjab, a local government, or a body corporate owned or controlled by the Punjab Government or a local government. The jurisdiction of the Act is limited to the Government Agencies and the complaints that its seeks

to deal with are only those which relate to maladministration and corruption in the said Agencies. It does not extend to disputes between individuals. They are to be resolved by the Courts in the ordinary course through due process of law.

1. In the instant case, the dispute is between Respondent No. 5 and the Petitioner and no Government Agency within the meaning of clause (g) of Section 2 of the Act is involved. Therefore, none of the bodies set up under the Act can exercise jurisdiction in the matter and the Respondent No. 3 was not competent to issue impugned letter. Respondent No. 5 cannot by-pass the ordinary course prescribed by law.

2. The contention of the Respondents that the Impugned letter is innocuous and, does not interfere in the due process of law is without substance. It is unlikely that when a senior police officer of the rank of CPO is asked to "redress/respond within three days positively" the Petitioner would not be harassed.

3. In view of the foregoing, this petition is allowed. The impugned letter is declared to have been issued without lawful authority and illegal. However, Respondent No. 5 would be at liberty to pursue his remedies against the Petitioner in accordance with law.

(MMR) Appeal allowed

PLJ 2019 Lahore 636 [Bahawalpur Bench, Bahawalpur]

Present: Tariq Saleem Sheikh, J.

MUHAMMAD KHALID--Petitioner

versus

ADDITIONAL SESSIONS JUDGE/JUSTICE OF PEACE Bahawalnagar and 2 others--Respondents

W.P.No.4797 of 2018, decided on 16.5.2018

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

----S. 22-A--Pakistan Penal Code, 1860, S. 489-F--Application for Registration of case on basis of cheque dishonoured--Accepted--Challenge to--It is observed that Respondent No.3 holds a valid cheque which is stated to have been issued to him by Petitioner to discharge his financial obligation--Petitioner has neither denied his signature on said cheque nor has controverted fact that he issued it to Respondent No.3--Prima facie, provisions of Section 489-F PPC are attracted to facts and circumstances of case and registration of FIR is called for--Petition was dismissed. [P. 637] A

PLD 2013 Lahore 442, ref.

Mr. Muhammad Saleem Faiz, Advocate for Petitioner.

Date of hearing : 16.5.2018.

Order

This constitutional petition is directed against order dated 11-5-2018 passed by the learned Ex-officio Justice of Peace, Bahawalnagar.

1. Brief facts of the case are that Respondent No.3 moved an application under Section 22-A, Cr.P.C. stating that the Petitioner purchased rice from him worth Rs.28,33,000/- and issued Cheque No.22230378 to pay for it. The said cheque was, however, dishonoured when Respondent No.3 presented it to the concerned bank for encashment. Respondent No.3 alleged that the Petitioner had dishonestly given him a bad cheque. The learned Ex-officio Justice of Peace, vide order dated 11-5-2018, accepted the aforesaid application of Respondent No.3 and directed the Respondent SHO to register the case and proceed further in accordance with law. Hence, this petition.

2. Heard.

3. It is observed that Respondent No.3 holds a valid cheque which is stated to have been issued to him by the Petitioner to discharge his financial obligation. The Petitioner has neither denied his signature on the said cheque nor has controverted the fact that he issued it to Respondent No.3. Prima facie, the provisions of Section 489-F, PPC are attracted to the facts and circumstances of the case and registration of FIR is called for. Reliance is placed on "MADAWA through President v. Inspector-General of Police, Punjab and 15 others" (PLD 2013 Lahore 442).

4. The impugned order is based on cogent reasons. The learned counsel for the Petitioner has failed to persuade this Court that it suffers from any legal infirmity. This petition has no merit and is accordingly dismissed in limine.

(MMR) Petition Dismissed

PLJ 2019 Lahore 638Present: Shams Mehmood Mirza, J.

CH. MUHAMMAD ANWAR GUJJAR--Petitioner

versus

SECRETARY TO CHIEF MINISTER PUNJAB and 4 others--Respondents

W.P. No. 69593 of 2017, decided on 27.11.2018

Constitution of Pakistan, 1973--

----Art. 199--Punjab Revenue Department (Revenue Administration Posts) Rules, 2009--Issuance of Notification--Enhancement of Qualification--Application for upgradation of post--Pendency of--Challenge to--Secretary Irrigation and Power Department is accordingly directed to decide petitioner's aforementioned application within a reasonable period--Petition was disposed of.

[P. 639] A

Mr. Muhammad Younas Awan, Advocate for Petitioner.

Mrs. Samia Khalid, Additional Advocate General for Respondent.

Date of hearing : 27.11.2018.

Order

The issue raised in this writ petition relates to the upgradation of the post of Patwari in Irrigation Department from BS-7 to BS-9.

1. Learned counsel referred to summary dated 01.06.2011 moved by the Secretary, (Regulations) S&GAD according to which the Patwaries in the Irrigation Department were upgraded from BS-5 to BS-7 on the analogy of Notification dated 30.07.2009 issued in respect of Patwaris appointed by the Board of Revenue. Subsequently the qualification for the post of Revenue Patwari was enhanced from Matric to ICS 2nd Division or Intermediate 2nd Division with 40 words per minute typing speed in computer in terms of Punjab Revenue Department (Revenue Administration Posts) Rules, 2009 notified on 27.01.2010. The grievance raised by the petitioner is that the respondents are also applying the enhanced qualification for upgradation of the post of Patwaris in the Irrigation Department.

2. Learned Additional Advocate General by taking issue with the submissions made by the petitioner's counsel stated that summary dated 01.06.2011 was still not approved by the competent authority. At this juncture the petitioner's counsel referred to another summary allegedly moved by the Secretary, Irrigation and Power Department for upgradation of the post of Canal Patwari from BS-7 to BS-9. This summary, it is noticed, is without any signatures. It, therefore, cannot be relied upon by the petitioner.

3. The petitioner's counsel submitted that an application for upgradation of posts was filed before the Secretary Irrigation and Power Department on 03.01.2010 on which no decision till date has been passed. He submitted that the petitioner shall be satisfied if a direction is issued to Secretary Irrigation and Power Department for passing a decision on the said application. Request made is tenable. The Secretary Irrigation and Power Department is accordingly directed to decide the petitioner's aforementioned application within a reasonable period.

4. With this observation, this writ petition stands disposed of.

(MMR) Petition Disposed of

PLJ 2019 Lahore 647

Present: Ch. Muhammad Masood Jahangir, J.

JAVED AKHTAR KHAN--Petitioner

versus

DCO/DISTRICT COLLECTOR SHEIKHUPURA--Respondent

W.P.No.25768 of 2014, decided on 23.4.2019.

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

----S. 8--Constitution of Pakistan, 1973--Art. 199--Suit for possession--Decreed--Appeal--Allowed--Civil Revision--Dismissed--Evacuee property--Displaced person--Allotment of evacuee property to father of petitioner--Duly implemented in revenue record--A part of property was encroached by Liaqat Memorial High School--Challenge to--Title in evacuee property stood transferred and vested in its transferees on making a record of transfer by competent Authority on settlement side, which itself would be complete regardless of fact whether transferee had obtained an attested copy of such order or not--Original record might be available with Settlement department, wherefrom his title could be verified, but respondent was not perfect in passing impugned order for reason that petitioner failed to submit copy of Register RL-II--Title in disputed property came to vest in petitioner by virtue of entries made in Register RL-II long ago followed by its due implementation in Revenue Record without any interruption coupled with long standing continuous possession, which could not be bulldozed by Authority having no jurisdiction even to take any step towards it--Settlement Department even after repeal of relevant laws was not competent to reopen matter, which was not actively pending at time of its repeal and what to talk about powers of District Collector--Unwarranted assumption of jurisdiction amounted to flagrant abuse of authority and Revenue Hierarchy as such was vested with no authority to interfere with allotment made in favour of claimants/displaced person, hence in absence of such an authority, it inherently lacked jurisdiction to go behind allotment made by Settlement Authorities or act against Settlement Records on any pretext or pretended plea against facts of case--Adverting to resistance that without availing efficacious remedy writ jurisdiction cannot be exercised, suffice it to say that it is not obsolete rule, but in exceptional cases for ends of justice strict observance of said rule can be dispensed with and extraordinary remedy of constitutional jurisdiction in exceptional cases can be invoked--Order impugned herein is a void order, which was passed without lawful authority and non-availing of alternate remedy would not debar this Court to annul such an order in Writ jurisdiction, especially when mala fide is apparent on face of record--Petition was allowed.

[Pp. 650, 651, 652] A, B, D & E

2010 SCMR 1942, ref.

Land Settlement Act, 1958--

----S. 16--Attestation of mutation--There was no necessity for attestation of mutation in favour of claimant/displaced person rather confirmation of his land could directly be given effect in Record of Rights--Moreover, Section 16 of Land Settlement Act, 1958 made it clear that land on which a displaced person was permanently settled would absolutely vest to him, therefore, there was no occasion for respondent to check vires of allotment/confirmation of land to any Refugee. [P. ] C

M/s. Muhammad Shahzad Shaukat and Atif Mohtashim Khan, Advocates in instant Writ Petition for Petitioner.

Syed Muhammad Kaleem Ahmed Khursheed, Advocate for Petitioners (in W.P.No.29643 of 2014).

M/s. Ch. Riasat Ali and Amer Farooq, Advocates for Petitioner (in W.P.No.32654 of 2014).

Mr. Shadab Hassan Jarfi, Addl. A.G. for Respondent.

Date of hearing : 23.4.2019

Judgment

Ch. Muhammad Masood Jahangir, J.--By means of Petition in hand as well as connected Writ Petition Nos.29643 and 32654 of 2014, the vires of order dated 17.09.2014 passed by respondent have been called in question whereby it was held that ownership/confirmation of the subject land to the claimants was not perfect and declared it to be titled by Provincial Government directing the Revenue Field Staff to correct revenue entries in its favour. As common questions of law and facts are involved in all the connected matters, hence it will be appropriate to decide the same conjunctively through this single order, however, for reference, source point will be the file in hand.

1. Briefly put, Ameer Hussain the father of the present petitioner being a claimant/displaced person had been allotted urban property measuring 62 Kanals 11 Marlas in Sheikhupura city, which was duly implemented in the Revenue Record. Subsequently a part of it was encroached by Liaqat Memorial High School, Sheikhupura compelling the allottee to institute suit for possession, which after full-fledged trial was decreed. In the meantime the school was nationalized and Appeal against the decree was preferred by the Province of the Punjab through the District Collector/respondent, which did not succeed and Civil Revision preferred before this Court also failed. The decree having become final was brought before the Executing Court, which was satisfied. Thereafter impugned order referred in para-1 ante was passed by the respondent on the grounds; firstly that the allottee failed to present the copy of Register RL-II to prove his allotment and secondly that it was directly given effect in the Revenue Record without attestation of mutation.

2. It is argued by learned counsel for the petitioner that previous litigation pertaining to Liaqat Memorial School was finalized against District Collector/respondent, who for that grudge re-opened the past and closed chapter. It was also added that had there been no allotment/title of the petitioner, the respondent might have resisted the suit on this ground as well, which having not been agitated before the Court of ultimate jurisdiction at that point of time could not be subsequently pressed, but the respondent became judge of his own cause and erred in law to pass the impugned order. It was next argued that under Section 3 of the Land Revenue Act, 1967 jurisdiction of the Revenue Authority/Hierarchy had been taken off with regard to urban as well as constructed properties, but the respondent while omitting to take notice thereof targeted the petitioner through the impugned order which having been passed without lawful authority and aimed at ulterior motive cannot be maintained. In contra learned Law Officer supported the impugned order with the addition that it could only be assailed in Appeal and without availing provided remedy, this Court cannot invoke its jurisdiction under Article 199 of the Constitution.

3. Argument heard, record appreciated.

4. The play of round on civil side, which finally culminated right upto the level of this Court followed by its realization was an admitted fact that the decree was passed under Section 8 of the Specific Relief Act, 1877 and the declaration of the ownership was its inbuilt relief granted to the decreeholder. Reliance can be placed upon judgment reported as Hazratullah and others Vs. Rahim Gul and others (PLD 2014 SC 380). Moreover, the title/allotment of the petitioner at the best could be disputed before the forum where judicial scrutiny proceeded for years and years, but no such defence was introduced at that point of time and once it was finalized on judicial side, it was not permissible to be reopened on administrative side. See Chuttan and others Vs. Sufaid Khan and others (NLR 1987 Revenue 122) and Commissioner of Income-tax, East Pakistan Vs. Fazlur Rahman (PLD 1964 SC 410). It was also a proven fact that in connected matters prior to the impugned order, the predecessor of the respondent had also pronounced a similar order to annul the allotments, but its superior Authority while exercising appellate jurisdiction on judicial side set aside the decision of his subordinate, which having not been agitated any further became final and could not be reopened on executive side by the same Authority as well whose order stood already quashed and such practice is not permissible. In the case law referred herein above it was vividly held that administrative order may be set aside on judicial side, but there is no legal panorama of a reverse case.

5. The other relevant feature of the case would be that Section 3 of the Land Revenue Act, 1967 denuded the respondent or any other authority in the Revenue Hierarchy to take cognizance of the property falling in the urban limits or constructed one. The disputed property was not assessed to land revenue and also exempted from the operation of the provisions of the Act ibid, hence the impugned order on this score too having been passed without lawful authority was illegal.

6. Leaving aside all the legal aspects discussed herein above, the admitted position was that title in evacuee property stood transferred and vested in its transferees on making a record of transfer by the competent Authority on settlement side, which itself would be complete regardless of the fact whether transferee had obtained an attested copy of such order or not. Original record might be available with the Settlement department, wherefrom his title could be verified, but the respondent was not perfect in passing the impugned order for the reason that petitioner failed to submit copy of the Register RL-II. The identical proposition has already been dealt with by the Apex Court in a case reported as Member Board of Revenue/Chief Settlement Commissioner, Lahore and 2 others Vs. Mst. Sajida Parveen and others (2010 SCMR 1942) . The title in disputed property came to vest in petitioner by virtue of entries made in Register RL-II long ago followed by its due implementation in the Revenue Record without any interruption coupled with long standing continuous possession, which could not be bulldozed by the Authority having no jurisdiction even to take any step towards it. The Settlement Department even after the repeal of relevant laws was not competent to reopen the matter, which was not actively pending at the time of its repeal and what to talk about the powers of District Collector.

7. The other ground that without sanctioning mutation, the allotment made in favour of the petitioner could not be implemented in the Revenue Record was also not available to the respondent to pass the impugned order, who skipped to take notice of Rule 7-A of the Displaced Persons (Land Settlement) Rules, 1959 which reads as follow:--

7-A. Mutation. (1) After the acquisition of the land under Section 4, the Revenue Officer of the area concerned shall cause a mutation of extinction of all evacuee rights and interests in the entire estate to be entered and disposed of and the Central Government shall be substituted for the evacuee holders of right in the estate.

(2) After the land has been finally allotted and settled as prescribed by the preceding rule, the Revenue Authority of the area concerned shall, for the purpose of making entries in respect of rights and interests of the allottees in the record of rights or register Haq Daran Zameen or in village form No.VII, as the case may be, treat the entries in R.L.II at par with those in a register of mutation and it shall not be necessary to sanction any mutation for the purpose.

The study of the same reveals that there was no necessity for the attestation of mutation in favour of claimant/displaced person rather the confirmation of his land could directly be given effect in the Record of Rights. Moreover, Section 16 of the Land Settlement Act, 1958 made it clear that the land on which a displaced person was permanently settled would absolutely vest to him, therefore, there was no occasion for the respondent to check the vires of the allotment/confirmation of the land to any Refugee. The District Collector or the Deputy Commissioner under the Land Revenue Act, 1967 or even as Notified Officers was wholly incompetent to interfere with or render any lawful direction in the matter of allotment made in settlement of claims under the Displaced Persons (Land Settlement) Act ibid in respect of which no proceedings were open since before the repeal of Evacuee laws by Act XIV of 1974. The unwarranted assumption of jurisdiction amounted to flagrant abuse of authority and the Revenue Hierarchy as such was vested with no authority to interfere with the allotment made in favour of claimants/displaced person, hence in absence of such an authority, it inherently lacked jurisdiction to go behind the allotment made by the Settlement Authorities or act against

Settlement Records on any pretext or pretended plea against the facts of the case.

1. Adverting to the resistance that without availing efficacious remedy writ jurisdiction cannot be exercised, suffice it to say that it is not obsolete rule, but in exceptional cases for the ends of justice the strict observance of the said rule can be dispensed with and extraordinary remedy of constitutional jurisdiction in exceptional cases can be invoked. The order impugned herein is a void order, which was passed without lawful authority and non-availing of alternate remedy would not debar this Court to annul such an order in Writ jurisdiction, especially when the mala fide is apparent on the face of record.

2. Resultantly all these Writ Petitions are allowed and impugned order is quashed.

(Y.A.) Petitions Allowed

PLJ 2019 Lahore 652

Present: Muhammad Ameer Bhatti, J.

M/s. WAQAS DEVELOPERS--Petitioner

versus

Engr. Lt. Col. (Rtd.) HAQNAWAZ etc.--Respondents

Writ Petition No.38989 of 2019, decided on 26.6.2019

Constitution of Pakistan, 1973--

----Art. 199--Constitution and Operation of Engineering Works By Laws, 1987, Bye-Law 2(A)--Sub-bye-Law 5 Clause (d)(iv)--Constitutional Petition--Issuance of letter--Producing of evidence regarding payment of salary to engineers--Renewal of firm--No doubt one of modes to provide payment of salary is personal appearance of Engineer but at same time other modes are equally effective and through any one of same confirmation of payment of salary can be ensured--Even otherwise employed Engineers must have been made payment of salary through cross cheque or it should otherwise be transferred to their accounts removing all ambiguities--Respondent No.1 to produce relevant documents showing transaction of payment of salary between firm’s account and salary accounts of Engineers is in strict compliance of provision of law--Even otherwise they had been informed on previous renewal proceedings by obtaining their undertaking that in future transactions regarding payment of salary will be produced between firm’s account and salary account of Engineers and on basis of that renewal will be considered--Petition was dismissed.

[Pp. 653 & 654] A & B

Mr. Imtiaz Ali Khan, Advocate for Petitioner.

Mr. Afzal Bashir, Assistant Attorney General for Respondent.

Date of hearing : 26.6.2019

Order

Through this constitution petition, the petitioner has calledin-question the letter dated 18.06.2019 issued by Respondent No.1 whereby he directed the firms/companies to provide the evidence regarding payment of salary of Engineers through transactions between the firm’s account and the salary account of Engineers in order to consider the petitioner’s case qua renewal of his firm claiming that same is contrary to the Construction and Operation of Engineering Works Bye-Laws, 1987.

1. To substantiate his contention, learned counsel for the petitioner has drawn my attention towards the provision of sub-bye-law 5 clause (d)(iv) of bye-law 2(A), which is as under:--

“bank statement or certificate from employer’s or employee’s bank statement regarding transaction of salary into engineer’s account, duly supported with cross cheque or deposit slip or personal appearance of engineer or copy of supervisory certificate; and”

It is contended that to record the statement of an engineer- employee regarding payment of salary is also permissible, therefore, the demand of documents by Respondent No.1 to establish the payment of salary through the impugned letter is unwarranted and uncalled for; hence, not sustainable in the eye of law.

1. I have heard the learned counsel for the petitioner and gone through the impugned letter as well as the relevant provision of law. No doubt one of the modes to provide the payment of salary is personal appearance of Engineer but at the same time the other modes are equally effective and through any one of the same the confirmation of payment of salary can be ensured. Even otherwise employed Engineers must have been made the payment of salary through cross cheque or it should otherwise be transferred to their accounts removing all ambiguities. In the present system being introduced by the Government the oral statement of the Engineer regarding confirmation of payment of his salary to him has become redundant

and legislature must have deleted this provision from the Bye-Laws, therefore, I am of the view that the demand of Respondent No.1 to produce the relevant documents showing the transaction of payment of salary between firm’s account and the salary accounts of Engineers is in strict compliance of the provision of law. Even otherwise they had been informed on the previous renewal proceedings by obtaining their undertaking that in future transactions regarding payment of salary will be produced between the firm’s account and the salary account of the Engineers and on the basis of that the renewal will be considered. In this view of the matter, this petition has no force and dismissed-in-limine.

(Y.A.) Petition Dismissed

PLJ 2019 Lahore 654

Present: Ch. Muhammad Masood Jahangir, J.

MUHAMMAD ANDLEEB RAZA--Petitioner

versus

MUHAMMAD NAZAR etc.--Respondents

R.S.A.No.135 of 2009, heard 5.3.2019.

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

----S. 12.--Qanun-e-Shahadat Order, 1984, Art. 17(2) & 80--Suit for Specific performance--Decreed--Appeal--Dismissed--Sale agreement--Total amount was paid--General power of Attorney was also registered in favour of vendee--Property was transferred through a sale deed in favour of another person--Requirement of law--Delivery of Justice--Challenge to--Admittedly, there is no legal impediment that an agreement has to be registered, but for its construction, it being a document of financial liability and future obligation under provision of Qanun-e-Shahadat Order, 1984, is required to be attested by two male or one male and two female witnesses, as case may be--Impugned document of contract (Exh.P-1) as per requirement of law was signed by Muhammad Afzal, Sh. Muhammad Rasheed and Malik Muhammad Arif, being its marginal witnesses, which could only be proved until and unless two out of them were examined--Admittedly only Muhammad Afzal (PW2) out of attesting witnesses was produced, whereas latter two were not brought in witness-box by beneficiary/Respondent No.1 and when his learned counsel was faced with situation, he submitted that one of them was not available being settled abroad at time of recording of evidence while other had already been won over by rival party, which was not enough to ignore mandatory provision of law--If one of them was not available, then proper course was to prove his signatures through a person familiar therewith, but admittedly requirements of Article 80 of Order, 1984 were not complied with--Statement of Scribe, report of Expert and Attorney Deed could only be given weight as corroborative evidence, but it cannot be treated as a substitute of required number of attesting witnesses--It would not be out of context to realize well established principle of law that where law provides a procedure for doing a thing in a particular manner then it has to be done in prescribed manner and in no other etiquette or should not be done, as such both Courts handed down their views without considering material in its true perspective and especially relevant law in this behalf, which are vulnerable--Courts are expected to deliver justice which is not only be done but also to be seen, it cannot shut its eyes and turn a deaf ear to perverse conclusion based on patent errors of law--Appeal was allowed.

[Pp. 657, 658, 663, 664] B, C, D & E

PLD 2011 SC 241, 2008 SCMR 1639 & 2015 SCMR 1044, ref.

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

----S. 54--Enforcement of Act--An agreement to sell of immovable property is a contract enforceable by law, but Section 54 of Transfer of Property Act, 1882 expressly provides that it does not itself create interest, right or title in such property, and as a matter of law to constitute ownership thereof, another instrument in its pursuance is required. [P. 657] A

Mr. Muqtedir Akhtar Shabir, Advocate for Petitioner.

M/s. Tanveer Bashir and Kashif Shahzad, Advocate for Respondent No.1.

Ex parte (vide order dated 17.12.2015) for Respondent No.2.

Date of hearing : 5.3.2019

Judgment

Muhammad Nazar, Respondent No.1 on 28.01.1999 instituted a suit for specific performance of Agreement to Sell dated 29.10.1997 (Exh.P1) against appellant as well as Tahir Mehmood Bhatti, Respondent No.2 alleging therein that the subject shop was sold by the latter to him for a consideration of Rs.12,00,000/-, out of which, in advance Rs.1,20,000/- on 16.06.1997 as well as Rs.2,05,000/- on 22.09.1997 had already been paid, whereas balance amount of Rs.8,75,000/-was paid before the witnesses on the day of execution of Exh.P-1 when a General Power of Attorney (Exh.P-3) was also scribed and registered by the vendor in favour of the vendee. It was further pleaded that subsequently the vendor while rescinding Exh.P-3 transferred the disputed shop to the appellant vide Sale Deed (Exh.D1) and the ultimate prayer of Respondent No.1 was for grant of decree for specific performance of Exh. P-1 as well as cancellation of Exh. D1. Although the suit was contested by Respondent No.2, contending therein that neither transaction was settled nor alleged consideration was received; that a false, fabricated, and fraudulent agreement was grafted with the active connivance of Petition Writer and Stamp Vendor, however, the execution of Agency Deed was admitted in the sense that for supervision, it was scribed at the behest of brother-in-law and brother of the plaintiff. It was also averred that possession of the shop was never handed over to the plaintiff against any transaction, rather it was already with him as a tenant under him. Obviously, suit of Respondent No.1 was also contested by appellant stating therein that his vendor was brother-in- law of former’s brother and being connived with each other the suit was instituted after transfer of the suit property to him.

The learned Civil Court, keeping in mind divergent pleadings of the parties narrowed down its disputed areas by settling issues and after receiving and appreciating evidence, suit was decreed vide judgment of 25th March, 2009, despite its assail before the learned District Court by appellant, his appeal was declined and to call in question these concurrent views, this Second Appeal was filed.

1. Mr. Muqtedar Akhtar Shabbir, Advocate learned counsel for appellant inaugurally argued that plaintiff examined only one out of three marginal witnesses, as such he failed to comply with the relevant provision of law; that the Courts below were under legal obligation to draw an inference under Article 129(g) of the Order, 1984 for withholding the available best evidence, but they failed to take its notice. It was also added by him that Scribe was not substitute of a marginal witness, but while treating him at par with him, the dictum already laid down by the apex Court in this respect was violated by the Courts below. Mr. Muqtedar, also emphasized that opinion of Handwriting as well as Finger Print Experts was not conclusive proof regarding execution of the impugned contract, but both the Courts below erred in law to rely upon their report in decreeing the suit. The next main stay of his arguments was that the vendor and vendee inter se were related to each other, who after the attestation of Sale Deed (Exh.D1) for ulterior motive, instituted a collusive suit, whereas the admission of Respondent No.2 with regard to General Power of Attorney after transferring the suit shop could not be made applicable to the appellant/co-defendant.

In contra, Mr. Tanvir Bashir, Advocate, learned counsel for Respondent No.1 submitted that both the Courts below appreciated the evidence available on suit file in its true perspective and their concurrent findings cannot be disturbed while invoking power vested Under Section 100 of the Code, 1908. He further added that not only the agreement was scribed, but at the same time in its acknowledgement registered Agency Deed (Exh.P3) was also executed, which otherwise were proved through leading evidence of unimpeachable character. It was also argued on his behalf that the Trial Court to dispense with justice and to elucidate the truth referred the disputed document alongwith specimen signatures as well as thumb impressions of the executant to the Forensic Science Laboratory, who rendered positive report, which was duly proved by its makers and the Courts below were perfect to form their unanimous views.

1. Arguments heard and record perused.

2. Before adverting to the facts of the case, I will add that an agreement to sell of immovable property is a contract enforceable by law, but Section 54 of the Transfer of Property Act, 1882 expressly provides that it does not itself create interest, right or title in such property, and as a matter of law to constitute ownership thereof, another instrument in its pursuance is required. Admittedly, there is no legal impediment that an agreement has to be registered, but for its construction, it being a document of financial liability and future obligation under the provision of the Qanun-e-Shahadat Order, 1984, is required to be attested by two male or one male and two female witnesses, as the case may be. For better appreciation, Sub- Article (2) of Article 17 of the Order ibid is reproduced here:--

…in matters pertaining to financial or future obligations, if reduced to writing, the instrument, shall be attested by two men, or one man and two women, so that one may remind the other, if necessary and evidence shall be led accordingly.

If a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses at least have been called for the purpose of proving its execution, if there be two attesting witnesses alive, and subject to the process of the Court and capable of giving evidence.

The execution of agreement can be proved, only in accordance with mode provided under Article 79 of the Order ibid, which reads as under:--

Proof of execution of document required by law to be attested. If a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses [at] least have been called for the purpose of proving its execution, if there be two attesting witnesses alive, and subject to the process of the Court and capable of giving evidence.

Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provision of the Registration Act, 1908, (XVI of 1908) unless its execution by the person by whom it purports to have been executed is specifically denied.”

As such after the promulgation of Order, 1984, a document of alike character has to be executed and proved as per scheme provided herein above.

1. Now reverting back to the facts of the case, the impugned document of contract (Exh.P-1) as per requirement of law was signed by Muhammad Afzal, Sh. Muhammad Rasheed and Malik Muhammad Arif, being its marginal witnesses, which could only be proved until and unless two out of them were examined. Admittedly only Muhammad Afzal (PW2) out of the attesting witnesses was produced, whereas the latter two were not brought in the witness-box by the beneficiary/Respondent No.1 and when his learned counsel was faced with the situation, he submitted that one of them was not available being settled abroad at the time of recording of evidence while the other had already been won over by the rival party, which was not enough to ignore the mandatory provision of law. If one of them was not available, then proper course was to prove his signatures through a person familiar therewith, but admittedly the requirements of Article 80 of the Order, 1984 were not complied with. Moreover, for any apprehension of menace or risk, law does not give the way to withhold a witness, as such, in not summoning the alleged won over available witness for the pitfall that had he been examined, he would not realize his attestation, was not a legal excuse. The apex Court while dealing with almost similar proposition in a case reported Hafiz Tassaduq Hussain Vs. Muhammad Din through Legal Heirs and others (PLD 2011 SC 241) has already held that even if one of the marginal witnesses of a document of similar nature related to rival party and the other for a risk opted not to examine him was a drawback, whereas it was sine qua non for the beneficiary to examine him and the moment he made an adverse statement, a prayer for declaring him hostile might be made and subjected to cross-examination, so that requirement of law could be complied with. For ready reference the relevant conclusion is given below:-

2. For the argument that as the second attesting witness of the agreement was the son of the respondent, therefore, the appellant could not take the risk of examining him, it may be held that as ordained above the mandatory provisions of law had to be complied and fulfilled and only for the reason or the perception that such attesting witness if examined may turn hostile does not absolve the concerned party of its duty to follow the law and allow the provisions of the Order, 1984, relating to hostile witness take its own course. Before parting it may be mentioned that the judgment reported as Abdul Wali v. Muhammad Saleh (1998 SCMR 760) which find mention in the leave granting order is not relevant for the proposition in hand as it relates to a document before the enforcement of the Order, 1984 when Article 17 was not there.

Hence, explanation for non-examination lacks plausibility.

1. The emphasis of learned counsel for Respondent No.1 that Muhammad Aslam (PW-1) Scribe of Exh.P1 was examined, therefore, if any lapse was on the part of his client that stood cured/covered is not tenable. Admittedly, Exh.P-1 was not signed by PW-1 being marginal witness, who in his statement-in-chief did not depose that bargain was struck in his presence, rather during the cross-examination he explicitly admitted that no consideration was made before him. It is settled by now that a Scribe or anybody else, who did not put his signatures as marginal witness on documents required to be attested, cannot be considered as such. See Muhammad Sarwar Vs. Salamat Ali (2012 CLC 2094) and Hafiz Tassaduq’s case (supra), Farzand Ali and another Vs. Khuda Bakhsh and others (PLD 2015 SC 187). The extract from para 9 of Hafiz Tasadduq’s case being relevant is given below.

2. Coming to the proposition canvassed by the counsel for the appellant that a scribe of the document can be a substitute for attesting witnesses; the point on which leave was also granted. It may be held that if such witness is allowed to be considered as the attesting witness it shall be against the very concept, the purpose, object and the mandatory command of the law highlighted above. The question, however, has been examined in catena of judgments and the answer is in the negative.

This Court is conscious of the fact that in Nazir Ahmad and another Vs. M. Muzaffar Hussain (2008 SCMR 1639), Full Bench consisting of three hon’ble Judges of Supreme Court had already declared that Scribe of a document of financial/future obligation could be treated at par with that of attesting witness whereas contrary view reproduced above was expressed in Hafiz Tassaduq’s case (supra) by two hon’ble Judges of the same Court, and which was to be followed, although not pressed here, yet may be agitated at a latter stage of proceedings before the higher forum is also a question to be dealt with here. I must add that judgment announced by a larger Bench should prevail, if subsequently a Bench comprising less number of honourable Judges while ignoring the earlier view announced by larger Bench formed another view, but where after taking due notice of the judgment of the larger Bench, a different panorama was announced by the other Bench of the said Court even consisting of less hon’ble Judges until holds the field has to be followed. In Hafiz Tassaduq’s case the judgment announced by three honourable Judges was not only specifically referred, but it was discussed therein and after considering it, the honourable two Judges rendered the recent view, which again has been affirmed by the same number of Judges in a case reported as Farid Bakhsh Vs. Jind Wadda and others (2015 SCMR 1044). Moreover, as per Paragraph No.10 of Hafiz Tassaduq’s case, it was affirmed that in Nazir’s case (supra) the scribe being an attesting witness had signed the contract, hence the law laid down in such perspective cannot be followed. In addition to it, the five member Bench of the Hon’ble Supreme Court, though in a pre-emption case reported as Muhammad Abaidullah Vs. Ijaz Ahmed (2015 SCMR 394), but while dealing with Article 79 (ibid) did not endorse the view of Nazir’s case (supra).

1. The submission of learned counsel for Respondent No.1 that the report of Handwriting as well as Finger Print Experts was enough to prove the construction of (Exh.P1) was also not well founded. The report of an Expert is always a weak type of evidence and is not that of conclusive nature. It is so weak and decrepit as scarcely to deserve a place in our system of jurisprudence. In view of this infirmity, the Expert’s testimony recorded in the case in hand cannot be treated as substitute of available direct evidence. It is settled practice of Courts not to base findings merely on expert’s opinion. In this regard, reference can be made to a case reported as Syed Muhammad Umer Shah Vs. Bashir Ahmed (2004 SCMR 1859) wherein it was held as under:--

“After scanning the entire evidence on record and after going through the concurrent findings, we are of the firm view that the only opinion of a Handwriting Expert, otherwise a weak piece of evidence, should not be allowed to prevail against strong circumstances and strong evidence giving inference, altogether, to the contrary. When once the petitioner had failed to prove his case on the basis of the very evidence produced by him, he cannot be given the benefit of the only favouarble opinion by the Expert, being otherwise a weak piece of evidence.”

This view was again repeated by the same Court in case Mst. Saadat Sultan and others Vs. Muhammad Zahur Khan and others (2006 SCMR 193) in the following words:--

We have carefully examined the contentions as adduced on behalf of petitioners in the light of relevant provisions of law and record of the case. We have scanned the entire evidence and perused the judgments of learned trial and Appellate Courts as well as the judgment impugned. Let we make it clear at the outset that the opinion of Handwriting Expert is a very weak type of evidence and is not that of a conclusive nature. It is well-established by now that expert’s evidence is only confirmatory or explanatory of direct or circumstantial evidence and the confirmatory evidence cannot be given preference where confidence inspiring and worthy of credence evidence is available. In this regard we are fortified by the dictum as laid down in Yaqoob Shah v. The State PLD 1976 SC 53. There is no doubt that the opinion of Handwriting Expert is relevant but it does not amount to conclusive proof as pressed time and again by the learned Advocate Supreme Court on behalf of petitioner and can be rebutted by overwhelming independent evidence. In this regard reference can be made to Abdul Majeed v. State PLD 1976 Kar. 762. It is always risky to base the findings of genuineness of writing on Expert’s opinion. In this behalf we are fortified by the dictum as laid down in case of Ali Nawaz Gardezi v. Muhammad Yousuf PLD 1963 SC 51.”

1. The next emphasis of learned counsel for plaintiff that along with contract Exh.P1, another document i.e. registered Power of Attorney was also executed on the same day, which not only attained presumption of correctness rather its happening was explicitly admitted by the vendor, whereas the execution of the contract was mala fidely denied. The perusal of Agency Deed reflected that it was silent to the extent that either any transaction with the plaintiff was settled or that agreement (Exh.P1) was executed, rather vide this Agency Deed besides other facts, the Agent was also authorized to sell out the disputed shop on behalf of the Principal, as such the contents of that Power of Attorney are not in line with the contract. No doubt, in the latter document, the execution of Agency Deed is referred specifically, but it being a disputed document and having not been proved, cannot extend benefit to the plaintiff.

It is again an admitted fact that the vendor after having transferred the disputed property through impugned Sale Deed to the appellant made admission with regard to execution of Power of Attorney and under the law in such a situation, admission made on behalf of defendant cannot be applied to his co-defendant. This view finds support from the dictum laid down in the judgment reported as Qasim Ali Vs. Khadim Hussain through Legal Representatives and others (PLD 2005 Lahore 654). Paragraph No.5 thereof being relevant is reproduced hereunder:--

1. I have heard the learned counsel for the parties. The two Courts below in fact have basically relied upon the admission of the respondent Nazar Muhammad about the execution of the agreement to sell. But according to the settled law, an admission of a codefendant is not binding upon the other. This rule, in my view, shall more stringently be applicable to the present case, because the petitioner had already purchased the suit property from Nazar Muhammad and a mutation in this behalf had been attested in his favour Though, Nazar Muhammad in his written statement, as a defendant, had denied the sale and asserted to challenge it in appropriate proceedings, but he never did so. Therefore, for all intents and purposes, throughout the petitioner possessed the legal title to the suit property and had every right to defend and protect his rights as lawful owner thereof. Nazar Muhammad when had ostensibly transferred his interest and rights in the suit property in favour of the petitioner, and never challenged the alienation independently before any forum, except setting up the defence in this case, his admission about the execution of Exh.P.1, cannot be received as an admission binding the petitioner, being a co-defendant of the case. Reliance in this behalf can be placed upon Saleem and another v. Malik Jalal-ud-Din and 7 others PLD 1982 SC 457. Therefore, despite the admission of Nazar Muhammad in the circumstances of the case, when the petitioner has denied the execution and attestation of Exh.P.1 and claimed it to be the result of fraud and collusion between Nazar Muhammad and the respondent Khadim Hussain, it was incumbent upon the plaintiff to have proved the valid execution and attestation of Exh.P.1.

2. The epitome of above discussion would be that the contract having been executed after promulgation of Order, 1984, ibid, its execution ought to have been proved in accordance with Article 79 ibid, but the evidence on record is restricted to only one attesting witness, which does not meet the requirement of the referred provision. The apex Court in a recent case reported as Farid Bakhsh Vs. Jind Wadda and others (2015 SCMR 1044) has elaborately defined Article 79 and finally concluded that its requirement was mandatory and without its strict compliance such a document cannot be used as evidence. The ratio of this judgment being all four corner applicable in the case in hand, as such the relevant conclusion for ready reference is given below:--

This Article in clear and unambiguous words provides that a document required to be attested shall not be used as evidence unless two attesting witnesses at least have been called for the purpose of proving its execution. The words “shall not be used as evidence” unmistakably show that such document shall be proved in such and no other manner. The words “two attesting witnesses at least” further show that calling two attesting witnesses for the purpose of proving its execution is a bare minimum. Nothing short of two attesting witnesses if alive and capable of giving evidence can even be imagined for proving its execution. Construing the requirement of the Article as being procedural rather than substantive and equating the testimony of a Scribe with that of an attesting witness would not only defeat the letter and spirit of the Article but reduce the whole exercise of re-enacting it to a farce. We, thus, have no doubt in our mind that this Article being mandatory has to be construed and complied with as such.

So, the statement of Scribe, report of Expert and the Attorney Deed could only be given weight as corroborative evidence, but it cannot be treated as a substitute of the required number of attesting witnesses. It would not be out of context to realize the well established principle of law that where law provides a procedure for doing a thing in a particular manner then it has to be done in prescribed manner and in no other etiquette or should not be done, as such both the Courts handed down their views without considering the material in its true perspective and especially the relevant law in this behalf, which are vulnerable.

1. Now adverting towards the last contention of learned counsel for the Respondent No.1 that this Court cannot set aside the concurrent judgments of the lower Courts in exercise of powers under Section 100 of the Code, 1908. Suffice it to say that manifest injustice could not be permitted to be perpetuated simply for the reason that in second Appeal concurrent finding howsoever erroneous may be, cannot

be disturbed. Enumerating the areas where this Court can interfere the concurrent judgments of the lower Courts, the apex Court, in case reported as Iftikhar Vs. Khadim Hussain (PLD 2002 SC 607) has defined the extent of this power and held:--

Concurrent findings are not sacrosanct and can be reversed when such findings are based on insufficient evidence, misreading of evidence, non-consideration of material evidence, erroneous assumption of facts, patent errors of law or consideration of inadmissible or something so outrageous or so gross as to shock the very basis of justice.

Since the Courts are expected to deliver justice which is not only be done but also to be seen, it cannot shut its eyes and turn a deaf ear to perverse conclusion based on patent errors of law.

1. The narrative of the above is that this Appeal succeeds, the decrees of learned lower Fora are hereby set aside and suit of the Respondent No. 1 is also dismissed with no order as to costs.

(Y.A.) Appeal Allowed

PLJ 2019 Lahore 664

Present: Ch. Muhammad Masood Jahangir, J.

Rana MUHAMMAD ASLAM KHAN--Petitioner

versus

SHAH NAWAZ, etc.--Respondents

Civil Revision No. 2383 of 2009, heard on 14.3.2019.

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

----S. 12 & 39--Suit for specific performance--Decreed--Suit for cancellation of documents--Dismissed--Suit property was mortgaged--Redemption of property--Transfer of property--Appeals--Dismissed--Concurrent findings--Requirement of Law--Challenge to--Impugned documents i.e, contract (Ex:P1) and receipt (Ex:P2), as per requirement of law, although were signed by Gul Hassan and Ghulam Shabbir Khan being its marginal witnesses, which could only be proved if they were examined. Admittedly, Ghulam Shabbir Khan (PW4), out of them was produced, whereas other one was not brought into witness-box by beneficiary/Respondent No. 1 and on having been faced with said situation, his learned counsel submitted that said witness had already departed--Glaring contradiction with regard to venue of payment was not ignorable, but Courts below failed to consider that neither present evidence was cogent, reliable nor that vital documents having been executed after promulgation of Order 1984, were proved as per prescribed scheme provided in afore- referred provisions of Order, 1984--Although scope of interference with concurrent findings of fact is limited, but such findings can be interfered with by this Court under Section 115 C.P.C, if Courts below appeared to have either misread evidence on record or while assessing evidence had omitted from consideration some important piece of evidence, which had direct bearing on issue involved--Civil Revision was Allowed.

[Pp. 668, 669] C, D & E

1997 SCMR 1139, PLD 2013 SC 255 & 2016 SCMR 24, ref.

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

----S. 54--Agreement to Sell--An agreement to sell of immovable property is a contract enforceable by law, but Section 54 of Transfer of Property Act, 1882 expressly provides that it does not itself generate interest, right or title in such property, and as a matter of law to constitute ownership thereof, another instrument in its pursuance is required. [P. 666] A

Registration Act, 1908 (XVI of 1908)--

----S. 17--Inclusion of amendment--Registration of document—Financial liability--When impugned contract was purportedly scribed, there was no requirement for its registration, but now through recent amendment introduced in Section 17 of Registration Act, 1908, it is mandatory that such type of document should be registered, anyhow, for its construction, it being a document of financial liability and future obligation under provision of Qanun-e-Shahadat Order, 1984, was required to be attested by two male or one male and two female witnesses, as case may be. [P. 666] B

M/s. Farhan Mustafa Jaffery and Sardar Akbar Ali Khan Dogar, Advocates for Petitioners.

Mr. Muhammad Ashraf Sagoo, Advocate for Respondent.

Date of hearing : 14.3.2019

Judgment

Admittedly, Rana Muhammad Aslam Khan, petitioner was exclusive owner of subject land, who vide mutation No.6298 dated 05th March, 2002 transferred it to his son Rana Abdul Qayyum, Respondent No.2. Thereafter, on 4th April, 2002 Shah Nawaz, Respondent No.1 filed suit for specific performance of contract contending therein that despite the subject property was mortgaged, it was purchased by him on 14th January, 1993 vide contract and receipt (Ex:P1 & 2) respectively against Rs.2,00,000/-, out of which Rs.1,64,000/- were paid before the witnesses, but after its redemption to frustrate the agreement, property was dishonestly transferred by petitioner in favour of his son. The petitioner and his son not only by filing their written statement denied the settlement of transaction as well as execution of Ex:P1 & 2 with the firm stance that plaintiff was their tenant, who managed aforenoted forged and fictitious documents, but independent suit was also instituted by the petitioner for cancellation of these documents. As a result of a conjunctive trial, the suit of Respondent No.1 was decreed and that of the petitioner was dismissed vide consolidated judgment of 9th May, 2006. Although two independent appeals were preferred, but those were dismissed on 2nd October, 2009 and to call in question the vires of concurrent decrees of learned lower fora, this Civil Revision was preferred.

1. Arguments heard. Record perused.

2. Before adverting to the facts of the case, I must add that an agreement to sell of immovable property is a contract enforceable by law, but Section 54 of the Transfer of Property Act, 1882 expressly provides that it does not itself generate interest, right or title in such property, and as a matter of law to constitute ownership thereof, another instrument in its pursuance is required. Admittedly, when impugned contract was purportedly scribed, there was no requirement for its registration, but now through recent amendment introduced in Section 17 of the Registration Act, 1908, it is mandatory that such type of document should be registered, anyhow, for its construction, it being a document of financial liability and future obligation under the provision of the Qanun-e-Shahadat Order, 1984, was required to be attested by two male or one male and two female witnesses, as the case may be. For better appreciation, Sub-Article (2) of Article 17 of the Order ibid is reproduced here:--

In matters pertaining to financial or future obligations, if reduced to writing, the instrument, shall be attested by two men, or one man and two women, so that one may remind the other, if necessary and evidence shall be led accordingly.

If a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses at least have been called for the purpose of proving its execution, if there be two attesting witnesses alive, and subject to the process of the Court and capable of giving evidence.

The execution of agreement can be proved, only in accordance with mode provided under Article 79 of the Order ibid, which reads as under:--

Proof of execution of document required by law to be attested. If a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses [at] least have been called for the purpose of proving its execution, if there be two attesting witnesses alive, and subject to the process of the Court and capable of giving evidence.

Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provision of the Registration Act, 1908, (XVI of 1908) unless its execution by the person by whom it purports to have been executed is specifically denied.”

The apex Court in a recent case reported as “Farid Bakhsh Vs. Jind Wadda and others” (2015 SCMR 1044) has elaborately defined Article 79 and finally concluded that its requirement was mandatory and without its strict compliance, such a document cannot be used as evidence. The relevant conclusion for ready reference is given below:--

This Article in clear and unambiguous words provides that a document required to be attested shall not be used as evidence unless two attesting witnesses at least have been called for the purpose of proving its execution. The words “shall not be used as evidence” unmistakably show that such document shall be proved in such and no other manner. The words “two attesting witnesses at least” further show that calling two attesting witnesses for the purpose of proving its execution is a bare minimum. Nothing short of two attesting witnesses if alive and capable of giving evidence can even be imagined for proving its execution. Construing the requirement of the Article as being procedural rather than substantive and equating the testimony of a Scribe with that of an attesting witness would not only defeat the letter and spirit of the Article but reduce the whole exercise of re-enacting it to a farce. We, thus, have no doubt in our mind that this Article being mandatory has to be construed and complied with as such.

As such after the promulgation of Order, 1984, a document of alike character has to be executed and proved as per scheme provided in the afore-referred Articles.

1. Now reverting back to the facts of the case, the impugned documents i.e, contract (Ex:P1) and receipt (Ex:P2), as per requirement of law, although were signed by Gul Hassan and Ghulam Shabbir Khan being its marginal witnesses, which could only be proved if they were examined. Admittedly, Ghulam Shabbir Khan (PW4), out of them was produced, whereas other one was not brought into the witness-box by the beneficiary/Respondent No.1 and on having been faced with the said situation, his learned counsel submitted that the said witness had already departed. The learned counsel, however, conceded that neither in contents of plaint the fact of his alleged death was exposed nor any document was brought on record to affirm said plea. Mere oral statement was not enough to prove his nonavailability. Anyhow, in such a situation, there were two modes available to the plaintiffs; firstly that a person familiar with the signatures of Gul Hassan was to be examined to comply with the requirement of Article 80 of the Order, 1984 and secondly the plaintiff might have applied to the learned Trial Court for referring the disputed documents (Ex:P1 & 2) to the Handwriting Expert for the comparison of the alleged signatures affixed over there with some admitted one of the purported executant. Although, report of such an Expert is not conclusive proof, but in absence of one of the marginal witnesses, when requirement of Article 80 of the Order, 1984 was also not complied with, this mode was to be followed. See “Hamid Qayum and others Vs. Muhammad Azeem through L.Rs and another” (PLD 1995 Supreme Court 381), wherein it was held that the report of Expert is one of the modes of proving the document and if the said report is properly exhibited, the same can be used as corroborative piece of evidence. By not resorting to this exercise at any stage, the plaintiff incurred an adverse presumption against him.

2. The emphasis of learned counsel for plaintiff/Respondent No.1 that Muhammad Asghar (PW2) scribe of Ex.P1 & 2 was examined, therefore, any lapse on the part of his client stood cured/covered is not tenable. Admittedly, the documents were not signed by PW2 being marginal witness, who in his statement-in-chief did not depose that bargain was struck in his presence, rather during cross- examination he explicitly admitted that consideration was not paid before him. It is settled by now that a Scribe or anybody else, who did not put his signatures being marginal witness on documents required to be attested, cannot be considered as such. See “Muhammad Sarwar Vs. Salamat Ali” (2012 CLC 2094), “Hafiz Tassaduq Hussain Vs. Muhammad Din through L.Rs and others” (PLD 2011 SC 241) and “Farzand Ali and another Vs. Khuda Bakhsh and others” (PLD 2015 SC 187). The relevant extract from Para-9 of Hafiz Tasadduq’s case for ready reference is reproduced below:--

“9. Coming to the proposition canvassed by the counsel for the appellant that a scribe of the document can be a substitute for attesting witnesses; the point on which leave was also granted. It may be held that if such witness is allowed to be considered as the attesting witness it shall be against the very concept, the purpose, object and the mandatory command of the law highlighted above. The question, however, has been examined in catena of judgments and the answer is in the negative.”

1. Having gone through the evidence of the plaintiff available on record, it was picked that plaintiff (PW3) in his cross-examination disclosed that advance sale consideration was paid one day prior to execution of referred documents (Ex:P1 & 2) and the exact words uttered by him in this regard are given below:-

Whereas, the marginal witness (PW4), antipodal to plaintiff stated that sale price was paid in Court premises and relevant extract of his cross-examination in verbatim is reproduced hereunder:--

The glaring contradiction with regard to venue of the payment was not ignorable, but Courts below failed to consider that neither the present evidence was cogent, reliable nor that the vital documents having been executed after promulgation of Order, 1984, ibid, were proved as per prescribed scheme provided in the afore- referred provisions of the Order, 1984 ibid.

1. Now adverting towards the last contention of learned counsel for the plaintiff/Respondent No.1 that this Court cannot set aside the concurrent judgments of the lower Courts in exercise of powers under Section115 of the Code, 1908. Although the scope of interference with concurrent findings of fact is limited, but such findings can be interfered with by this Court under Section 115, C.P.C, if Courts below appeared to have either misread evidence on record or while assessing evidence had omitted from consideration some important piece of evidence, which had direct bearing on the issue involved. In arriving at such view, this Court is fortified by the dictum laid down in the judgment reported as Abdul Hakeem vs. Habibullah and 11 others (1997 SCMR 1139) and the relevant portion thereof is reproduced as under:--

“6.Before considering the contentions of the parties on merit, we would like to mention here that the scope of interference with concurrent finding of fact by the High Court in exercise of its revisional jurisdiction under Section 115, C.P.C is very limited. The High Court while examining the legality of the judgment and decree in exercise of its power under Section 115, C.P.C cannot upset a finding of fact, however erroneous it may be, on reappraisal of evidence and taking a different view of the evidence. Such findings of facts can only be interfered with by the High Court under Section 115, C.P.C if the Courts below have either misread the evidence on record or while assessing or evaluating the evidence have omitted from consideration some important piece of evidence which has direct bearing on the issues involved in the case. The findings of facts will also be open to interference by the High Court under Section 115, C.P.C if the approach of the Courts below to the evidence is perverse meaning thereby that no reasonable person would reach the conclusions arrived at by the Courts below on the basis of the evidence on record.\\”

This view has again been reaffirmed by the same Court in the judgments reported as “Muhammad Anwar and others vs. Mst. Ilyas Begum and others” (PLD 2013 SC 255), “Muhammad Nawaz alias Nawaza and others vs. Member Judicial Board of Revenue and others” (2014 SCMR 914) and “Nazim-ud- and others vs. Sheikh Zia-ul-Qamar and others” (2016 SCMR 24) to confirm that no Court in the country has the jurisdiction to decide about the rights of the parties wrongly and in violation of law and the Revisional Court has no exception to this rule. It has also been held therein that Court could not pass an order of its liking, solely on the basis of its vision and wisdom, rather it is bound and obligated to render decisions in accordance with law and the law alone, hence this Court can invoke its jurisdiction in the cases where interference is warranted.

1. The narrative of the above discussion is that this Civil Revision succeeds, the decrees of learned lower for a are hereby set aside and suit of Respondent No. 1 is also dismissed with no order as to costs.

(Y.A.) Civil Revision Allowed

PLJ 2019 Lahore 671

Present: Ch. Muhammad Masood Jahangir, J.

SARFRAZ, etc.--Petitioners

versus

SENIOR MEMBER BOR, etc.--Respondents

Writ Petition No.512 of 2011, heard on 12.6.2019.

Constitution of Pakistan, 1973--

----Art. 199--Punjab Consolidation of Holdings Ordinance, 1960, S. 13 & 52--Initiation of consolidation scheme--Issuance of order regarding quashment of scheme--Appeal against order--Pendency of appeals--Jurisdiction of--Filling of writ petitions--One was dismissed and other was dismissed as withdrawn--There is no ambiguity that Board of Revenue is vested with jurisdiction whether invoked by aggrieved person through a petition or suo motu to go into consolidation proceedings/scheme for its affirmation or otherwise, but scheme itself cannot be abrogated without taking action provided under rule 52 of Punjab Consolidation of Holdings Rules, 1998--Respondents in earlier round had lost upto level of Board of Revenue on judicial side--Learned Member, second time, while exercising his powers ignored material aspect that said order had also been merged into orders passed by this Court when two different writ petitions were dismissed--Moreover, scheme might have been implemented/acted upon not only in record, but also at spot--It cannot be denied that process of consolidation is not an easy job, which after being started in 1984-85, scheme was finally confirmed in 2003 and thereafter was maintained on 20.10.2005, thus question of commission of some irregularities or allocation of more or less land lost its significance, but even then vide earlier order dated 20.10.2005 an avenue was provided to right holders to agitate their individual grievances by means of appeals before appropriate forum--Thereafter dozens of appeals were preferred out of which some were disposed of while others still in pipe line, learned Member at this stage was not within jurisdiction to bulldoze entire scheme--Once matter was decided on judicial side, exercise of executive or judicial authority thereafter to nullify effect of earlier judicial decision will be an improper exercise of authority, which is alien to our system of law and cannot be perpetuated--Petition was allowed. [Pp. 674, 675, 676] A, B, C & D

NLR 1987 Revenue 122 ref.

M/s. Malik Noor Muhammad Awan, Ch. Muhammad Aslam and Saima Hanif, Advocates for Petitioners.

Mr. Umair Khan Niazi, A.A.G. for Respondents No.1 to 4.

Mr. Shezada Mazhar, Advocate for Respondents No.5 to 210.

Date of hearing : 12.6.2019

Judgment

This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 called in question vires of the order dated 28.07.2010 passed by learned Member (Judicial-VII), Board of Revenue, Lahore, whereby he accepted RoR preferred by private contesting respondents while exercising his powers vested under Section 13 of the Consolidation of Holdings Ordinance, 1960 against the consolidation of village Kot Sarwar, Tehsil Pindi Bhattian, District Hafizabad in consequence whereof, the entire consolidation scheme was annulled/quashed and pre-consolidation position of the revenue estate was maintained.

1. No doubt, this case has chequered history, however, leaving aside its inessential details, admittedly the consolidation scheme of afore-noted mouza had been initiated in 1984-85 and finally confirmed on 31.03.2003, followed by chain of litigation and ultimately learned Member (Consolidation) while dealing with the scheme on judicial side maintained it vide order dated 20.10.2005, however, the avenue was provided to the individuals/right holders for agitating their personal grievances by preferring appeals before the appropriate forum under the provision of Consolidation of Holdings Ordinance, 1960. Although Writ Petitions No.s 2380/2006 and 2964/2006 were preferred by the individuals to call in question the last order of learned Member, but the former petition was dismissed in limine on 25.04.2006, whereas the other was dismissed as withdrawn, however, different appeals were preferred by the right holders before the appropriate forum as per spirit of afore-noted order dated 20.10.2005, some of those stood disposed of, whereas the others were still pending when an application for setting aside of the confirmed consolidation scheme was tabled by Mian Shahid Hussain Bhatti, the then Member, Provincial Assembly of the concerned constituency before the Chief Executive of the province as well as some other high-ups, which was referred to the Senior Member, Board of Revenue on 21.02.2009, however till then RoR No.1345/2008 had also been preferred by the contesting respondents before the Board of Revenue on 4.12.2008 to render the impugned order, causing filing of this petition, which though initially was allowed on 07.05.2015, yet on 01.06.2016 was remanded by the august Supreme Court for its fresh decision while observing below:--

The primary basis of the impugned judgment which can be gathered therefrom appears to be that the dispute pertaining to the Consolidation Scheme has been settled and adjudicated upon and was a past and closed transaction and furthermore, the 3rd party may have interest in the land, subject matter of the consolidation. A perusal of the record reveals that in the previous round of litigation, the matter was heard by the Member, Board of Revenue, Punjab in ROR No. 646 of 2005, filed by the present petitioners, which no doubt, was dismissed. However, in the said order, it was clarified that the remedy against the Consolidation Scheme as sanctioned was available to such persons as were aggrieved thereby. In the circumstances, in law, the matter was neither a past and closed transaction nor finally adjudicated upon, leaving all the remedies available to the aggrieved parties. It is in the light of the aforesaid observations that the present round of litigation was commenced by the petitioners which culminated in the order dated 28.07.2010 decided by the Member, Board of Revenue, Punjab, whereby ROR No.1345 of 2008, filed by the petitioners, was allowed. In the above circumstances, the Constitutional Petition filed by respondents Nos. 1 to 3 against the said order could not be allowed, as is happened in the instant case, without adverting to the rival contentions of the parties emanating from order dated 28.07.2010 by merely holding that the matter has already been decided. The said assumption that the disputes had been concluded and the matter has attained finality is not borne out from the record. In the circumstances, it (is) appears to be clear and obvious that the real matter in controversy has escaped adjudication by way of the impugned judgment dated 07.05.2015, which is based on an incorrect assumption that the matter has been concluded in the previous round of litigation. Consequently, the impugned judgment dated 07.05.2015 is not sustainable in law and is liable to be set aside and the matter needs to be remanded to the learned High Court for decision afresh.

In view of the above, this Civil Petition is converted into an appeal and allowed. The impugned judgment dated 07.05.2015 is set aside and the case is remanded to the learned Lahore High Court. The Writ Petition bearing No.512 of 2011, filed by present respondents No.1 to 3 shall deem to be pending, which shall be decided afresh after hearing the parties.

1. M/s. Malik Noor Muhammad Awan, Ch. Muhammad Aslam and Saima Hanif, Advocates for the Writ Petitioners argued that learned Member had no jurisdiction to quash the entire scheme from its inception, which on judicial side had already been affirmed by his predecessor; that only individual grievances of the right holders could be ascertained and for it they had already preferred appeals, but with such observation the successor authority had no power to annul the complete scheme already affirmed after the litigation of eighteen years; that only under Rule 52 of the Punjab Consolidation of Holdings Rules, 1998, confirmed scheme could be quashed for the reasons provided thereunder, but despite the fact that no such ground was available, even then due to the political pressure, the impugned order was passed when the right holders had not only already availed their efficacious remedy before the appellate Court, rather some of those were still pending; that learned Member failed to appreciate that orders passed by his predecessor had also been congealed by this Court while dismissing Writ Petitions, as such he could not act as an appellate authority to this Court.

In contra, Mr. Shezada Mazhar, Advocate for the contesting private respondents maintained that under Section 13 of the Consolidation of Holdings Ordinance, 1960, Board of Revenue was conferred ample jurisdiction to revisit the scheme; that while confirming the scheme, not only incurable irregularities committed by the Consolidation Officer and his Staff were disregarded, rather entitlement of the majority of the land owners was decreased, whereas few were given extraordinary benefits by allotting them double area, compelling the authority to cause its failure, as such, it was a fit case for initiation of fresh proceedings.

1. Arguments heard. Record perused with the able assistance of learned counsel for the parties.

2. There is no ambiguity that Board of Revenue is vested with jurisdiction whether invoked by aggrieved person through a petition or suo motu to go into the consolidation proceedings/scheme for its affirmation or otherwise, but the scheme itself cannot be abrogated without taking the action provided under Rule 52 of the Punjab Consolidation of Holdings Rules, 1998, which being relevant is reproduced hereunder:--

3. Collection of Data. (1) Subject to the provisions and procedure laid down under Section 13 of the Ordinance, if the Board of Revenue or the Commissioner on their own motion or on a petition by an aggrieved person, is seized of the issue of annulment of the entire consolidation scheme of the estate, or its sub-division, action shall be taken as under:--

a) Total number of khatas, land owners and cultivable land of the estate shall be noted.

b) All the pending litigation with the Collector, Commissioner and the Board of Revenue shall be tabulated.

c) The number of khatas/Scheme numbers, land owners, area of cultivable land challenged/involved in appeals, revision petitions and applications shall be tabulated and compared to the total numbers as in (a) above.

d) The issues and points of dispute omissions and irregularities shall be listed giving specific facts.

e) The issues will be checked/got checked from the record and if necessary on the ground. The aggrieved persons shall be heard.

Mr. Shezada on having been faced with the said rule when asked whether any of the acts was adopted before passing the impugned order, he impliedly admitted that it was not followed, which otherwise is proved that the actions provided thereunder were not adhered to. The next calamitous feature of the impugned order was that remedial actions as provided by the following Rule 53 were also not adopted, hence even if there were some reasons to upset the concluded scheme, it could not be done in manner as espoused in this case.

1. Undisputedly, the respondents in earlier round had lost upto the level of Board of Revenue on judicial side. The learned Member, second time, while exercising his powers ignored the material aspect that the said order had also been merged into the orders passed by this Court when two different writ petitions were dismissed. Moreover, the scheme might have been implemented/acted upon not only in the record, but also at spot. It seems that the matter remained dormant for years, then the respondents despite all the above legal developments and physical changes firstly through their political representative and subsequently by filing RoR/petition under Section 13 of the Ordinance approached the learned Member, who without considering that order dated 20.10.2005 of his predecessor for all intents and purposes had become final, erred in law to review it especially when such power was not provided in the Ordinance of 1960. Prima facie there was substance in the contention of learned counsel for the petitioners that when the earlier order had attained finality, no de novo proceedings could directly be initiated by the landowners or through their any such representative. It appears that learned Member to avoid the earlier decisions rendered by the superior Courts in series of cases, whereby the jurisdiction exercised by the Consolidation authorities on the move of political/executive personnels had been quashed, purposely neither referred the petition so received by his office from the Secretariat of Chief Minister of Punjab nor decided it independently and while keeping it aside, decided the designed petition of the respondents, as such exercise of jurisdiction by the learned Member was colourful and without lawful authority.

2. It cannot be denied that process of consolidation is not an easy job, which after being started in 1984-85, the scheme was finally confirmed in 2003 and thereafter was maintained on 20.10.2005, thus question of commission of some irregularities or allocation of more or less land lost its significance, but even then vide earlier order dated 20.10.2005 an avenue was provided to the right holders to agitate their individual grievances by means of appeals before appropriate forum. Thereafter dozens of appeals were preferred out of which some were disposed of while the others still in pipe line, the learned Member at this stage was not within jurisdiction to bulldoze the entire scheme. The accentuation of learned counsel for the respondents that earlier order of the Board of Revenue being void was rightly revisited was fallacious. If it is considered to be so, even then subsequent RoR preferred after years was barred by time and the learned counsel botched to vindicate that how second petition was competent when earlier one was judicially culminated and further congealed. The other grounds assailing the scheme at the most related to the individuals grievances, which could be cured by the appropriate forum while exercising its jurisdiction and additional reasons agitated by Mr. Shezada Mazhar had no proper foundation to proceed further with the consolidation proceedings already finalized in 2003. Once the matter was decided on judicial side, the exercise of executive or judicial authority thereafter to nullify the effect of earlier judicial decision will be an improper exercise of the authority, which is alien to our system of law and cannot be perpetuated. Reliance can be placed upon case reported as Chuttan and others vs. Sufaid Khan and other (NLR 1987 Revenue 122).

3. In view of the above discussion, this Writ Petition is allowed, the impugned order dated 28.07.2010 passed by the learned Member (Judicial-VII), Board of Revenue, Punjab, Lahore being void ab initio and nullity in the eye of law is quashed/set aside and the consolidation scheme already confirmed on 31.03.2003 will deem to be intact.

4. Before parting with this judgment, it is held that as per mandate of order dated 20.10.2005, if some appeals or any other proceedings are still sub judice or having been declared redundant through the impugned order, those must be revived for its decision on merit.

(Y.A.) Petition Allowed

PLJ 2019 Lahore 677 (DB)

Present: Mrs. Ayesha A. Malik and Jawwad Hassan, JJ.

PAKISTAN MEDICAL AND DENTAL COUNCIL, ISLAMABAD--Appellant

versus

SHAHIDA ISLAM MEDICAL COMPLEX (PVT.) LIMITED etc.--Respondents

ICA No.36399 of 2019, heard on 24.6.2019.

Law Reforms Ordinance, 1972 (XII of 1972)--

----S. 3--Writ Petition--Allowed--Direction to--Grant of Extension in admission Cut off date--Allocated quota--Adjustment of students of de-notified Hashmat Medical College in other colleges by P.M.D.C--Central admission policy--Extraordinary relief--Discrimination--Extra ordinary circumstances--Challenge to--Learned Single Judge through impugned order dated 3.6.2019 concluded that HMC has been allowed to admit students and Bolan University is seeking admission beyond deadline given by PMDC, which establishes that deadline for admission is not being honoured by PMDC itself--We are of opinion that these findings have been made against record--We find that reliance on HMC was totally misconceived as they were not admitting any medical or dental students since it was de-notified on 14.01.2019--Appellant PMDC decided to adjust students already enrolled and registered with HMC as they had commenced their academic year with said college in November 2018 to safeguard their admission in medical and dental colleges--For purposes of this adjustment, candidates were given an opportunity to approach colleges of their choice as per list provided to them to seek adjustment--This is not a case of discrimination, to contrary it is indicative of responsible manner in which PMDC has attempted to adjust 44 students who were already enrolled in HMC so that they do not lose out on account of denotification of HMC--We also note that adjusting old students is different and distinguishable from admitting new students which fact was not considered in impugned order--Hence we are of opinion that no concession was given to HMC on basis of which learned Single Judge concluded that concession given to HMC should be given to Respondent Colleges before Court--We have heard all learned counsels for parties at length and do not find any irregularity or discriminatory practice exercised by PMDC during this time--To contrary we find that numerous meetings took place in which PMDC tried to streamline admission process so as to ensure that admission process for 2018-19 session was not adversely affected by delays of there being no Council--Any admission offered to such colleges is by way of a concession and cannot be claimed as of right--PMDC is required to maintain its academic calendar and follow schedule provided in Regulations for purposes of admissions, recognition, registration and examination--Although we understand that certain delays are out of PMDC’s control, nonetheless effort must be made to streamline registration process and to ensure that where registration takes place in middle of academic year, colleges be refrained from admission in that academic year, if it means compromising on academic calendar--Extraordinary circumstances were duly considered and extensions were given under Regulations and by way of special relaxation--Hence contention of Respondent Colleges was totally misconceived that they be given more time to fill up vacant seats--No legal right has been infringed and PMDC has not acted in a manner which was detrimental to Students or Colleges--We hold that learned Single Judge should not have interfered with cut off date or academic calendar--We also note that petitioners before learned Single Judge sought extraordinary relief from Court which was beyond scheme and provisions of Regulations--As to Students before Court their prayer was that admissions be allowed so that all vacant seats are filled up and merit list is revised sufficiently to ensure that all seats are filled up--We find that even this prayer is against provisions of Regulations which sets out deadlines for admission and registration of students--Furthermore UHS or PMDC declare a cut off merit beyond which students cannot be admitted--Hence Court cannot grant admissions to students without considering their merit and fact that they did not make it in nine merit lists--Intra Court appeals were allowed.

[Pp. 686, 687, 690 & 691] A, B, C, D, E, F & G

Ch. Muhammad Umar, Advocate for Appellant.

Ms. Ambreen Moeen, DAG for Respondents.

Mr. Munawar us Salam, Advocate for Respondent No. 1 (in ICA No. 36399/2019).

Ch. Sultan Mehmood, Advocate for Respondents No.1 to 17 (in connected ICA No.36401/2019).

Mr. Khalid Ishaq, Advocate for Respondent No. 19 (in connected ICA No.36401/2019).

Rao Muhammad Faisal Iqbal, Advocate for Respondent No.1 (in connected ICA No.31021/2019).

Mr. Haroon Mumtaz and Mr. Hassan Pervaiz, Advocates for Respondent No.1 Colleges in connected ICAs No.16407/2019, 16416/2019 and 16419/2019.

Ch. Muhammad Atiq and Mufti Ahtsham Uddin Haider, Advocates for Respondent University of Health Sciences, Lahore.

Date of hearing : 24.6.2019

Judgment

Mrs. Ayesha A. Malik, J.--This common judgment decides upon the issues raised in the instant ICA along with connected ICAs detailed in Schedule “A” appended with the judgment.

1. The instant ICA and ICAs No.36401/19, 36402/19 have impugned order dated 3.6.2019 whereby the learned Single Judge allowed the writ petitions of the medical colleges in the following terms:

In view of the above, this petition, along with connected petitions, is allowed to the extent that respondents are directed to extend the same relief, as has already been granted to Hashmat Medical College, Gujrat as well as the concession given to Bolan University of Medical and Dental Health Sciences, Quetta, as is evident in advertisement dated 31.05.2019 published in Daily Dawn. The necessary process/approvals shall be initiated/granted within 7-days from the date of receipt of certified copy of this order.

1. ICA No. 31021/19 has impugned order dated 14.3.2019 passed by the learned Single Judge in WP No.9778/2019 wherein Avicenna Dental College sought a direction to the University of Health Sciences (“UHS”) to conclude the admission process for the dental college with respect to the 2018-19 academic session and the learned Single Judge allowed the writ petition of Avicenna Dental College by directing the Respondents to admit students against 50 seats allocated to Avicenna Dental College. In this case the learned Single Judge has relied upon earlier decisions made in WP Nos.9468/19, 9503/19 and 9493/19.

2. ICAs No.16407/19, 16416/19, 16419/19 have impugned order dated 28.2.2019 passed by the learned Single Judge whereby the petitions of the medical and dental colleges were allowed and UHS was directed to admit students after the cut off date of 31.1.2019 as per the allocated quota.

Arguments of the Appellant, Pakistan Medical and Dental Council (“PMDC)”

1. Chaudhary Muhammad Umar, Advocate for the Appellant PMDC argued that the underlying objection that the Appellant has in all ICAs is with respect to the extension granted by the Court in the admission cut off date, which is regulated by PMDC. Specifically he argued that in ICAs No.36399/19, 36401/19 and 36402/19 the impugned order dated 3.6.2019 has allowed the writ petitions of the medical colleges and students on the ground of discrimination whereas no case of discrimination was made out by the Respondents. He explained that Hashmat Medical College, Gujrat (“HMC”) is not allowed to admit any new student as the college was de-notified by the Federal Government vide notification dated 14.01.2019, hence there is no question of any student being admitted to HMC. Learned counsel explained that the Appellant did not extend the deadline of admissions to HMC, rather it adjusted students of HMC in other medical colleges to safeguard the academic year of the students. Learned counsel submitted that the contention that HMC was allowed admission beyond the cut off date of 31.5.2019 is factually incorrect and the conclusion that some benefit was given to HMC for the purposes of admission is contrary to the record. Learned counsel explained that 44 students of the de-notified HMC were adjusted in other medical colleges, hence it was not the medical college that was given any benefit, rather it was students already enrolled with HMC who were adjusted in other medical colleges so that they complete their education. Learned counsel argued that there is a distinction between adjusting enrolled students and admitting new students, which distinction was not taken into consideration.

2. Learned counsel further argued that the second ground which prevailed with the learned Single Judge in order dated 3.6.2019 was an advertisement issued by Bolan University of Medical and Health Sciences, Quetta (“Bolan University”)dated 31.5.2019 calling for admission. Learned counsel argued that in the first case the advertisement was never produced by the petitioners on the first date of hearing nor appended in any of the writ petitions. Notwithstanding the same, the Appellant informed the learned Single Judge that the advertisement relied upon has been issued by the Bolan University without any permission from the Appellant, meaning thereby that this was done at their own instance. Hence PMDC has not discriminated against the medical and dental colleges as its not granted any extension to Bolan University. Learned counsel argued that the action of any admitting university without permission from PMDC does not amount to discrimination as PMDC never allowed Bolan University to call for admissions after 31.5.2019. Learned counsel also argued that there was yet another distinction which was not considered by the Court being that the academic year in the Province of Punjab commenced in November, 2018 whereas the academic year has not commenced in the Province of Baluchistan. Hence even on this account reference to Bolan University is misconceived and does not establish any discrimination.

3. With reference to ICAs No. 16407/19, 16416/19, 16419/19 wherein order dated 28.2.2019 has been impugned, he argued that several medical and dental colleges filed petitions alleging therein that PMDC had caused unreasonable delay in the recognition and registration process and due to the central admission policy the admission process was delayed. Consequently the Respondent Colleges had less time to fill up their available seats. Also that on 8.1.2019 the Pakistan Medical and Dental Council Ordinance, 2019 (“2019 Ordinance”) was promulgated by virtue of which the adhoc Council approved by the august Supreme Court of Pakistan was dissolved and the new Council held its first session on 31.3.2019. These being extraordinary circumstances required extraordinary measures, hence the Court directed the Appellant and the UHS to send students for admissions with the medical and dental colleges after the cut off date of 31.1.2019. He argued that the admission period was extended from 31.12.2019 to 31.1.2019 and then to 31.3.2019 and further to 10.4.2019 keeping in mind the extraordinary circumstances. He stated that these colleges have filled up their seats and the only issue against the order of 28.2.2019 which needs to be considered is that the Respondent Colleges have no legal right to claim admission beyond the cut off date; that the Court should not have substituted the opinion of the Council with that of its own as the PMDC acted as per law in the best interest of the students.

4. Learned counsel argued that PMDC is the regulatory authority which has duly considered the extraordinary circumstances for the session of 2018-19 and has provided nine merit lists to the various different medical and dental colleges for the purposes of admissions and has also extended the cut off date from 31.12.2018 to 31.03.2019 and to 10.04.2019. Under the circumstances, he argued that a fair chance was given to all colleges including the Respondent Colleges before the Court. Hence their case that they have been discriminated or that they have not been given sufficient opportunity to fill up their seats is totally without any basis. He further argued that there is a requirement under the MBBS and BDS (Admission, House Job and Internship) Regulations, 2018 (“Regulations”) for a nine month academic year, which cannot be maintained if the admission process is continuously extended to accommodate the wishes of medical and dental colleges. He also argued that admission through the centralized induction system is at its inception and due consideration to the different issues and problems that arise is given by the PMDC. Also the fact that the old Council was dissolved on 8.1.2019 and the new Council was notified on 28.2.2019 was taken into consideration. All these factors being extraordinary circumstances resulted in extensions up to 31.3.2019 and then 10.4.2019. Under the circumstances, the impugned orders failed to take into consideration that students admitted in the month of March, April, May or June cannot catch up or complete the academic year which started in November, 2018 and will end by December, 2018 with examinations scheduled in December, 2019.

Arguments by the Respondents

1. Mr. Munawar us Salam, Advocate for Respondent No.1, Shahida Islam Medical Complex argued that the College was established in 2016-17, however registered on 29.03.2019. On 01.04.2019 the college asked for admission for 2018-19 session to 50 students. A list was provided on 09.04.2019 of 50 students, however only ten seats were filled. The college requested for 40 more students, however the matter was delayed and eventually on 17.04.2019, the college was informed that no further admission can be made. Learned counsel argued that once the college is recognized and registered it is obligatory for the Appellant to ensure that the college is provided students for the purposes of admission against the sanctioned seats; that the seats could not be filled up from 01.04.2019 until the issuance of the impugned letter of 17.04.2019 through no fault of the college rather on account of in-action and slackness of the PMDC and the UHS; that a heavy investment has been made in setting up the college and if the seats are vacant in the first year, they will remain vacant until the fifth year meaning thereby that the Respondent college will have to bear a heavy loss since it cannot recover any fees from the vacant seats.

2. With respect to the case of Akhtar Saeed Medical and Dental College, Lahore, their grievance is that the college has been affiliated since 2009 providing education and awarding MBBS and BDS degrees. Under the centralized admission policy, seats have to be filled by the admitting university as per the allocation made by the PMDC, such that the medical colleges are provided lists against the number of available seats of students seeking admission as per their choice in any medical college. Hence PMDC provides the merit list to the medical colleges of the students who can be offered admission in the event of any vacancy. PMDC is required to provide successive lists to the merit list so as to ensure that the vacant seats are filled up quickly. For the academic year 2018-19 the Appellant did not fulfill its statutory obligation of allowing medical and dental colleges to fill up their vacant seats. Furthermore, they acted in a discriminatory manner by allowing admissions in HMC and allowing admission to Bolan University yet denying the Respondent College the right to admit students. He argued that the Respondent College has been making frequent requests to the admitting university UHS as well as PMDC to complete the admission process in such a way that all approved seats are filled up, however no positive steps have been taken by them. Learned counsel further argued that students are available, however the Appellant has not allowed the medical and dental colleges to fill up their vacant seats which is unfair and unreasonable for the colleges as well as students.

3. Chaudhary Sultan Mahmood, Advocate for Respondent students in ICA No.36401/2019 argued that the Respondents are all students who filed WP No.31581/2019 seeking admission against vacant seats. He argued that the Regulations provide for a centralized admission mechanism on the basis of which one merit list is made and the medical and dental colleges are allocated students in terms of the preference given by the students. In some cases the students do not opt for the medical or dental college which offered them a seat as they get upgraded to one of their higher options or they opt not to accept the admission offer, hence the seat remains vacant. The admitting university issues subsequent merit lists offering students on the merit list admission in medical and dental colleges. The students are aggrieved by a decision of the Appellant to not allow any further admission given that the students fall on the merit and given that there are vacant seats in Sahara Medical College, Narowal. Learned counsel argued that this is an irrational and unreasonable decision by the PMDC as students, who are interested in pursuing their career in medical and dental field are denied admission simply on account of an arbitrary cut off date. He stated that no doubt there were nine merit lists, however, the Respondents were likely to come up on the next set of merit list if they were allowed by PMDC. The entire thrust of their case is that the vacant seats should be made available to the students whose names are available on the merit list.

4. Learned counsel for ICAs No. 16407/19, 16416/19, 16419/19 while impugning orders dated 28.2.2019 and counsel for ICA No.31021/19 stated that admissions have been completed since the cut off date was extended to 31.3.2019. Hence they do not have any grievance against the PMDC or UHS. However, the Appellant Counsel clarified that notwithstanding the extension granted by PMDC at the orders of the Court, the issue whether there is a right to seek extension from the Court, remains.

Issues

1. The issues raised before the Court as set out by the Appellant are firstly; whether a case of discrimination was made out on the facts in order to grant the Respondent Colleges permission to admit students after the cut off date of 10.04.2019; secondly whether the discretion exercised by the Appellant with respect to its decision for not extending the cut off date for admission was in any manner arbitrary, unreasonable or irrational and thirdly whether the medical and dental colleges or students can seek, as of right, admission beyond the cut off date.

The facts and opinion of the Court

1. The Respondent Colleges and students filed writ petitions before this Court impugning therein letter dated 17.04.2019 issued by the Appellant to the Team Leader Admission of the UHS being the admitting university. In terms of this letter admissions to Shahida Islam Dental College, Lodhran were allowed till 09.04.2019 on the basis of a final merit list provided to the Respondent College. The PMDC informed the college that it has decided that no further admission will take place after 09.04.2019 and in the event that a student does not take up the seat then that seat remains vacant as no further admissions will be permitted. The Respondent College was aggrieved by this letter because they were registered on 29.03.2019 and applied for admission on 01.04.2019. On 04.04.2019 the Respondent College was informed that they should complete all admissions by 08.04.2019. On 08.04.2019 the Respondent College informed the PMDC that interested candidates were asked to apply for admission at the medical college, however no list has been provided with respect to the names of such students to the college. The UHS responded that the merit list of students who gave their consent for admission with the Respondent College has been submitted to the PMDC for further action. On 10.04.2019 PMDC approved admissions for the session 2018-19 for the Respondent College. On 13.04.2019 the Respondent College wrote to the UHS that only ten students got admission on the basis of the list provided by the UHS as most of the students on the list were admitted by other colleges, hence could not be admitted with the Respondent College. Therefore once again the Respondent College sought 40 students to complete the admission process. On 15.04.2019 the UHS informed the PMDC of the number of vacant seats with the Respondent College as only ten students had taken admission and 40 seats were vacant. On 16.04.2019 the UHS informed the PMDC that all lists have been provided to the Respondent College, 18 candidates gave their consent for admission with the Respondent College out of which some of the candidates took admission in other colleges and 22 other students also did not join the College. Essentially in terms of this letter, UHS confirmed that only ten students took admission in the Respondent College whereas the other students named in the list either did not take admission in the medical college or preferred to take admission in some other medical college. On 17.04.2019 the PMDC informed UHS that no further admission can take place with respect to Shahida Islam Dental College, Lodhran. In terms of the contents of the petition, no ground of discrimination is made out and the only case put forward by the Respondent College was that since they were registered on 29.03.2019 and the admission process started on 01.04.2019 and ended on 09.04.2019, hence they were not able to fill up the 50 allocated seats. Therefore 40 seats remain vacant, which reason cannot be attributed to the Respondent College as there was no delay on their part. Their main contention before the Court was that the requisite number of students allocated to the College for admission has not been filled up due to the delay by PMDC. The record shows that the letter issued by the PMDC for the adjustment of students of HMC was not part of the petitions and was provided subsequently.

2. So far as Akhtar Saeed Medical and Dental College, Lahore is concerned, they were provided nine merit lists from the beginning of the admission process uptill the date of 31.03.2019 and thereafter 09.04.2019. Subsequent to that the Respondent College repeatedly wrote to the PMDC as well as the UHS seeking more admission to fill up the vacant seats. As per the letters four seats remained vacant, which they were desirous of filling up. In terms of the contents of the petition there is no ground alleging discrimination with reference to the HMC or the advertisement issued by Bolan University.

3. With respect to Respondent Students in ICA No.36401/2019, their case is that since there are vacant seats, they should be allowed to fill up the vacant seats by allocating more students to Sahara Medical College, Narowal. In terms of the contents of the petition no allegation of discrimination was made out. Also no reference to HMC or Bolan University was found in this case. The record shows that it was never the case of these students that they have been discriminated against or that PMDC was acting in a discriminatory manner rather their only contention was that they be granted admission since there are vacant seats available in different medical and dental colleges.

4. In terms of the aforesaid, the record shows that it was never the case of any of the Respondent College or the Respondent Students that they have been discriminated against vis-a-vis HMC or Bolan University. These facts were allegedly brought to the notice of the Court during arguments. The learned Single Judge through the impugned order dated 3.6.2019 concluded that HMC has been allowed to admit students and Bolan University is seeking admission beyond the deadline given by PMDC, which establishes that the deadline for admission is not being honoured by the PMDC itself. We are of the opinion that these findings have been made against the record. The letter of 10.04.2019 issued by PMDC is with reference to the adjustment of students of the defunct HMC, against vacant seats. The letter is addressed to a candidate Adeeba Latif and reference to 44 first year students of HMC whose cases were taken up by the PMDC in its meeting on 02.05.2019 wherein it was decided that in order to protect the interest of the students and enable them to continue with their education in medicine, these 44 students be adjusted in medical and dental colleges having vacancies. As a result Adeeba Latif was informed that she should approach any of the medical colleges in the attached list to seek adjustment in the first year program, subject to fulfilling the requirements of the college in terms of payment of fee etc. Furthermore HMC was de-notified on 14.1.2019, hence there was no question of HMC being allowed any admission. Hence we find that reliance on HMC was totally misconceived as they were not admitting any medical or dental students since it was de-notified on 14.01.2019. The Appellant PMDC decided to adjust the students already enrolled and registered with HMC as they had commenced their academic year with the said college in November 2018 to safeguard their admission in medical and dental colleges. For the purposes of this adjustment, candidates were given an opportunity to approach the colleges of their choice as per the list provided to them to seek adjustment. We find that the case of adjusting students of HMC cannot be termed as discriminatory when compared with admitting new students. The adjusting students commenced their academic year in November 2018 and were adjusted as the college was de-notified. This is not a case of discrimination, to the contrary it is indicative of the responsible manner in which the PMDC has attempted to adjust 44 students who were already enrolled in HMC so that they do not lose out on account of the de- notification of HMC. We also note that adjusting old students is different and distinguishable from admitting new students which fact was not considered in the impugned order. Hence we are of the opinion that no concession was given to HMC on the basis of which the learned Single Judge concluded that the concession given to HMC should be given to the Respondent Colleges before the Court.

5. So far as the second ground of discrimination with respect to the advertisement issued by Bolan University, we note that this is merely an advertisement issued by the university which in no manner suggests or indicates that they have been allowed to issue this advertisement by the PMDC. Learned counsel for PMDC has categorically stated that Bolan University has been called upon to explain why it has issued the said advertisement and is seeking to make admission beyond the cut off date announced by the PMDC being 31.03.2019. We also note that the counsel for PMDC explained that the academic year in the Province of Baluchistan with respect to medical and dental colleges has not commenced whereas the academic year with respect to medical and dental colleges in the Punjab has commenced. This fact alone distinguishes the case of Bolan University from that of the Respondent Colleges and in no manner can be termed as discriminatory with respect to the decision taken by the PMDC. Therefore, we find that the findings of the learned Single Judge on the point of discrimination are totally without basis and against the facts.

6. The second issue before the Court is whether PMDC has acted in a discriminatory, unreasonable or irrational manner with respect to its decision to stop admissions after 10.4.2019. This issue is of significance because the crux of the petitions filed by the Respondent Colleges as well as the Students is that PMDC has not acted in accordance with its mandate under the law nor has it exercised parental jurisdiction with respect to the students seeking admission in medical and dental colleges. The 2019 Ordinance provides that a uniform minimum standard of basic medical education and training and recognition of qualifications in medicine and dentistry be established through the PMDC. In terms of Section 15 of the 2019 Ordinance, recognition of medical institution, medical university and qualification is the sole responsibility of the PMDC and all medical colleges shall apply to the PMDC for recognition of its institution as well as all its degrees. Regulation 9 of the Regulations provides for admission process. In terms of Regulation 9(22) all admissions for private medical and dental institutions shall be completed by the 31st December of each year except admissions under Regulation 12(9) of Part II. However, the last date of admission in medical and dental institutions may, in extraordinary circumstances, be extended by not more than one month by the Admission Board constituted under Regulation 3. Regulation 9(23) provides that the lists detailing particulars of admitting students in public and private medical and dental institutions be submitted by the concerned Admitting University to the Council not later than the 31st March of each year for registration with PMDC and no such list and particulars of any student for registration shall be entertained after the said date. Regulation 10 of the Regulations provides that examination for each degree shall be at the end of each academic year. These Regulations were amended by the PMDC such that the academic year should spread over at least nine calendar months and every professional examination shall be held at the end of the academic year. Hence in terms of the Regulations a scheme for admission and registration with the PMDC has been provided. The admission period commences each year after announcement of the dates by the PMDC. For the purposes of admission the order of preferences given by a candidate shall be final and cannot be changed and admissions shall be made on the basis of the preference given by the candidate. In case of vacant seats a candidate can be upgraded in a subsequent list to an institution higher in preference before 31st March of each year when the final lists of admitted students is sent to the PMDC for registration. Therefore, as per the Appellant, the candidates set out their preferences for admission in medical and dental colleges and after clearing the admission test the candidates whose names are available on the merit list will be placed in medical and dental colleges as per their given preference. Regulation 9(22) provides that the admission process must be completed by 31st December of each year and if at all, there is any extension it can only be in extraordinary circumstances that too, for one month. Once the admission process has concluded the students admitted in the medical and dental colleges have to be registered with the PMDC no later than 31st March of each year. The academic year must be at least nine calendar months after which the mandatory

professional examinations are to be scheduled in terms of Regulation 10 of the Regulations.

1. The scheme provided under the Regulations controls the admission process, the academic year and registration process so as to ensure that at least a nine month academic year is available for students admitted in medical and dental colleges. The significance for regulating the admission process is reflected in the scheme provided PMDC as the regulator aims to admit students with the highest merit into the medical and dental colleges. Admission is a competitive process for which a clear and transparent process must be available so that candidates and colleges are duly informed of the opportunity and criteria for admission. The central admission system is in furtherance of this objective so as to ensure that there is little interference from the colleges and the choice of the candidate is given priority. When reviewing the actions and decisions of a regulatory authority the Court must consider all the facts and the role of the regulator and give deference to the regulator’s decision unless grossly unreasonable so as to be infringing on a fundamental right or is against the law. The deference doctrine requires that the Court should defer to the decision of the regulator and not replace the regular decision with that of its own. Hence it is the decision making process which is reviewed so as to ensure due process of law and the procedures provided are followed.

2. In the cases before us for the purposes of 2018-19 session, the deadline for admissions was 31.12.2018 which was extended several times in order to counter the extraordinary circumstances prevalent in the year 2019. The first extension was granted from 31.12.2018 to the end of 31.1.2019 in accordance with the requirements of the Regulations. Subsequently, the Council was dissolved on 8.1.2019 after which a new council was notified on 28.2.2019 which held its first meeting on 13.3.2019 where they granted another extension in the admission process to make up for the loss of time due to the fact there was no council. Several writ petitions were filed seeking more time in the admission process as a consequence to which the PMDC in its meeting dated 13.3.2019 decided to extend the admission process uptill 31.03.2019. The circumstances, spanning from January to March, 2019 prevented the admission process from being complete as there was no Council. Hence the PMDC took extraordinary steps to protect the interest of the students as well as medical and dental colleges to ensure that maximum benefit is granted for the purposes of admission and to fill up the vacant seats in the colleges. A total of nine merit lists were issued on the basis of which students were admitted in the colleges of their given preference or were upgraded to higher colleges as per their preference. We have heard all the learned counsels for the parties at length and do not find any irregularity or discriminatory practice exercised by the PMDC during this time. To the contrary we find that numerous meetings took place in which the PMDC tried to streamline the admission process so as to ensure that the admission process for the 2018-19 session was not adversely affected by the delays of there being no Council.

3. Learned counsel for the Respondents argued at great length on the significance of the nine month academic year and whether it is mandatory or directory and whether adjustments can be made after the deadline given. However we are not convinced by the arguments made that this Court should interfere in the planning of the academic calendar so far as medical and dental colleges are concerned. The responsibility of planning the academic calendar is that of the regulator PMDC. Its primary function is to carry out admissions, registration and examinations as per the requirements of the Regulations to ensure that premier education is provided by the medical and dental colleges over a span of at least nine months, meaning that the academic year in the very least must be nine months, if not more. There is nothing before us on the basis of which the decision to have a nine month academic year can be questioned or the decision to control the admission process as per the Regulations and issue the cut off dates can be called into question.

4. In our opinion one of the cause of the problem for seeking interference in the admission process is when cases of registration and recognition of colleges are processed during the academic year and colleges are given recognition in the middle of the academic year. The Respondent Shahida Islam Medical College was registered on 29.03.2019 right in the middle of the academic year. They sought admissions thereafter and were given an opportunity to fill up their seats, however could not manage to fill up more than ten seats out of the allocated 50 seats. As per the record, due to the late registration and notification their admission process did not commence until 1.4.2019. There are two substantive issues that arise in such cases; firstly the process of inspection and recommendation for registration with the Federal Government by the PMDC should be regulated keeping in mind the academic year so as to ensure that medical and dental colleges are recognized and registered under the law in a timely manner. For this an annual scheme may be prepared which streamlines the recognition and registration process to match the academic year. In cases where they are registered in the middle of the academic year, if at all they are granted any admission it cannot be at the expense of the academic calendar and cannot be based on the understanding that extra classes, extra time and vacation time will be utilized to make up the months which have missed. Not only will this compromise on the quality of education but it also unnecessarily burdens the students to complete the work required to be done over a period of at least nine months being the minimum months required for such education in a shorter time. Second is the issue of admissions by colleges in the middle of an academic year. The process of recognition and registration does not ipso facto create a right for admission in the existing academic year simply because a college is recognized and registered. We are of the opinion that any admission offered to such colleges is by way of a concession and cannot be claimed as of right. PMDC is required to maintain its academic calendar and follow the schedule provided in the Regulations for the purposes of admissions, recognition, registration and examination. Although we understand that certain delays are out of PMDC’s control, nonetheless effort must be made to streamline the registration process and to ensure that where registration takes place in the middle of academic year, colleges be refrained from admission in that academic year, if it means compromising on the academic calendar.

5. In view of the aforesaid, we are of the opinion that the extraordinary circumstances were duly considered and the extensions were given under the Regulations and by way of special relaxation. Hence the contention of the Respondent Colleges was totally misconceived that they be given more time to fill up vacant seats. No legal right has been infringed and PMDC has not acted in a manner which was detrimental to the Students or the Colleges.

6. Under the circumstances, we hold that the learned Single Judge should not have interfered with the cut off date or the academic calendar. We also note that the petitioners before the learned Single Judge sought extraordinary relief from the Court which was beyond the scheme and provisions of the Regulations. As to the Students before the Court their prayer was that admissions be allowed so that all vacant seats are filled up and the merit list is revised sufficiently to ensure that all seats are filled up. We find that even this prayer is against the provisions of the Regulations which sets out the deadlines for admission and registration of students. Furthermore the UHS or PMDC declare a cut off merit beyond which students cannot be admitted. Hence the Court cannot grant admissions to students without considering their merit and the fact that they did not make it in nine merit lists. Consequently, we allow all the ICAs detailed in

Schedule “A”, setting aside the impugned orders dated 3.6.2019, 14.3.2019 and 28.2.2019.

(Y.A.) Appeals Allowed

PLJ 2019 Lahore 692 (DB) [Rawalpindi Bench Rawalpindi]

Present: Amin-ud-Din Khan and Atir Mahmood, JJ.

Mst. ZAKIA BEGUM and another--Appellants

versus

MILITARY ESTATE OFFICER, etc.--Respondents

R.F.A. No. 11 of 2012, heard on 18.6.2019.

Land Acquisition Act, 1894 (I of 1894)--

----Ss. 4, 6, 9, 17(4) & 18--Acquisition of Land--Extension of Pakistan Ordinance Factory Wah--Issuance of notification for purpose of acquisition--Notice for invitation to land owners for objection and claim for compensation--Opportunity of hearing--Determination of compensation--Giving of award--Compensation award--Supplementary award--Filling of references--Allowed--Enhancement of award--Appeals--Allowed--Consolidated Judgment--Case was remanded--Rejection of references--Appeals--Allowed--Matter was remanded again--Fixing of compensation award--Challenge to--Besides documentary evidence before us there is oral evidence of P.W-2 Barkat Ali Khan and P.W-3 Anayat Ullah--During statement of Anayat Ullah in cross-examination single question was put to him that all effectees were properly compensated, no part of his statement was rebutted or cross-examined--Position of P.W-2 is that on main points stated by him were not cross- examined--Needless to observe that a portion of statement which remains un-challenged in cross-examination is deemed to have been accepted--We are of view that categories made by Land Acquisition Collector of classification of land has no value for purposes of acquisition--Whole of landowners are to be compensated in accordance with potential value--Admittedly land was acquired for extension of Pakistan Ordnance Factory, therefore, potential value as well as market value of whole land will be same in our view and on basis of consideration of documentary evidence in shape of Ex.P-3, Ex.P-4, Ex.P-5, Ex.P-6 and Ex.P-14 and statements made by P.W-2 and P.W-3--Fix value of Rs.30,000/- per kanal for purposes of acquisition and compensation of acquired land--Needless to state that they will be entitled to 15% necessary acquisition charges as well as compound interest in accordance with Section 34 of Land Acquisition Act, 1894--Appeal was allowed.

[Pp. 700 & 703] A, B & C

2001 SCMR 974, PLD 2004 SC 512, 1997 SCMR 1670 & 1996 SCMR 1361, ref.

M/s Hifz-ur-Rehman Syed, Sh. Zameer Hussain and Malik Muhammad Nawaz Khan, Advocates for Appellants.

Nemo for Respondent No.1.

Mr. Tahir Malik, Assistant Attorney General for Pakistan Respondent No.2.

Mr. Shaukat Rauf Siddiqui, Additional Advocate General Punjab Respondent No.3.

M/s Haseeb Shakoor Paracha and Raja Waseem Riaz Satti, Advocates Respondent No.4.

Dates of hearing: 12.6.2019, 17.6.2019 and 18.6.2019

Judgment

Amin-ud-Din Khan, J.--Through this single judgment we intend to decide the instant Regular First Appeal as well as R.F.As at Sr. No.1 to 108 mentioned in Annexure “A” appended with this judgment, as common questions of law and facts are involved in all the appeals.

1. Through this regular first appeal filed by the land owners the judgment dated 31.10.2011 passed by the learned Senior Civil Judge, Attock (Referee Court) has been challenged whereby the references were accepted but not to the satisfaction of land owners.

2. All the appeals arise out of the judgment passed by the learned Senior Civil Judge, Attock (Referee Court) on 31.10.2011 whereby he accepted the references filed under section 18 of the Land Acquisition Act, 1894 (hereinafter it will be mentioned as “Act” for brevity) by the land owners for enhancement of compensation awarded to them by the Land Acquisition Collector vide his award dated 18.08.1992. The land measuring 29178-kanals 07-marlas situated in villages Burhan 27510.7-kanals, Jallo 1630.30-kanals, Islamgarh 37.12-kanals was acquired by the Land Acquisition Collector for extension of Pakistan Ordnance Factory Wah Cantt. A notification under Section 4 of the Act was issued for the purposes of acquisition in question on 28.07.1990 and a corrigendum of said notification was issued on 19.12.1990. The notices under Section 9 of the Land Acquisition Act, 1894 were also issued on 26.09.1992 inviting the objections from them as to their claim for compensation of the land sought to be acquired. The cost of award worked out by the revenue department for the land comprised in the notification under Section 4 of the Act for the purposes of acquisition aforementioned came to Rs.7,76,26,518.78. The amount so worked out by the revenue department was deposited by the Pakistan Ordnance Factory on 24.07.1991. As the Acquiring Authority needed the land urgently, therefore, notifications under Section 17 (4) of the Act and declaration under Section 6 of the Act were also issued on 24.08.1991. The Land Acquisition Collector after affording such opportunity of hearing to the parties concerned as was warranted by law gave his award on 18.08.1992. The detail of categories of land and compensation per kanal worked out by the Land Acquisition Collector is reproduced as under:--

| | | | | | | | | --- | --- | --- | --- | --- | --- | --- | | Name of village | Kind of land | | Area K --- M | Rate per kanal | | Total cost | | Burhan | Chahi Aabi Selab | | 1-12 | 13902.00 | | 22,243.00 | | Maira Rakkar Lass | | 10176-14 | 3981.00 | | 4,05,17,513.38 | | Banjar Qadeem | | 3395-11 | 1990.70 | | 67,59,521.38 | | Ghair Mumkin | | 13936-16 | 995.35 | | 1,38,71,993.88 | | Total | | 27510-13 | | | 6,11,71,271.84 | | Jallo | Chahi Aabi Selab | | 210-04 | 13,902.00 | | 29,22,200.40 | | Maira Rakkar Lass | | 672-14 | 3,981.40 | | 26,78,287.78 | | Banjar Qadeem | | 211-07 | 1,990.70 | | 4,21,729.79 | | Ghair Mumkin | | 535-07 | 995.35 | | 5,32,860.62 | | | Total | | 1630-02 | | | 65,55,078.59 | | Islam-garh | Maira Rakkar Lass | | 37-12 | 3,981.40 | | 1,49,700.64 | | | Total | | 37-12 | 3,981.40 | | 1,49,700.64 | | Total | | 29,178-07 | | | Rs.6,78,76,051.07 | | | 15% compulsory acquisition charges | | | | | Rs.1,01,81,407.66 | | | Total: | | | | | Rs.7,80,57,458.73 | | | 8% compound interest from 17.9.1991 to 31.7.1992 (10 months and 15 days) | | | | | Rs.54,64,022.11 | | | Total: | | | | | Rs.8,35,21,480.84 | | | Cost as explained in para 28 | | | | | 55,66,366.00 | | | Cost as explained in para 29 | | | | | 13,15,709.00 | | | Cost as explained in para 30 | | | | | 22,60,000.00 | | | Cost as explained in para 31 | | | | | 1,33,200.00 | | | Cost as explained in para 32 | | | | | 77,115.00 | | | Cost as explained in para 33 | | | | | 86,700.00 | | | Grand Total | | | | | Rs.9,29,60,570.84 | | | | | | | | | |

An amount of Rs.9,29,60,570.84/- was awarded by way of compensation to the land owners. Apart from the aforesaid award which related to the land, only a supplementary award was also made by him which was related to the trees and structures standing on the land acquired and subject matter of the earlier award. This way he awarded Rs.43,62,391/- against supplementary award for trees and structures standing on the land. Thus, total amount awarded by the Land Acquisition Collector for the land as also for the trees and structures standing thereon, worked out as Rs.9,73,22,991.84. The land owners feeling dissatisfied with the compensation as awarded to them by the LAC filed references/applications before him under Section 18 of the Land Acquisition Act, 1894. The LAC in due course of time forwarded the same to the learned Senior Civil Judge, Attock for determination of compensation afresh under Section 18 of the Land Acquisition Act. The learned Senior Civil Judge, Attock (Referee Court) after securing the written statement/written replies of the Acquiring Department framed the issues on the references and after recording the evidence and after affording such opportunity of hearing to the parties as was warranted by law decided the references/applications vide his order aforementioned and enhanced the compensation to the tune of Rs.27,86,88,408/-. Being aggrieved by the enhancement of compensation ordered by the learned Senior Civil Judge, Attock, province of Punjab preferred R.F.A.Nos.355, 356, 360 to 514 of 1993. All the appeals were allowed vide consolidated judgment dated 03.06.1999 and matter was remanded to the learned Referee Court. Para 7 of the judgment is relevant and will be helpful, therefore, it is reproduced as under:--

“As we have come to the conclusion that the decision of the learned Senior Civil Judge, Attock is based only on the statement of Syed Masood Ahmad Shah which as aforesaid, was not authorized to make the statement of the nature which he did, we are of the view that the ends of justice shall be best served to accept these appeals and to remand the references back to the learned Senior Civil Judge with the direction that he shall decide the same within a period of three months on the basis of the evidence on the record brought by the parties.”

1. After remand learned Senior Civil Judge, Attock (Referee Court)vide judgment dated 12.12.2000 while agreeing with the reasons given by the LAC and holding that the rates of acquired land fixed by him are justified, hence, rejected the references. The land owners came to this Court through R.F.A.Nos.125, 116 of 2001, 07 to 32, 46, 47, 57, 59 to 62, 96, 97, 122 and 189 of 2003, 158, 174 and 192 of 2004, 12 and 13 of 2005. This Court was again pleased to accept the appeals vide judgment dated 03.06.2009 and remanded the matter to the learned Senior Civil Judge, Attock (Referee Court). Para 6 of the judgment is reproduced as under:--

“For what has been discussed above, we allow these appeals and remand the proceedings to the Referee Court again for decision afresh, after taking into consideration the evidence available on record, especially the exhibit referred to and mentioned in the preceding paragraphs and the precedents cited above in detail, giving cogent reasons in this respect. The exercise be preferably completed within a period of two months from the date the parties appear before the concerned Court. The parties to appear before the District Judge, Attock, on 22.06.2009, who will entrust the matter to a Court of competent jurisdiction for adjudication as observed above.”

1. Again Referee Court vide judgment dated 31.10.2011 decided the references by fixing the award of compensation of acquired land in the following way:--

For Chahi, Aabi Selab Rs.18902/- per kanal

For Maira, Rakar and Lass Rs.7981.40/-per kanal

For Banjar Qadeem Rs.3990.70/-per kanal

For Ghair Mumkin Rs.1995.35/-per kanal

Being dissatisfied by the said decision the land owners filed the instant appeal as well as the appeals at Sr. No.1 to 39 and the Federation of Pakistan also filed appeals at Sr. No.40 to 108 as mentioned in Annexure “A” appended with this judgment.

1. The learned counsels for the appellants have argued that learned Referee Court has not attended to the observations made by this Court while remanding the matter and further that average sale price of one year was taken into consideration which is against the law. The potential value of land and market price has not been considered. The voluminous evidence produced in shape of documents as well as unchallenged statements of P.W-2 and P.W-3 has been ignored. Further argued that the cultivable land has been given some value, whereas the land which was recorded as Banjar or other categories have been given less value despite the fact that in major area of acquired land there is hoard of Limestone. Further that the law declared by this Court as well as the august Supreme Court of Pakistan for fixation of the price of acquired land has been ignored. Pray for acceptance of the appeals filed by the landowners and dismissal of appeals filed by the Federation of Pakistan.

2. On the other hand, learned counsel representing the Federation of Pakistan as well as learned Assistant Attorney General for Pakistan state that even the value fixed by the learned Referee Court has been challenged by the Federation of Pakistan through filing of appeals and the value fixed by the learned Referee Court of Null Chahi land is on higher side, therefore, state that the award was rightly announced and it was in accordance with law. Pray for dismissal of the appeals filed by the landowners and acceptance of the appeals filed by the Federation of Pakistan.

3. We have noticed that some of the appeals either filed by the landowners or by the Federation of Pakistan are barred by time. As the award under challenge in all the appeals as well as the judgment of learned Referee Court is the same and previously after setting aside the judgment of learned Referee Court matter was remanded twice, therefore, matter is being scrutinized as a whole and thus the delay is condoned in such appeals in the light of judgment of august Supreme Court of Pakistan reported as “Sheikh Akhtar Aziz versus Mst. Shabnam Begum and others” (2019 SCMR 524) as well as the judgment reported as “Bashir Ahmad versus Mst. Taja Begum and others” (PLD 2010 Supreme Court 906).

4. In remand order passed by this Court in R.F.A No.125 of 2001 dated 03.06.2009 it was observed in Para 6 that though the evidence was adverted to but not scanned and appraised properly as directed especially Ex.P-3 to Ex.P-6, Ex.P-14, Ex.P-22, Ex.P-42 and Ex.P-50 were not considered properly. In later part it was further observed that the land adjacent to the disputed land stands assessed at a much higher value ranging between Rs.29,199/- to Rs.60,000/- per kanal.

5. We have noticed that Ex.P-3 is mutation No.331 attested on 30.10.1991 of sale of 10-marlas land for a consideration of Rs.20,000/-, Ex.P-4 is mutation No.282 attested on 13.03.1989 of sale of 10-marlas land for a consideration of Rs.20,000/-, Ex. P-5 is mutation No. 346 attested on 20.03.1991 of sale of 10-marlas land for a consideration of Rs. 22,000/-, Ex.P-6 is mutation No.324 attested on 14.06.1990 of sale of 03-kanals land for a consideration of Rs.3,50,000/- and Ex.P-14 is mutation No.286 attested on 19.08.1989 of sale of 03-kanals land for a consideration of Rs.72,000/-.

6. We have further observed that in the award mainly the committee constituted by the Board of Revenue was relied upon and the assessment of compensation of land made by that committee was considered, whereas in accordance with the law declared by the august Supreme Court of Pakistan through the judgment reported as “Province Of Punjab through Collector versus Engr. Jamil Ahmad Malik and others” (2000 SCMR 870) a committee constituted by the Board of Revenue for determination of value of land for compensation of acquired land has no value. Actually the value must be determined in accordance with formula that a willing buyer to pay the willing seller. On the principle of “potential value” of land the compensation is to be assessed. Reliance can be placed upon “Malik AMAN and others versus Land Acquisition Collector and others” (PLD 1988 Supreme Court 32).

7. The potential value of the acquired land and its surroundings must be kept in mind while determining the value of land for compensation. Reliance is placed upon “Land Acquisition Collector, G.S.C., and another versus Mst. Surraya Mehmood Jan” (2015 SCMR 28). We quote paragraph 9 of the judgment for ready reference:--

“The principles that can be gleaned from the aforesaid judicial precedents are that the term “market-value” as employed in Section 23 of the Act of 1894 implies the price that a willing purchaser would pay to a willing buyer in an open market arms length transaction entered into without any compulsion. Such determination must be objective rather than subjective. While undertaking this exercise, contemporaneous transactions of the same, adjoining or adjacent as well as the land in the same vicinity or locality; in dissenting precedents, may be taken into account. An award of compensation of a similar, adjacent, adjoining land or in respect of the land acquired in the same vicinity or locality cannot be ignored. The classification of the land in the Revenue Record cannot be the sole criteria for determining its value and its potential i.e. the use of which the said land can be put, must also be a factor. In this behalf, the use of the land in its vicinity needs to be examined.

A bare reading of the provision in question i.e. section 23 of the Act of 1894 reveals that the landowner is entitled to compensation and not just market-value, hence, loss or injury occasioned by its severing from other property of the landowner, by change of residence or place of business and loss of profits are also relevant. The delay in the consummation of the acquisition proceedings cannot be lost sight of. While conducting the aforesaid exercise, oral evidence, if found, credible and reliable can also be taken into account.”

We further rely upon the judgments reported as “Nisar Ahmad Khan and others versus Collector, Land Acquisition, Swabi and others” (PLD 2002 Supreme Court 25), “Government of N.W.F.P. through Collector, Mardan and others versus Abdul Samad Khan and others” (PLD 2002 Supreme Court 422), “Province of Punjab through Land Acquisition Collector and another versus Begum Aziza” (2014 SCMR 75). We have noticed that Land Acquisition Collector as well as in the subsequent orders of learned Referee Court nature of land on the basis of agricultural purposes has been kept in mind. We deem it necessary that the nature noted by the learned Referee Court in its order, when first time the reference was decided vide order dated 13.05.1993, should be re-produced here. We take benefit to quote nature of land by the learned Senior Civil Jude, Attock (Referee Court) at this stage. We must appreciate that in those days there was a good assistance by the officers of the Court and the Courts were also to record findings after due probe and having rich ability of experience to appreciate the facts and the law. The learned Senior Civil Judge, Attock (Referee Court) has noted that the definition of kinds of land mentioned in the award are taken from "مجموعہ ہدایات براءے رہنماءی عملہ بندوبست", which are as under:

By perusal of all these categories it is clear that this classification of land is relatable to the value of land for the purposes of cultivation only. It is nothing to do with the matter of acquisition as the matter of acquisition relates to the potential value of land as it is clear through the judgments of august Supreme Court of Pakistan. Needless to observe that the evidence on record shows that there is big hoard of limestone in the acquired land. In our view the potential value for the purposes of extension of Pakistan Ordnance Factory will be same for the land of category of Maira, Rakar, Lass, Banjar Qadeem, Ghair Mumkin and Chahi as the land is not being acquired for the purposes of agriculture. It is being acquired for the purposes of construction of a Factory. In our view keeping in view the potential value of the land which is the same as it consists upon three Mouza which are adjacent and the land measuring 29178-kanals 07-marlas is within one block. Through Ex.P-20 in adjacent Mouza rate was fixed as Rs.34,500/- per kanal, though that portion of land was within the municipal limits. It was fixed by the Referee Court vide order dated 30.07.1992 as Rs.25,000/- per kanal for whole of the land without any classification along with necessary acquisition charges as well as compound interest in accordance with Section 34 of the Land Acquisition Act, 1894 from the date of taking the possession till the date of payment.

1. We have further requisitioned the record of five appeals bearing R.F.A. Nos.61 and 76 to 79 of 1992 decided by this Court vide judgment dated 07.05.2008, which were partially accepted by this Court and the rate fixed by the learned Referee Court as Rs.34,500/- against the compensation determined by the LAC as Rs.15,776/- was modified by this Court and compensation of Rs.30,000/- per kanal was awarded. The judgment of this Court was further assailed by Askari Cement Limited before the august Supreme Court of Pakistan through Civil Appeals No.563 to 567 of 2008, which were dismissed vide judgment dated 12.06.2013. Besides documentary evidence before us there is oral evidence of P.W-2 Barkat Ali Khan and P.W-3 Anayat Ullah. During the statement of Anayat Ullah in cross-examination single question was put to him that all the effectees were properly compensated, no part of his statement was rebutted or cross-examined. The position of P.W-2 is that on main points stated by him were not cross- examined. Needless to observe that a portion of statement which remains un-challenged in the cross-examination is deemed to have been accepted. There is no rebuttal of his statement that towards western side of the suit land there is populated area of Burhan, towards west and north G.T. road and Railway line, towards east there is industrial area of Hassan Abdal where there are Gunj Glass Factory, Chand Ghee Mills, Khawaja Glass Factory, Texila Cotton Mills, Neelum Glass Factory and marble factory etc and towards south there are crushers of limestone. The whole of the area towards east and west is about five to six kilometers in length along with G. T. road. The suit land is industrial, commercial and residential. There are hotels, petrol pumps, brick kilns, bricks plant etc. There is electricity and gas facility also. Therefore their claim is that at least Rs.50,000/- to Rs.60,000/- per kanal they are entitled for compensation.

2. We are further guided by the law declared by the august Supreme Court of Pakistan for determination of market value and potential value of the land through the judgment reported as “Secretary to Government of N.-W.F.P., Peshawar and 15 others versus Haji Fateh Khan and 15 others” (2001 SCMR 974). The relevant guideline is as under:--

“(i) That an entry in the Revenue Record as to that nature of the land may not be conclusive, for example, land may be shown in Girdawari as Maira, but because of the existence of a well near the land, makes it capable for becoming Chahi land;

(ii) that while determining the potentials of the land, the use of which the land is capable of being put, ought to be considered;

(iii) that the market value of the land is normally to be taken as existing on the date of publication of the notification under Section 4(1) of the Act but for determining the same, the price on which similar land situated in the vicinity was sold during the, preceding 121 months and not 6-7 years back, may be considered including other factors like potential value-etc.”

We further take light from the judgment of august Supreme Court of Pakistan reported as “Province of Sindh through Collector of District Dadu and others versus Ramzan and others” (PLD 2004 Supreme Court 512). Paragraphs No.7 and 9 of the judgment are as under:--

“7. The most important aspect qua the lands compulsorily acquired is, that the mandatory returns proposed to be given to the landowner is the compensation and not the market value. Very Section 23 provides for various matters to be brought under consideration while determining compensation. Market value is only one of such matters to be considered by the Collector or Courts. Compensation is a very wider term indicating that the landowners, for various reasons, is to be compensated and not merely paid the price of land which is just an interaction of supply and demand fixed between a willing buyer and willing seller.”

“9. This Court had also taken notice of the fact that the announcement of award is some times unreasonably delayed after the issuance of Notification under Section 4 of the Act. In Malik Aman’s case, the period that had elapsed was seven years. Obviously any escalation in the value of property during such period is a potential value of land which must be taken into consideration.”

It is worth consideration from the judgment of august Supreme Court reported as “Haji Muhammad Yaqoob and another versus Collector, Land Acquisition/Additional Deputy Commissioner, Peshawar” (1997 SCMR 1670). We quote abstract in shape of paragraph No.6 from the judgment, which was noted from the case of Pakistan Burma Shell Ltd. v. Province of N.-W.F.P. and 3 others” (1993 SCMR 1700), as under:--

“We are not inclined to consider persuaded to strike off the award on the rectitude of these submissions. Section 23 makes mention of various matters to be considered in determining the compensation. One of such factors enumerated therein is that the date relevant for determination of market value is that date of the notification under Section 4. Not unoften the market value has been described as what a willing purchaser would pay to the willing seller. It may be observed that in assessing the market value of the land, its location, potentiality and the price evidenced by the transaction of similar land at the time of notification are the factors to be kept in view. One year’s average of the sales taking place before the publication of the notification under Section 4 of similar land is merely one of the modes for ascertaining the market value and is not an absolute yardstick for assessment.”

1. We consider six elements for determination of compensation of acquired land in the light of judgment reported as “Government of Sindh and 2 others versus Syed Shakir Ali Jafri and 6 others” (1996 SCMR 1361). Hence, we would like to quote said six elements mentioned in paragraph 7 of the judgment as under:--

“7. Section 23 of the Act provides that in determining the amount of compensation to be awarded for the land acquired this Act, the Court shall take into consideration first; the market value of the land at the date of the publication of the notification under Section 4, subsection (1); secondly, the damage sustained by the persons interested, by reason of the taking of any standing crops or trees which may be on the land at the time of the Collector’s taking possession thereof: thirdly, the damage (if any) sustained by the person interested, at the time of the Collector’s taking possession of the land, by reason of severing such land from his other land; fourthly, the damage (if any) sustained by the person interested, at the time of the Collector’s taking possession of the land, by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earnings; fifthly, if, in consequence of the acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change; and sixthly, the damage (if any) bona fide resulting from diminution of the profits of the land between the time of the publication of the declaration under Section 6 and the time of the Collector’s taking possession of the land. Subsection (2) of Section 23 reads:

(2) In addition to the market-value of the land as above provided, the Court shall in every case award a sum of fifteen per centum on such market value, in consideration of the compulsory nature of the acquisition.”

1. After considering the facts of the case, the evidence available on the file and the case law referred and noted supra we are of the view that the categories made by the Land Acquisition Collector of the classification of land has no value for the purposes of acquisition. The whole of landowners are to be compensated in accordance with potential value. Admittedly the land was acquired for extension of Pakistan Ordnance Factory, therefore, potential value as well as market value of the whole land will be the same in our view and on the basis of consideration of documentary evidence in shape of Ex.P-3, Ex.P-4, Ex.P-5, Ex.P-6 and Ex.P-14 and the statements made by P.W-2 and P.W-3. The value at the time of acquisition of land was at least Rs.30,000/- per kanal.

2. So, in the light of the above, while modifying the judgment dated 31.10.2011 passed by the learned Senior Civil Judge, Attock (Referee Court) we allow the instant appeal as well as R.F.As at Sr. No.1 to 39 mentioned in Annexure “A” annexed with this judgment filed by the landowners and fix the value of Rs.30,000/- per kanal for the purposes of acquisition and compensation of acquired land. Needless to state that they will be entitled to 15% necessary acquisition charges as well as compound interest in accordance with Section 34 of the Land Acquisition Act, 1894. Whereas, we dismiss R.F.As at Sr. No.40 to 108 mentioned in Annexure “A” annexed with this judgment filed by the Federation of Pakistan.

(Y.A.) Appeal allowed

PLJ 2019 Lahore 704 (FB)